Pereira v. British Columbia (Attorney General)

2023 BCCA 31 Pereira v. British Columbia (Attorney General)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Pereira v. British Columbia (Attorney General), 2023 BCCA 31 Date: 20230120 Docket: CA48503 Between: Corinne Marie Pereira Appellant And Attorney General of British Columbia Respondent Restriction on publication: A publication ban has been issued pursuant to the inherent jurisdiction of the Supreme Court of British Columbia preventing the publication of information that could identify the individuals named in the Private Informations sworn by the appellant. Before: The Honourable Chief Justice Bauman The Honourable Justice Griffin The Honourable Madam Justice Horsman On appeal from: An order of the Supreme Court of British Columbia, dated August 9, 2022 (Pereira v. British Columbia (Attorney General), 2022 BCSC 1619, Terrace Dockets 35828; 35829; 35830; 35831). The Appellant, appearing via videoconference: C.M. Pereira Counsel for the Respondent: L.A. Ruzicka, K.C. F. Zaltz Place and Date of Hearing: Vancouver, British Columbia January 13, 2023 Place and Date of Judgment, with Written Reasons to Follow: Vancouver, British Columbia January 13, 2023 Place and Date of Written Reasons: Vancouver, British Columbia January 20, 2023 Written Reasons by: The Honourable Madam Justice Horsman Concurred in by: The Honourable Chief Justice Bauman The Honourable Justice Griffin Summary: The appellant appeals the dismissal of her application to

quash the decision of the Attorney General of British Columbia to direct a stay of private prosecutions prior to a process hearing. The appellant alleges legal and factual errors by the application judge. She also applies to adduce further evidence on appeal. Held: Appeal dismissed. The application judge did not err in concluding that the Attorney General had jurisdiction to direct a stay, and that the appellant had not adduced evidence to justify a review of this exercise of prosecutorial discretion on abuse of process grounds. The appellant's proposed further evidence did not satisfy the Palmer test, and therefore her application to adduce further evidence is dismissed. Reasons for Judgment of the Honourable Madam Justice Horsman: [1] The appellant, Ms. Pereira, appeals the dismissal of her application for certiorari and mandamus quashing the decision of the Attorney General of British Columbia ("AGBC") to direct a stay of proceedings of private informations sworn by Ms. Pereira. The appeal is brought pursuant to s. 784(1) of the Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code]. [2] Ms. Pereira also applies to adduce further evidence on appeal. The AGBC opposes the application, and alternatively brings its own further evidence application. [3] At the hearing of the appeal, the parties were advised that the appeal was dismissed, with reasons to follow. These are the

reasons. Factual background [4] The events relevant to this appeal occurred in the context of Ms. Pereira's former employment with Dexterra Group Inc. ("Dexterra"). Ms. Pereira was a guest services agent at Crossroads Lodge, a work camp in Kitimat, BC. The parties describe Dexterra as "the employer". I will adopt the same description in these reasons. [5] Ms. Pereira's employment was subject to a collective agreement between the employer and UNITE HERE, Local 40 (the "Union"). Ms. Pereira was dismissed from her employment in September 2020. [6] For the purposes of the present appeal, it is unnecessary to review the circumstances leading to Ms. Pereira's dismissal in detail. It is sufficient to note that the relevant events included complaints to Ms. Pereira's employer by some of her former co-workers about her workplace behaviour. Ms. Pereira believes that the complainants maliciously advanced false reports about her. [7] The employer's concerns about Ms. Pereira's conduct led to discipline in the form of written and verbal warnings, and a three-day suspension. [8] On her behalf, the Union grieved the employer's discipline of Ms. Pereira, and also the termination of her employment. Both grievances were ultimately settled by agreement between the Union and the employer. [9] Ms. Pereira filed complaints with the Labour Relations Board (the "LRB") alleging that the Union breached

