PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
LABRADOR MÉTIS NATION and CARTER RUSSELL
and
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Attorney General of Canada (the Attorney General) to stay prosecutions commenced by a private informant, Mr. Carter Russell (the applicant), as a member of the Labrador Métis Nation (the LMN).
RELEVANT FACTS
[2] The Trans-Labrador Highway (TLH) was planned in three phases, all of which are located within lands traditionally used by the LMN. The different phases encompass upgrading road surface and bridges, altering routing which currently exists, and extending the current length of the highway.
[3] Studies performed on Phase II of the TLH found that many of the culverts installed were unsatisfactory, in that they hindered fish movement and therefore contributed to the destruction of their habitat. The Department of Fisheries and Oceans (DFO) has also acknowledged some deficiencies in the culverts and will require the Province of Newfoundland and Labrador to remedy some of them.
[4] During Phase II, a bridge was constructed over the Paradise River (the Paradise River Bridge) and a bridge and causeway were constructed over the St. Lewis River (the St. Lewis River Bridge). Both of those rivers are listed as Salmon Rivers under Schedule I of the Fisheries Act, Newfoundland and Labrador Fisheries Regulations, SAR/78-443.
[5] The applicant claims that the Paradise River Bridge resulted in the harmful disruption or destruction of fish habitat, contrary to section 35 of the Fisheries Act (R.S. 1985, c. F-14) (the Act), as the temporary bridge construction had used rock infilling placed directly in the riverbed and the Province of Newfoundland and Labrador had not received authorization under subsection 35(2) of the Act. However, a second permanent structure was then erected with a subsection 35(2) authorization. The temporary bridge has since been removed.
[6] Furthermore, the applicant claims that the Paradise River and St.Lewis River Bridges had resulted in the restriction of over two-thirds of the water flow, contrary to section 26 of the Act.
[7] Therefore, on September 26, 2003, the applicant swore private Informations against the Province of Newfoundland and Labrador as well as a contractor, Johnson's Construction Ltd.
[8] As per the Criminal Code (R.S. 1985, c. C-46), the Attorney General was given notice and an opportunity to decide whether to intervene with the private prosecution. The Attorney General received the Informations sworn, as well as an evidentiary brief relating to the charges, and additional relevant material provided by the DFO.
[9] On June 8, 2004, after several months of correspondence, the Attorney General decided not to intervene with the prosecutions and it also decided not to allow the applicant to proceed with the prosecutions. On July 30, 2004, after having received a request to reconsider its decision, the Attorney General decided to stay the prosecutions, pursuant to section 579.1 of the Criminal Code.
[10] The applicant now seeks judicial review to quash the stay issued by the Attorney General and to allow him to proceed with a private prosecution or to refer the matter back for re-determination by the Attorney General.
DECISION OF THE ATTORNEY GENERAL
[11] In a letter dated June 8, 2004, the Attorney General stated that it is of the opinion that after having evaluated the sufficiency of the evidence, and after having considered the public interest in proceeding with the prosecutions, that it would not be appropriate to continue with them.
[12] At the hearing, it was noted that the June 8, 2004 letter was signed by Mr. Adams representing the Attorney General. The same Mr. Adams made the written and oral submissions in the case at bar.
[13] This creates the particular situation where the decision maker is defending his own decision before the Court. Even though there is no allegation of wrongdoing, this Court considers that as inappropriate. In fact, any decision maker or administrative tribunal is not allowed to defend its decision under judicial review. The fact that the decision maker is the Attorney General could be seen as unusual; nevertheless I do not believe that the individual that signed the decision on its behalf should be allowed to make written or oral submissions.
St. Lewis River Bridge
[14] In regards to the St. Lewis River Bridge, the charge was pursuant to section 26 (obstruction of main river channel) but not to section 35 (destruction of fish habitat). The Attorney General is of the opinion that in regards to the section 26 charge, appropriate migrational access would be maintained on that river, and therefore, that the prosecution should be stayed for the St. Lewis River Bridge.
