Order of Mandamus – Part 2

The Regional News

Jan. 7, 2009

Back on Dec. 10, 2008 The Regional published the court account of Jeff Parkinson's Order of Mandamus which was scheduled to be heard before Judge Marshall on Dec. 11. Mr. Parkinson and Gary McHale, prior to going to court on Dec. 11, had agreed with the lawyer for the accused that they would not publish any information that could identify the individuals involved.

The Crown at first went along with this agreement as long as the names of crown attorneys also were not going to be published, but as soon as the Crown read the story in The Regional they refused to agree to a settlement. This meant that on Dec. 11 more court time would be used up arguing over a publication ban.

The Crown insisted on a full publication ban and implied that Mr. McHale had to be controlled because he had published the court account on his website as well as in The Regional. Mr. Parkinson argued that at no time has any information been provided to the public that violated Judge Marshall's previous order and that our agreement with the lawyer for the accused further supported this claim.

In Mr. Parkinson's view the reason the Crown wanted a full publication ban had nothing to do with protecting the two accused people but protecting the Crown from public exposure of their actions during private prosecution cases. In fact, anyone reading the story in The Regional could not find a single detail that could identify the people who Mr. Parkinson is trying to lay criminal charges against. What the story was about was that the Crown wasn't following the rules of evidence and standard proceedings of the court. [Direct Link to Part 1 of this story:]

Judge Marshall gave his definitive ruling on the publication ban and provided all sides with a written copy to ensure there was no confusion over the terms of the ban which includes the following:

Section 2(b) of the Canadian Charter of Rights and Freedoms sets out as "fundamental freedoms", freedom of thought, belief, opinion and expression, including freedom of the press and other media communication. It is generally accepted that this includes access to judicial proceedings and that openness of courts fosters necessary public confidence and understanding in the administration of justice…

This particular matter is an important one. Private prosecutions such as this "are necessary because they enable citizens to bring even the police or government officials before the criminal courts when the government is unwilling to make the first move."

Finally, it seems appropriate to take judicial notice that matters concerning policing in the county are of great public interest now and for the benefit of everyone proceedings need to be as open as is possible… I would open the hearings but order that there be a publication ban in respect to the names of the [accused].

End of Judge Marshall's statements.

Not only did the Crown fail to get a full publication ban but Marshall's ruling changed the proceedings from in-camera to open court. This should mean that the other Orders of Mandamus will also be in open court.

It should not surprise the public to hear the Crown doesn't want them to hear the details of these cases. More so when you realize that the Crown Attorney who is at the heart of two of the Orders of Mandamus is John Pearson, the Director of Crown Operations for the Central West Region. The question that should be asked is why is such a senior attorney for the Crown appearing at pre-enquettes in small town Cayuga when Mr. Parkinson or Mr. McHale attempt to file charges against what some could say are politically sensitive cases?

It was Mr. Pearson who stayed charges against Buck Sloat's assault charge on Mr. Parkinson and also stayed the Extortion and Intimidation charges against Floyd and Ruby Montour. It was Mr. Pearson who appeared to stay the proceedings in the case against two senior OPP officers and a Government Minister before any evidence had even been presented before the court. Furthermore, it is Mr. Pearson who is at the heart of why Mr. Parkinson has filed his Mandamus that is now before Judge Marshall.

Remember Judge Marshall's words that private prosecution is meant to allow the public to lay criminal charges against police and government officials but according to Mr. Pearson he has the authority to stop a Justice from even seeing the evidence.

On three separate days the Crown has tried to get a full publication ban. Questions should be raised when you consider that the Crown attorney sent to Cayuga to argue the case on each of these days is Ms. Annemarie Carere, Acting Regional Counsel – Central West – Office of the Director of Crown Operations. A quick review of these titles and you see that Ms. Carere works directly under Mr. Pearson and out of the same office.

Based on the Mandamus already filed in court it is alleged that Mr. Pearson repeatedly breaks the rules of evidence by refusing to share documents with the Justice and with Mr. Parkinson and Mr. McHale. Furthermore, it is alleged that Mr. Pearson uses private documents sent by citizens to government ministers against Mr. Parkinson during a pre-enquette without the permission of the author. It is also alleged that Mr. Pearson then shared in-camera criminal documents with civil lawyers from the Attorney General's office to be used against Mr. Parkinson and Mr. McHale in small claims court. These documents are sealed and can only be used after seeking a court order.

Whether Judge Marshall rules that the actions of the Mr. Pearson are inappropriate has yet to be determined, but clearly there is something wrong when the civil branch and the criminal branch of the Attorney General's office along with a Minister's Office are willing to share private and in some cases in-camera documents to be used against private citizens.

Exactly why are senior government attorneys and ministers so quick to work together against Mr. Parkinson and Mr. McHale?

This Mandamus continues in OPEN COURT before Judge Marshall on Monday Jan. 12, 2009 at 11 a.m.

Gary McHale