Supreme Court of Canada
Dowson v. R., [1983] 2 S.C.R. 144
Date: 1983-10-13
Ross Dowson Appellant;
and
Her Majesty The Queen Respondent;
and
Canadian Civil Liberties Association Intervener.
File No.: 16818.
1983: June 9; 1983: October 13.
Present: Laskin C.J. and Dickson, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Procedure—Private prosecution—Stay of proceedings—Mandamus to compel hearing on informations—Whether Attorney General has power to stay proceedings any time after laying of information—Criminal Code, R.S.C. 1970, c. C-34 as amended, ss. 2, 455, 455.3, 503, 508.
Appellant laid informations before a Justice of the Peace alleging the commission of indictable offences. Prior to the commencement of the hearing by the Justice of the Peace to determine whether process should issue, the Attorney General stayed the proceedings pursuant to his authority under s. 508 of the Criminal Code. The Supreme Court of Ontario denied appellant’s application for an order for mandamus directing the Justice of the Peace to proceed with a hearing under s. 455.3 of the Code and the Court of Appeal upheld the decision. This appeal is to determine whether the Attorney General is empowered by s. 508(1) to direct a stay of proceedings after an information has been received but before the Justice of the Peace has completed an inquiry under s. 455.3.
Held: The appeal should be allowed.
Section 508 of the Criminal Code did not empower the Attorney General to stay proceedings at any time after an information was laid. The power to stay starts only after a summons or warrant is issued. The laying of an information does not amount to the “finding of an information”; an information is found only after the Justice of the Peace has made a decision to issue process. The power to stay, while necessary, encroaches upon a citizen’s fundamental and historical right to inform under oath a Justice of the Peace of the commission of a crime. Parliament has seen fit to impose upon
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the justice an obligation to “hear and consider” the allegation and make a determination. In the absence of a clear and unambiguous text taking away that right, and considering a text of law that is open to an interpretation that favours the exercise of that right while amply accommodating the policy consideration that supports the power to stay, the right should be protected.
R. v. Leonard, ex parte Graham (1962), 133 C.C.C. 262; R. v. Wilson (1878), 43 U.C.Q.B. 583; R. v. Mitchel (1848), 3 Cox C.C. 93; R. v. Rosser (1971), 16 C.R.N.S. 321; R. v. Chabot, [1980] 2 S.C.R. 985, referred to.
APPEAL from a judgment of the Ontario Court of Appeal (1981), 62 C.C.C. (2d) 286, 24 C.R. (3d) 139, affirming a judgment of Montgomery J. (1980), 57 C.C.C. (2d) 140, 19 C.R. (3d) 384, dismissing an application for an order of mandamus. Appeal allowed.
Harry Kopyto and Harvey Berkal, for the appellant.
Howard F. Morton, for the respondent.
Ian Scott, Q.C., and Ross Wells, for the intervener.
The judgment of the Court was delivered by
LAMER J.—Appellant Dowson applied to a Justice of the Supreme Court of Ontario for an order of mandamus directed to a Justice of the Peace to proceed with a hearing pursuant to s. 455.3 of the Criminal Code on nine charges: three of forgery, three of uttering forged documents, and three of conveying false messages. The application was dismissed as was also his appeal from that decision to the Court of Appeal. Dowson now appeals to this Court.
On April 25, 1980, the appellant laid an information before a Justice of the Peace concerning allegedly forged letters. Under s. 455.3 of the Criminal Code a justice who receives an information (other than an information laid under s. 455.1) shall hold a hearing to determine whether process should issue against the accused. At the request of the Attorney General of Ontario, this
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hearing was adjourned to permit the Attorney General to complete his investigation into the matter.
On June 26, 1980, a new information was laid and received. It charged an officer of the R.C.M.P. with forgery, uttering false documents and conveying false messages contrary to ss. 326(1), 330 and 324 of the Criminal Code. The hearing under s. 455.3 was again adjourned and eventually resumed on October 30, 1980. At this time, counsel for the Attorney General of Ontario, pursuant to s. 508 of the Code, directed the clerk of the court to make an entry on the record that the proceedings were stayed by direction of the Attorney General. His Worship Justice of the Peace Allen refused the appellant’s application for an adjournment and discontinued the proceedings.
The appellant then applied for the order of mandamus.
STATUTORY PROVISIONS
455. Any one who, on reasonable and probable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged
(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person
(i) is or is believed to be, or
(ii) resides or is believed to reside, within the territorial jurisdiction of the justice;
(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;
(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or
(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.