Paradise River Bridge
[15] In regards to the Paradise River Bridge, the charge was pursuant to section 26 (obstruction of main river channel) as well as section 35 (destruction of fish habitat). The Attorney General is of the opinion that in regards to the section 35 charge, the permanent construction was done pursuant to a subsection 35(2) exemption, allowing for the destruction of fish habitat as long as the loss was minimized and that a Fish Habitat Compensation Agreement was made. Therefore, the prosecution should be stayed for the Paradise River Bridge.
[16] The Attorney General considered the sufficiency of the evidence as well as the public interest in continuing with the prosecution, and was of the opinion that it would be inappropriate to proceed with them.
ISSUES
[17] 1. Did the Attorney General have a duty of consultation and accommodation arising from the existence of the applicant's Aboriginal rights and section 35 of the Constitution Act, the Fisheries Management Agreement, and, or, the legitimate expectations of the applicant?
2. If the Attorney General did not have a duty of consultation and accommodation towards the LMN, then did it properly exercise its discretion in deciding to stay the prosecutions?
ANALYSIS
- Did the Attorney General have a duty of consultation and accommodation arising from the existence of the applicant's Aboriginal rights and section 35 of the Constitution Act, the Fisheries Management Agreement, and, or, the legitimate expectations of the applicant?
[18] I will begin my analysis by dismissing the applicant's proposition that the Attorney General had a duty of consultation towards them by virtue of a legitimate expectation. As an extension of the rules of natural justice and of procedural fairness, the applicant claims that the LMN had a legitimate expectation of being consulted by the Attorney General before its decision was made to stay the prosecution. However, as was stated in R. v. Beare, [1988] 2 S.C.R. 387 at paragraph 51, the mere exercise of the discretion accorded to the Attorney General does not offend the principles of natural justice:
The existence of the discretion conferred by the statutory provisions does not, in my view, offend principles of fundamental justice. Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.
The Criminal Code provides no guidelines for the exercise of discretion in any of these areas. The day to day operation of law enforcement and the criminal justice system nonetheless depends upon the exercise of that discretion.
This Court has already recognized that the existence of prosecutorial discretion does not offend the principles of fundamental justice; see R. v. Lyons, [1987] 2 S.C.R. 309, at p. 348; see also R. v. Jones, [1986] 2 S.C.R. 284, at pp. 303-4.
[19] As for the proposition that the Fisheries Management Agreement "not only reflects the honour of the Crown, [but] also creates, expressly or impliedly, a quasi-contractual duty upon the Crown to "consult with and work cooperatively" with the LMN Aboriginal Fisheries Guardians regarding fisheries management matters, and enforcement of the Fisheries Act in particular" (paragraph 68 of the applicant's memorandum of fact and law), I fail to see how any of the words or clauses of that agreement could be interpreted as requiring the Attorney General to consult prior to exercising its prosecutorial discretion. Indeed, such an indication would have been shocking, seeing as to how the Attorney General would be impliedly delegating a discretion which only it possesses.
[20] Thirdly, although the applicant relies on the recent Supreme Court of Canada decisions of Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 and Taku River Tlingit First Nation v. British Columbia, [2004] 3 S.C.R. 550, in asserting that the Crown has a duty to consult, I do not find that those cases find application in instances where the Attorney General exercises its prosecutorial discretion to stay a criminal charge.
[21] Although the Crown's honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by subsection 35(1) of the Constitution Act, 1982, the context of that duty is not all-encompassing. Rather, as was stated by Chief Justice McLachlin at paragraph 25 of the Taku River case, supra:
As discussed in Haida, what the honour of the Crown requires varies with the circumstances. It may require the Crown to consult with and accommodate Aboriginal peoples prior to taking decisions: R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1119; R. v. Nikal, [1996] 1 S.C.R. 1013; R. v. Gladstone, [1996] 2 S.C.R. 723; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 168. (...) The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them. This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns.
