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Caledonia case centres on rare legal procedure

Court battle may affect private prosecution

Shannon Kari,  National Post  Jan 25, 2010

The unusual criminal prosecution of Julian Fantino is continuing its high profile even before the merits of the case are argued in court.

The Ontario Provincial Police Commissioner promised to be "vindicated" on allegations of attempting to influence a municipal official, in comments broadcast this weekend on the Global Television program Focus Ontario.

At the same time, the person who initiated the charge has sent a letter to Ontario Premier Dalton McGuinty, questioning the independence of the prosecution. Gary McHale also predicts the province will dismiss the charge at the first opportunity.

Yet while the case involving Mr. Fantino is in the spotlight, another legal battle between the province and Mr. McHale could affect the right of every citizen to initiate a private prosecution.

The self-represented critic of the handling of the native land dispute in Caledonia, Mr. McHale recently squared off against the Crown in the Ontario Court of Appeal.

The province was appealing a Superior Court ruling last summer, in which a judge sided with Mr. McHale about the role of the Crown in a private prosecution.

While a rare procedure, they are often used to bring forward allegations against a public official when the state refuses to do so, the judge noted.

The process in the Criminal Code allows anyone to bring forward evidence to a justice of the peace in a closed-door hearing to protect the rights of the potential accused. The Crown is allowed to make arguments as to why a charge should not be approved. It is only if a justice of the peace rules in favour of the private complaint that a charge is issued publicly and it is up to the Crown to decide how to proceed.

The Crown in this case, which involves allegations against three public officials, dismissed the complaint by Mr. McHale even before he could present his evidence in court.

The late Justice David Marshall agreed with Mr. McHale that the Crown does not have such a sweeping power.

A three-judge panel of the Ontario Court of Appeal sounded equally skeptical when government lawyer John Patton said the Crown has this authority.

"Then there is really no such thing as a private prosecution. The Crown can just head it off at the pass," Justice Warren Winkler said.

Mr. McHale suggested the Crown is attempting to end the right of a justice of the peace to approve a private complaint.

The Court of Appeal reserved its ruling after hearing oral arguments and promised a quick decision on the issue.