its statutory duty of fair representation under s. 12 of the Labour Relations Code, R.S.B.C. 1996, c. 244 [Code] in its conduct of the discipline and termination grievances. The LRB dismissed both of Ms. Pereira's s.12 complaints, and also her applications for leave and reconsideration of the dismissals. Ms. Pereira's two applications for judicial review of the LRB's decisions were heard at the same time by Justice Punnett. He dismissed the applications in reasons issued July 15, 2022: Pereira v. British Columbia Labour Relations Board, 2022 BCSC 1205. Ms. Pereira has appealed this decision. The appeal has not yet been heard. [10] In June 2020, Ms. Pereira complained to the Workers' Compensation Board (which operates as WorkSafeBC) that her former co-workers' conduct towards her constituted harassment and bullying, and that she was the victim of workplace "mobbing". She alleged that in failing to investigate her complaint, the employer had breached its duties under the Workers Compensation Act, S.B.C. 2019, c. 1 [Workers Compensation Act]. [11] In January 2022, the occupational safety officer assigned by WorkSafeBC to look into Ms. Pereira's complaint issued a report concluding that the employer's response to the matter was compliant with WorkSafeBC policy. As such, no order was issued to the employer pursuant to s. 21(1)(a) of the Workers Compensation Act. Section 21(1)(a)

sets out an employer's general duty to ensure the health and safety of workers. Ms. Pereira sought review of this decision, as permitted by the Workers Compensation Act. In a decision issued on May 4, 2022, a Review Officer confirmed the decision. [12] Ms. Pereira applied for judicial review of the Review Officer's decision. In reasons for judgment issued on September 22, 2022, Justice Gomery concluded that the Review Officer's decision was unreasonable in finding that the employer had complied with WorkSafeBC policy despite the fact that Ms. Pereira's mobbing complaint had not been fully investigated: Pereira v. British Columbia (Workers' Compensation Board), 2022 BCSC 1654 at paras. 32-51. He dismissed the remainder of Ms. Pereira's grounds for judicial review: paras. 52-63. In the result, Justice Gomery quashed the decision of the Review Officer, and remitted the matter back for reconsideration. [13] Justice Gomery's decision, and the events which followed, are the subject matter of Ms. Pereira's further evidence application on the present appeal. I will address that application later in these reasons. [14] There is also a related criminal proceeding involving Ms. Pereira. On March 16, 2022, she was charged with two counts of uttering threats to cause death or bodily harm to two individuals. The criminal charges arise from an open letter that the appellant sent in December

2021 to numerous individuals, including MLAs, the LRB, and the media. The letter contained a fake news article written by Ms. Pereira in which she describes shooting and killing two of her former co-workers at Crossroads Lodge. The fake news article also reported her own death, possibly due to suicide. The parties advise that Ms. Pereira was acquitted of the charges in early January 2023. The Private Informations [15] Section 504 of the Criminal Code allows any person to initiate a prosecution if they believe on reasonable grounds that another person has committed an indictable offence. Section 504 applies to anyone who lays an information, including private citizens and also peace officers, public officers, the Attorney General, and the Attorney General's agents. [16] In early 2022, Ms. Pereira swore four private informations before a Justice of the Peace in Terrace, B.C.: a) Information 35654, sworn January 4, 2022, containing 54 counts. The accused are the employer, the Union, and a number of Ms. Pereira's former co-workers, including management-level employees. The information alleges various contraventions of the Workers Compensation Act and the Offence Act, R.S.B.C. 1996, c. 338; b) Information 35655, sworn January 12, 2022, containing three counts. The accused are members of the LRB. The information alleges breach of trust by a public officer contrary to s. 122 of the