[22] I am not convinced that the decision of the Attorney General not to prosecute on a criminal charge of obstruction of a main river channel and of destruction of fish habitat is conduct that might adversely affect the Aboriginal rights or title of the LMN. Specifically, Chief Justice McLachlin states that the possible adverse effect may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. In the case of prosecutorial discretion, I do not believe that anyone or anything should be able to exert pressure in order to sway the decision of the Attorney General one way or another. To allow such a possibility would be to undermine the independence of the Attorney General.
[23] As was stated in the Supreme Court case of R. v. Power, [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29 at paragraph 31:
And at pp. 18-19, she [Donna C. Morgan in "Controlling Prosecutorial Powers -- Judicial Review, Abuse of Process and Section 7 of The Charter" (1986-87), 29 Crim. L.Q. 15] expands on the independence of prosecutors:
Along with the exalted status of his office come high expectations as to the Attorney-General's performance of his functions. A large measure of constitutional trust is reposed within him, and he bears a heavy obligation to conduct himself with dignity and fairness. In many situations, he is described as acting either judicially or quasi-judicially. When exercising his "grave" discretion in prosecutorial matters, he must take into account not only the position of the individual, but what the public interest demands. In doing so, he must stand alone, acting independently of political or other external influences. He is to be neither instructed or restrained, save by his final accountability to Parliament. [emphasis in original]
[24] The discretionary power vested in the Attorney General is of primordial importance in the proper administration of the law. Were it to need to consult parties before taking a decision to prosecute, its independence would certainly be put into question. As was stated by Chief Justice Fauteux, as he then was, in the case of Smythe v. The Queen [1971] S.C.R. 680 at page 686:
Obviously, the manner in which the Attorney General of the day exercises his statutory discretion may be questioned or censured by the legislative body to which he is answerable, but that again is foreign to the determination of the question now under consideration. Enforcement of the law, and especially of the criminal law, would be impossible unless someone in authority be vested with some measure of discretionary power.
[25] See also the comments given by the Ontario Court of Appeal in R. v. Saikaly, [1979] O.J. No. 94 at paragraph 17:
If the Attorney General must give a hearing to anyone who might be affected every time he proposes to exercise the discretion conferred upon him by virtue of his office the administration of criminal justice would come to a standstill.
[26] Although the duty to consult is one that must not be taken lightly by the Crown when making decisions which may potentially affect Aboriginal rights or titles, I do not believe that this duty applies to the discretion of the Attorney General in deciding whether to exercise its right to issue a stay of proceedings. Therefore, in the present case, the Attorney General did not err in not formally consulting the LMN before issuing the stay in the private prosecution commenced by the applicant.
- If the Attorney General did not have a duty of consultation and accommodation towards the LMN, then did it properly exercise its discretion in deciding to stay the prosecutions?
[27] The discretion afforded to the Attorney General to decide unilaterally and in his or her exclusive discretion any issue relating to criminal prosecutions is a matter in which the Attorney General is only accountable to Parliament and not to a court of law. This principal finds its roots in century old jurisprudence, as was stated in Winn v. Canada(Attorney General), [1994] F.C.J. No. 1280 at paragraph 28:
The response of respondent's counsel to all of this is of course to underline the historical and traditional role of the Attorney General to decide unilaterally and in his or her exclusive discretion any matter relating to criminal prosecutions. In this field, the Attorney General is only accountable to Parliament and not to a court of law. This is old law, found in Ex parte Newton, [1855] 119 E.R. 323; The Queen, on the Prosecution of Gregory v. Allen, [1962] 121 E.R. 929; and London City Council v. Attorney General, [1902] A.C. 165 (H.L.).
[28] The role and independence of the Attorney General has been reaffirmed numerous times in recent case law, most notably in the Supreme Court decision of Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, at paragraphs 30 and 31:
It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions. Support for this view can be found in: Law Reform Commission of Canada, Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor. Ottawa: The Commission, 1990, at pp. 9-11. See also Binnie J. in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, at paras. 157-58 (dissenting on another point).
