R. v. [Omitted for Publication], 2020 BCPC 131

Citation: R. v. [Omitted for Publication] 2020 BCPC 131 Date: 20200622 File No: 6968-1 Registry: Queen Charlotte City IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. [OMITTED FOR PUBLICATION] REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown appearing by teleconference: O. Fleck and P. Beirne Appearing on his own behalf by teleconference: B. Hunt Place of Hearing: Prince Rupert , B.C. Date of Hearing: June 22, 2020 Date of Judgment: June 22, 2020

[1] THE COURT: These are my oral reasons as to judgment as to whether or not this matter should proceed to a Process Hearing. [2] Mr. Hunt has sworn a private information in the matter of R. v. [omitted for publication], Queen Charlotte City CourtInformation 6968-1. It was sworn on February 27, 2020, in front of a justice of the peace.

After the information was sworn, Oliver Fleck,Acting Regional Crown Counsel with the BC Prosecution Service, filed a letter with the Court Registry on March 6, 2020, which stated:“To The Provincial Court Registry, Prince Rupert, B.C., Re R. v. [omitted for publication], Queen Charlotte Provincial Court FileNumber 6968-1 (private information). On behalf of the Attorney General of British Columbia, Crown Counsel is assuming conduct ofthe above-noted private information.

This is my direction to enter a stay of proceedings with respect to Queen Charlotte Provincial CourtFile Number 6968-1 as the allegations contained therein do not meet the applicable charge assessment standard.” The letter was signedby Oliver Fleck as Acting Regional Crown Counsel. [3] Mr. Hunt today has, with passion and with belief, made the argument that this is a matter that should proceed to a ProcessHearing as allowed for pursuant to s. 507.1 of the Criminal Code. The thrust of Mr.

Hunt’s argument is that Crown counsel did not andcould not have properly assessed the evidence against [omitted for publication] and, therefore, did not comply with the Crown Counsel'sobligations pursuant to the Crown Counsel Policy Manual to determine whether or not charges are appropriate in this case. Mr.

Hunt’sposition is that only at a Process Hearing can the information come out such that it will be evident that there is evidence on eachessential element of the alleged offences so that the prosecution can continue. [4] The Crown has provided me with the decision of Holland (Re), 2020 BCSC 77, which it says is binding on me. In addition tothat decision, I have had the benefit of reviewing R. v. Dowson, (1981), C.R. (3d) 139, a decision of the Ontario Court of Appeal, andwhile I am aware it was overturned by the Supreme Court of Canada in R. v.

Dowson, (SCC), [1983] 2 S.C.R. 144, thequotation in question, that being, "The right of a private citizen to lay an information, and the right and duty of the Attorney-General tosupervise criminal prosecutions are both fundamental parts of our criminal justice system," was, in fact, quoted by Mr. Justice Lamer andthe Supreme Court of Canada appears to me to have taken no issue with that line in the decision. [5] I have also reviewed McHale v.

Ontario (A.G.), 2010 ONCA 361, and in that decision, the Ontario Court of Appeal takes theposition that the issuance of process marks the commencement of a criminal prosecution and that the Crown has to wait until that pointto withdraw the information, the principle in issue being that the revealing of the case during the Process Hearing serves the function ofensuring the Crown is aware of just what it is they are trying to withdraw.

However, relying upon the structure and language of today’s s.507.1, which differs from the previous s. 455.3 applicable in Dowson, in McHale the Ontario Court of Appeal also noted that the chargesmay still be stayed by Crown counsel prior to the Process Hearing point. [6] The Holland (Re) decision, in my opinion, relates to all files of private prosecutions in British Columbia and just not vexatiousproceedings.

Madam Justice Duncan specifically set out that Crown counsel has the ability to intervene and direct a stay of proceedingsat any time after proceedings in relation to an accused or a defendant are commenced and before judgment. Justice Duncan went on inparagraph 21 to say, for purposes of s. 579, proceedings are commenced once an information has been laid as per the McHale decision atparagraph 89.

Justice Duncan confirmed that the decision by the Attorney General or his delegate to direct a stay of proceedings on aprivate information is an exercise of prosecutorial discretion. [7] Furthermore, at paragraph 23, Justice Duncan confirmed that the exercise of prosecutorial discretion is not subject to judicialreview except where the applicant can prove flagrant impropriety by the Attorney General or the Crown counsel that is directing thatstay.

At paragraph 24, Justice Duncan stated that flagrant impropriety can only be established by proof of misconduct bordering oncorruption, violation of the law, or bias. [8] Mr. Hunt, in this case, is hinting at, if not directly arguing, that there is bias involved in the decision by Crown counsel to directa stay of proceedings in the present case. He says that bias is evident by the very fact that they are not following Crown counsel policy inrelation to the charge approval process. [9] With the greatest of respect to Mr. Hunt, the only evidence before me is that Mr.

Fleck directed the stay of proceedings onMarch 6, 2020, because, as per his letter of that same date, and I quote, "The allegations contained therein do not meet the applicablecharge assessment standard." In the circumstances of this case, I have no option. I must follow Justice Duncan in the Holland decision.It is binding on me -- [10] BRENDAN HUNT: Bullshit. [11] THE COURT: -- and, accordingly, I find as a matter of law within the Province of British Columbia that Crown counsel has theability to intervene in and direct a stay of proceedings of a private prosecution before the Process Hearing.

That is what has happened inthis case and, accordingly, the stay of proceedings will be entered as per the request of Mr. Fleck. [12] A final observation, it was requested by the prosecution and I agreed that this matter would proceed by way of an in camerahearing. I rely upon the British Columbia Court of Appeal decision in Ambrosi v. British Columbia (Attorney General), 2014 BCCA 123,as authority for the fact that these kind of hearings are appropriately held in camera to protect the named accused from spuriousallegations if no process is issued.

In this case, no process is being issued as the stay of proceedings is now in effect. [13] That is my ruling. (REASONS CONCLUDED)