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| Rochelle Direnfeld |
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| Sayeh Hassan |
David Mivasair and Rehab Nazzal launched a private prosecution against Sar-El Canada under subsection 11(1) of the Foreign Enlistment Act, R.S.C., 1985, c. F-28 (FEA), accusing the organization of recruiting or inducing Canadians to enlist in the Israeli Defense Forces. Following a pre-enquête hearing before a justice of the peace on Sept. 22, 2022, the applicants were successful in having process issued. At the hearing, Crown counsel advised that the charge would be scrutinized for “reasonable prospect of conviction.”
On Dec. 13, 2022, the Crown advised the applicants by letter that it would be intervening in the prosecution and withdrawing the charge because there was no reasonable prospect of conviction. The following day, the Crown formally intervened and withdrew the charge.
As a result, the applicants brought an application for certiorari and mandamus, seeking the reinstatement of the charge on the basis that the decision of the Crown to intervene and withdraw the charge was an abuse of process.
It is well-established that prosecutorial discretion is reviewable by the courts only when the high standard of abuse of process is met. Justice Michael Moldaver summarized the principles in Anderson, where he stated, “prosecutorial discretion is entitled to considerable deference” but is not “immune from all judicial oversight” and is reviewable for abuse of process (R. v. Anderson, [2014] 2 S.C.R. 167). The Supreme Court affirmed that the Crown conduct in question must be “egregious and seriously compromise trial fairness and/or the integrity of the justice system” to amount to an abuse of process (paras. 49-50).
The application judge in Mivasair found no evidence of such Crown misconduct. The court did not accept the applicants’ alternative argument that the application should be granted despite the absence of bad faith.
The Ontario Court of Appeal dismissed the appeal from this decision. While the court found that the application judge erred in determining that the appellants lacked standing to bring the application, the finding that the appellants had failed to meet the Anderson threshold evidentiary burden was correct. The court also confirmed that the Crown’s decision to intervene and terminate the prosecution is not the type of “rare and exceptional” circumstance, such as the repudiation of a plea agreement that would, in and of itself surpass the Anderson threshold requirement.
On the issue of standing, the court confirmed the right of a complainant/informant to institute a private prosecution, holding that it is a “citizen’s fundamental and historical right to inform under oath a justice of the peace of the commission of a crime” (Mivasair, para. 46). The court observed that that right is not absolute and is always subject to the Crown’s right to intervene and terminate the prosecution. It is nonetheless sufficient to ground standing in an application for certiorari.
This case illustrates the importance of the Crown’s gatekeeper function in the private prosecution process. For example, in Ontario, in addition to its charge screening obligation, the provincial Crown is required to attend the pre-enquête hearing for several reasons, including the following:
- preventing proceedings that are not in the interest of the administration of justice
- preventing the use of criminal proceedings for malicious or unfair purposes
- preventing potential abuses of the court system
- ensuring the efficient allocation of court resources
Private prosecutions can be a powerful tool for victims who are unable to seek redress through the police, but they should not be used as a political tool nor for a nefarious purpose. The criminal justice system, with its limited court resources, should not be squandered on prosecutions that would bring the administration of justice into disrepute.
Rochelle Direnfeld served over 32 years as an assistant Crown attorney, deputy Crown attorney, Crown counsel and finally deputy director for Toronto Region Crown Attorneys in the Criminal Law Division of the Ministry of the Attorney General of Ontario, retiring from the public service in 2023. Since 2019, Direnfeld has provided legal advice to Crown counsel and police on hate crimes. In January 2025, she was appointed senior criminal counsel and chair of the criminal law committee at the Alliance of Canadians Combatting Antisemitism.
Sayeh Hassan is the staff lawyer for Centre for Israel and Jewish Affairs. She has over 17 years of experience in criminal law, Charter litigation and appellate law. Hassan has testified before parliamentary committees on issues of criminal law and human rights. She is the author of the book A Practitioner’s Guide to Preparing and Presenting Bail Hearings.
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