Court File and Parties

Court File No.: 774-15 Date: 2016-06-21 Ontario Superior Court of Justice

Between: Tanner Currie, Applicant – and – The Attorney General of Ontario, Her Majesty the Queen, and Christopher Labreche, Respondents

Counsel: Trent Falldien, for the Applicant Philip Perlmutter and Brent Kettles, for the Ministry of the Attorney General Scott K. Fenton, for Christopher Labreche

Heard: April 29, 2016

Decision on Application

Cornell J.:

Introduction

[1] This is an application seeking a declaration that s. 507.1 of the Criminal Code and s. 11(d) of the Crown Attorney’s Act R.S.O. 1990, c. C.49 be declared unconstitutional. In addition, the applicant requests that the intervention of the Attorney General in a private prosecution and the exercise of the Attorney General’s discretion to withdraw such charge be set aside. On April 29, 2016, I indicated that the application was to be dismissed in its entirety with reasons to follow. I now take the opportunity to provide such reasons. These reasons should be read in conjunction with the comments that I made at the time the application was dismissed.

Background

[2] The factum of the respondent, Christopher Labreche, provides a succinct summary of the history of this matter.

[3] On June 8, 2014, the applicant was charged with public intoxication and resisting arrest by the respondent Christopher Labreche, a constable employed by the Greater Sudbury Police Service (“GSPS”). The Crown withdrew the charges against the applicant on August 27, 2014.

[4] On December 5, 2014, the applicant swore a private information alleging that the respondent Labreche assaulted him during his arrest. Following a pre-enquete hearing held on January 26, 2015, a summons was issued for the respondent Labreche. The Crown intervened to assume carriage of the prosecution.

[5] On March 10, 2015, the applicant brought an application before the Superior Court of Justice seeking to prevent the Crown from intervening in the private prosecution of the respondent Labreche (the “Recusal Application”). On August 12, 2015, the Honourable Justice Poupore dismissed the Recusal Application.

[6] After a careful review of all of the evidence relevant to the private prosecution of the respondent Labreche, the Crown withdrew the charge of assault because there was no reasonable prospect of conviction on October 6, 2015.

[7] After the withdrawal of the charge on October 14, 2015, the applicant filed an application to extend the time to file a notice of appeal in the Court of Appeal (the “Extension Application”) from the decision of Poupore J. dismissing the Recusal Application. On November 24, 2015, a judge of the Court of Appeal of Ontario dismissed the Extension Application.

Issues

[8] Both respondents take the position that this application is nothing more than an effort to re-litigate issues that have already been judicially determined. Both respondents take the position that the doctrine of issue estoppel is sufficient to dispose of the application. The Attorney General goes further and takes the position that cause of action estoppel forms another basis to dismiss the application. Both respondents take the position that the application is entirely without merit.

[9] This being the case, the preliminary issue for me to determine is whether the current application constitutes an abuse of process in that the legal issues that are raised in this application have already been judicially determined and accordingly, the doctrine of issue estoppel would apply such that this application should be dismissed.

[10] If this preliminary question is not answered in the affirmative, then the following two legal issues present themselves:

1. Are ss. 507.1 of the Criminal Code and s. 11(d) of the Crown Attorney’s Act in and of themselves unconstitutional violations of the applicant’s s. 7 Charter rights?
2. Should the decision of the Attorney General to intervene in this private prosecution and the subsequent decision by the Attorney General to withdraw the assault charge be set aside on the basis that such decisions were biased and made without giving proper reasons, thereby constituting a violation of the applicant’s s. 7 Charter rights?

Analysis

[11] When no charges were laid against Constable Labreche by the authorities, the applicant swore a private information alleging assault and aggravated assault by Constable Labreche. A pre-enquete hearing was conducted on January 26, 2015. At that time, counsel for the Attorney General of Ontario attended such proceeding and cross-examined the applicant and one additional witness. At the conclusion of such hearing, a summons was issued to Constable Labreche on a charge of assault pursuant to s. 266 of the Criminal Code.

[12] After the summons was issued, the Crown advised that it would assume carriage of the prosecution.

