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PROSECUTION - Private prosecutors and prosecutions - Prosecutorial discretion

Thursday, November 19, 2020 @ 6:10 AM  

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Appeal by PC from the dismissal of his application for orders in lieu of mandamus and certiorari to compel the issuance of process and to quash a stay entered by the Crown. The appellant, a private informant, laid an information before a justice of the peace that alleged members of the police force committed seven indictable offences. The appellant, whose partner was a police officer, alleged that officers engaged in workplace misconduct including criminal harassment, obstructing justice, intimidation and threats against an employee. His partner did not testify at the pre-enquete. The justice of the peace who conducted the pre-enquete declined to issue process on six of the alleged offences. She ordered the issuance of process on one charge. Crown counsel stayed that charge at the end of the hearing.

HELD: Appeal dismissed. Without evidence of the essential elements of the offences, the justice of the peace had no authority to issue process. The application judge had no authority to grant the extraordinary remedies sought by the appellant. The justice of the peace had jurisdiction to conduct the pre-enquete as a designated justice. The application judge’s allowance of a publication ban did not taint the appellant’s application. Entry of the stay of proceedings was a core element of prosecutorial discretion. The stay, based on an absence of evidence on an essential element of the offence and no reasonable prospect of conviction, did not constitute flagrant impropriety.

P.C. v. Ontario (Attorney General), [2020] O.J. No. 4470, Ontario Court of Appeal, D. Watt, G.T. Trotter and B. Zarnett JJ.A., October 19, 2020. Digest No. TLD-November162020008