R v Gray

R. v. Gray, [2019] O.J. No. 2402 — J.P. S. Ng, Ontario Court of Justice (Toronto)

Background

The officer attending a traffic accident intended from the outset to proceed by way of Part III Information. Through an administrative data entry error, the charge was instead processed as a Part I offence notice. The Part I proceeded in the normal course — it was judicially deemed regular on its face — and Gray was fined and convicted on it. When the error was discovered, the Part I was reopened and withdrawn in court. A fresh Part III Information was then signed on October 3, 2017. The problem: at the time the Part III was laid, no Attorney General's consent appeared on the record, and it was the provincial prosecutor — not the AG or a delegate — who had purported to authorize the re-laying. The defence brought an application to quash.

Issue

Whether the provincial prosecutor had authority under s. 21(2) of the Provincial Offences Act to consent to the laying of a Part III Information where a Part I had existed, and whether the absence of proper AG consent rendered the Information a nullity.

Legal Framework

Section 21(2) of the POA requires the consent of the Attorney General or the Attorney General's agent before a Part III Information can be laid where a summons or offence notice has been served under Part I. The provision exists precisely because allowing an officer or prosecutor to bypass the Part I stream without independent oversight would create an unchecked mechanism for escalating regulatory charges — functionally equivalent to preferring a direct indictment and bypassing preliminary process. J.P. Ng drew directly on R. v. Gurdeep Saini (Judge Martin) for the proposition that clear consent is required and that the identity of the consenting person matters. The court also cited R. v. Jordon (J.P. Squires), where the Information was declared a nullity on the same consent defect, and R. v. Gulkan (J.P. Napier), where the matter was stayed. The common thread across all three predecessor decisions: consent was not properly satisfied or obtained.

Court's Analysis

J.P. Ng identified the central flaw directly: the prosecutor does not have the automatic right to consent under s. 21(2). Prosecutors hold authority to prosecute under s. 6(4) of the Crown Attorneys Act and are agents for purposes of the Criminal Code — but that authority does not extend to provincial offences matters. The consent required under s. 21(2) is the AG's gatekeeping function, not prosecutorial conduct authority. Those are categorically different things. A prosecutor cannot authorize their own Information.

The court also addressed the procedural reality that the Part I had not been properly cancelled at the station with the necessary authorizations at the time the Part III was signed. Despite the officer's and prosecutor's assumption that the Part I no longer existed, the court held it could not ignore the Part I's existence — an active Part I, however imperfect, was still an active Part I at the moment the Part III was laid. The judicial officer who accepted the Part III on October 3, 2017 should have been notified that a Part I existed and proper inquiries should have been made at that time. Consent from the AG or a properly authorized delegate should have been present and endorsed on the Information at the moment of signing.

Decision

The Part III Information was declared a nullity and quashed.

Key Takeaways

Gray is the sharpest articulation in this line of cases of the distinction between prosecutorial authority and consent authority under the POA. The fact that a prosecutor is competent to conduct a Part III prosecution is irrelevant to whether they can authorize one. Those powers have different statutory sources and different gatekeepers. Gray also reinforces that the consent defect cannot be papered over by assumptions — if the officer and prosecutor believed the Part I was gone when it was not, that belief has no legal effect on the Part I's continued existence or on the consent requirement that activates when Part I process has been served. Read together, Jordon, Saini, and Gray form a clear line: verbal consent of unknown sufficiency (Saini), self-consent by the prosecuting officer (Jordon), and self-consent by the prosecuting lawyer (Gray) all fail for the same reason — none of them are the Attorney General.