This side of the Attorney General's independence finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process. In R. v. Power, [1994] 1 S.C.R. 601, L'Heureux-Dubé J. said, at pp. 621-23:
It is manifest that, as a matter of principle and policy, courts should not interfere with prosecutorial discretion. This appears clearly to stem from the respect of separation of powers and the rule of law. Under the doctrine of separation of powers, criminal law is in the domain of the executive....
[29] Furthermore, as is concerned the application for judicial review of a decision not to prosecute, the jurisprudence expressing the view that these decisions are "particularly ill-suited to judicial review" is quite consistent. (See R. v. T. (V.), [1992] 1 S.C.R. 749 at paragraph 18; see also Smythe v. The Queen, supra; R. v. Lyons, [1987] 2 S.C.R. 309 and R. v. Regan, [2002] 1 S.C.R. 297; Re. Balderstone and The Queen (1983), 4 D.L.R. (4th) 162).)
[30] Specifically, in the case of R. v. Power, supra, Madam Justice L'Heureux-Dubé, on behalf of the majority, stated at paragraphs 34 and 35:
That courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice and the fact that prosecutorial discretion is especially ill-suited to judicial review.
In Re Balderstone and The Queen (1983), 8 C.C.C. (3d) 532 (Man. C.A.), (leave to appeal refused by the Supreme Court of Canada on December 15, 1983, [1983] 2 S.C.R. v), Monnin C.J. wrote, at p. 539:
The judicial and the executive must not mix. These are two separate and distinct functions. The accusatorial officers lay informations or in some cases prefer indictments. Courts or the curia listen to cases brought to their attention and decide them on their merits or on meritorious preliminary matters. If a judge should attempt to review the actions or conduct of the Attorney-General -- barring flagrant impropriety -- he could be falling into a field which is not his and interfering with the administrative and accusatorial function of the Attorney-General or his officers. That a judge must not do. [emphasis in original]
[31] The rationale behind such a reluctance to delve into the realm of prosecutorial discretion on judicial review applications is well summarized at paragraph 37 of that same case:
Our Court in R. v. T. (V.), [1992] 1 S.C.R. 749, at p. 761, commented on the rationale for not interfering with prosecutorial discretion:
It is important to understand the rationale for this judicial deference to the prosecutor's discretion. In this regard, the reasons of Viscount Dilhorne in Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497 (H.L.), at p. 511, are instructive:
A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval. (emphasis in original)
Consider also Powell J.'s comments in Wayte v. United States, 470 U.S. 598 (1985). Though the factual content of the case at bar is fundamentally different from that with which the U.S. Court was faced (selective prosecution of violators of a law requiring Selective Service registration), his caution respecting the institutional competence of the courts bears repeating. At pages 607-8 Powell J. remarks:
This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. (emphasis in original)
[32] It seems that the Supreme Court of Canada has accepted however, that it would be possible for the prosecutorial discretion of the Attorney General to be reviewed in cases of flagrant impropriety or of malicious prosecution. In Krieger v. Law Society of Alberta, supra, at paragraph 49, it was stated that:
In Campbell v. Attorney-General of Ontario (1987), 35 C.C.C. (3d) 480 (Ont. C.A.), it was held that an Attorney General's decision to stay proceedings would not be reviewed save in cases of "flagrant impropriety". See also Power, supra; Chartrand v. Quebec(Minister of Justice) (1987), 59 C.R. (3d) 388 (Que. C.A.). Within the core of prosecutorial discretion, the courts cannot interfere except in such circumstances of flagrant impropriety or in actions for "malicious prosecution": Nelles, supra. In all such cases, the actions of the Attorney General will be beyond the scope of his office as protected by constitutional principle, and the justification for such deference will have evaporated.
