R v Billingham

Regina v. Billingham et al.

[1995] O.J. No. 2984
Ontario Court (General Division) — McIsaac J. | October 4, 1995

Background

Private complaints were filed against six people in Newmarket, leading to criminal charges including criminal harassment, sexual assault, and assault. Two justices of the peace — Camelia Mews and Hazel Hodson-Walker — conducted pre-inquiries under section 507 of the Criminal Code and issued summonses. But when Crown attorneys asked for access to the complaint materials (witness statements, informant testimony), both justices refused to turn them over.

The Crown attorneys tried going to two provincial court judges for directions, but struck out there too. So they went nuclear: they applied for mandamus in Superior Court to force the justices to hand over the materials, arguing they had both the right and duty under sections 11 and 12 of Ontario's Crown Attorneys Act to review private prosecutions.

Issues

1. Does section 12 of the Crown Attorneys Act require justices to turn over "all papers" from private complaint proceedings to Crown attorneys?
2. Would disclosure of pre-inquiry materials violate the in camera nature of section 507 proceedings or judicial independence?
3. Does the Crown's disclosure obligation to accused persons strengthen the case for Crown access to these materials?

The Crown's Right to Private Complaint Materials

Justice McIsaac ruled decisively for the Crown. He found that once process is issued (summons or warrant), the in camera protection of section 507 pre-inquiries doesn't survive — the accused becomes entitled to the supporting materials anyway under disclosure rules. It would be "incongruous" to give the defence access but deny it to the prosecution.

More importantly, the court rejected the judicial independence argument. Once a summons issues, the justice's role in the charging process is finished. They become passive adjudicators with no investigative role — that responsibility belongs to the Attorney General under section 92(14) of the Constitution Act, 1867. The Crown Attorneys Act is a proper exercise of provincial power over administration of justice.

The disclosure angle sealed it: Crown attorneys have a constitutional duty under Stinchcombe to provide all relevant materials to the defence. How can they fulfill that obligation without access to the informant and witness statements from the pre-inquiry? These statements are "by definition, relevant and should be disclosed forthwith."

Key Takeaway

Crown attorneys have both the right and duty to access all materials from private complaint proceedings once charges are laid.

This ensures proper oversight of private prosecutions and guarantees that accused persons receive the disclosure they're constitutionally entitled to — including witness statements and informant testimony from the original complaint process.