Criminal Code, and being an accessory after the fact to that offence; c) Information 35657, sworn January 26, 2022, containing four counts. The accused are the employer, the Union, and members of the LRB. The information alleges offences in relation to s. 425.1 of the Criminal Code--which provides "whistleblower" protection by criminalizing threats and retaliations against employees--and being an accessory after the fact to that offence; and d) Information 35661, sworn February 3, 2022, containing two counts. The accused are the Union and a lawyer who are alleged to have offered financial inducements to Ms. Pereira to withdraw her private prosecutions. The information alleges the offence of attempting to obstruct justice contrary to s. 139(1) of the Criminal Code. (Collectively, the "Private Informations") [17] Section 507.1 of the Criminal Code sets out the procedure to be followed where a private information is laid under s. 504 of the Code; that is, where the information is laid by someone other than a police officer, public officer, the Attorney General or an agent of the Attorney General. Pursuant to s. 507.1, the private information is referred to a judge or justice, who must conduct a hearing in order to decide whether the process of the court--a summons or warrant--will issue to compel the attendance of the accused. This is known as the "process hearing" or

"pre-enquete". The Attorney General must receive a copy of the private information and reasonable notice of the process hearing. The presiding judge or justice must give the Attorney General an opportunity to attend the hearing, to cross-examine any of the informant's witnesses, and to call evidence. [18] In this case, a process hearing was scheduled in the Provincial Court in Terrace for May 19, 2022. On May 18, 2022, Crown counsel wrote a letter to the Terrace Registry directing a stay of proceedings of the Private Informations on all counts, pursuant to s. 579(1) of the Criminal Code. Section 579(1) provides: 579 (1) The Attorney General or counsel instructed by the Attorney General 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 the Attorney General's or counsel's direction, as the case may be, and the entry shall then be made, at which time the proceedings shall be stayed accordingly and any undertaking or release order relating to the proceedings is vacated. [Emphasis added.] [19] Ms. Pereira filed an application for certiorari and mandamus seeking to review the Attorney General's decision to direct a stay of proceedings. Justice Tammen heard the application on July 19

and 22, 2022. On August 9, 2022, he gave oral reasons for decision dismissing the application: Pereira v. British Columbia (Attorney General), 2022 BCSC 1619. This is the decision under appeal. The Reasons for Judgment [20] At the outset of his analysis, the judge summarized the general principles governing Ms. Pereira's application as follows: [12] The decision to direct a stay of proceedings is a core element of prosecutorial discretion. Such decisions are reviewable by the courts only for abuse of process. The burden of demonstrating an abuse of process rests with the moving party, on a balance of probabilities: (Krieger v. Law Society of Alberta, 2002 SCC 65, at paras. 32, 46-47 and 49.) [13] In order to succeed on this application, Ms. Pereira must demonstrate that the decision to direct a stay of proceedings meets the abuse of process test or rises to the level of "flagrant impropriety" by the AG or counsel instructed on his behalf: (Krieger at para. 49.) [14] Flagrant impropriety can only be established by proof of misconduct bordering on corruption, violation of the law, bias against or for a particular individual, or offence: (Kostuch v. Alberta (Attorney General), [1995] A.J. No. 866 at 451.) [21] The judge noted that Ms. Pereira had not presented any evidence of misconduct or flagrant impropriety by Crown counsel, and therefore failed to meet the initial evidentiary

threshold required of her: at para. 15, citing R. v. Nixon, 2011 SCC 34 at para. 62 [Nixon]. Nevertheless, the judge addressed the two primary submissions that Ms. Pereira advanced on the application: (1) First, that the Crown had no authority to direct a stay of an information prior to the conclusion of the process hearing under s. 507.1 of the Criminal Code; and (2) Second, that Crown counsel who directed the stay of proceedings was in an obvious conflict of interest because he was also assigned to prosecute Ms. Pereira on the charge of uttering threats. [22] On the first issue, the judge held that the law is consistent that the Crown may direct a stay of proceedings under s. 579(1) of the Criminal Code before a process hearing is held. At paras. 17-21, he reviewed a number of cases supporting this proposition, including the decision of the Ontario Court of Appeal in McHale v. Ontario (Attorney General), 2010 ONCA 361 [McHale], leave to appeal refused [2010] S.C.C.A. No. 290 . [23] On the second issue, the judge held that there is no inherent conflict of interest in a single Crown counsel making more than one charge approval decision arising from a single set of facts. He noted that Crown counsel are presumed to act in good faith, and to objectively and dispassionately discharge their duties as counsel acting on behalf of the Attorney General: at para.