[33] However, upon review of the decision of the Attorney General in the case before me, I do not find any indicia of flagrant impropriety which would give way to this Court exercising its powers of judicial review and quashing the decision to issue the stay.
[34] The Attorney General, as per Part V of the Federal Prosecution Service Deskbook - The Decision to Prosecute, must consider two issues when deciding whether to prosecute. First, is the evidence sufficient to justify the institution or continuation of proceedings? Second, if it is, does the public interest require a prosecution to be pursued? I find that in its decision, the Attorney General did precisely that, stating that in regards to the St. Lewis River Bridge, the evidence indicated that appropriate migrational access would be maintained. As for the Paradise River Bridge, the Attorney General indicated that the permanent bridge construction was permitted pursuant to an Authorization issued under subsection 35(2) of the Act and therefore, that the alteration of fish habitat did not constitute an offence under subsection 35(1).
[35] Finally, the Attorney General mentions in his decision that after considering the criteria of sufficiency of evidence and the public interest requirement, it had decided that it would be inappropriate to proceed with the prosecution.
[36] On the evidence provided to me, the applicant has failed to demonstrate how any of the above-noted actions of the Attorney General could be perceived as falling within the category of flagrant impropriety.
[37] Even if I could not find any improprieties in the Attorney General's conduct, some irregularities had been identified in the process followed by the parties that have led to the instituting of these proceedings: the way the bridges were installed, the rock infill in the river bed and the newly created channel being too narrow, only to name a few.
[38] Those above examples clearly indicate that the parties involved in the construction of the highway and of its bridges, were not following the original plans and it seems that they were acting in contravention of certain sections of the Fisheries Act.
[39] Nevertheless, this being a judicial review, this Court has not had access to all the evidence and all of the elements that would have to be taken into consideration for such a finding.
[40] The question that was before the Court was not whether the construction of a bridge and a causeway over the St. Lewis River, or the construction of a bridge over the Paradise River were done within the parameters of the law and regulations in place at the time, but rather, whether the Attorney General properly exercised its discretion in deciding to stay the prosecutions.
[41] I am therefore of the opinion that the Attorney General did not have a duty to consult with the LMN before exercising its prosecutorial discretion in staying the charges, and furthermore, that its discretion was not exercised in a manner which can be considered as one of flagrant impropriety. The application for judicial review is therefore dismissed.
[42] Given the particular circumstances of the case, I am of the opinion that no costs should be awarded.
ORDER
THIS COURT ORDERS that:
- The application for judicial review be dismissed;
- Without costs.
"Pierre Blais"
JUDGE
APPLICABLE LEGISLATION
Fisheries Act(R.S. 1985, c. F-14)
| Main channel not to be obstructed
26. (1) One-third of the width of any river or stream and not less than two-thirds of the width of the main channel at low tide in every tidal stream shall be always left open, and no kind of net or other fishing apparatus, logs or any material of any kind shall be used or placed therein.
(...)
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Ouverture permanente du chenal principal
26. (1) Un tiers de la largeur des cours d'eau et au moins les deux tiers à marée basse de la largeur du chenal principal des courants de marée doivent toujours être laissés libres; il est interdit d'y employer ou d'y placer des filets ou autres engins de pêche, des grumes de bois ou des matériaux de quelque nature que ce soit.
(...)
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| Harmful alteration, etc., of fish habitat
35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.
Alteration, etc., authorized
(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.
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Détérioration de l'habitat du poisson, etc.
35. (1) Il est interdit d'exploiter des ouvrages ou entreprises entraînant la détérioration, la destruction ou la perturbation de l'habitat du poisson.
Exception
(2) Le paragraphe (1) ne s'applique pas aux personnes qui détériorent, détruisent ou perturbent l'habitat du poisson avec des moyens ou dans des circonstances autorisés par le ministre ou conformes aux règlements pris par le gouverneur en conseil en application de la présente loi. |
Criminal Code(R.S. 1985, c. C-46)
| Referral when private prosecution
507.1 (1) A justice who receives an information laid under section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information.
