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Private Prosecutions - Prosecutorial Discretion (2)

. R. v. Varennes

In R. v. Varennes (SCC, 2025) the Supreme Court of Canada considered law that indictable offences should be tried by judge and jury, except where both defendant and Crown agree to judge-only trials [under CCC 469, 471 and 473 - Part XIV 'Jurisdiction']. The court allowed an appeal, here where the Quebec Court of Appeal ordered a new murder trial after the Crown refused to consent to a judge-only trial - finding two exceptions (Charter s.11(b) due to risk of COVID delay and inherent jurisdiction) to this statutory elections rule.

Here the court noted a previous SCC case on Charter s.7 and prosecutorial discretion:
[44] .... More recently, this Court has held that it is a principle of fundamental justice within s. 7 of the Charter that prosecutors must serve the public interest and not act “for the good of the government of the day” (R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983, at paras. 26-28).
. R. v. Varennes

In R. v. Varennes (SCC, 2025) the Supreme Court of Canada considered law that indictable offences should be tried by judge and jury, except where both defendant and Crown agree to judge-only trials [under CCC 469, 471 and 473 - Part XIV 'Jurisdiction']. The court allowed an appeal, here where the Quebec Court of Appeal ordered a new murder trial after the Crown refused to consent to a judge-only trial - finding two exceptions (Charter s.11(b) due to risk of COVID delay and inherent jurisdiction) to this statutory elections rule:
[1] When an accused is charged with an indictable offence listed in s. 469 of the Criminal Code, R.S.C. 1985, c. C‐46 — including murder — the trial shall take place before a judge and jury. Section 473(1) of the Criminal Code provides an exception if both the accused and the Attorney General consent to a judge-alone trial.

[2] This appeal asks when a superior court judge can order a judge-alone trial for a murder charge, despite the prosecution’s refusal to consent under s. 473(1).

[3] The appellant, Pascal Varennes, was charged with the second degree murder of his spouse. His trial was scheduled for September 2020, during the COVID-19 pandemic. In June 2020, he requested a judge-alone trial under s. 473(1). He argued, among other reasons, that pandemic-related delays to jury trials risked breaching his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms.

[4] The prosecution refused to consent to a judge-alone trial. It asserted that the public interest favoured a jury trial for a murder charge in a domestic violence context in a small community and that pandemic-related restrictions would not clearly delay the trial.

[5] The appellant filed a motion seeking an order to proceed by judge alone. Concerned that pandemic-related restrictions would likely delay the trial, the trial judge found that the Crown’s refusal to consent was [translation] “unfair or unreasonable in the circumstances” and ordered a judge-alone trial (2020 QCCS 2734, at para. 50). After trial, she acquitted the appellant of second degree murder and convicted him of manslaughter.

[6] The Crown appealed the acquittal. It argued that the trial judge applied the wrong standard in overriding its refusal to consent. The Court of Appeal of Quebec concluded that the Crown’s decision whether to consent to a judge-alone trial under s. 473(1) constitutes prosecutorial discretion, which is reviewable only for abuse of process. Finding that this high threshold was not met, the Court of Appeal declared the judge-alone trial a “nullity”, and ordered a new trial.

[7] Before this Court, the parties disagree on whether the Crown can challenge an order relating to the mode of trial in an appeal against an acquittal, and on the standard a trial judge must apply when deciding whether to order a judge-alone trial. On the first issue, I agree with the Crown that the Court of Appeal had jurisdiction to hear the appeal. On the second issue, I conclude the Court of Appeal erred by requiring proof of an abuse of process.

[8] Our law recognizes two distinct paths for superior courts to review decisions taken by prosecutors, such as a refusal to consent under s. 473(1). First, superior courts have inherent jurisdiction, including to review core prosecutorial discretion for abuse of process and other prosecutorial decisions on a lower standard. Second, superior courts may order an “appropriate and just” remedy for a rights violation pursuant to s. 24(1) of the Charter, including in anticipation of probable future breaches. Such s. 24(1) remedies can have the effect of overriding a prosecutor’s decision.

[9] Either legal framework — inherent jurisdiction or s. 24(1) — could empower a superior court to order a judge-alone trial for an offence listed under s. 469. The Court of Appeal focused on whether inherent jurisdiction applied in this case, but did not consider s. 24(1) as a separate font of jurisdiction.

[10] Like the trial judge, I conclude that the Crown’s decision whether to consent to a judge-alone trial is not a decision engaging core prosecutorial discretion, and so could be reviewed by the trial judge under her inherent jurisdiction on a standard lower than abuse of process. I also conclude that the trial judge found that proceeding with a jury trial would likely lead to unreasonable delay, and so had jurisdiction to grant her order as a Charter remedy.