24. He stated: [25] There are many occasions where a single Crown counsel must make decisions on multiple files where there is overlap among complainants, witnesses, and potential accused. That is particularly so in smaller communities, with limited numbers of prosecutors available. At all times, Crown counsel are expected to remain objective about the available evidence and free of bias for or against any justice system participant. In the absence of evidence showing otherwise, the courts presume that Crown counsel discharge those responsibilities dispassionately and professionally. Here, there is no evidence of any lack of objectivity, much less misconduct, on the part of Crown counsel. [24] Accordingly, the judge dismissed Ms. Pereira's application. Issues on Appeal [25] On appeal, Ms. Pereira alleges three errors by the judge: (1) He erred in law in finding that Ms. Pereira did not have the right to a process hearing, and he approached the issue with a closed mind; (2) He did not provide adequate reasons for dismissing Ms. Pereira's argument that Crown counsel was in a conflict of interest; and (3) He failed to address the question of whether a negligent charge assessment might constitute flagrant impropriety. [26] Ms. Pereira also applies to adduce further evidence on appeal. I will address that application before turning to consider her grounds of appeal. The Further

Evidence Application [27] Ms. Pereira's proposed further evidence consists of Justice Gomery's judgment of September 22, 2022, and the December 15, 2022 decision of a Review Officer of WorkSafeBC conducting the reconsideration directed by Justice Gomery. On the reconsideration, the Review Officer concluded that the employer had failed to conduct a reasonable investigation into Ms. Pereira's complaint of bullying and harassment. The Review Officer referred the matter back to the Board to issue an order against the employer for a violation of s. 21(1)(a) of the Workers Compensation Act, and to determine what steps are required to comply with the order. Ms. Pereira argues that these subsequent events demonstrate Dexterra's "guilt", and that this would have affected the charge assessment decision in relation to the charges she wishes to pursue. Thus, Ms. Pereira says the further evidence materially bears on the outcome of her application. [28] The AGBC argues that Justice Gomery's decision is not strictly evidence, and that in any event his decision and the subsequent decision of the Review Officer does not meet the test for admission of further evidence. The AGBC's primary argument is that this information is not relevant and would not have affected the result of the application. In the alternative, the AGBC says that if the Court admits this evidence, it should also admit further

evidence tendered by the AGBC. The AGBC's proposed further evidence demonstrates that after Justice Gomery's decision was released, Ms. Pereira swore another private information against the employer and the Union containing substantially similar charges, which were again stayed by the Crown. The AGBC says this shows that Justice Gomery's decision would not have affected the result of either the Crown's charge assessment or the judge's decision. [29] The parties agree that Ms. Pereira's application is governed by the well-known test from Palmer v. The Queen, [1980] 1 S.C.R. 759 [Palmer] for the admission of further evidence on appeal. The proposed further evidence is not "fresh evidence" in the sense that it existed at the time of the hearing before the judge, but rather new evidence of matters that arose after the judgment under appeal. The due diligence criterion of Palmer is therefore inapplicable. The remaining criteria from Palmer address whether the further evidence is relevant and credible, whether it could reasonably be taken to have affected the result, and whether its admission is in the interests of justice. [30] For the reasons that follow, I conclude that Ms. Pereira's proposed further evidence is not relevant to a decisive issue on her application, its admission could not reasonably be taken to have affected the result, and it would not be in the interests of