Summons or warrant
(2) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information.
Conditions for issuance
(3) The judge or designated justice may issue a summons or warrant only if he or she
(a) has heard and considered the allegations of the informant and the evidence of witnesses;
(b) is satisfied that the Attorney General has received a copy of the information;
(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and
(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.
Appearance of Attorney General
(4) The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the proceeding.
Information deemed not to have been laid
(5) If the judge or designated justice does not issue a summons or warrant under subsection (2), he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to have been laid.
Information deemed not to have been laid -- proceedings commenced
(6) If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.
New evidence required for new hearing
(7) If a hearing in respect of an offence has been held under paragraph (3)(a) and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held.
Subsections 507(2) to (8) to apply
(8) Subsections 507(2) to (8) apply to proceedings under this section.
Non-application -- informations laid under sections 810 and 810.1
(9) Subsections (1) to (8) do not apply in respect of an information laid under section 810 or 810.1.
Definition of "designated justice"
(10) In this section, "designated justice" means a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec.
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Renvoi en cas de poursuites privées
507.1 (1) Le juge de paix qui reçoit une dénonciation faite en vertu de l'article 504, autre que celle visée au paragraphe 507(1), la renvoie devant un juge de la cour provinciale ou, au Québec, devant un juge de la Cour du Québec, ou devant un juge de paix désigné, afin qu'il soit décidé si l'accusé devra comparaître à cet égard.
Sommation ou mandat d'arrestation
(2) Lorsqu'il estime qu'on a démontré qu'il est justifié de le faire, le juge ou le juge de paix désigné à qui une dénonciation est renvoyée en vertu du paragraphe (1) décerne une sommation ou un mandat d'arrestation pour obliger l'accusé à comparaître devant un juge de paix pour répondre à l'inculpation.
Conditions
(3) Le juge ou le juge de paix désigné ne peut décerner une sommation ou un mandat d'arrestation que si les conditions suivantes sont remplies :
a) il a entendu et examiné les allégations du dénonciateur et les dépositions des témoins;
b) il est convaincu que le procureur général a reçu copie de la dénonciation;
c) il est convaincu que le procureur général a été avisé, en temps utile, de la tenue de l'audience au titre de l'alinéa a);
d) le procureur général a eu la possibilité d'assister à l'audience, de procéder à des contre-interrogatoires, d'appeler des témoins et de présenter tout élément de preuve pertinent.
Droit du procureur général
(4) Le procureur général peut assister à l'audience sans être réputé intervenir dans la procédure.
Présomption
(5) S'il ne décerne pas de sommation ou de mandat au titre du paragraphe (2), le juge ou le juge de paix désigné vise la dénonciation et y appose une mention à cet effet. À moins que le dénonciateur n'intente, dans les six mois suivant l'apposition du visa, un recours en vue de contraindre le juge ou le juge de paix désigné à décerner une sommation ou un mandat, la dénonciation est réputée ne pas avoir été faite.
Présomption
(6) Si des procédures sont intentées au titre du paragraphe (5) et qu'un mandat ou une sommation n'est pas décerné, la dénonciation est réputée ne pas avoir été faite.
Nouvelle audience
(7) S'il y a refus de décerner une sommation ou un mandat à la suite d'une audience tenue au titre de l'alinéa (3)a), il ne peut être tenu d'audience relativement à la même infraction ou une infraction incluse que si de nouveaux éléments de preuve appuient la dénonciation en cause.
Application des paragraphes 507(2) à (8)
(8) Les paragraphes 507(2) à (8) s'appliquent aux procédures visées au présent article.
Non-application -- dénonciations au titre des articles 810 et 810.1
(9) Les paragraphes (1) à (8) ne s'appliquent pas à la dénonciation déposée au titre des articles 810 ou 810.1.
