Crown loses in Ontario's Highest Court

by Gary McHale  - The Regional

May 26, 2010

In July 2009 Judge Marshall ruled there has been 'an excess of jurisdiction on the part of the justice of the peace and the crown attorney.' The Crown had appealed this ruling and on Monday May 17, 2010 Ontario's highest court upheld Judge Marshall's ruling.

In 2006 the OPP believed they had unlimited discretion to disregard court orders and disregard  the Rule of Law. By 2008 the battle had switched to the courtroom where the Crown believed they had unlimited discretion to control the courtroom. This landmark ruling rejects the Crown's stated view that they 'must control all prosecutions' and they have the 'constitutionally based discretion' to withdraw private information.

On Oct. 7, 2008 the Central West Region Director of Crown Operations, John Pearson, appeared in Cayuga at a private prosecution case against three government officials for failing to protect Sam Gaultieri in Sept. 2007. Mr. Pearson immediately intervened, prior to any evidence being entered into the court, and stated, "It is the position of the Crown that the charges that have been laid by Mr. McHale constitute an abuse of process and accordingly the Crown is withdrawing them."

At the time it was Justice of the Peace P. Welsh who automatically went along with the Crown even though the transcript showed I argued that the Crown did not have the authority to withdraw the case. This is why Judge Marshall, after hearing the case in 2009, ruled against both the Crown and the Justice of the Peace - both had exceeded their jurisdiction.

Judge Marshall made the following statements in his ruling:

"The issue is deceivingly simple but as will be seen, it raises broader policy implications and touches on matters of fundamental importance to the administration of justice and private prosecutions in particular."

"The Law Reform Commission of Canada in 1986 published Working Paper 52 on private prosecutions. The commission endorsed the desirability of maintaining private prosecutions, saying, "...the power of private prosecutions is undoubtedly right and necessary in that it enables the citizen to bring even the police or Government officials before the criminal courts, where the government itself is unwilling to make the first move."

"The procedure set out in s.507.1 [private prosecutions] carefully lays out the role of the Attorney General at the pre-enquete. This procedure would be of little or no value if the crown could withdraw private informations before the hearing. Private prosecution would be rendered a vestigial appendix still affixed - but without use to the body of our law, or so practically ineffective to pave the way for their actual abandonment. This we should not, and need not do."

"But I would add this: in my view the right to set out before an independent judicial officer allegations such as these (in camera) is no effete formality. Indeed, it may be seen as a bulwark of democracy... In my respectful view, the matter before the court is an important one and one that has not been directly addressed in the jurisprudence."

"This case raises the important issue of a citizen's right to lay criminal informations against public officials and for those informations to be heard before an independent judge. This is a long held and hard fought right."

With such strong words from Judge Marshall it isn't surprising that the Crown appealed this ruling. The Ontario Court of Appeals stated in their ruling the following:

"The Criminal Code permits private prosecutions... Conduct of the pre-enquete vindicates the interest of the private informant who seeks prosecution of another for an alleged crime. The pre-enquete assures the private informant that an independent judicial officer will hear the informant’s allegations, listen to the evidence of the informant’s witnesses, and decide whether there this is evidence of each essential element of the offence charged in the information. The pre-enquete also ensures that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution. To insist that the withdrawal power await the determination about issuance of process also reduces the risk that the Criminal Code’s provisions for private prosecution will to begin and end with the right to lay a private information."

"I agree with the application judge [Marshall] that the withdrawal of the information prior to

the conclusion of the pre-enquete, indeed before it began, was premature... For these reasons I would dismiss the appeal, and confirm the order of the application judge directing that the matter return to the justice of the peace to conduct the pre-enquete."

For four years the OPP and the Crown have acted as if they are above the law and can do as they please while claiming unfettered discretionary right. For the past four years we have been fighting against all odds that the OPP and the Crown are wrong. While the full resources of the state are used to protect their power, they repeatedly are failing in court to have judges agree with them.

Crown Attorney Pearson had on more than one occasion walked into court and simply proclaimed members of CANACE (Canadian Advocates for Charter Equality) were abusing the court. He would then intervene and stop the private informations before a charge could be issued.

As of this ruling by the Appeals Court it means every single time Mr. Pearson did this has now been overturned by higher courts. Also we have never lost a single criminal prosecution case in the higher courts - we are 5 wins 0 loses. I doubt too many lawyers could say the same.

One would think it would be about time for everyone to ask whether it is the members of CANACE that are abusing the courts or the Crown's office.

Just two weeks ago Chris Diana, senior lawyer for the OPP, attempted to have a Justice of the Peace in Cayuga rule that I was abusing the court system. Of course the Justice rejected the argument.

There are many people who believe why even try because you cannot beat the system. Many people see it as completely hopeless to attempt to restore justice or seek justice in Haldimand County. People all the time tell me you cannot effectively bring about change.

We have become so accustomed to freedom that we think it is free. Those who came before us fought against great odds to ensure you and I could have the Charter of Rights and Freedoms.

Standing up and protecting those rights may be difficult and even seem impossible but it is those who dare to dream the impossible who change the future for the better.

This is just one more victory towards true justice.