R. v. McHale, 2010 ONCA 361
The Authority of the Attorney General to Withdraw an Information
[32] Despite the absence of express or necessarily implied authority in the Criminal Code, it is well-established that the Attorney General has the authority to withdraw an information prior to plea: R. v. Dick, 1968 CanLII 231 (ON SC), [1968] 2 O.R. 351 (H.C.J.), at p. 359; R. v. Osborne (1975), 1975 CanLII 1357 (NB CA), 11 N.B.R. (2d) 48 (S.C.(A.D.)), at paras. 17 and 30; R. v. Blasko, 1975 CanLII 1405 (ON SC), [1975] O.J. No. 1239 (H.C.J.), at paras. 5 and 6; Re Forrester and The Queen (1976), 1976 CanLII 1433 (AB KB), 33 C.C.C. (2d) 221 (Alta. S.C.(T.D.)), at pp. 223-5. While leave of the presiding judge may be required to withdraw an information or charge after plea, the authority of the Attorney General to do so in advance of plea is unfettered.
[33] The overwhelming majority of criminal proceedings are commenced when a peace or public officer lays an information before a justice who conducts the pre-enquete required under s. 507, and issues process to compel the attendance of persons named in the information to answer to the charge. Since most prosecutions originate in this way, it is scarcely remarkable that most informations withdrawn by agents of the Attorney General were laid by agents of the state, not private informants. Yet no authority limits the right of an agent of the Attorney General to withdraw an information to only those informations laid by law enforcement officials.
[34] The simple fact that most withdrawals of informations by agents of the Attorney General occur after process has issued, and when the accused appears before a court, does not assist in determining the point at which the authority to withdraw may first be exercised. Frequency of occurrence does not equate with a condition precedent to exercise the right to withdraw.
[35] Pre-charge screening, or pre-charge approval, is the exception and not the rule in this province. An agent of the Attorney General is unlikely to have sufficient knowledge of the prosecution’s case to make an informed decision about the prosecution until she or he has received and reviewed disclosure from investigators. Knowledge of this kind is critical to informed decisions about withdrawal, yet unavailable earlier.
[36] The precise contours of the common law power of the Attorney General to withdraw an information are not expressly defined, or for that matter fully developed. This is scarcely novel. See, for example, R. v. Clement, 1981 CanLII 212 (SCC), [1981] 2 S.C.R. 468, at p. 477; R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at p. 670. While the precise moment at which the authority to withdraw an information crystallizes is unclear from the existing authorities, it does seem clear that the business of withdrawals is strictly that of the Attorney General and his or her agents, and is subject to very limited review by the courts.
The Attorney General and the Private Prosecutor
[37] The Criminal Code makes room for both private and public prosecutors in indictable and summary conviction proceedings. Section 2 of the Criminal Code exhaustibly defines “prosecutor” as “the Attorney General” or, where the Attorney General has not intervened, as “the person who institutes proceedings to which this Act applies, and includes counsel acting on behalf of either of them”. For summary conviction proceedings, s. 785(1) defines “prosecutor” as “the Attorney General or, where the Attorney General does not intervene, the informant, and includes counsel or an agent acting on behalf of either of them”.
[38] A Crown Attorney is an agent of the Attorney General of Ontario. Section 11 of the Crown Attorneys Act requires a Crown Attorney to “to aid in the local administration of justice and perform the duties that are assigned to Crown Attorneys under the laws in force in Ontario”. Among the specific duties assigned to Crown Attorneys under s. 11(b) of the Act is the conduct, on the part of the Crown, of “prosecutions for indictable offences”. Under s. 11(d) of the Act, Crown Attorneys are assigned the duty to:
[W]atch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his or her interposition;
[39] The interplay between a private prosecutor and a Crown Attorney who intervened in a private summary conviction prosecution was the focus of this Court’s decision in Re Bradley et al. and The Queen (1975), 1975 CanLII 766 (ON CA), 9 O.R. (2d) 161.