455.3 (1) A justice who receives an information, other than an information laid before him under section 455.1, shall
(a) hear and consider, ex parte,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and
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(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him to answer to a charge of an offence.
508. (1) The Attorney General or counsel instructed by him for the purpose may, at any time after an indictment has been found and before judgment, direct the clerk of the court to make an entry on the record that the proceedings are stayed by his direction, and when the entry is made all proceedings on the indictment shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new charge or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for the purpose giving notice of the recommencement to the clerk of the court in which the stay of proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, the proceedings shall be deemed never to have been commenced.
(Emphasis added.)
The appellant raised two issues:
1. Is the Attorney General of Ontario empowered by s. 508(1) of the Criminal Code to direct a stay of proceedings after an information has been received but before the Justice of the Peace has completed an inquiry under s. 455.3 to determine whether process should issue against the accused?
2. Are The Ministry of the Attorney General Act and The Crown Attorneys Act ultra vires in so far as they authorize the Attorney General of Ontario to direct a stay of proceedings after an information has been laid but before the Justice of the Peace has completed an inquiry under s. 455.3?
At the hearing before this Court, the Crown took the position that it did not rely on provincial legislation to support its position. This being so, we are left with only the first issue.
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THE JUDGMENTS
Supreme Court of Ontario
Montgomery J. concluded that “All criminal proceedings are commenced by the laying of an information. Once proceedings are commenced, the Attorney General may intervene and conduct or stay proceedings.” He relied on The Department of Justice Act, R.S.O. 1970, c. 116, The Crown Attorneys Act, R.S.O. 1970, c. 101, the historical origins of the expression “finding an indictment” in 1886, R.S.C. 1886, c. 174, s. 2, paras. (c.) and (d.), and, amongst others, R. v. Leonard, ex parte Graham (1962), 133 C.C.C. 262, a decision of the Court of Appeal of Alberta, and the fact that the Attorney General was the “chief law officer for the Crown and the duly constituted public authority charged with the responsibility for the administration of justice in the province”.
The Court of Appeal
The Court of Appeal, per Howland C.J.O. adopted the reasons of Montgomery J. and added three observations of its own. They are essentially as follows:
(1) Any ambiguity in the expression “an indictment has been found” is resolved by the definition of “indictment” in s. 2 and by the context in which the expression occurs, especially s. 508(2). This section provides that proceedings stayed in accordance with s. 508(1) “may be recommenced, without laying a new charge or preferring a new indictment”. It thus assimilates laying a charge with finding an indictment.
(2) Under s. 732.1 the Attorney General has the power to stay proceedings any time after the laying of an information which charges a summary conviction offence. It would be anomalous to deny him this power with respect to indictable offences, especially since he is charged by statute with the ultimate responsibility for the conduct of prosecutions: see The Crown Attorneys Act, ss. 11 and 12.
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(3) As Chief law officer of the Crown, the Attorney General has always had the power to control the issue of process in the name of the Crown. His decision is not reviewable by the courts.
Section 2 of the Criminal Code defines “indictment” and “count”:
“indictment” includes
(a) information, presentment and a count therein
(b) a plea, replication or other pleading, and
(c) any record;
“count” means a charge in an information or indictment;
Section 503 defines the expression “Finding an indictment”
503. For the purposes of this Part, finding an indictment includes
(a) preferring an indictment, and
(b) presentment of an indictment by a grand jury.
As the Attorney General can stay under s. 508 “at any time after an indictment has been found and before judgment”, when substituting the word “information” for the word “indictment” the question to be answered in order to address the issue is whether an information is “found” upon the mere “laying” of the information or only when the Justice of the Peace has decided to issue a process, warrant or summons, following a hearing under s. 455.3.
Appellant takes issue with the Alberta Court of Appeal’s decision in R. v. Leonard, ex parte Graham, supra, and takes the primary position that the Attorney General cannot enter a stay of proceedings while the matter is in Provincial Court. In that case the issue before the Court was whether the Attorney General could intervene to withdraw an information for an indictable offence that had been laid by a private prosecutor. In obiter Smith C.J.A., rendering judgment for the Court said, at p. 266:
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My view is that the included meaning of the word ‘information’ in s-s. (20) of s. 2 of the Code is applicable and relevant, and is not doubtful or ambiguous and I therefore consider that in the case of a preliminary hearing of an information for an indictable offence, s. 490 must be read as meaning what it would mean if the word ‘information’ were substituted therein for the word ‘indictment’. In other words, for this purpose, the word ‘indictment’ therein, in my view, must be read as comprehending not only an indictment but also an information. The word ‘information’ in s-s. (20) of s. 2, cannot refer to a criminal information because criminal informations have been abolished by s. 488 of the Criminal Code.
