Such challenges will only succeed if there is clear evidence of abuse of process: court
The Ontario Court of Appeal ruled that while private prosecutors can seek judicial review of the Crown's decision to withdraw a private prosecution, such challenges will only succeed if there is clear evidence of abuse of process, which the appellants failed to establish.
The case involved an attempt to prosecute an organization allegedly recruiting Canadian volunteers to engage with a foreign military, which the appellants argued was contrary to the Foreign Enlistment Act. They filed a private information with a Justice of the Peace after parliament and law enforcement failed to address their concerns. A pre-enquete hearing led to the issuance of a summons for the organization to appear in court.
Before the matter could proceed further, the Public Prosecution Service of Canada intervened and determined there was no reasonable prospect of conviction. The Crown withdrew the charge in court, leading the appellants to challenge the decision by seeking a judicial review. They argued that the intervention amounted to an abuse of process and sought an order to reinstate the prosecution.
The application judge ruled that the Superior Court lacked jurisdiction to hear the application and that the appellants did not have standing to bring it. He further found that even if they did have standing, they had failed to present evidence sufficient to meet the legal threshold for proving abuse of process.
The Court of Appeal found that the lower court had erred in concluding it lacked jurisdiction. It ruled that the appropriate route for a private prosecutor to challenge the Crown's decision is through a criminal application for certiorari. The court reasoned that reviewing prosecutorial discretion in a private prosecution is a matter of criminal law and procedure and should be handled accordingly.
Despite recognizing jurisdiction and standing, the Court of Appeal upheld the application judge's finding that the appellants had failed to establish an abuse of process. The court reaffirmed that prosecutorial discretion is subject to judicial oversight only in rare and exceptional circumstances with clear evidence of improper conduct. It concluded that the appellants' claims were speculative and lacked the necessary evidentiary foundation.
The court's decision confirmed that while private prosecutors can challenge the Crown's exercise of discretion, such challenges will only succeed in cases where there is compelling proof of bad faith or abuse of process.
