R. v. McHale (G.W.)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Winkler, C.J.O., Goudge and Watt, JJ.A.
• Neutral Citation: 2010 ONCA 361
• Citation: (2010), 261 O.A.C. 354 (CA),2010 ONCA 361,256 CCC (3d) 26,76 CR (6th) 371,261 OAC 354,(2010), 261 OAC 354 (CA),261 O.A.C. 354
• Date: 14 January 2010

R. v. McHale (G.W.) (2010), 261 O.A.C. 354 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MY.067

Her Majesty the Queen (appellant) v. Gary William McHale (respondent)

(C50822; 2010 ONCA 361)

Indexed As: R. v. McHale (G.W.)

Ontario Court of Appeal

Winkler, C.J.O., Goudge and Watt, JJ.A.

May 17, 2010.

Summary:

A private informant (McHale) alleged that three named persons committed a crime. A justice of the peace concluded that the allegations met the Criminal Code requirements and received the sworn information. The justice set a date for a hearing (i.e., the "pre-enquete") to determine whether the process of the court, a summons or a warrant, would issue to compel the appearance of the persons named in the information to answer to the charge. At the pre-enquete, Crown counsel withdrew the charges on the basis that the prosecution was an abuse of process and not in the interests of justice. The justice did not hear, or consider, the allegations of the private informant or any evidence adduced by the informant or Crown counsel. The private informant sought an order of mandamus.

The Ontario Superior Court granted the application, ruling that the case should be returned to a justice of the peace, so that the pre-enquete could be conducted to determine whether process should issue. The Crown appealed, advancing two grounds of appeal. The first was that the applications judge erred in holding that the Attorney General had no discretion to withdraw the privately laid information at the pre-enquete prior to the issuance of process. The second ground of appeal contested the correctness of the applications judge's conclusion that the Attorney General had no discretion to stay the private information in the same circumstances.

The Ontario Court of Appeal dismissed the appeal. The court held that the withdrawal of the charges was premature. The Attorney General was not authorized to terminate or truncate the pre-enquete prior to adjudication on whether process would issue. The court therefore confirmed the order of the applications judge directing that the matter return to the justice of the peace to conduct the pre-enquete. The court held, however, that it was open to the Attorney General (or agent) to enter a stay of proceedings under s. 579(1) of the Criminal Code anytime after an information had been laid (i.e., before the pre-enquete was completed).

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - [See Criminal Law - Topic 4745 ].

Criminal Law - Topic 3204

Compelling appearance, detention and release - Issuance of summons or warrant - Pre-inquiry (pre-enquete) - [See Criminal Law - Topic 4745 ].

Criminal Law - Topic 4745

Procedure - Information or indictment - Charge or count - Indictable offences - Withdrawal of charge - A private informant alleged that three named persons committed a crime - A justice of the peace received the sworn information and set a date for a hearing (i.e., a "pre-enquete") to determine whether process would issue to compel the appearance of the named persons to answer to the charges - At the pre-enquete, before any evidence was presented, Crown counsel withdrew the charges - The private informant sought mandamus - An applications judge granted the application - The Crown appealed - The Ontario Court of Appeal dismissed the appeal, holding that the withdrawal of the information prior to the conclusion of the pre-enquete, indeed before it began, was premature - The Attorney General was not authorized to withdraw charges prior to adjudication on whether to issue process - Rather, the withdrawal authority of the Attorney General crystallized and could be exercised as of the moment the justice determined to issue process at the conclusion of the pre-enquete - The court opined, however, that it was open to the Attorney General (or agent) to enter a stay of proceedings under s. 579(1) of the Criminal Code anytime after an information had been laid (i.e., before the pre-enquete was completed) - See paragraphs 1 to 91.

Crown - Topic 613

Attorney General - Private prosecutions - Power to stay or withdraw charges - [See Criminal Law - Topic 4745 ].

Cases Noticed:

R. v. Dick, [1968] 2 O.R. 351 (H.C.), refd to. [para. 32].

R. v. Osborne (1975), 11 N.B.R.(2d) 48; 7 A.P.R. 48; 25 C.C.C.(2d) 405 (C.A.), refd to. [para. 32].

R. v. Blasko, [1975] O.J. No. 1239 (H.C.), refd to. [para. 32].

R. v. Forrester, [1977] 1 W.W.R. 681; 33 C.C.C.(2d) 221; 73 D.L.R.(3d) 736; 37 C.R.N.S. 320; 1 Alta. L.R. 326 (T.D.), refd. to. [para. 32].

R. v. Clement, [1981] 2 S.C.R. 468; 38 N.R. 302; 10 Man.R.(2d) 92, refd to. [para. 36].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 36].

R. v. Bradley (1976), 9 O.R.(2d) 161 (C.A.), refd to. [para. 39].

Dowson v. R., [1983] 2 S.C.R. 144; 49 N.R. 57, refd to. [para. 44].

Southam Inc. et al. v. Coulter, J. et al. (1990), 40 O.A.C. 341; 75 O.R.(2d) 1 (C.A.), refd to. [para. 44].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 70].

Campbell v. Ontario (Attorney General) (1987), 31 C.C.C.(3d) 289; 38 D.L.R.(4th) 64; 58 O.R.(2d) 209 (H.C.), affd. (1988), 35 C.C.C.(3d) 480; 42 D.L.R.(4th) 383; 60 O.R.(2d) 217 (C.A.), refd to. [para. 86].

R. v. Wren, [1987] B.C.J. No. 1336 (C.A.), refd to. [para. 86].

R. v. Pardo (1990), 62 C.C.C.(3d) 371 (Que. C.A.), refd to. [para. 86].

Thompson v. Cheyenne Realty Ltd., [1975] 1 S.C.R. 87; 1 N.R. 273, refd to. [para. 87].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 504 [para. 5, Appendix]; sect. 507.1 [para. 9, Appendix]; sect. 507.1(3), sect. 507.1(4) [para. 46]; sect. 579 [para. 83].

Crown Attorneys Act, R.S.O. 1990, c. C-49, sect. 11(b), sect. 11(d) [para. 30].

Counsel:

John Patton, for the appellant;

Gary McHale, in person [see footnote 1].

This appeal was heard on January 14, 2010, before Winkler, C.J.O., Goudge and Watt, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Watt, J.A., on May 17, 2010.