Justice will prevail

by Gary McHale - The Regional

February 10, 2010

I am sure most are aware by now that the Crown withdrew the charge against Mr. Fantino as I predicted they would. This latest action by the Crown may cause some to lose heart but in the end Justice will Prevail.

The Crown has become nothing but a political arm of the current government and functions believing it can never be held accountable for its actions. Generally speaking when people believe they are never accountable they start to make decisions beyond their authority especially when they are covering for others.

The Crown Attorney's Office didn't exist prior to 1880 and primarily all criminal prosecutions were done by private citizens - those rights remain imbedded in British Common Law and go back 800 years. All citizens were duty bound to uphold the honour of the King and since all crimes were against the King then citizens were bound to bring criminals to justice on his behalf.

We are long removed from this idealistic view of justice. However, in Canada, citizens still hold great authority to bring about justice and thereby aid in the restoration of the Rule of Law. Recently before the Ontario Appeals Court I started my oral presentation stating, "In the mid 1600s Oliver Cromwell cut off the head of the King to prove an important legal point, that no man is above the law."

Since that time it has been part of the fundamentals of justice that everyone, whether he be a beggar in the street or the Prime Minister of the Country, is subject to being prosecuted under the law. Therefore, it has been the duty of the Crown to prosecute everyone without bias for or against the accused. In fact, the Oath of Office for all Crown Attorneys in Ontario is, "I swear that I will truly and faithfully, according to the best of my skill and ability, execute the duties, powers and trusts of Crown Attorney (or assistant Crown Attorney) without favour or affection to any party: So help me God."

Although our society rarely remembers or honours our historical past, one thing I have learned is that our legal system has encountered numerous injustices over the past 800 years and has risen to the challenge in holding those in positions of power to account.

The current case speaks volumes about the abuse of the Crown in how they handled the charge against Mr. Fantino.

For example, if the Crown had simply stood up and stated they believed there wasn't enough evidence to get a conviction and then withdrew the charge there would be little I could do to convince a court that they acted improperly. However, the Crown last Wednesday did far more than this. They were so politically motivated that they didn't simply want to withdraw the charge but to justify the actions  of Mr. Fantino - thus allowing Mr. Fantino to publicly proclaim the charge to be vexatious.

The Crown read off a four page letter which I am sure was well vetted by several people within the Government. The letter was merely a speech prepared for the media which the Crown announced in court that the media could get a copy.

The problem for the Crown is that once they stepped outside of the realm of simply withdrawing the charge and into the realm of covering for Mr. Fantino they were inevitably going to say something that could be reviewable by the Courts. In order to provide Mr. Fantino with the needed proof that the charge was vexatious the Crown made the following statement in Court:

"However, on a review of the record, I am satisfied that Commissioner Fantino's remark (that he would send a bill to Haldimand County if police officers were injured) does not and cannot constitute an offense under section 123... what constitutes a "threat" for the purposes of the criminal law is not identical with the meaning of the word in the vernacular."

The problem is that the Attorney General already conceded that Mr. Fantino's email constitutes a "threat" as understood by the criminal law when the case was before Superior Court Judge Crane on Nov. 5, 2009. The issue raised by the Attorney General was that the "threat" was not issued against someone who was acting in the official capacity as a municipal official.

It was Mr. Fantino's lawyer, on Nov. 5, 2009, who argued the email did not constitute a "threat" as understood by the Criminal Code. At the time, the Crown disagreed with Mr. Fantino's lawyer.

The Attorney General CANNOT have two kicks at the can. It is against the fundamentals of justice for the Attorney General to concede to a definition of a "threat" then disagree with that in another court room on the same case.

On Dec. 31, 2009 Judge Crane ordered Mr. Fantino to face a criminal charge for sending a threatening email. Justice Brown, Judge Crane and the Attorney General were all in agreement that the email constituted a "threat" under the Criminal Code. The Crown cannot now argue the opposite view.

Furthermore, Crown Lawyers do NOT determine what constitutes a criminal offense - Judges make that determination. The Crown had no authority to disrespect the Court by outright disregarding with both Justice Brown's and Judge Crane's stated view that the email constituted a "threat" as understood by the Criminal Code. The Crown may weigh the evidence to determine whether a crime has been committed but they cannot overrule the court in what is a crime.

In addition, the Crown was properly served with a Judicial Review filed in Superior Court before they stood up and withdrew the charge. Justice MacDonald was informed that a Judicial Review had been properly filed in Superior Court and a date of April 1, 2010 was set to hear the case.

The Crown chose to disrespect the Superior Court and proceeded to withdraw the charge. Justice MacDonald chose to overreach his authority by deciding that the case before Superior Court was pre-mature and then he proceeded to allow the Crown to withdraw the charge.

I should remind the public that in my case before Judge Zabel, a provincial court judge, he declared he was functus, which means the court had no authority to proceed, once he was served with papers filed in Superior Court.

If a Provincial Judge is functus, loses jurisdiction, once papers are filed in Superior Court then how much more is a Justice of the Peace functus once papers are filed.

What does this all mean? Well it opens the door to three separate Judicial Review applications in Superior Court. If I win any one of these reviews then the Court will order the charge against Mr. Fantino to be re-instated.

The Battle for Justice is only beginning.