Will the Court limit the Authority of the Crown?

by Gary McHale - The Regional

June 24, 2009

In the battle to restore the Rule of Law in Ontario it is not simply enough to get the OPP to enforce the laws regardless of the Race involved but also try to restore the balance between the Rights of citizens and the discretionary authority of the police and the Crown's office.

Back on Jan. 12, 2009 Jeff Parkinson, co-founder of Canadian Advocates for Charter Equality (CANACE), became the first person to win an Order of Mandamus when Judge Marshall ordered two OPP officers to be criminally charged for Mischief for their part in aiding Native Protesters who were building a barricade in Hagersville to stop the legal owner, Dan Valentini, from using his property. This ruling in Superior Count is now the Case Law for all of Canada and ensures the Rights of average citizens to be able to lay criminal charges against police, government officials, etc.

On June 29th Judge Marshall will hear the closing arguments in another Order of Mandamus filed by me which again attempts to set a balance between the Rights of a citizen and the authority and discretion of the Crown. This case has been brought before the court because the Crown refused to allow any evidence to be given before a Justice. They claim they had the right to withdraw any charges before the evidence is heard.

In 1983 the Supreme Court of Canada ruled that the Crown could not stay an "information" (the paperwork referring to a charge) prior to a Justice of the Peace issuing process against an accused. Prior to issuing process there is no charge, no accused and thus no legal right for the Crown to be allowed to intervene. Since this ruling the criminal code has been amended a few times and it is the Crown's position that these changes nullify the Supreme Court ruling. Furthermore, they claim the Ontario Crown Attorneys Act gives them this authority.

However, I argued that the Supreme Court didn't simply interpret the written law in 1983 but created principles for which future judges must interpret the criminal code. Therefore, if the law has been changed then these changes must be interpreted based on the principles set out by the Supreme Court. To support this I quoted from two cases, from 2007 and 2008, which demonstrate that current courts are still using the 1983 ruling as a guide. These principles are just as important today as they were back in 1983.

The first principle was that the court must find a balance between the right of the Crown's discretionary authority over a prosecution and the right of a citizen to inform, under oath, a Justice of the Peace of the commission of a crime. What is interesting here is the right of a citizen is not merely to fill out paperwork which the Crown can then withdraw but the right to 'inform under oath' which means the right to present the evidence of a crime to a Justice of the Peace. The Crown stated to Judge Marshall a citizen has no such right. The Supreme Court stated:

"The power to stay, while necessary, encroaches upon a citizen's fundamental and historical right to inform under oath a Justice of the Peace of the commission of a crime. Parliament has seen fit to impose upon the justice an obligation to 'hear and consider' the allegation and make a determination. In the absence of a clear and unambiguous text taking away that right... the [citizen's] right should be protected."

The second principle the Supreme Court spoke about is that the 'discretionary authority of the crown' is accountable to Parliament. This means that Parliament can and will respond when the Crown abuses their discretionary authority. As such courts are not to interfere with this discretionary authority.

This is exactly the Crown's position and they openly told Judge Marshall he has no authority to rule in favour of my Mandamus. This was the exact same position the Crown took back on Jan. 12 with Mr. Parkinson's Mandamus. History has proven them wrong in that case and we hope they will be proven wrong again.

Although the Supreme Court has upheld the discretionary authority of the crown it also ruled that there would be 'much greater' accountability to Parliament if the Crown acted after 'the Justice of the Peace has determined that there is cause to issue process'.

I asked Judge Marshall how does Parliament hold the Crown accountable if the Crown can withdraw an 'information' before the Justice even hears the evidence? Prior to the issuing of process the hearing is in-camera and the court records are sealed if no process is issued. The public, and thus Parliament, can never hear the details of what the charge was nor how strong the evidence was.

The third principle the Supreme Court spoke about was the 'evolution of the Crown's power' over the past 100 years. Has Parliament seem fit to give the Crown greater power or lesser? The answer the Supreme Court stated was to 'increase the Attorney General’s accountability' by limiting the authority of the Crown. The Supreme Court stated, "I can see no reason why we should not, when possible, interpret the law in compliance with this clear attitudinal trend on the part of Parliament."

I then pointed out to the court that this ruling was in 1983. The Charter of Rights became law in 1982 which put many additional limitations upon the Crown. In 1986 the Law Reform Commission published a Working Paper which states:

"The authors agreed that private prosecutions were necessary because they enabled citizens to bring even police or government officials before the criminal courts where the government is unwilling to make the first move... For the reasons given in Chapter Three, we believe that private prosecutions are not only desirable but also necessary for the proper functioning of the Canadian prosecution process... Society as a whole is the beneficiary where formal, positive citizen interaction with the justice system results in some additional control over official discretion."

That 'official discretion' that is referred to is both police discretion and Crown discretion.

In 2002 Parliament responded to this Working Paper and created a separate criminal code section to allow private citizens to lay charges. This new section has added additional rights for citizens including the right to file an Order of Mandamus if the Justice will not issue process of the charge. It is because of this new right we have been using Order of Mandamus to directly challenge the discretionary authority of the Crown.

Since 1983 the pattern that the Supreme Court saw in the Crown becoming more accountable has continued.

I left Judge Marshall with a very powerful statement that he asked the Crown to reply to which was, "If you rule to allow the Crown the authority to stop a Justice from even seeing the evidence of a crime then I have wasted my time over the past 18 months coming to this courthouse. Why would anyone ever again seek help at this courthouse if the Crown has such power. People will turn to self-help and there will be violence."

When people cannot use the court system they will take matters into their own hands and this will lead to lawlessness.

This June 29th ruling is critical for all Canadians.