[40] In Bradley, private complainants had laid informations charging three persons with the summary conviction offence of intimidation arising out of a labour dispute. At a court appearance after the strike had settled, an “agent” for the complainants sought to have the informations withdrawn. An Assistant Crown Attorney intervened, and asked for an opportunity to speak to the complainants before deciding whether to proceed with or withdraw the charges. The accused unsuccessfully sought prohibition. When the case returned to the trial court, the Assistant Crown Attorney made it clear that the charges would not be withdrawn. The accused again sought prohibition. The application was dismissed on the basis that, once the Attorney General had assumed responsibility for the prosecution, the Crown had the exclusive right to determine whether the charges would be withdrawn or prosecuted, whether the informant was a state agent or private complainant.
[41] The accused appealed to this Court. In giving the judgment of the Court dismissing the appeal, Arnup J.A. said at p. 169:
The Attorney-General, and his agent the Crown Attorney, represent the Sovereign in the prosecution of crimes. The role of the private prosecutor, permitted by statute in this country, is parallel to but not in substitution for the role of the Attorney-General, and where the two roles come into conflict, the role of the Crown’s prosecutor is paramount, where in his opinion the interests of justice require that he intervene and take over the private prosecution.
[42] Although the circumstances in Bradley depict the obverse of the coin displayed here, this Court’s decision confirms the untrammeled right of the Attorney General to intervene in a private prosecution and to determine its future course – prosecution or withdrawal. The intervention there occurred after process had issued, but the plenary authority of the Attorney General was not made contingent upon the issuance of process.
The Pre-enquete
[45] To determine whether process should issue to compel the attendance of the person named in the information to answer to the charge, thus to determine whether a criminal prosecution will be commenced, the justice conducts a pre-enquete. Section 507.1 governs the pre-enquete when the proceedings have been commenced by a private informant.
[46] Under s. 507.1, Parliament has enacted a variety of provisions that regulate the conduct of the pre-enquete and describe the consequences that follow when process is not issued. The provisions of influence here are subsections (3) and (4):
(3) The judge or designated justice may issue a summons or warrant only if he or she
(a) has heard and considered the allegations of the informant and the evidence of witnesses;
(b) is satisfied that the Attorney General has received a copy of the information;
(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and
(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.
(4) The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the proceeding.
[47] The enactment of s. 507.1(3) maintains the vitality of private prosecutions but, at the same time, takes steps to ensure that only those with legitimacy continue. The pre-enquete must be conducted by a designated justice or provincial court judge. The presiding justice must hear and consider not only the allegations of the private informant, but also the evidence of witnesses. The obligation to hear witnesses under s. 507.1(3)(a) may be contrasted with the language in s. 507(1)(a)(ii), applicable when the informant is a law enforcement officer or official, where the evidence of witnesses is only taken where the justice “considers it desirable or necessary to do so”. Under s. 507.1(3) the Attorney General is entitled, without being deemed to intervene in the proceedings, to:
• a copy of the information
• reasonable notice of the pre-enquete hearing
• the opportunity to attend the pre-enquete
• the opportunity to cross-examine witnesses
• the opportunity to call witnesses and present evidence at the hearing
[48] A pre-enquete is usually an ex parte proceeding held in camera. It affords the informant the opportunity to persuade the justice that she or he should issue process to compel the persons named in the information to appear in court to respond to the allegations in the information. But unlike s. 507, the regime of s. 507.1 makes provision for the attendance and participation in the pre-enquete of the Attorney General, as defined in s. 507.1(11), otherwise a stranger to the process.
[49] Section 507.1 makes no reference to the withdrawal of an information at the per-enquete, at any stage after the private information has been laid. In its silence on this issue, s. 507.1 is in harmony with the balance of the Criminal Code that says nothing about the authority of the Attorney General to withdraw the charge, or when that authority may be exercised. That said, neither does s. 507.1 prohibit withdrawal of an information in accordance with any common law authority.
