Court of Appeal for Ontario

Date: 2017-03-31

Docket: C62188

Judges: Feldman, van Rensburg and Pardu JJ.A.

Parties

Between

Tanner Currie Appellant/Applicant

and

The Attorney General of Ontario, Her Majesty the Queen, and Christopher Labreche Respondents

Counsel

Trent Falldien, for the appellant

Philip Perlmutter and Brent Kettles, for the respondents The Attorney General of Ontario and Her Majesty the Queen

Scott K. Fenton, for the respondent Christopher Labreche

Heard

March 13, 2017

Appeal

On appeal from the order of Justice R. Dan Cornell of the Superior Court of Justice, dated April 29, 2016, with reasons reported at 2016 ONSC 3884.

Endorsement

Background

[1] The appellant appeals the dismissal of an application challenging the Crown's assumption of a private prosecution and subsequent withdrawal of charges.

[2] The appellant commenced a private prosecution against the respondent, Constable Labreche, claiming he was assaulted while in police custody. Following a pre-enquete hearing during which Crown counsel appeared and cross-examined the appellant and a witness, a justice of the peace found that a prima facie case had been made out and issued process compelling Labreche to attend to answer the charge of assault. The Crown then intervened to assume carriage of the prosecution.

[3] On March 10, 2015, the appellant brought an application in the Superior Court under Rule 14 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 (referred to by the parties as the "Recusal Application") to challenge the actions of the Crown in taking over the private prosecution. [1] He claimed breach of his rights under s. 7 of the Canadian Charter of Rights and Freedoms and alleged bias. He asserted that the Crown's decision to intervene in the prosecution unnecessarily interfered with his wish to prosecute the matter privately and was therefore not compliant with s. 11(d) of the Crown Attorneys Act, R.S.O. 1990, c. C.49 (which provides for the circumstances in which Crown Attorneys are to assume the conduct of a private prosecution). The appellant claimed relief which included an order prohibiting the Crown from prosecuting the matter and an order that the charge be prosecuted by the appellant's counsel of choice.

[4] The Recusal Application was supported by the appellant's affidavit and an affidavit of a law clerk in his lawyer's office attaching all correspondence between counsel regarding the matter, except for without prejudice communications, as well as media posts and releases. The appellant was cross-examined on his affidavit.

[5] The Recusal Application was heard in June 2015 and dismissed on August 12, 2015 for reasons reported at 2015 ONSC 4448. The application judge, relying on Re Bradley et al. and The Queen (1976), 9 O.R. (2d) 161 (C.A.) and Ahmadoun v. Ontario (Attorney General), 2012 ONSC 955, [2012] O.J. No. 639, held that the Crown had lawful authority to intervene in the private prosecution and that the appellant had failed to demonstrate an abuse of process or bias.

[6] The Crown, on notice to the appellant and in an attendance in the provincial court, withdrew the assault charge on October 6, 2015 on the basis that there was no reasonable prospect of conviction. The appellant then moved for an extension of time for leave to appeal the order dismissing the Recusal Application. The motion was dismissed by Epstein J.A. in chambers on November 24, 2015.

[7] On November 5, 2015, the appellant brought a second application in the Superior Court (referred to by the parties as the "Constitutional Application"), this time pursuant to the Criminal Proceedings Rules. In the Constitutional Application the appellant asserted that his rights under s. 7 of the Charter were breached and he repeated the allegations of bias asserted in the Recusal Application. He sought a declaration of unconstitutionality of s. 507.1 of the Criminal Code (which provides for the referral of private prosecutions to the provincial court after a hearing, and for notice to and the participation of the Attorney General in the hearing), and s. 11(d) of the Crown Attorneys Act. The appellant also sought an order setting aside the Attorney General's intervention in and withdrawal of his private prosecution against the officer.

[8] The application judge, Cornell J., heard and dismissed the Constitutional Application on April 29, 2016. He dismissed the application in its entirety on the basis of issue estoppel. After referring to the leading authority respecting the doctrines of cause of action and issue estoppel, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, the application judge concluded that the three preconditions to the application of issue estoppel had been satisfied: The parties to the proceedings were the same; the earlier decision in the Recusal Application was final; and the material that was filed in the two applications was virtually identical and the same issues were raised. He awarded costs in favour of the Crown in the sum of $2,600 and in favour of the officer in the sum of $2,000.

Issues and Argument

[9] The appellant raises three arguments on appeal.

[10] First, the appellant says that the application judge erred in concluding that the Constitutional Application was barred by issue estoppel. He contends that the Recusal Application challenged the Crown's intervention in the private prosecution while the Constitutional Application challenges the Crown's withdrawal of the charge. He asserts that the "new issues" he raises in the Constitutional Application must be considered in the context of the entire circumstances, including the allegations of bias he previously brought forward. He argues that the Constitutional Application raises new arguments, and that the constitutionality of s. 507.1 of the Criminal Code and s. 11(d) of the Crown Attorneys Act was not at issue in the Recusal Application. The appellant also asserts that the court ought to have exercised its discretion to not apply issue estoppel and should have determined the Constitutional Application on its merits.