[11] Reading the trial judge’s reasons as a whole, I would review her decision as an application of remedial jurisdiction under s. 24(1). The trial judge found as fact that without intervention, the appellant’s Charter rights were at substantial risk. Given the pandemic emergency, she concluded that proceeding with a jury trial would likely breach the appellant’s right to be tried within a reasonable time, and so violate s. 11(b). I decline the Crown’s invitation to disturb this finding as speculative or to view it with hindsight. These were the early days of the pandemic, marked by uncertainty and isolation, before even the development of a vaccine. As my colleague Rowe J. points out, in 2020 there was an extreme public health crisis, and jury trials posed a grave health risk to jurors; proceeding with a jury trial under these circumstances would have burdened an already overtaxed justice system. Public health restrictions prevented large gatherings, to limit the grave risk of infection. Yet the jury selection process necessarily required gathering hundreds of people together indoors. Even if a jury could be selected, any infection amongst the jurors could derail the trial. With a second wave of infections approaching, there was sound reason to believe that a jury trial would not proceed in fall 2020, and for an indeterminate period thereafter. In this extraordinary situation, the trial judge’s findings of fact established an anticipated breach of s. 11(b) of the Charter.

[12] In considering whether to override the Crown and order a judge-alone trial under s. 24(1) of the Charter, trial judges must consider “the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system” (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 69). The judge must weigh the importance of vindicating Charter rights and ensuring state compliance with the Charter against countervailing considerations, including the public value in jury trials and respect for the separation of powers.

[13] By ordering a judge-alone trial, the trial judge prevented a probable s. 11(b) breach and avoided a stay of proceedings, thus protecting the appellant’s rights while also respecting the Crown’s decision to prosecute the charge on its merits. Based on her findings of fact, I conclude that the order for a judge-alone trial was an appropriate and just s. 24(1) remedy. The Court of Appeal erred in ordering a new trial. I would allow the appeal.
. Re Ontario (Attorney General) v. Doug Lloyd

In Re Ontario (Attorney General) v. Doug Lloyd (Ont CA, 2025) the Ontario Court of Appeal considered the range of prosecutorial discretion:
[5] We see no error in the conclusion of the application judge. As this court recently reiterated in R. v. Mivasair, 2025 ONCA 179, it is well established that an exercise of prosecutorial discretion is only reviewable on the basis of abuse of process. The Supreme Court, in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31, has explained that abuses of process warranting a stay of proceedings can be categorized as: (1) those that compromise the fairness of the trial process (the main category) and (2) those that do not, but nevertheless undermine the integrity of the justice system in some other way (the residual category). The standard for establishing an abuse of process under either category is the same: the conduct complained of must be egregious: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50.
. R. v. Mivasair

In R. v. Mivasair (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this from a dismissed JR of a Crown stay of a private prosecution under the Foreign Enlistment Act:

Here the court considers Crown intervention and stay of private prosecutions, and appropriate JR procedures to challenge that (most useful text is at paras 21-75 of the case, which see):
[1] The Crown’s exercise of prosecutorial discretion is reviewable by the courts. However, the jurisprudence establishes that a party seeking to review the Crown’s exercise of prosecutorial discretion must meet the high standard of showing an abuse of process before a court will intervene.

[2] The issues raised by this appeal do not concern whether Crown discretion is reviewable by the courts or the standard that must be met for a court to intervene in the Crown’s exercise of prosecutorial discretion. Rather, this appeal concerns who may seek review of the Crown’s exercise of prosecutorial discretion and where. More specifically, can an informant who has laid a private Information before a Justice of the Peace seek judicial review of the Crown’s exercise of prosecutorial discretion to intervene in and withdraw or stay the private prosecution? And if so, is the appropriate route to do so a criminal application for certiorari or a civil action or application?

[3] As I will explain, the appropriate route for review is a criminal application for certiorari. The review of the Crown’s exercise of discretion to intervene in and withdraw or stay a private prosecution is fundamentally a problem of criminal law and procedure. To the extent it is subject to supervision by the courts, that supervision is governed by criminal procedure. As a practical matter, given the high standard for review of the exercise of prosecutorial discretion, a successful application to review the Crown’s exercise of prosecutorial discretion to intervene in and withdraw or stay a private prosecution will be rare.

[4] The application judge erred in concluding that he did not have jurisdiction to hear the application for certiorari and that the appellants did not have standing to bring it. However, I agree with the application judge that the appellants failed to meet the threshold evidentiary burden in relation to abuse of process discussed in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 52-55. I would dismiss the appeal.
At paras 21-66 the court continues to assess in-depth the issue of challenging by JR a private prosecution Crown intervention and stay [paras 21-31], and "(w)here and by whom can a review of Crown prosecutorial discretion to intervene in and stay an Information proceed?" [paras 32-66].
(iv) Conclusion on jurisdiction and standing to review the Crown exercise of discretion to intervene in and withdraw or stay a private prosecution

[67] I return to the Dagenais approach of looking for the “least unsatisfactory” procedural route for review of the Crown’s exercise of prosecutorial discretion to intervene in and withdraw or stay a private prosecution.

[68] The only potential flaw with the procedural route of a criminal application for certiorari is that it could be said to fit awkwardly with the language in Awashish related to an “order”, in the sense outlined above that the presiding justice cannot refuse the Crown request to withdraw or stay an Information prior to plea. Respectfully, this is a matter of form and not substance.