[13] Counsel for the applicant objected to the intervention on the basis that the Crown was biased and might simply withdraw the charge.

Recusal Application

[14] As a result of a concern that the Crown may withdraw the charge, the applicant brought the Recusal Application. The basis of the application was that Mr. Currie’s s. 7 Charter rights had been violated as a result of bias on the following basis:

1. The refusal of the Crown to provide a copy of the booking video;
2. The failure of the Crown to lay charges against Constable Labreche; and
3. The fact that the Crown appeared on the pre-enquete and cross-examined the applicant.

[15] On June 26, 2015, the matter was argued before Poupore J. The applicant asserted that his s. 7 Charter rights were violated by the fact of the Crown intervention in the prosecution and the “totality of acts and omissions demonstrated by the Attorney General.”

[16] The applicant conceded that s. 11(d) of the Crown Attorney’s Act was constitutionally valid, but took the position in the applicant’s factum that the Crown’s intervention was “unnecessary.”

[17] Poupore J. dismissed the Recusal Application. In doing so, the court held that the Crown had the lawful authority under s. 11(d) of the Crown Attorney’s Act to assume carriage of the prosecution. In addition, the court determined that the applicant had failed to demonstrate either an abuse of process or that the Crown had shown bias.

[18] On October 6, 2015, the Crown attended in court and withdrew the charge. Detailed reasons were placed on the record in court to outline why the Crown had determined that there was no reasonable prospect of conviction.

Request for Extension of Time to Appeal

[19] Approximately one week after the Crown had withdrawn the charge, the applicant filed a notice of motion to extend the time to file a notice of appeal in the Court of Appeal in connection with the decision rendered in the Recusal Application. On November 24, 2015, the Court of Appeal dismissed the request for an extension of the time to appeal. In doing so, the court made the following observation:

The applicant contends that this is a case where abuse of process and bias have been demonstrated. He relied on two arguments – an alleged settlement proposal by the Crown and an alleged delay in the Crown’s disclosure of a video taken at the police station.

The application judge held that there was no admissible evidence in support of the first argument and even if the evidence the applicant tendered was admissible it did not support a finding of bias. With respect to the second argument, the application judge found nothing improper in the manner in which the applicant’s disclosure request was handled.

The application judge therefore concluded that the applicant failed to demonstrate that the Crown’s exercise of its discretion to assume the prosecution of the respondent was an abuse of process or based on a reasonable apprehension of bias.

The application judge’s findings in this respect is supported by the record and entitled to deference.

See Currie v. Ontario, Docket: M45636, November 24, 2015, at paras. 17-21.

[20] The court also found that the proposed appeal was moot:

In addition to the fact that there is no adequate explanation for the delay in filing the notice of appeal and the appeal has not merit, the appeal is moot.

The subject matter of the proposed appeal – the Crown’s intervention in a private prosecution of the respondent is not a live issue as the charge has been withdrawn.

And there is no reason for this court to exercise its discretion to hear an appeal from the application judge’s decision despite it being moot: see R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 41.

In addition to the fact that there are no serious grounds of appeal, the consequences for the applicant of not hearing the appeal are not serious. The Crown withdrew the charge in light of the fact that there was no reasonable prospect of conviction.

Finally, as the applicant did not decide to appeal from the application judge’s decision until the charge was withdrawn, it is not in the interests of justice to hear the proposed appeal.

See Currie v. Ontario, Docket: M45636, November 24, 2015, at paras. 23-27.

Constitutional Application

[21] Once again, the applicant alleges that his rights under s. 7 of the Charter were breached because the Crown and the Attorney General “were biased in the intervention and subsequent withdrawal of the prosecution.” In support of this allegation, the applicant cites the same three grounds as were advanced before Poupore J. in the Recusal Application.

[22] Although the applicant acknowledged during the Recusal Application that s. 11(d) of the Crown Attorney’s Act was constitutionally valid, he now argues in this application that such provision is not constitutionally valid.

[23] The material filed in connection with this application contains nothing new as such documentation simply repeats the previous allegations of bias.

