Court Beat

The Regional

December 10, 2008

A rare court proceeding will continue this Thursday at the Cayuga Courthouse before Judge Marshall. Jeff Parkinson, along with Gary McHale, is presenting an argument for what is called an Order of Mandamus. Judge Marshall stated he has only done 3 of these during his career as a judge.

An Order of Mandamus goes back 1000 years and is a special request directly to the King asking him to order a public official either to do something they are required to do by law or stop doing something that they are not allowed to do. In our modern day such Orders are presented before a Superior Court Judge which is why Judge Marshall is presiding over the case.

Parkinson’s Mandamus stems from a private prosecution case he filed 6 months ago. The Justice hearing the private prosecution case did not certify the charges. As a result Mr. Parkinson is appealing this with his Mandamus motion which seeks two things. First, that the court orders the Justice to re-hear the case. Second, that the court orders the Crown to follow the standard rules of evidence and court proceedings. It is Mr. Parkinson’s view that the Crown has been willfully breaking the rules of evidence and court proceedings to ensure that criminal charges cannot be laid in those cases that some may say are politically sensitive.

This Thursday will be the third time this case has been before Judge Marshall and the Crown continues to seek a publication ban on the case. On the first day, back in October, Judge Marshall ordered the courtroom cleared since it was an in-camera hearing. However, McHale argued that since he ran a news website he had the Charter Right to publish the story while the Crown argued for a full publication ban. Judge Marshall ruled that the story could be published as long as names are not published.

Also, on the first day the court spent several hours hearing a motion from McHale that he be allowed Standing before the court in Parkinson’s case. Such a motion is unheard of since McHale isn’t a lawyer however, at approx. 3pm Judge Marshall, the Crown and McHale entered into an agreement that McHale would be permitted to sit beside Parkinson and pass notes etc. to Parkinson but could not speak directly to the court. In return McHale dropped his motion requesting Standing.

To sum up, the evidence being presented to the court is that during private prosecution in-camera proceedings Parkinson alleges that the Crown is acting as the defense lawyer for the accused which is not permitted. Furthermore, the Crown presents quotes from documents and case laws without providing the court or Parkinson copies to review – the rules of evidence are very clear that all documents must be shared to allow both sides to present a whole account of the evidence. Furthermore, Parkinson alleges that the only reason the Justice didn’t certify the criminal charges is because the Crown provided the Justice with possible defenses for the accused. The problem however, is that during a private prosecution proceeding the Justice is not permitted to consider possible defenses and therefore the Crown should not be permitted to present them.

In addition, Parkinson is arguing that the Crown Office is sharing in-camera criminal documents, which are sealed by the court, with civil lawyers to be used in court against Parkinson and McHale in civil lawsuits. In August 2008, Parkinson and McHale appeared before Judge Marshall to get a court order to release these sealed documents in order to use them in Mandamus to prove the Crown had unlawfully provided them to civil lawyers.

Mr. Parkinson is therefore asking Judge Marshall to order the Crown to do the following: 1) Share all documents they quote from as required by the rules; 2) Stop presenting possible defenses for the accused; 3) Order the Crown to stop sharing in-camera criminal documents with Civil Lawyers.

Mr. McHale has his own Order of Mandamus before Judge Marshall which hasn’t started yet. In that case the Crown argued that McHale should not be allowed to file criminal charges against Native Protesters who assault police officers because the police can lay their own charges. Mr. McHale is arguing that private prosecutions have nothing to do with who is best qualified to file the charge or even who the victim is but whether you have evidence to prove a crime has occurred. McHale is asking Judge Marshall to order a Justice to hear the evidence and disallow the Crown’s argument.

In a third Order of Mandamus, McHale alleges the Crown stopped the private prosecution proceedings before a Justice even heard the evidence – something McHale claims is not legal. McHale states that it is the will of Parliament that average citizens be allowed to file and present evidence in private prosecution cases. The Crown has no authority to stay a case before a Justice has certified the charges.

Until Judge Marshall rules on these Mandamus the above are just allegations and not proven facts.

Submitted by Gary McHale