Juge de paix désigné
(10) Au présent article, « juge de paix désigné » s'entend d'un juge de paix désigné par le juge en chef de la cour provinciale qui a compétence et, au Québec, d'un juge de paix désigné par le juge en chef de la Cour du Québec.
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| Attorney General may direct stay
579. (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
Recommencement of proceedings
(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced.
When Attorney General does not stay proceedings
579.01 If the Attorney General intervenes in proceedings and does not stay them under section 579, he or she may, without conducting the proceedings, call witnesses, examine and cross-examine witnesses, present evidence and make submissions.
Intervention by Attorney General of Canada
579.1 (1) The Attorney General of Canada or counsel instructed by him or her for that purpose may intervene in proceedings in the following circumstances:
(a) the proceedings are in respect of a contravention of, a conspiracy or attempt to contravene or counselling the contravention of an Act of Parliament or a regulation made under that Act, other than this Act or a regulation made under this Act;
(b) the proceedings have not been instituted by an Attorney General;
(c) judgment has not been rendered; and
(d) the Attorney General of the province in which the proceedings are taken has not intervened.
Section 579 to apply
(2) Section 579 applies, with such modifications as the circumstances require, to proceedings in which the Attorney General of Canada intervenes pursuant to this section.
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Le procureur général peut ordonner un arrêt des procédures
579. (1) Le procureur général ou le procureur mandaté par lui à cette fin peut, à tout moment après le début des procédures à l'égard d'un prévenu ou d'un défendeur et avant jugement, ordonner au greffier ou à tout autre fonctionnaire compétent du tribunal de mentionner au dossier que les procédures sont arrêtées sur son ordre et cette mention doit être faite séance tenante; dès lors, les procédures sont suspendues en conséquence et tout engagement y relatif est annulé.
Reprise des procédures
(2) Les procédures arrêtées conformément au paragraphe (1) peuvent être reprises sans nouvelle dénonciation ou sans nouvel acte d'accusation, selon le cas, par le procureur général ou le procureur mandaté par lui à cette fin en donnant avis de la reprise au greffier du tribunal où les procédures ont été arrêtées; cependant lorsqu'un tel avis n'est pas donné dans l'année qui suit l'arrêt des procédures ou avant l'expiration du délai dans lequel les procédures auraient pu être engagées, si ce délai expire le premier, les procédures sont réputées n'avoir jamais été engagées.
Non-arrêt des procédures par le procureur général
579.01 S'il intervient dans des procédures et ne les fait pas arrêter en vertu de l'article 579, le procureur général peut, sans pour autant assumer la conduite des procédures, appeler des témoins, les interroger et contre-interroger ou présenter des éléments de preuve et des observations.
Intervention du procureur général du Canada
579.1 (1) Le procureur général du Canada ou le procureur mandaté par lui à cette fin peut, si les circonstances suivantes sont réunies, intervenir dans toute procédure :
a) concernant une contravention à une loi fédérale autre que la présente loi ou à ses règlements d'application, une tentative ou un complot en vue d'y contrevenir ou le fait de conseiller une telle contravention;
b) qui n'a pas été engagée par un procureur général;
c) où le jugement n'a pas été rendu;
d) à l'égard de laquelle n'est pas intervenu le procureur général de la province où les procédures sont engagées.
Application de l'article 579
(2) L'article 579 s'applique, avec les adaptations nécessaires, aux procédures dans lesquelles le procureur général du Canada intervient en vertu du présent article.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1281-04
STYLE OF CAUSE: LABRADOR MÉTIS NATION AND CARTER RUSSEL and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: ST. JOHN'S, NEWFOUNDLAND AND LABRADOR
DATE OF HEARING: JUNE 21, 2005
APPEARANCES:
ROBERT WRIGHT AND FOR APPLICANTS
JUSTIN DUNCAN
SOLICITORS OF RECORD:
SIERRA LEGAL DEFENCE FUND FOR APPLICANTS
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA