Holland (Re)

2020 BCSC 77 Holland (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Holland (Re), 2020 BCSC 77 Date: 20200116 Docket: S1917352 Registry: Williams Lake

IN THE MATTER OF THE SUPREME COURT ACT SECTION 18 - VEXATIOUS PROCEEDINGS

ZSUZSANNA HOLLAND Corrected Judgment: The text of the judgment was corrected at paragraphs 4, 6, 7, 14, and 25 where changes were made on January 24, 2020 Before: The Honourable Madam Justice Duncan Oral Reasons for Judgment Appearing in Person: Z. Holland Counsel for Ministry of Attorney General: F. Zaltz Place and Date of Hearing: Williams Lake, B.C. January 13, 2020 Place and Date of Judgment: Williams Lake, B.C. January 16, 2020 Introduction [1] The petitioner, Zsuzsanna Holland, seeks leave to file a petition for mandamus relating to a decision of Acting Regional Crown Counsel, Oliver Fleck. Mr. Fleck entered a stay of proceedings with respect to a private Information the petitioner laid in Williams Lake Provincial Court. The petitioner also challenges the action of the Williams Lake court registry staff to seal the court file relating to the private Information as well as the refusal of the registry to set a date for the hearing of the merits of this petition. [2] The petitioner requires leave to file the petition because she was declared a vexatious litigant by Madam Justice Brown in 2010, pursuant to s. 18 of the Supreme Court Act, RSBC 1996, c.

443. That order prohibits the petitioner from commencing any proceedings in the Supreme Court of British Columbia without first obtaining leave from a justice of the Court. [3] The purpose of the leave requirement is not to entirely deprive a vexatious litigant of access to the Supreme Court, but to ensure there is merit to the proposed action or petition. In Nelson v. Canada (Customs and Revenue Agency) et al, 2005 BCSC 1843, Mr. Justice Brooke articulated the approach to be taken: [9] A vexatious litigant or a person so found under now s. 18 of the Supreme Court Act, is not denied access to the courts, but a vexatious litigant so found is required to obtain the leave of the court to bring proceedings. The basis for leave is the applicant's demonstration of a reasonably founded or arguable case. The test is quite a different test than that of whether a statement of claim or other pleading should be struck. In such case, the court begins with the assumption that the assertions of fact are true. Here, where an order has been made requiring Mr. Nelson to show a reasonably founded or arguable case, there is a burden upon him, it seems to me, to bring forward not only a claim that is known to the law but also the manner in which that claim can be proven. It is not a requirement that he prove the case, that would be too high a burden, but it is necessary that he show the existence

of evidence which, if accepted, would support the claim. Background [4] The petitioner prepared a private Information which was sworn before a Justice of the Peace in Williams Lake on August 8, 2019. It contains eight allegations of criminal conduct against Crown Counsel, [name redacted], ranging from contempt of court to disobeying a court order, perjury, fabricating evidence, obstructing justice and conspiracy. The Information was given Williams Lake Provincial Court file number 36218-1. [5] The background to the petitioner's private Information arose from a matter she was involved in before the Supreme Court in 2018. She wanted to call Charles Bryfogle as a witness. Mr. Bryfogle was bound by a probation order imposed by Mr. Justice Cullen, then the Associate Chief Justice, on July 15, 2016. The probation order prohibited Mr. Bryfogle from involving himself in proceedings or legal matters on behalf of or relating to the petitioner except as a witness under subpoena to a criminal proceeding brought against her. [6] [name redacted ] laid charges against Mr. Bryfogle in Kamloops Provincial Court for breach of probation (s. 733.1(1)) and breach of a court order (s. 127(1)). [7] The petitioner alleges that [name redacted] laid the charges to intimidate Mr. Bryfogle and prevent him from testifying for her at her trial. [8] Once sworn, the private Information was scheduled in the

Provincial Court on August 14, 2019 to fix a date for a process hearing under s. 507.1 of the Criminal Code. On August 13, Mr. Fleck intervened in writing on behalf of the Attorney General of British Columbia and assumed conduct of the proceedings. He directed a stay of proceedings concerning the private Information, stating in his letter that the allegations contained in it did not meet the applicable charge assessment standard. [9] The charge assessment standard in British Columbia requires the Crown to consider 1. Whether there is a substantial likelihood of conviction; and, if so, 2. Whether the public interest requires a prosecution: Crown Counsel Policy Manual, CHA 1. [10] On August 14, the petitioner filed an application with the Provincial Court registry seeking to reinstate the proceedings and requesting a process hearing, citing ss. 504 and 507 of the Criminal Code. She also expressed disagreement with the court registry's decision to seal the court file relating to the proceedings. [11] Regional Administrative Judge Brecknell directed that the petitioner's application be placed on the Provincial Court list for August 30, 2019. The petitioner attended, as did John Hempstead, Deputy Regional Crown Counsel. Brecknell R.A.J. explained to the petitioner that the Provincial Court had no jurisdiction to entertain her applications for relief concerning the private