Appellant refers us to two publications, one written prior to the Leonard decision (D.E. Greenfield, “The position of the stay in Magistrate’s Court”, (1961-62) 4 Crim. L.Q. 373) and a more recent one in 1974 (Connie Sun, “The Discretionary Power to Stay Criminal Proceedings”, (1974) 1 Dalhousie L.J. 482). I have read these articles and have found therein nothing to convince me that I should disagree with that passage of Smith C.J.A.’s remarks that I have first quoted.
Appellant’s subsidiary position, supported by intervener, the Canadian Civil Liberties Association, one with which I am in agreement and would so find, is that, because a prosecution commences only after the Justice of the Peace has made a decision to issue process, an information has been found only after that decision.
Before substantiating this finding, I should like to comment on Montgomery J.’s reference to the predecessor sections defining “indictment”, “count” and “finding an indictment” prior to the Code of 1953-54. I do not know to what extent reliance was put on the wording of those sections from 1886 to 1953. Indeed Montgomery J. does not say. As I am of the view that the wording of the predecessor sections is no longer since 1953 of any relevance to the question we have to answer, I must assume that Montgomery J.’s reference to them is an indication that he was of a contrary view.
There is no need to reproduce here the text of those sections as they evolved over the years but it is sufficient to look at them as they read in 1886, a
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text specifically referred to by Montgomery J., and in 1927, the form in which those definitions were till the enactment of the Code of 1953.
Revised Statutes of Canada 1886, c. 174:
2. …
…
(c.) The expression ‘indictment’ includes information, inquisition and presentment as well as indictment, and also any plea, replication or other pleading, and any record;
(d.) The expression ‘finding of the indictment’ includes also the taking of an inquisition, the exhibiting an information and the making of a presentment;
Revised Statutes of Canada 1927, c. 36:
2. …
…
(17) “indictment” and “count” respectively include information and presentment as well as indictment, and also any plea, replication or other pleading, any formal charge under section eight hundred and seventy-three, and any record;
…
5. In this Act, unless the context otherwise requires,
(a) finding the indictment includes also exhibiting an information and making a presentment;
(b) having in one’s possession includes not only having in one’s own personal possession, but also knowingly,
(i) having in the actual possession or custody of any other person, and
(ii) having in any place, whether belonging to or occupied by one’s self or not, for the use or benefit of one’s self or of any other person.
2. If there are two or more persons, and any one or more of them, with the knowledge and consent of the rest, has or have anything in his or their custody or possession it shall be deemed and taken to be in the custody and possession of each and all of them.
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The definition of “indictment” in 1927 no longer included inquisitions nor did “finding an indictment” include “the taking of an inquisition”. An inquisition was a reference to a Coroner’s inquest and, as no one could as of the time of codification any longer be tried upon a Coroner’s inquisition, reference to an inquisition was omitted from the Code of 1892. That is the only essential difference between the texts of 1886 and those of 1927, save the addition in 1927 of the words “any formal charge under section eight hundred and seventy-three” to the definition of indictment, which was a reference to the charge before the petit jury in the provinces where there was no grand jury (at the time, Manitoba, Saskatchewan and Alberta).
As for the word “information”, in 1886 it had three possible meanings. It could mean that which was before a justice for offences punishable by summary conviction, that upon which a preliminary inquiry was held, or a criminal information. A criminal information was a device whereby the grand jury was avoided and was a presentment by the Sovereign or of a citizen and the Sovereign of an accusation to the petit jury. This procedure was limited mainly to misdemeanours and though rarely if ever employed in this country (See R. v. Wilson (1878), 43 U.C.Q.B. 583) was officially abolished in 1953. As for “exhibiting an information” (an expression that at first sight might suggest something prior to the decision of issuing a process) its primary and most usual meaning was in regard to such “criminal informations”. “Exhibiting” meant in civil law the commencement of a suit and in criminal law the exhibiting of an information meant the commencement of a trial for a misdemeanour before a petit jury by way of a “criminal information”. It had nothing to do with Justices of the Peace at a preliminary inquiry. (See Stroud, Judicial Dictionary, vol. 3, 4th ed., London, Sweet & Maxwell Ltd., 1973, at p. 1362. See also Blackstone, Commentaries on The Laws of England, vol. IV, 18th ed., 1829, where commenting on criminal informations he says, at p.
