Judge Marshall Rules in Favour of Mandamus

By Gary McHale – The Regional

Jan. 14, 2009

The Monday, Jan. 12, 2009 ruling by Judge Marshall regarding Jeff Parkinson's Order of Mandamus application will be quoted in courts for years to come. NEVER in Canada has anyone been successful in getting a higher court to compel a Justice of the Peace to issue process on criminal charges laid by a private citizen.

The Crown had argued that Judge Marshall could not overrule the decision of a Justice of the Peace who had refused, via her discretionary authority, to issue process on criminal charges laid by Mr. Parkinson against two police officers. People in Haldimand County have heard a lot about the discretionary authority of the OPP and the courts over the past three years and this week's ruling demonstrates clearly that discretion MUST be exercised in accordance with the Law. In this case even a Justice of the Peace cannot use discretionary authority outside the bounds of the 'Rule of Law'.

Monday's court was to focus on whether Judge Marshall had the authority to overrule the discretionary authority of a Justice of the Peace. The Crown had relied heavily upon case law from 1911, 1948, 1969 etc. Mr. Parkinson pointed this out to Judge Marshall and that such case law is prior to the Charter of Rights (1982), prior to Parliament's Law Reform Commission (1986) and Parliament's new private prosecution section of the criminal code enacted in 2002. Mr. Parkinson's main case law consisted of two cases from 2004 which were based on the new enacted code of 2002.

Parliament, in 2002, added to the criminal code the right of every citizen to commence proceedings to COMPEL a justice to issue a summons or warrant. This was exactly what Mr. Parkinson's Order of Mandamus was requesting.

Mr. Parkinson argued that according to the Law, a Justice of the Peace MUST issue process once there is some evidence that a crime has been committed – Marshall agreed.

Judge Marshall did clear Mr. Pearson, Regional Director of the Crown Office, of any wrongdoing regarding the Crown's right to cross-examine Mr. Parkinson, but on the other issues related to the actions of the Crown Judge Marshall had set aside those issues to be heard at another date only if this Mandamus was not successful.

The Crown has been trying in various court hearings to paint members of CANACE as people abusing the court system out of 'animosity' toward the police. The Justice of the Peace who heard the original evidence during the pre-inquiry agreed with the Crown's view of Mr. Parkinson.

Judge Marshall did not. In his ruling he states, "…the incriminating evidence… is virtually all in the video of the police helping to erect the barricade. It is hard to see how animosity in the informant could taint the video." Judge Marshall further stated, "A private prosecution such as this is an important part of the public duty to oversee the administration of justice… We should look – except in the clear case – at public benefit not private demons."

What are the implications of this ruling?

First, it sends a powerful message to the Crown in Cayuga that any attempts to introduce evidence in a pre-inquiry that may cause a Justice of the Peace not to issue process of the charge will be overruled by the higher court as long as there is evidence a crime has been committed.

Second, it tells the Attorney General of Ontario that the attempt to label members of CANACE (Canadian Advocates for Charter Equality) as being vexatious will not work in court.

Third, it opens the door for any citizen to lay criminal charges against any of the protesters that the OPP refuse to charge, or against any government official including members of the OPP who, through their actions, commit a crime or because of their inaction commit a crime.

The Crown worked hard to ensure that Mr. Parkinson and Mr. McHale were not able to get a Justice of the Peace to issue process of criminal charges because they are well aware that paperwork had already been filed to lay criminal charges against senior OPP officers and a cabinet minister in McGuinty's government on the charge of Common Nuisance for failing to protect Sam Gaultieri at the Stirling development. The Government had already received paperwork accusing senior OPP officers of Breach of Public Trust.

This ruling by Marshall truly means that if any citizen has evidence that a crime has been committed they will see those charges laid and if not they can use an Order of Mandamus to COMPEL the Justice to issue process.

In the Law Commission's Report to Parliament in 1986 it states, "Society as a whole is the beneficiary where formal, positive citizen interaction with the justice system results in some additional control over official discretion. Also, the form of retribution which is exacted by the citizen’s resort to legal processes is clearly preferable to other unregulated forms of citizen selfhelp… Finally, it is our belief that this form of citizen/victim participation enhances basic democratic values while at the same [time] it promotes the general image of an effective system of administering justice within the Canadian state."

Now with Judge Marshall's ruling the people of Haldimand can finally seek Justice through the court against 'official discretion'.