justice to admit it. [31] Ms. Pereira's submission on the further evidence argument rests, at least in part, on two assumptions: (1) the proposed new evidence establishes that her complaints of workplace bullying and harassment have been substantiated, and (2) the fact they are substantiated is evidence that the individuals and entities named in the Private Informations committed criminal and/or regulatory offences. Neither assumption is correct. The Review Officer's decision addresses Ms. Pereira's complaint about the adequacy of the investigation, not the merits of her underlying complaints of workplace bullying and harassment. Furthermore, even if Ms. Pereira's underlying complaints were found to be substantiated, this would make no difference to the outcome of her application for mandamus and certiorari. The Crown is not obliged to initiate a criminal prosecution against every individual found to have engaged in workplace misconduct. A decision as to whether approve charges, or stay charges, is a matter of prosecutorial discretion. [32] The same can be said of Ms. Pereira's assertion that the Review Officer's decision establishes Dexterra's "guilt" of criminal or regulatory offences. This assertion is also incorrect. The fact that Ms. Pereira has secured an administrative law remedy in relation to the employer's failure to investigate her complaint of workplace harassment

and bullying does not establish that the employer or the Union, much less every LRB decision maker, is guilty of an offence. More to the point, it is for the Crown to make the charge assessment. Once again, a decision to approve charges, or to direct a stay of charges, falls directly within the core of prosecutorial discretion. An exercise of prosecutorial discretion is reviewable by the courts only on abuse of process grounds, and only where the applicant has established a threshold evidentiary case. [33] Thus, the proposed new evidence has no bearing on the only factual question that the judge had to decide: whether Ms. Pereira met the evidentiary threshold to justify a review of the exercise of prosecutorial discretion to direct a stay of charges. Justice Gomery's decision, and the decision of the Review Officer that followed, is not evidence that the conduct of the Crown was an abuse of process. [34] The AGBC's proposed further evidence is inadmissible for the same reason. The fact that Crown counsel directed a further stay of proceeding of substantially similar charges in a private information sworn by Ms. Pereira is not relevant to, or decisive of, any issue the judge had to decide in this case. [35] I would therefore decline to admit the proposed further evidence. The Alleged Errors Issue 1: Did the judge err in law in finding that Ms. Pereira did not have a right to a

process hearing, and approaching the issue with a closed mind? [36] Ms. Pereira states in her factum that she was unaware until the start of the hearing that the judge had recently decided another case--Holland v. British Columbia (Attorney General), 2022 BCSC 613 [Holland]--that raised the same issue of the Crown's ability to direct a stay of a private information prior to a process hearing. Ms. Pereira argues that in these circumstances, the judge could not have had an open mind because accepting her argument would be tantamount to an admission that he had erred in his previous judgment. She asserts that: "He wasn't going to remain impartial and overrule himself.": Appellant Factum at para. 13. [37] A reasonable apprehension of bias does not arise simply because a judge must decide the same issue in different cases. Judges are often called upon to decide the same or similar legal issues that are addressed in their past judgments. The fact that the judge in this case followed other judgments of the Supreme Court of British Columbia, including one of his own previous judgments, is consistent with the principle of judicial comity described in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.) at 592. It is not evidence of a lack of impartiality. [38] The substance of Ms. Pereira's argument is that the judge misunderstood the law, and erroneously concluded that McHale

supported the Crown's position when in fact it supported her position. Her position is that McHale holds that a private informant has an absolute right to a process hearing once an information is sworn. The AGBC agrees that the alleged legal error is subject to appellate review on a standard of review of correctness. The true issue, accordingly, is whether the judge was correct in his interpretation of McHale. [39] There is no merit to Ms. Pereira's assertion that the judge erred in his interpretation of McHale. The Court in McHale explicitly distinguished between the Attorney General's authority to direct a stay of a private information under s. 579(1) of the Criminal Code versus the Attorney General's common law authority to withdraw a private information: at para.

90. The Court held that the Attorney General can, under s. 579(1), direct a stay of a private information prior to a process hearing: at para.

89. The Court held that the Attorney General cannot, under the common law, withdraw a private information prior to a process hearing: at para.