Information, in light of the stay of proceedings. He suggested the petitioner's only possible remedy lay in a Supreme Court application. [12] The petitioner drafted a petition for mandamus in relation to Mr. Fleck's decision to enter the stay and tried to file the petition on September 6, using the Provincial Court file number. Registry staff advised her that the petition could not be filed under that number because it related to a sealed file. The petitioner attended the court registry again on September 9 and learned that by virtue of Brown J.'s vexatious litigant order she had to seek leave to file the petition pursuant to the Supreme Court of British Columbia Administrative Notice 16 concerning vexatious litigants. [13] On September 11, Madam Justice Fleming reviewed Ms. Holland's requisition seeking leave to file the proposed petition. Fleming J. directed that a hearing of the leave application was required, on notice to Crown Counsel. The matter came on before me on January 13, 2020 on the civil Chambers list. Submissions [14] The petitioner alleges that Mr. Fleck's decision to intervene in the private prosecution and enter a stay of proceedings was done to cover up the crimes of [name redacted]. I understand the petitioner to take the position that her petition is akin to an appeal and a criminal matter as of right, so leave is not required. [15] Ms. Zaltz, counsel for

the Attorney General, maintains that the vexatious litigant order applies to all proceedings in Supreme Court, whether civil or criminal. Ms. Zaltz opposes the granting of leave because there is no merit to the petition. She identified five issues in the proposed petition: 1. Whether a Crown counsel has the authority to intervene in a private prosecution on behalf of the AGBC; 2. Whether the Crown has the ability to intervene in and direct a stay of proceedings of a private prosecution before the process hearing; 3. Whether there is an alleged conflict of interest in one Crown counsel intervening in and directing a stay of proceedings of a private information in which the accused is a Crown counsel; 4. Whether it is appropriate for the court registry to seal the court file pertaining to a concluded private prosecution where no process issued; and 5. Whether costs could be awarded against the Crown for its decision to direct the stay of a private Information. [16] I find the order of Brown J. clearly encompasses all proceedings in Supreme Court, criminal or civil. Whether this is styled as a petition for an extraordinary remedy under Part XXVI of the Criminal Code or as a judicial review under the Judicial Review Procedure Act, the petitioner requires leave of the Court to proceed. [17] I agree with Ms. Zaltz's characterization of the legal issues which appear to arise in the

proposed petition. I will assess their merits with a view to determining whether the petitioner has reached the threshold for obtaining leave to file the petition. Issues 1- 3 [18] The Crown Counsel Act, R.S.B.C. 1996, c. 87 permits the Assistant Deputy Attorney General to designate, as Crown counsel, any individual or class of individual who is lawfully entitled to practice law in British Columbia. Each Crown counsel is authorized to approve prosecutions, conduct prosecutions, supervise private prosecutions and, if the interests of justice require, intervene and conduct those prosecutions. [19] Where a peace officer, public officer, the Attorney General or an agent of the Attorney General appear before a justice and an Information is laid pursuant to s. 504, he or she hears and considers, ex parte, the allegations of the informant and evidence of witnesses, where it is desirable and necessary to do so. If the justice decides a case is made out, process by way of a summons or an arrest warrant will issue, pursuant to s. 507. [20] The route to obtaining process is different for a private Information by virtue of s. 507.1. A justice who receives a private Information shall refer it to a Provincial Court judge to consider whether to compel the appearance of the accused on the Information. The Attorney General may appear at that process hearing without being deemed to

intervene. [21] Section 579 of the Criminal Code provides that an Attorney General may direct a stay of proceedings any time after any proceedings in relation to an accused or defendant are commenced and before judgment. For the purpose of s. 579, proceedings are commenced once an Information has been laid: R. v. McHale, 2010 ONCA 361 at para. 89; leave to appeal ref'd. [2010] S.C.C.A. 290. [22] A decision by the Attorney General or his delegate to direct a stay of proceedings on a private Information is an exercise of prosecutorial discretion. In Krieger v. Law Society of Alberta, 2002 SCC 65, the Court observed: 46 Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1 ; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to

