Crown Appeals Judge Marshall's Ruling

by Gary McHale - The Regional

August 12, 2009

On July 2, 2009 Judge Marshall ruled in favour of my Mandamus which ordered a new hearing to present evidence that three Government officials should face criminal charges for failing to protect Sam Gaultieri. This ruling was a landmark decision that limited the discretionary authority of the Crown.

As Canadians we rarely think that our elected officials are subject to the criminal code. When was the last time you ever heard of a politician going to jail for their actions? I cannot think of one example including the fact that no politician was charged in the sponsorship scandal. Two weeks ago, in New Jersey, the police rounded up dozens of people including mayors and other elected officials. Somehow in the USA the people and police are more than willing to arrest and charge elected officials.

What is it in our Canadian mindset or our historical background that causes Canadians to believe that politicians will never be held accountable to the law?

It is not surprising that I received papers last week that stated the Crown was filing to appeal Judge Marshall's ruling. The last thing the OPP and McGuinty Government want is for average citizens to be able to present evidence of Government officials committing a crime. If the Crown believed that all such charges were without credibility then they would allow an Independant justice to review the evidence and reject the charges. Over time the Crown could then label me and others as vexatious and have the court bar us from filing charges. However, the Crown is losing again and again and it is becoming clear by the evidence that it is the Crown that is acting in a vexatious way.

The Crown's Office wields a lot of authority and power and in a democracy there must be some means to hold the Crown's Office accountable for its abuses of power. Normally that is done before a judge who rules that the Crown has abused its authority. But what happens if the Crown can directly stop any evidence being presented beforeĀ  a judge? Where is the check and balance to the Crown's authority if the Crown can stop anyone from standing before a judge and presenting the evidence?

The Crown becomes God-like and accountable to no one. This is why the Supreme Court stated in 1983 that the Crown's '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.'

During the Mandamus motion Judge Marshall stated to the Crown, "Your Friend [Gary McHale] raised an interesting point, though, from Dowson [Dowson v. R. Supreme Court Ruling - 1983], and that was the point that if there's value to the private prosecution, it would seem that it could be stayed or withdrawn, but only after it had been turned over to the judicial, independent judicial mind; i.e. the Justice of the Peace... And, if the matter could be withdrawn before it even got to the Justice of the Peace's mind, it would seem to defeat the very purpose as set out in his materials, and as he enunciated today it would seem to defeat the purpose of the private prosecution. And he's [McHale] saying, 'If this is the fact then I shouldn't be here.' He says, 'I'm wasting my time if the Crown can in fact cut it off before its even been exposed to that independent judicial mind, the Justice of the Peace.' What do you say to that argument?"

The Crown stated, "...political accountability is critical in our nation." Judge Marshall then interrupted and stated, "Your friend made the point that political accountability is defeated with your interpretation of withdrawing." The Crown replied, "That would be the case if the only forum to express dissent with a decision of the executive were a criminal court. A courtroom is not the only forum in which concerns of citizens can be expressed." Judge Marshall then stated, "Dowson though seems to want to preserve that forum."

The Crown's understanding of 'political accountability' is that they see it as the public holding politicians accountable which can be done in other 'forums' than the criminal court. In general this is a true statement, however, the Dowson ruling has a different view when it talks about 'political accountability'. In the ruling the Supreme Court was talking about the Crown being accountable to the politicians which is the final control of the 'god-like' authority they believe they have.

The Supreme Court stated, "when the Attorney General in the exercise of his supervisory power over criminal prosecutions chooses to prevent the use of the criminal process, as is his right, his accountability to the Legislature would be much greater if he acted after the Justice of the Peace has determined that there is cause to issue process."

The Supreme Court ruled that the Attorney General could not stop a citizen from presenting evidence of a crime before a Justice of the Peace to ensure greater 'accountability' of the Crown's office to the Legislature.

How would the Crown be held accountable if the Crown could stop the evidence from even being heard by an Independant Justice? The hearing is in camera and the records are sealed if the charges are not issued. Therefore, the most the public could find out is that a citizen laid some unknown charge against some unknown person regarding an unknown event. The public and therefore the Legislature could not possibly hold the Crown's office accountable.

The best example I can give is the public uproar over what was called the 'deal with the devil' when the Crown made Homolka a deal. The public outcry caused a lot of political pressure and a review of the Crown's decision. Imagine if all the public was allowed to hear was that the Crown made a deal with an unknown person regarding an unknown crime - there would be no outcry and therefore no accountability.

The Supreme Court was correct to believe that the Crown's office is far more accountable to the public when they stay a charge after a Justice has heard the evidence and issued a charge. The Crown has repeatedly tried and failed to get publication bans on the names of the Crown Attorneys involved. They do not want the public to hold them accountable through their elected officials. The Crown wants the right to cover up for the illegal actions of the Government without the public knowing the details.

This is why this Appeal must be won and we will continue to do everything to ensure that true Justice is preserved. Appeals are costly in time and money. We cannot do it without the help of the public. Please contact Merlyn 905-765-5131 or make a deposit directly into CANACE account at any Scotia bank - acct # 30882-019216. Please consider giving Merlyn a series of post-dated cheques. I do want to thank everyone who helped to cover the cost of transcripts over the past two months which amounted to approx. $1800.

The Crown is using your taxpayer's money to ensure that you cannot hold the Government accountable - we cannot allow this to happen.