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Private Prosecution - Prosecutorial Discretion

. Whiteduck v. Ontario

In Whiteduck v. Ontario (Ont CA, 2023) the Court of Appeal considered prosecutorial discretion, here noting it's constitutional origins:
[79] The motion judge set out the governing legal principles applicable to prosecutorial discretion, at paras. 91-93, citing: Ontario (Attorney General) v. Clark, 2021 SCC 18, 456 D.L.R. (4th) 361, at para. 29, Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2016 ONSC 2806, at para. 38, affirmed, 2017 ONSC 518 (Div. Ct.), citing Zhang v. Canada (Attorney General), 2007 FCA 201, leave to appeal refused, [2007] S.C.C.A. No. 411.

[80] The Attorney General’s independence from interference in prosecutorial decisions is a constitutional principle: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 30. The Supreme Court has recognized on numerous occasions that “courts will not interfere with [the Attorney General’s] exercise of executive authority, as reflected in the prosecutorial decision-making process”: Krieger, at para. 31. The only exception to this is the abuse of process doctrine: Krieger, at para. 32. ...
. Bunker v. Veall

In Bunker v. Veall (Ont CA, 2023) the Court of Appeal considered an important issue of 'declarations of illegality', here as it involves prosecutorial discretion:
[1] The order appealed from is a declaration that a proposed payment, if made by the respondent executors of the estate of Donald Harry Bunker (“the Executors”) to Donald Harry Bunker Legal Consultants (“the Firm”) in connection with a Dubai judgment obtained by Sorinet Aviation Ltd. and Sorinet General Trading LLC (“the Sorinet Entities”) against the Firm, would violate s. 83.03(b) of the Criminal Code, R.S.C. 1985, c. C-46 because the Sorinet Entities have an alleged connection to a terrorist group. The proposed payment by the Executors would be in satisfaction of an agreement with the Firm to pay 50% of the Dubai judgment.

[2] The Executors sought the declaration of illegality by way of application under r. 14.05(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for the opinion, advice, direction or order of the court. ...



[11] While procedurally an estate may seek the advice of the court including declarations of right under r. 14.05(3) of the Rules of Civil Procedure, that rule does not give the court jurisdiction. It is a procedural rule only. This court recently discussed these principles at para. 61 of Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363:
Rule 14.05 is procedural in nature. It does not create jurisdiction, but assumes it, and provides a means by which to engage that jurisdiction: Grain Farmers of Ontario v. Ontario (Ministry of the Environment and Climate Change), 2016 ONCA 283, 130 O.R. (3d) 675, at paras. 17-18. A court must have jurisdiction independent of r. 14.05 before it can consider the appropriate vehicle for bringing the matter forward, whether by application or action: J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, at para. 16.
[12] In addition, s. 60(1) of the Trustee Act, R.S.O. 1990, c. T.23 allows a trustee, guardian or personal representative to apply to the Superior Court of Justice “for the opinion, advice or direction of the court on any question respecting the management or administration of the trust property or the assets of a ward or a testator or intestate.”

[13] These types of applications are intended to assist, and in some cases provide legal protection to the trustee against the beneficiaries for actions to be taken by the trustee in the administration of the trust or estate. However, to the extent that such declarations or opinions relate to what steps a prosecutor may take or what findings a court may make in a criminal prosecution against the trustee, they do not provide protection to the trustee from the court or a prosecutor because they do not bind those decision makers.

[14] Because in this context the court on the application cannot make a binding declaration of legality, courts have held that they will not give a declaration that is intended by the parties to interfere with prosecutorial discretion or to provide immunity from prosecution: see e.g., London Health Science Centre v. R.K. (1997), 1997 CanLII 14487 (ON SC), 152 D.L.R. (4th) 724 (Ont. S.C), at paras. 14-16; Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165, at paras. 151-152, aff’’d on other grounds, 2015 BCCA 91. For example, the Superior Court at para. 16 of London Health stated:
[T]he declaration sought either confers immunity upon the applicants, in which case it improperly interferes with the exercise of prosecutorial discretion, or, if the Attorney General is free to disregard it, then it is merely an unenforceable judicial opinion, in which case it ought not to be given.
[15] That is what is being requested in this application.[2] The relevant Criminal Code section is s. 83.03(b), which makes it an offence for any person to “directly or indirectly…provide[s]…or make[s] available property or financial or other related services…(b) knowing that, in whole or part, they will be used by or will benefit a terrorist group.”

[16] The Dubai judgment that is owed by the Firm is to entities that are alleged to have connections to a purported terrorist group. When the respondents began to prepare to pay what they acknowledged was their 50% share of the judgment, they became concerned that by doing so, they may run afoul of s. 83.03(b). The respondents then sought a declaration from the Superior Court that the payment would be illegal and in breach of the section.

[17] The appellants took the position that the payment would not contravene the section and would be legal. The application judge agreed with the respondents. She found, based on the evidence in the record before her, that the payment would contravene the relevant section of the Criminal Code and would therefore be illegal.

[18] One of the main arguments the appellants raise on the appeal is that the evidence on the application was not sufficient to make a finding of illegality, as it consists in large part of newspaper articles and other hearsay regarding the alleged terrorist connections of the judgment creditors. This argument demonstrates another reason why the court will not make the requested declaration: it would be based only on the record before the court. However, a prosecutor would base any prosecution decision on the evidence available to the prosecution which could be entirely different.

[19] Therefore, a declaration, if made, could offer no true protection to the respondents, and would not serve the purpose contemplated by s. 60(1) of the Trustee Act or r. 14.05(3) of the Rules of Civil Procedure.

[20] Although part of the issue sought to be resolved through the application is the interpretation of s. 83.03(b) of the Criminal Code, the other part is findings of fact based on the record and, in particular, whether the money will in fact be used by, or give benefit to, a terrorist group. This is not a situation where an offence can be easily discerned because significant facts are not in dispute, such as where an agreement contains a criminal rate of interest: see Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7, [2004] 1 S.C.R. 249, at p. 290, per Fish J. (dissenting, but not on this point).

[21] Where the court is asked to assess facts on a contested record and determine whether the facts as found would constitute an offence, what is requested is not an opinion but rather findings of fact based on evidence that may or may not form part of the record at a trial. In this case, where fear of a criminal prosecution under the Criminal Code is at issue, that trial would be a criminal trial based on charges laid.

[22] This court recently discussed and described the discretionary nature of declaratory relief in Bryton Capital Corp. GP Ltd. At para. 64, van Rensburg J.A. quoted with approval a non-exhaustive list of reasons why a court may deny declaratory relief, from Gook Country Estates Ltd. v. Quesnel (City of), 2008 BCCA 407, 73 R.P.R. (4th) 241, at para 10:
[S]tanding, delay, mootness, the availability of more appropriate procedures, the absence of affected parties, the theoretical or hypothetical nature of the issue, the inadequacy of the arguments presented, or the fact that the declaration sought is of merely academic importance and has no utility.
[23] In this case, a declaration would have no utility: it would not be binding on a prosecutor; and, being based on a specific evidentiary record, it could not even have persuasive effect where a prosecutor had different evidence as the basis to indict.

[24] Finally, the parties argue that the legality issue will have to be determined by an Ontario court in a civil proceeding such as an action to enforce the agreement by the estate to pay 50% of the Dubai judgment. Therefore this court should proceed to decide the issue on this appeal. We do not accept that submission, either factually or legally. The issue for the parties is whether there is a procedure, which there may well be, that will allow them to effect payment on the contract without risking the engagement of s. 83.03(b) of the Criminal Code.


[25] In the result, the declaration of illegality is set aside. In the circumstances of this case, the court below erred in law by exercising its discretion to decide whether a payment would constitute an offence under the Criminal Code, requiring a determination both of disputed facts, including facts going to mens rea, the interpretation of s. 83.03(b) of the Criminal Code, and the application of the facts in the context of proof beyond a reasonable doubt.
. Chaubet v OIPRD

In Chaubet v OIPRD (Div Court, 2023) the Divisional Court states plainly the absence of any duty on the police to investigate complaints:
[9] Counsel for the OIPRD submits that the application for judicial review should be dismissed as frivolous because it seeks an order in mandamus which would appear to require the OIPRD direct the TPS to investigate the information provided by Ms. Chaubet. As confirmed by a panel of the Divisional Court in Homes v. White [2013] O.J. 2886 (Div. Ct.), “there is no private or public law duty owing by the police to investigate a complaint.”
. Chaubet v OIPRD

In Chaubet v OIPRD (Div Court, 2023) the Divisional Court considers, and endorses in a JR, a PSA s.60(4) frivolous/vexatious and public interest 'screening-out' decision to dismiss an OIPRD complaint. Ironically, it does so by in fact repeating the OIPRD's frivolous/vexatious conclusions by granting the court's own RCP R2.1 ['frivolous and vexatious'] motion. In doing so, the court implicitly endorses a statement by OIPRD as to the extent of police discretion in investigation:
[2] The OIPRD decision of November 5, 202,2 screened out Ms. Chaubet’s complaints as being frivolous and provided detailed reasons that included this explanation:

Section 60(4) of the Police Services Act permits the Independent Police Review Director not to deal with a complaint if, in his opinion, having regard to all of the circumstances, dealing with the complaint is not in the public interest.

A review of the information you provided in your complaint indicates that you

raised the same allegations in your previous complaints to the OIPRD, [redacted] regarding the information you provided to the Toronto Police Service investigation [redacted].

Please note that the police have the discretion to determine whether or not to embark on an investigation of the information provided to them. In this case, we have carefully reviewed your complaint and while we understand your concerns, it appears that the police investigation into this matter is still ongoing. Furthermore, the police have an inherent discretion to determine what steps should be taken within an investigation. Whether an investigative step was appropriate depends on a number of circumstances. In fact, there may be circumstances when the officers are prohibited from performing an action based on the information provided to them. It is rare for courts and tribunals to second guess the police with respect to decisions made in the course of an investigation. As such, the decision of the officer not to investigate the information you provided is not unreasonable. The Police Services Act sets out screening criteria for public complaints and allows the OIPRD to decide which complaints should proceed and which should not proceed to investigation. Therefore, the Director has not identified any breach of the Police Services Act or its Code of Conduct. Therefore, having regard to all the circumstances, the OIPRD has decided not to investigate your complaint.

Please be advised that the Police Services Act, our governing legislation, does not provide for an appeal from the classification and screening of complaints conducted by the OIPRD. Accordingly, our file is now closed. If you wish to challenge this decision, you may bring a judicial review application in the Divisional Court which is a branch of the Superior Court of Justice. Information about the judicial review process is attached for your information.

A copy of your complaint as well as our decision not to proceed has been forwarded to the Chief of the Toronto Police Service for his records.
. Poyton v. OIPRD

In Poyton v. OIPRD (Div Court, 2023) the Divisional Court considers the extent of prosecutorial discretion, here in a JR of an OIPRD 'screening out' of the applicant's complaint in the 'public interest' [PSA s.60(4)3]:
[18] ... Deference to an officer’s investigative decisions is well-established. In 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at paras. 51-52, the Court of Appeal stated very clearly that an officer’s function is to “make a conscientious and informed decision as to whether charges should be laid”, and that an officer is not “required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.”

[19] The OIPRD’s consideration of the legal framework surrounding its decisions and of the evidence necessary to support an allegation of misconduct was neither investigative nor adjudicative. Rather, it was simply a recognition of its task when screening complaints to determine whether the complaint is not in the public interest. In making this determination, the OIPRD must bear in mind Rule 6.5 [SS: "It is not in the public interest to screen in a complaint that does not, on its face, disclose a breach of the Act or the Code of Conduct."]. Accordingly, courts’ and tribunals’ “reluctance to second-guess investigative decisions ... within the bounds of reasonableness” is relevant when deciding whether an allegation of misconduct or neglect of duty does not, on its face, amount to a breach of the PSA or Code of Conduct.
. Animal Justice v. Minister of Northern Development

In Animal Justice v. Minister of Northern Development (Div Court, 2023) the Divisional Court considered the few limits to prosecutorial discretion:
[38] Deciding whether to prosecute properly lies with the Branch’s discretion. The exercise of that discretion is immune from judicial review absent bad faith or an abuse of process: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372 at paras. 29-32; R. v. Power 1994 CanLII 126 (SCC), [1994], 1 S.C.R. 601, at para. 48; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 at paras. 166-168;

[39] Deference to the discretion held by law enforcement officers was discussed in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 at para. 37: “[t]he ability — indeed the duty — to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the real‑life demands of justice is in fact the basis of police discretion”. The Court also approved its earlier comments in R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at para. 54 which affirm that “[d]iscretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid.”

[40] In Krieger, at para. 49, citing Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, the Supreme Court of Canada remarked that “[w]ithin the core of prosecutorial discretion, the courts cannot interfere except in such circumstances of flagrant impropriety or in actions for ‘malicious prosecution’”. See also: R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566 at para. 52; Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry), 2016 ONSC 2806, 131 O.R. (3d) 223; CUPE, Air Canada Component v. Canada (Minister of Labour), 2012 FC 1484, at para. 43.


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