the office of the Attorney General. 47 Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [23] The exercise of prosecutorial discretion is not subject to judicial review, except where the applicant can prove flagrant impropriety by the Attorney General or the Crown in directing the stay: Krieger, para. 49. [24] Flagrant impropriety can only be established by proof of misconduct bordering on corruption, violation of the law, or bias: Kostuch v. Alberta (Attorney General), [1995] A.J. No. 866 (C.A.) at para. 34; R. v. Durette (1992), 72 C.C.C. (3d) 421 at 437-439. [25] While the petitioner made a variety of allegations against [name redacted], in respect of

his decision to charge Mr. Bryfogle, the necessary focus of the proposed petition is the decision of Mr. Fleck on behalf of the Attorney General to intervene in the private prosecution and direct a stay of proceedings. That is the only decision which could be reviewed as [name redacted]'s charge approval decision is not before me. [26] The petitioner advanced her theory about why Mr. Fleck stayed the private Information, but offers no proof. The only evidence before me is that Mr. Fleck directed a stay of proceedings, in writing, because he applied the Crown charge approval standard and found no substantial likelihood of conviction. This is not evidence of a flagrant impropriety. [27] The petitioner also maintained that one Crown counsel should not direct a stay of proceedings when another Crown counsel is the subject of the charge. Given that only the Attorney General or a delegate (Crown counsel) can assume conduct of a private prosecution and enter a stay of proceedings, this aspect of the proceedings on its own does not furnish evidence of flagrant impropriety. [28] In An Application for an Order of Mandamus, 2000 BCSC 1408, Mr. Justice Edwards observed: [9] No one but the Attorney General has the authority to assume the conduct of a private prosecution. The law recognizes that this authority must include the discretion to stay a private prosecution so that someone

accountable to the public, the Attorney General, may prevent misuse of the criminal process by private parties. This ensures that no citizen is subject to a private prosecution that does not meet the criteria for charge approval applied to prosecutions undertaken by the Attorney General of British Columbia. Those criteria are first, that there is a substantial likelihood of conviction for the offence charged or an included offence and second, that if there is that substantial likelihood, it is in the public interest that the charge be prosecuted. [10] Bona fide application of those criteria cannot amount to flagrant impropriety on behalf of the Attorney General. Lack of bona fides is not even implicit, let alone demonstrated, by the mere fact that those named in the information include a former Attorney General and the ministry, nor by the fact the information alleges these parties conspired with others named in the information. [29] In summary, Crown counsel has the authority to intervene in a private prosecution on behalf of the Attorney General. Crown counsel also has the ability to intervene in and direct a stay of proceedings of a private prosecution before the process hearing. Finally, the fact that one Crown counsel reviewed the private Information, in which another Crown counsel was named, and determined to enter a stay of proceedings is on its face a proper exercise of

prosecutorial discretion. The petitioner has expressed her strong beliefs about the process but they do not amount to anything close to proof of flagrant misconduct. Issue 4 [30] While I have concluded that there is no merit to the petitioner's main grounds concerning the Crown's decision to stay her private Information, I will deal with her argument that the court registry staff engaged in some form of misconduct by sealing the file relating to the private Information. [31] In Ambrosi v. British Columbia (Attorney General), 2014 BCCA 123; leave to appeal ref'd. 2014 CanLII 70966, the Court considered the nature of the process inquiry under s. 507.1. Bennett J.A. observed that the purpose of holding the hearing in camera is primarily to protect the named accused from spurious allegations if no process is issued: at para. 33. [32] In the case before me, the private Information was stayed before the process inquiry under s. 507.1. It would make no sense for the contents of the file to be open to the public in circumstances where there could be no process hearing because of the stay. [33] The petitioner challenges the registry staff's reliance on JUSTIN, the internal record keeping system concerning criminal matters, to justify keeping the file sealed. On the basis of the materials filed, it appears that the JUSTIN rationale for keeping the file sealed is consistent with the

commentary in Ambrosi. There is no merit to the petitioner's argument in this regard. Issue 5 [34] The petitioner seeks costs against the Attorney General. Because I find there is no merit to any of the substantive arguments in the proposed petition, there is no need for me to consider this issue. [35] The petitioner's application for leave to file the petition in this matter is dismissed. No costs were sought by the Attorney General and none are ordered. Ms. Zaltz, I will ask you to prepare the order for endorsement and I dispense with the need for Ms. Holland's signature on it. "Duncan J." _________ The Honourable Madam Justice Duncan