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308: “The informations that are exhibited in the name of the king alone, are… .”)
Exhibiting informations also had in the last century a secondary meaning. Jowitt, The Dictionary of English Law, London, Sweet & Maxwell Ltd., 1959, at p. 968, refers to the matters as follows:
Proceedings before justices of the peace in matters of a criminal nature are commenced by an information, which is a statement of the facts of the case made by informant or prosecutor, sometimes verbally, sometimes in writing, and either with or without an oath; when not upon oath, the information is said to be exhibited.
(Emphasis added.)
In my view, this latter meaning could not have been the one intended in s. 5 of the Code of 1927 defining “Finding of the indictment” as including “the exhibiting of an information”. Indeed, there is no reason to preclude informations that are sworn and consider only those that were not as amounting to indictments “found”. That would not make any sense. In fact, were it not for the 1953-54 amendments to the Criminal Code it could be seriously questioned whether the word “information” in the Code definition of indictment even before 1953 meant anything other than a “criminal information”. In any event, even assuming that information did include those before justices, reference to these old sections derived as they are from ancient practice would still leave us facing the original question of if and when an information may be found. The fact that Parliament, when abolishing criminal informations in 1953, deleted the words “exhibiting an information” but left the word “information” in the definition of indictment, clearly indicates that information, whatever the word may have included in the predecessor sections, as of then referred to those
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informations before Justices and those only, as there existed as of then none else.
For these reasons I do not, with respect, think that anything turns upon the predecessor sections. However, reference to the historical evolution of the powers enjoyed by the Attorney General in the charging process to which I shall allude shortly is of prime importance.
Now to consider the views of the Court of Appeal.
With respect, I do not find compelling the first and third reasons upon which they predicated their conclusion. As regards the first of those reasons, all that s. 508(2) says is that you need not start all over to recommence the proceedings. It does not follow that laying a new information would amount to the “finding of an information”. If the Attorney General does choose to start all over, he will of necessity have to lay an information. Prior to the addition in 1972 of s. 508(2) to what is now s. 508(1), there was uncertainty as to whether you had to prefer a new charge or whether you could start the proceedings again by carrying on at the point the proceedings were stayed. (See R. v. Mitchel (1848), 3 Cox C.C. 93; see also R. v. Rosser (1971), 16 C.R.N.S. 321, at p. 326, for a review of the authorities.)
The Court of Appeal’s third reason was expressed as follows:
Since the decision of the Justice of the Peace to proceed with the charges involves the issue of process in the name of the Sovereign, it would seem appropriate that the Attorney-General as the chief law officer of the Crown should have the power to prevent the use of such process where he considers that the proceedings should be stayed. This involves an executive decision which historically, and now by statute, has been vested in the Attorney-General. This decision is not reviewable by the Courts and is one for which he is in turn accountable to the Legislature or to Parliament, as the case may be.
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The right of a private citizen to lay an information, and the right and duty of the Attorney‑General to supervise criminal prosecutions are both fundamental parts of our criminal justice system.
There is nothing there said with which I take issue. However, with respect, I fail to see why the conclusion dictated by these remarks would of necessity be that the law should be interpreted as did the Court of Appeal. Indeed, prior to that determination by the Justices of the Peace, there being no summons or warrant issued, one could say that the process is not yet put into operation. Furthermore, when the Attorney General in the exercise of his supervisory power over criminal prosecutions chooses to prevent the use of the criminal process, as is his right, his accountability to the Legislature would be much greater if he acted after the Justice of the Peace has determined that there is cause to issue process.
The power to stay is a necessary one but one which encroaches upon the citizen’s fundamental and historical right to inform under oath a Justice of the Peace of the commission of a crime. Parliament has seen fit to impose upon the justice an obligation to “hear and consider” the allegation and make a determination. In the absence of a clear and unambiguous text taking away the right, it should be protected. This is particularly true when considering a text of law that is open to an interpretation that favours the exercise of that right whilst amply accommodating the policy consideration that supports the power to stay. When one adds to these considerations the fact that, apart from the court’s control, the only one left is that of the legislative branch of government, given a choice, any interpretation of the law, which would have the added advantage of better ensuring the Attorney General’s accountability by enhancing the legislative capacity to superintend the exercise of his power, should be preferred.