[69] Even so, a criminal application for certiorari is still the “least unsatisfactory” route to review the exercise of prosecutorial discretion to intervene in and withdraw or stay a private prosecution. Indeed, a criminal application for certiorari is a good route for this review. It is a straightforward and expeditious criminal procedure. It allows all parties with an interest to be heard – the informant/private prosecutor, the Crown, and the accused. And by following established criminal procedure, it keeps the review in the criminal courts, where it belongs – both because it is a criminal matter and because it is the procedure of Ontario’s criminal courts that the remedy of review for abuse of process is designed to safeguard.

[70] As explained above, the interest of the person who lays an Information before a Justice of the Peace, pursuant to s. 504 of the Criminal Code, as a private prosecutor gives that person a sufficient interest in the criminal proceedings to support standing to bring an application for certiorari alleging abuse of process, where the Crown intervenes and withdraws or stays the prosecution.

[71] I take comfort in my conclusion that the appropriate route of review is a criminal application for certiorari and that the private prosecutor has standing to bring the application from decisions of other provinces that have reached the same conclusion: Holland, at paras. 2-3, 18-26; Holzbauer, at paras. 18-19; Gauvin, at paras. 3, 87, 107-113.

[72] I am aware that in Currie v. Ontario (Attorney General), 2017 ONCA 266, at para. 18, this court, while not deciding the issue, expressed “serious concerns” about a private prosecutor’s standing to challenge the exercise of prosecutorial discretion to intervene in and withdraw a private prosecution. Our court has been somewhat ambivalent on this issue, having heard at least four appeals in similar circumstances and having not raised concerns about standing or jurisdiction: Paik c. Bullen, 2023 ONCA 642, leave to appeal to S.C.C. refused, 41031 (May 9, 2024); R. v. Glegg, 2021 ONCA 100, 400 C.C.C. (3d) 276; P.C. v. Ontario (Attorney General), 2020 ONCA 652, 396 C.C.C. (3d) 216, at paras. 52-55, leave to appeal to S.C.C. refused, 39805 (November 25, 2021); Perks v. Ontario (Attorney General) (1998), 1998 CanLII 17722 (ON CA), 116 O.A.C. 399 (C.A.), leave to appeal refused, [1999] S.C.C.A. No. 89. Indeed, in Perks, this court expressly declined to rule on the jurisdictional issue (referring to paragraphs of the lower court decision, reported at [1998] O.J. No. 421, addressing that issue).

[73] With full argument on the issue, I conclude that the appellants followed the appropriate procedure to challenge the exercise of prosecutorial discretion to intervene in and withdraw the private prosecution. The application judge erred in concluding that the Superior Court did not have jurisdiction to hear the application for certiorari and that the appellants did not have standing to bring it.

[74] Before leaving this issue, I flag a matter of practice. It is unclear from the record before us whether the accused, Sar-El, was served with the application for certiorari. Because I conclude that the application judge did not err in finding that the appellants failed to meet the threshold evidentiary burden in relation to abuse of process, the possible lack of service is a moot point. But I emphasize that a private prosecutor who brings an application for certiorari to review the Crown’s exercise of prosecutorial discretion to withdraw or stay an Information must serve the application on the accused person or persons. Given the interest of an accused in whether the charge(s) proceeds, they would have a right to respond and be heard on the application.

[75] Because I would find that the Superior Court has jurisdiction to hear the application for certiorari and the appellants have standing to bring it based on the law in relation to review of the exercise of Crown discretion and certiorari, it is not necessary to consider the appellants’ argument based on s. 7 of the Charter. I note that this argument was not included in their Notice of Application for certiorari filed in the Superior Court. It was raised for the first time on appeal.

....

[113] The comment of Crown counsel at the pre-enquete (excerpted above) was directed to the standard a Justice of the Peace must consider in deciding whether to issue process (after an Information is received). The standard to issue process is whether there is some evidence on each element of the offence: McHale, at paras. 5-11, 43-48, 64-71, and 74; P.C., at paras. 27-30; Criminal Code, ss. 507 and 507.1. The standard for issuing process is also informed by the reasonable and probable grounds standard for a Justice of the Peace to receive an Information, set out in s. 504 of the Criminal Code.

[114] A different standard applies when Crown counsel is deciding whether to continue a prosecution after a Justice of the Peace has issued process – whether there is a reasonable prospect of conviction.[9] This is a higher standard than the standard applied when a Justice of the Peace decides whether to issue process: Public Prosecution Service of Canada Deskbook, chapter 2.3 “Decision to Prosecute” at 4.1 and following; Ontario Crown Prosecution Manual, “Charge Screening” at D.3; The Honourable G. Arthur Martin, O.C., O. Ont., Q.C., LL.D., Chair, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Ontario Ministry of the Attorney General, Queen’s Printer for Ontario, 1993), at pp. 65-74.




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Last modified: 12-07-25
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