77. The Court made this distinction between directing a stay and withdrawing an information on a principled basis, namely the different legal authorities underlying the Attorney General's powers. [40] The appeal in McHale was focused on the scope of the Attorney General's common law authority to withdraw an information. On the facts of the case, the Attorney General had withdrawn a private information at the outset of a process hearing on the basis that the prosecution was an abuse of process and not in the interests of justice. The Ontario Court of Appeal distinguished between the commencement of criminal proceedings and the commencement of a criminal prosecution. Criminal proceedings are commenced when the information is laid, whereas a criminal prosecution commences only with the issuance of process to compel the accused to answer the charge, following the process hearing. The Court concluded that the Attorney General's supervisory authority over criminal prosecutions--including the power to withdraw an information--starts with the commencement of a criminal prosecution. For this reason, the Court found that the Attorney General had no authority to withdraw the private information before the process hearing. The Attorney General only had authority to withdraw the private information after a justice had determined that process should issue, thus commencing the criminal

prosecution: McHale at paras. 71-77. [41] Notably, the Ontario Court of Appeal in McHale went on to consider the Attorney General's authority to direct a stay of a private information under s. 579(1) of the Criminal Code prior to a process hearing, as an alternative to withdrawing charges. The Court of Appeal distinguished the common law power of the Attorney General to withdraw an information from the statutory power to direct a stay of proceedings under s. 579(1) of the Code. Section 579(1) permits the Attorney General to direct a stay "at any time after any proceedings in relation to an accused are commenced" [emphasis added]. The relevant case law has interpreted this language to mean "any time after an information is laid". The Ontario Court of Appeal found that it followed logically that the laying of an information is encompassed within "proceedings in relation to an accused": McHale at para.

86. The Crown is thus empowered to direct a stay of proceedings after a private information is laid, and before the process hearing occurs. The Court summarized its conclusions in this way: [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. [Emphasis added.] [42] It is true that the outcome of McHale, as Ms. Pereira emphasizes, was to return the matter to the justice of the peace to conduct the process hearing. However, this was because the Attorney General in

that case withdrew the information rather than directing a stay of the charges. The applicant was entitled to a remedy despite the fact that the Attorney General could have, but did not, lawfully direct a stay prior to the process hearing. [43] As the judge noted in the decision under appeal, McHale has been relied on in decisions of the Supreme Court of British Columbia as authority for the Crown's ability to direct a stay of a private information prior to the process hearing: Holland; Holzbauer v. British Columbia (Attorney General), 2021 BCSC 1354 at para.

17. The Manitoba Court of Appeal has also followed McHale on this point: Klippenstein v. R., 2019 MBCA 13 at para. 7, leave to appeal refused [2019] S.C.C.A. No.

197. The Ontario Court of Appeal more recently affirmed the reasoning in McHale in R. v. Glegg, 2021 ONCA 100. [44] Therefore, the judge's interpretation of McHale was correct. McHale does not, as Ms. Pereira argues, support the proposition that a private informant has an absolute right to a process hearing once an information is sworn. McHale holds that the Crown has the statutory authority to direct a stay of a private information under s. 579(1) of the Criminal Code at any time after a private information is laid, including before a process hearing is held. While McHale is not binding on this Court, the Ontario Court of Appeal's reasoning is persuasive and consistent with the statutory language in s. 579(1) of the Criminal Code. In my view, McHale should be followed in British Columbia. [45] For these reasons, I would not accede to Ms. Pereira's first ground of appeal. Issue 2: Did the judge fail to provide adequate reasons for dismissing Ms. Pereira's argument that Crown counsel was in a conflict of interest? [46] Reasons for judgment must be sufficient to fulfill their purpose of explaining why a particular decision was made, thereby providing public accountability and permitting effective appellate review. An appellate court should adopt a functional and contextual approach in assessing the sufficiency of reasons, rather than finely parsing the reasons in a search for