An historical review of the evolution of the Crown’s power to avoid the preliminary inquiry or the grand jury indicates an intent on the part of Parliament to increase the Attorney General’s accountability. The most recent manifestation of
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this evolution is found in the amendments brought to the Crown’s power to by-pass a preliminary inquiry and to prefer indictments directly before a grand or petit jury. Prior to 1969, not only the Attorney General but his agent, and the Deputy Attorney General, and any one with the written consent of the Attorney General could prefer an indictment directly.
The 1969 amendments first took out of the list of those who could indict, even following a preliminary inquiry, the Deputy Attorney General because he was not considered as being an agent of the Attorney General. As for by-passing a preliminary inquiry or a discharge, his agents or others, even with his written consent, can no longer do so. The Attorney General himself or a person authorized by the court are the only ones that can now prefer directly. I can see no reason why we should not when possible interpret the law in compliance with this clear attitudinal trend on the part of Parliament. Furthermore, to say that an information is found only once a determination to issue a process is made is not inconsistent with the procedure by indictment. We are here unfortunately dealing with legal expressions which were developed in the grand jury system and as a result a certain degree of transposition is required. Under the grand jury system (which still exists in Nova Scotia) a bill was preferred before the grand jury. If it found a true bill it presented the indictment to the court. Prior to a true bill the Attorney General could not under the common law stay the proceedings by entering a nolle prosequi. The power to stay and limitation thereto were codified in this country in 1892 by s. 732:
732. The Attorney General may, at any time after an indictment has been found against any person for any offence and before judgment is given thereon, direct the officer of the court to make on the record an entry that the proceedings are stayed by his direction, and on such entry being made all such proceedings shall be stayed accordingly.
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2. The Attorney-General may delegate such power in any particular court to any counsel nominated by him.
The procedure by indictment where there is no grand jury in fact does away, though we still speak of preferring an indictment, with the two stages of preferral and presentment. “There is but one act, that act being the placing by the appropriate authority of ‘an indictment in writing setting forth the offence’ before the trial court. This act constitutes the commencement of the trial and is a combination of the steps of preferral and presentment.” (Dickson J. for the Court in R. v. Chabot, [1980] 2 S.C.R. 85, at p. 992.)
Under this procedure the Attorney General makes the determination in the stead of the grand jury, and the next step is for the court to issue the process to bring the accused before the court to answer the charge. When the proceedings are commenced by an information the informant in a sense “prefers” the information and the Justice of the Peace decides whether or not to “find” the information and then the next step is to issue the process to bring the accused before him. The Justice of the Peace then plays the same role as the grand jury, as regards the finding of grounds to issue a process and that of the trial court to issue a process following a preferment or presentment.
The Attorney General’s power to stay starts as of the moment a summons or warrant is issued.
Though this approach is not without logic, I must admit that were it the only reason for adopting this course I should have to adopt the second reason advanced by the Court of Appeal and dismiss this appeal. Indeed the second observation made by the Court of Appeal cannot be discarded easily, and accordingly I have felt great hesitation in concluding that this appeal should be allowed. In fact, it is when addressing the third observation made by the Court of Appeal, (the Attorney General’s historical control of the process), that I have preferred a policy consideration, desirable accountability, to the advantage of avoiding differ-
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ent approaches, one for indictable offences and the other for summary conviction offences. The disparity between stays for summary convictions and those for indictable offences is undesirable and could not have been intended by Parliament. Such an anomaly is not, unfortunately so infrequent in the field of criminal procedure. Our lexicon is archaic and no longer corresponds to current institutions. Our changing sections are unfortunately often the result of patchwork on the part of draughtsmen. Furthermore, it is difficult for the courts to inject some logic and cohesion in a system where, as regards the charging process, the exception has become over the years the rule, where the exceptional procedures of direct indictment without a grand jury for the Northwest Territories is now, save in Nova Scotia, the system for the whole country. When faced with the choice between uniformity of procedure and greater political accountability for the exercise of a necessary but no less dangerous discretion to circumvent the courts and deny a citizen his right to bring another to court, I think I should, pending Parliament’s decision to speak out in modern terms, prefer the latter and suffer some anomaly in the law which I imagine is temporary.
For these reasons I would allow the appeal, and order that a mandamus issue and be directed to his Worship Justice of the Peace Allen to proceed with a hearing pursuant to s. 455.3 of the Criminal Code on the nine charges contained in the information of the appellant Dowson.
Appeal allowed.
Solicitor for the appellant: Harry Kopyto, Toronto.
Solicitor for the respondent: The Attorney General for the Province of Ontario, Toronto.
Solicitors for the intervener: Cameron, Brewin & Scott, Toronto.
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