[53] The Criminal Code contains no reference to the authority of the Attorney General or his or her agents to withdraw an information, whether laid by a private informant or a member of law enforcement. The authority, which is beyond argument, originates in the common law and is preserved by s. 8(2) of the Criminal Code. No Criminal Code provision alters, varies, modifies or affects this prerogative of the Crown. In the absence of any general provision about withdrawals, it is difficult to attach any significance to the lack of specific reference to this authority in s. 507.1, let alone to conclude that silence about it negates its availability.
[55] In Bradley, this Court held that what is now s. 11(d) of the Crown Attorneys Act is not legislation in relation to criminal procedure, which could only be enacted by Parliament, but rather is legislation in relation to the administration of justice in a province, which lies properly within the provincial head of constitutional authority: see Bradley at p. 168. The directive contained in s. 11(d) does not clash with the provisions of s. 507.1, nor otherwise alter its operation or effect.
[57] The Attorney General, and his or her agent the Crown Attorney, represents the Sovereign in the prosecution of crimes. The Criminal Code makes provision for private prosecutors. The role of the private prosecutor is parallel to, but does not serve as a substitute for, the role of the Attorney General. And where the two roles conflict, the role of the Attorney General prevails. Where the Attorney General considers that the interest of justice require his or her intervention, the Attorney General is entitled to interfere, to take over the prosecution and to terminate or continue it as she or he considers appropriate: see Bradley, at p. 169.
[58] In express terms, s. 507.1 authorizes the participation of the Attorney General in what is usually an ex parte and in camera proceeding involving only the informant and his or her witnesses. Nothing in the section curtails the authority of the Attorney General once she or he decides to participate in the pre-enquete.
[59] When all the cards are counted, the issue to be resolved reduces to whether the Attorney General may intervene to withdraw a private information prior to the commencement of the pre-enquete or must await the conclusion of:
i. the allegations of the informant and any evidence adduced at the inquiry; or
ii. the submissions of the informant and Attorney General about the issuance of process; or
iii. the decision of the justice or judge about the issuance of process.
[62] What is not at issue is either the general authority of the Attorney General to intervene in a private prosecution, or the specific authority of the Attorney General to intervene and withdraw a private information after process has issued. Each of these principles is firmly rooted in our jurisprudence.
The Purpose of s. 507.1
[63] Critical to a decision on this issue is an understanding of the purpose underlying the enactment of s. 507.1 and its application.
[64] Section 507.1 preserves the right of a private informant to seek the issuance of process to compel the appearance of persons named as prospective accused in an information laid by a private informant under s. 504. The issuance of process on the basis of a private information signals the commencement of a private prosecution.
[65] Section 507.1 also puts in place several measures to assure scrutiny of prospective private prosecutions to stifle the procession of frivolous or vexatious prosecutions before the courts. The presiding judicial officer must be either a designated justice or a provincial court judge. The Attorney General, the Chief Law Officer of the Crown, is entitled to notice of the pre-enquete, a copy of the information and the right to participate in the evidentiary hearing.
[66] In Dowson, the Supreme Court of Canada agreed with the conclusion of this Court that, as Chief Law Officer of the Crown, the Attorney General had the power to prevent the use of the criminal process where the Attorney General considered the proceedings should be stayed: Dowson, at pp. 154-5. The Supreme Court differed with this Court regarding the time at which a stay of proceedings could be entered. The difference arose because the Supreme Court considered that the clause “at any time after an indictment has been found”, in the context of an information before a justice for a pre-enquete, required that process issue before a stay could be entered under former s. 508(1) of the Criminal Code.