error. The task for the appellate court is to " assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the [judge] decided and why they decided that way in a manner that permits effective appellate review.": R. v. G.F., 2021 SCC 20 at paras. 68-69. [47] In the present case, the judge's reasons address the conflict issue raised by Ms. Pereira, and explain why he did not accept her argument. The judge rejected the proposition that there was an inherent conflict in having one Crown counsel making multiple charge approval decisions out of a single set of facts. The judge cited case law describing the quasi-judicial role of the Crown, and the presumption that Crown counsel act objectively, dispassionately, and in good faith in discharging their public duties. The judge pointed to the absence of any evidence showing a lack of objectivity, or any misconduct, by the individual Crown counsel who directed the stay in this case: at paras. 24-25. [48] The reasons of the judge are, accordingly, responsive to the issues raised by Ms. Pereira, they explain why he rejected Ms. Pereira's arguments, and they permit effective appellate review. Ms. Pereira does not otherwise identify any legal error in the judge's analysis or conclusions on the conflict issue. I see no error in his analysis or conclusions. [49] It follows that I find no merit

in Ms. Pereira's second ground of appeal. Issue 3: Did the judge fail to address the question of whether a negligent charge assessment might constitute flagrant impropriety? [50] Ms. Pereira's third ground of appeal is that the judge erred in failing to address arguments that she made at the hearing to the effect that a negligent charge assessment decision could constitute flagrant impropriety. As I understand Ms. Pereira's argument, this ground includes an allegation that the judge failed to address her argument that the Crown's decision to stay the Private Informations without any investigation demonstrated bias. This appears to be an independent allegation of bias, separate from the alleged conflict of interest. [51] In my view, the judge's reasons sufficiently, and correctly, address the live issues before him on the application. The law is clear that a court cannot inquire into an exercise of prosecutorial discretion, including a decision to direct the stay of an information, absent an abuse of process: Krieger v. Law Society of Alberta, 2002 SCC 65 at paras. 32, 46-47, 49 [Krieger]; R. v. Anderson, 2014 SCC 41 at paras. 48-50 [Anderson]; Nixon at paras. 31, 68. Abuse of process refers to Crown conduct that is " egregious and seriously compromises trial fairness and/or undermines the integrity of the justice system.": Anderson at para.

50. The relevant judgments of the Supreme Court of Canada use terms such as "flagrant impropriety" (Krieger at para. 49), and "improper motive" and "bad faith" (Nixon at para. 68) to describe the type of conduct that constitutes an abuse of process. [52] The law is also clear that the onus is on the applicant to meet an initial evidentiary threshold to justify the court embarking on a review of prosecutorial discretion. A bare allegation of abuse of process by an applicant is insufficient: Nixon at paras. 60-62. This initial evidentiary burden on an applicant respects the presumption that prosecutorial discretion is exercised in good faith: Anderson at para. 55. [53] The judge correctly set out the relevant legal framework for Ms. Pereira's application by reference to these governing authorities. He found that Ms. Pereira did not present any evidence of misconduct or flagrant impropriety, and thus did not meet the evidentiary threshold for initiating a review of the exercise of prosecutorial discretion. [54] On appeal, Ms. Pereira argues that, in the absence of evidence, the judge ought to have embarked on a hypothetical analysis of whether a negligent charge assessment decision could conceivably amount to flagrant impropriety. It was not the judge's task to engage in such a hypothetical analysis. Instead, his task was to determine the legal issues raised by Ms. Pereira--the

Crown's jurisdiction to direct a stay prior to the process hearing and Crown counsel's alleged conflict of interest--and to assess whether there was sufficient evidence to justify a review of the exercise of prosecutorial discretion on abuse of process grounds. I see no error on the part of the judge in performing these tasks. [55] I also do not agree that the judge's reasons reflect a failure to consider Ms. Pereira's allegation that the Crown was biased against her. The judge concluded that Ms. Pereira had not met the initial evidentiary threshold required to engage in a review of an exercise prosecutorial discretion. This conclusion, which has not been shown to be in error, is dispositive of Ms. Pereira's allegations of abuse of process, regardless of how they are framed. [56] Accordingly, I would also not accede to Ms. Pereira's third ground of appeal. Disposition [57] For the foregoing reasons, I would dismiss the appeal. "The Honourable Madam Justice Horsman" I AGREE: "The Honourable Chief Justice Bauman" I AGREE: "The Honourable Justice Griffin"