Withdrawal by Crown prior to pre-enquete incorrect

Today’s important procedural decision in R. v. McHale, 2010 ONCA 361 gives an excellent review of the law relating to the laying of a private information.  Moreover it holds that the Crown cannot withdraw an information before the pre-enquete hearing, however, the Crown can stay the prosecution at any time including prior to the pre-enquete.

The Court writes:

The First Step:  Receipt of the Information

[5]              Anyone who has reasonable grounds to believe that another person has committed an indictable offence may lay an information in writing and under oath before a justice of the peace under s. 504 of the Criminal Code.  By its use of the expansive term “any one”, s. 504 applies to everyone who lays an information (“informant”), including private citizens (“private informant”), peace and public officers, the Attorney General and the Attorney General’s agents (collectively “law enforcement informants”).

[6]              A private informant who wants to lay an information before a justice of the peace must complete a standard form for submission to the justice.  The private informant must provide sufficient details of the alleged offence to permit an information to be drafted, and list the names, addresses and telephone numbers of the witnesses whose evidence will be relied upon to establish the truth of the informant’s allegations.  The private informant must also indicate whether the police have investigated the offence alleged and describe any prior attempts the informant has made to lay an information or have process issued as a result.

[7]              The justice reviews the portion of the form that the private informant has completed to determine whether the allegations made satisfy the Criminal Code requirements and oblige the justice to receive the information.  Where the justice is satisfied that the Criminal Code requirements have been met, she or he will direct the preparation of an information and have the private informant swear an oath or affirm the truth of its contents. Where the allegations of the private informant do not meet the demands of s. 504, the justice is not entitled to receive the information.

[8]              A justice who receives an information laid by a private informant, and determines its compliance with s. 504, selects a date upon which a hearing will be conducted to determine whether the process of the court, either a summons or a warrant, will issue to compel the appearance of the persons named in the information to answer to the charge (“the pre-enquete”). 

The Second Step: Notice

[9]              In order for process to be issued, s. 507.1, which governs the pre-enquete (i.e. the procedure to decide that question), requires that the Attorney General receive a copy of the private information and reasonable notice of the hearing: see ss. 507.1(3)(b) and (c).  Further, the Attorney General must have an opportunity to attend the hearing itself: see s. 507.1(3)(d).  The Criminal Code does not provide a specific form of notice. 

The Third Step: The Pre-enquete

[10]         The function of the pre-enquete is to determine whether the process of the court, a summons or warrant, should issue to compel the persons named in the information to attend before a justice to answer to the offence charged in the private information.  At the pre-enquete, the presiding justice or provincial court judge must hear and consider the allegations of the private informant, as well as the evidence of the informant’s witnesses: see s. 507.1(3)(a).  The justice must give the Attorney General an opportunity to attend the hearing, to cross-examine the informant’s witnesses, to call witnesses her or himself and to present any relevant evidence at the hearing: see s. 507.1(3)(d).  The Attorney General’s appearance at the hearing does not mean that the Attorney General has intervened in the proceeding: see s. 507.1(4).

[11]         At the end of the hearing, the judicial officer must determine whether a case for issuing a summons or warrant to compel the appearance of the accused to answer to the charge has been made out.

[12]         Section 507.1 does not contain or incorporate by reference any provision that authorizes the Attorney General, a term defined in s. 507.1(11), to terminate or truncate the pre-enquete prior to adjudication.

…

[77]         It is for those reasons that I agree in the result with the application judge that the purported withdrawal of the informations here, before the pre-enquete had begun, was premature.  The withdrawal authority requires the commencement of a prosecution, a point that coincides temporally with the determination by the justice that process shall issue. Withdrawal then is permissible while the in camera proceedings remain extant.  Those named in the original information need not appear.

…

[89]         The application of the principles governing the entry of stays of proceedings under s. 579(1) permit the Attorney General or an instructed agent to direct entry of a stay at any time after an information has been laid.  Laying an information commences criminal proceedings and is itself a “proceeding in relation to an accused” within the meaning of those terms in s. 579(1) of the Criminal Code.  What occurred here, attendance before a justice to conduct a pre-enquete also amounts to “proceedings in relation to an accused” under s. 579(1).

[90]         It may seem anomalous to some that of two available steps to terminate proceedings initiated by a private information one is available at any time after the information is laid, but the other not until a determination has been made that process shall issue. The difference resides in the source of the authority. The common law, infused by policy considerations, compels one conclusion, the plain language of the statute, another