Issue Estoppel

[24] Both of the respondents assert that the doctrine of issue estoppel applies to this application.

[25] The doctrine of issue estoppel has been developed in order to prevent a multiplicity of proceedings as well as the abuse of the court process.

[26] The factum filed on behalf of Constable Labreche accurately sets out the manner in which the doctrine of issue estoppel is to be applied. The doctrine was discussed in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460.

The law has developed a number of techniques to prevent abuse of the decision-making process. One of the oldest is the doctrine of estoppel per rem judicatem with its roots in Roman law, the idea that a dispute once judged with finality is not subject to relitigation: Farwell v. The Queen (1894), 22 S.C.R. 553, at p. 558; Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, at pp. 267-68. The bar extends both to the cause of action thus adjudicated (variously referred to as claim or cause of action or action estoppel), as well as precluding relitigation of the constituent issues or material facts necessarily embraced therein (usually called issue estoppel).

See Danyluk at para. 20.

[27] In Danyluk the Court cited with approval the following definition of issue estoppel:

When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains.

McIntosh v. Parent, [1924] 4 D.L.R. 420, at p. 422, cited with approval in Danyluk, at para. 24.

[28] There are three preconditions to the operation of the doctrine of issue estoppel:

1. That the same question has been decided;
2. That the judicial decision which is said to create the estoppel was final; and
3. That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

[29] See Danyluk, at para. 25; College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Federation of Ontario Traditional Chinese Medicine Assn., 2015 ONCA 851, at para. 4.

[30] I am satisfied that the three preconditions to the application of the issue estoppel doctrine have been satisfied. The material that was filed on behalf of the applicant in the Recusal Application, the motion to extend the time to appeal Poupore J.’s decision, and the material filed in support of this application is virtually identical. The same issues have been raised in the previous proceedings. Not only did the Court of Appeal find that the application to extend the time to appeal was moot, but also went on to take the rather unusual step of determining that such application lacked merit. In view of this, there is no room for argument but that such decisions were final. There is also no room for argument that the same parties have been involved throughout the various proceedings.

Conclusion

[31] In view of these findings, I am satisfied that the doctrine of issue estoppel applies. I am also satisfied that the three pre-conditions to the application of such doctrine have been established. Accordingly, the application for the relief sought by the applicant is dismissed in its entirety on the basis of the application of the doctrine of issue estoppel.

[32] In view of the finding that I have made in connection with this preliminary issue, it is not necessary that I consider the other issues that were raised in this application.

Costs

[33] Counsel for both respondents seek costs. Counsel for the applicant takes the position that no costs should be awarded as the relief sought was in connection with alleged criminal activity, a situation where cost awards are not made. Beyond this, the applicant states that it is not appropriate for an award of costs to be made where the applicant is simply attempting to assert his Charter rights.

[34] In the ordinary course, there might well be some credence to the position taken by counsel for the applicant. In this case, that is not so.

[35] It is abundantly clear that this application is simply an effort to re-litigate matters that had already been judicially determined. The material put forward by the applicant in all three proceedings is virtually identical. As a result of this, the respondents took the position that this application should be considered by the court to be frivolous and vexatious. In view of the approach that I have taken, it was not necessary for me to consider this argument.

[36] Be that as it may, it is abundantly clear that this application was improper.

[37] Counsel for the applicant has already been admonished by the Court of Appeal in connection with a specious attempt to assert a violation of Charter rights.

[38] In Foessl v. Ontario (Attorney General), 2016 ONSCA 304, an application was made for declaration that the name “Domestic Violence Court” violated Mr. Foessl’s constitutional rights under ss. 7, 12, and 15 of the Canadian Charter of Rights and Freedoms. In dismissing the appeal, the court stated in para. 5 the following:

We observe that applications like this run the risk of trivializing the important rights protected by the Charter.

[39] The applicant is to pay costs in an amount of $2,000 to the respondent, Christopher Labreche.

[40] The applicant is to pay costs to the Attorney General of Ontario, Her Majesty the Queen, the sum of $2,600.

The Honourable Mr. Justice R. Dan Cornell Released: June 21, 2016