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Private Prosecutions - Prosecutorial Discretion (4). McCormack v. Evans
In McCormack v. Evans (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here brought against the dismissal of "a civil action against the respondents alleging malicious prosecution, negligent investigation and other civil wrongs".
Here the court considers whether tactical comments made by a Crown attorney in court were binding (whether they were 'admissions' was not considered):Crown Comments Not Binding
[60] The appellant relies upon Crown counsel’s comments, a public official, at the time the final charges were withdrawn. It is trite to observe that the trial judge was not bound by those comments. They were submissions made by a lawyer to the court. To be clear, the decision to terminate the criminal prosecution was appropriate, and undertaken in the highest traditions of Crown counsel as a quasi-minister of justice: Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 25-26; Miazga, at para. 47. It could be said that the criminal case unfolded precisely as it should, once the Crown determined it was not in the public interest to pursue criminal convictions.
[61] The termination of the criminal proceedings was an effective remedy for wrongdoing by the police. The appellant did not have to litigate the admissibility of the wiretap evidence or any other issue, for that matter, in the criminal courts. He was spared the exigencies of a full prosecution and all that it entails, including the potential loss of liberty.
[62] While appropriately undertaken, the termination of the prosecution did not invalidate the authorization pursuant to which the appellant’s communications were intercepted. The Attorney General, through his delegates, enjoys a broad sphere of discretion over the commencement and termination of proceedings: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 47; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 20; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 40; and R. v. Varennes, 2025 SCC 22, 449 C.C.C. (3d) 427, at para. 48. This discretion allows for decisions to be made in the public interest, based, not only on legal principles, but on principles of fairness and equity: Anderson, at para. 37; Varennes, at para. 44. In this case, the Crown discontinued the prosecution before the Charter hearing could proceed. The Crown opined that a finding of a s. 8 breach was inevitable. That opinion, however, was not binding on the court.
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