When a judge can review the Crown’s discretion

R v Varennes, 2025 SCC 22: The exercise of core prosecutorial discretion is reviewable only (1) for abuse of process or (2) for compliance with the Charter. Here, the Crown's decision to withhold its consent to the accused's re-election to a judge alone trial was neither an exercise of core prosecutorial discretion--because it did not relate to the constitutional function of the Crown--nor compliant with the Charter--because the unavailability of juries during the pandemic would have rendered the delay unreasonable under s. 11(b0. The trial judge was right to permit the accused, charged with second-degree murder, to re-elect to trial by judge alone.

This is a very important decision. First, it clarifies the scope of prosecutorial discretion. Decisions that affect the nature and extent of the accused's criminal jeopardy are core decisions and, absent an abuse of process, are unreviewable by courts. But decisions about *how* the case will proceed do not fall within this scope, and are therefore subject to supervision and control by the courts. Decisions about the mode of trial can therefore be reviewed by trial courts, even where Parliament has delegated that decision to the Crown.

Second, it affirms that s. 24(1) of the Charter confers broad powers on courts to take action to prevent Charter infringements *before they occur*. Anticipatory breaches need only be proved on a balance of probabilities. Where a trial judge is satisfied that a breach will probably occur, they are entitled to take action under s. 24(1) -- in some cases, even if that means overriding core prosecutorial discretion.

Expect this decision to feature prominently in another important case under reserve at the Court of Appeal for Ontario, R v Warren, 2024 ONSC 2785. In that case, Justice Pomerance (as she then was) ordered the profoundly disabled defendant, whom she declared a dangerous offender, to serve his sentence in a mental health facility rather than the penitentiary to avoid an anticipatory breach of his right against cruel and unusual punishment. Varennes suggests that this remedy was squarely open to her.