[67] To reach its conclusion, the Dowson court relied on several factors:
i. the fundamental right of a private citizen to lay an information and to seek the issuance of process;
ii. the right and duty of the Attorney General to supervise the conduct of criminal prosecutions;
iii. the duty of the justice under then, s. 455.3(1)(a) to “hear and consider” the allegations of the informant and make a decision about the issuance of process;
iv. the absence from the Criminal Code of any clear and unambiguous text taking away the right of private information; and
v. policy considerations ensuring accountability for decisions made in connection with the termination of private prosecutions.
[68] The factors considered by the Supreme Court of Canada in Dowson inform the decision in this case despite the differences in the governing statute and in the method of termination used here (withdrawal of the information) and in Dowson (entry of a stay of proceedings).
[69] The structure and language of s. 507.1(3)(a) differs from the former s. 455.3 applicable in Dowson. Under the former provision, the justice was required to hear and consider ex parte, the allegations of the informant. The justice was only required to hear and consider, ex parte, the evidence of witnesses, where the justice considered it desirable or necessary to do so. Section 507.1(3) is of a different construction. It eschews the direct statement of a duty in favour of a list of prerequisites that must be met before the justice may exercise his or her discretion to issue process. The prerequisites include the requirement that the justice hear and consider the allegations of the informant and the evidence of witnesses. The effect of s. 507.1(3)(a) is to impose a duty on the justice to hear and consider the allegations of the informant and the evidence of witnesses at the pre-enquete.
[70] It is well-settled that criminal proceedings are instituted or commenced by the laying or receipt of an information in writing and under oath. Anyone named as a person who committed the offence described in the information is a person “charged” with an offence for the purposes of s. 11(b) of the Charter: R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, at p. 1607.
[71] A criminal prosecution only commences after a justice has made a decision to issue process: Dowson, at p. 150. As Chief Law Officer of the Crown, the Attorney General has supervisory control over criminal prosecutions. It seems reasonable to conclude that this supervisory authority begins contemporaneously with the commencement of a criminal prosecution. And that moment, at least in the absence of some statutory provision to the contrary, is after a justice has decided to issue process at the conclusion of a pre-enquete.
[72] Policy considerations also favour the conclusion that the withdrawal authority of the Attorney General crystallizes and may be exercised as of the moment the justice determines to issue process at the conclusion of the pre-enquete.
[73] The Criminal Code permits private prosecutions. A private informant may lay an information in conformity with s. 504. Receipt of the information commences criminal proceedings. Parliament enacted, more accurately continued, a procedure aimed at the determination by a judicial officer of whether the informant has made out a case for prosecution. This procedure is the pre-enquete, a hearing that provides the private informant the opportunity to present her or his case for prosecution.
[74] Conduct of the pre-enquete vindicates the interest of the private informant who seeks prosecution of another for an alleged crime. The pre-enquete assures the private informant that an independent judicial officer will hear the informant’s allegations, listen to the evidence of the informant’s witnesses, and decide whether there this is evidence of each essential element of the offence charged in the information. The pre-enquete also ensures that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution. To insist that the withdrawal power await the determination about issuance of process also reduces the risk that the Criminal Code’s provisions for private prosecution will to begin and end with the right to lay a private information.
[75] To hold that the authority to withdraw arises immediately upon the decision to issue process does not prejudice the interest of the persons named as responsible for the crimes alleged in the private information. The pre-enquete is conducted in camera. A decision by the Attorney General to withdraw the information once the decision to issue process has been made requires no public appearance, nor any response by those named in the information.
[76] The nexus between the decision to issue process and the withdrawal authority of the Attorney General also ensures that the decision to withdraw is informed by knowledge of the substance of the case the private prosecutor proposes to pursue. The fuller evidentiary record also establishes the basis upon which the withdrawal decision is grounded should accountability concerns later surface.
[77] It is for those reasons that I agree in the result with the application judge that the purported withdrawal of the informations here, before the pre-enquete had begun, was premature. The withdrawal authority requires the commencement of a prosecution, a point that coincides temporally with the determination by the justice that process shall issue. Withdrawal then is permissible while the in camera proceedings remain extant. Those named in the original information need not appear.
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