R v Ackerman, 2018 MBCA 75

Citation: R v Ackerman, 2018 MBCA 75 Date: 20180802 Docket: AR18-30-09104 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN ) J. E. Ackerman ) on his own behalf (Respondent) Respondent ) ) C. R. Savage- and - ) for the Respondent ) JAMES EDWARD ACKERMAN ) Chambers motion heard and ) Decision pronounced: (Applicant) Applicant ) August 2, 2018 MAINELLA JA [1] This motion came before me in chambers to extend time to file an appeal of the decision of a judge of the Court ofQueen’s Bench refusing an order of mandamus with certiorari in aid.

I dismissed the motion, with reasons to follow, because there is noarguable ground of appeal (see R v Giesbrecht (EH), 2007 MBCA 112 at para 11). These are those reasons. [2] By way of background, the applicant swore an information pursuant to

section 504 of the Criminal Code (the Code)against an employee of the City of Winnipeg raising allegations of perjury in court documents relating to the enforcement of a by-law. [3] As this was a private prosecution the issue of process was referred to a judge of the Provincial Court for a pre-enquete hearing (also known as a process hearing) (see

section 507.1 of the Code). Notice to the Attorney General was provided. Thematter was adjourned several times over the course of five months in a docket court before counsel instructed by the Attorney Generaldirected a stay of proceedings in respect of each of the offences in the information pursuant to section 579(1) of the Code. This occurredbefore the pre-enquete hearing was scheduled to proceed. [4] The applicant moved for mandamus with certiorari in aid to compel a judge of the Provincial Court to conduct a pre-enquete hearing and hear evidence in relation to his allegations against the city employee.

The judge dismissed the application, statingthat “once a stay of proceedings has been directed by the Crown attorney at any point after an Information has been sworn, a judge isfunctus of the matter, meaning they no longer have a role.” [5] The applicant advised he wants to appeal the judge’s decision to raise a question of statutory

interpretation. Heargues that the Attorney General’s right to stay a private prosecution can only be exercised after a pre-enquete hearing has been held. There is no merit to this argument. In Canadian Broadcasting Corporation et al v Morrison, 2017 MBCA 36, it was observed (at para24): As the chief law officer of the Crown, the Attorney General has the ultimate responsibility to supervise all prosecutions, includingprivate prosecutions (see Krieger v Law Society of Alberta, 2002 SCC 65 at paras 42-47).

The supervising function includes the powerto intervene and assume conduct of the private prosecution (see Krieger at para 46); the power to intervene in the private prosecution,with the rights of a party, but without conducting the private prosecution (see

section 579.01 of the Code); or the power to direct a stay ofproceedings at any time after an information is laid to terminate the private prosecution, even before the commencement or completion ofthe pre-enquete hearing (see section 579(1) of the Code; R v Pardo (1990), (QC CA), 62 CCC (3d) 371 at 373-74(Que CA); and McHale #1 [R v McHale, 2010 ONCA 361] at para 89). [emphasis added] [6] But for the lack of arguable merit to the appeal, I would have granted the applicant an extension of time to file hisappeal as it was otherwise appropriate in the circumstances. Although the arguable merit threshold is not substantial to meet to obtain an

extension of time to file an appeal, I am satisfied, based on the unambiguous wording of section 579(1) of the Code and the jurisprudence, that the issue raised by the applicant can be dismissed on a preliminary examination of the question of law (see Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 at para 74 ). [ 7 ] Counsel for the respondent quite properly pointed out that, if the applicant has a concern as to how the Attorney General’s discretion was exercised in this case, there are other legal remedies that can be pursued. The applicant advised he is aware of that and will decide for himself what further steps to take. [ 8 ] In the result, the motion was dismissed. JA