[11] Second, the appellant says that his application has merit and ought to be determined by this court in his favour. He says that the conduct of the Crown in this case demonstrates bias and that the laws permitting the Crown to assume carriage of a private prosecution are constitutionally invalid. In oral argument, the appellant's counsel focussed on what was depicted in a video recording of the alleged assault, and asserted that there was only one possible interpretation of the events that occurred, that the evidence disclosed a "triable issue" of excessive force that ought to have gone to trial, and that Crown counsel therefore misled the court in her detailed explanation of why there was no reasonable prospect of conviction when she withdrew the charges against the officer.

[12] Third, the appellant challenges the award of costs made against him in favour of the Crown and the officer.

Disposition

[13] We do not give effect to any of these arguments.

[14] The appeal can be disposed of on the issue estoppel ground. We are satisfied that the application judge did not err in applying issue estoppel.

[15] It is clear from a review of the two applications and the materials relied on by the appellant for each, that the Constitutional Application raises exactly the same issues as were dealt with in the Recusal Application. The essence of the appellant's complaint in both applications is the same – he questions the Crown's decision to take over the private prosecution of the respondent Labreche. In both applications he alleges bias on the part of the Crown and breach of his s. 7 Charter rights. He also relies on much of the same evidence in both applications – his affidavits set out the same basic chronology of what occurred and the same conduct alleged to constitute bias by the Crown.

[16] The fact that there was a new development following the Recusal Application – the withdrawal of the charges – does not change the character of the proceedings. The appellant seeks to challenge the Crown's ability to assume carriage of the prosecution, and his exclusion from it. In the Constitutional Application he seeks once again an order that he be able to continue the private prosecution in his own name, which was denied with the dismissal of the Recusal Application. Advancing new legal arguments and asserting additional claims for relief will not avoid the application of issue estoppel: Las Vegas Strip Ltd. v. Toronto (City) (1996), 30 O.R. (3d) 286 (Gen. Div.), at para. 25, aff'd (1997), 32 O.R. (3d) 651 (C.A.); Britannia Airways Ltd. v. Royal Bank, [2005] O.J. No. 2 (S.C.), at para. 14; Naken v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72, at p. 101; Eimskip, USA, Icelandic Steamship Inc. v. Nordica Foods A/S, 2015 NLCA 17, 365 Nfld. & P.E.I.R. 291, at paras. 59-60; Danyluk, at paras. 24, 54.

[17] Finally, the appellant submits that the court ought to have exercised its discretion to refuse to apply issue estoppel. Danyluk recognizes such discretion where the application of the doctrine would result in an injustice (at paras. 63-64). The appellant has had his "day in court" on the issues he seeks to raise again in the Constitutional Application and there is simply no basis for refusing to apply issue estoppel in this case.

[18] Having decided that the appeal should be dismissed on the issue estoppel ground, it is unnecessary to address the appellant's second ground of appeal – that his Constitutional Application ought to have succeeded on the merits. We note however, that we have serious concerns about the appellant's standing, as a complainant, to challenge the exercise of prosecutorial discretion. The question of standing ought to be addressed before any such application is considered on the merits. We also observe that, although framed as a constitutional challenge to the legislative regime for private prosecutions, the appellant does not put forward evidence or argument in support of a constitutional challenge. Rather, his focus is on the merits of the Crown's assessment of the available evidence leading to the decision to withdraw the charge, with which he strongly disagrees. And finally, the 'triable issue' standard the appellant advances is entirely misplaced; without suggesting that the exercise of discretion was in fact reviewable at the behest of the appellant, the question for the Crown was not whether there was a triable issue respecting the officer's guilt, but whether there was a reasonable prospect of conviction.

Costs Appeal

[19] There is no merit to the appeal respecting costs. The appellant included the officer as a respondent to the Constitutional Application. Costs were awarded in favour of both successful respondents in the exercise of the inherent jurisdiction of the Superior Court to control its own process: Foessl v. Attorney General for Ontario, 2016 ONCA 304. The application judge found that the application was improper and exercised his discretion to award costs. The appellant was attempting to raise for a second time, issues that had already been determined. The Constitutional Application, although styled as such, advanced no arguable constitutional issue. There is no basis to interfere with the application judge's decision respecting costs.

Result

[20] The appeal is therefore dismissed. The respondent Labreche sought his costs on appeal. Failing an agreement on costs, the appellant and this respondent may provide written submissions to the court, limited to three pages, not including any bill of costs, as follows: the respondent Labreche within 15 days of the date of this endorsement, with responding submissions by the appellant within 15 days thereafter, and no reply submissions.

"K. Feldman J.A."

"K. van Rensburg J.A."

"G. Pardu J.A."

Footnote

[1] Although the applicant brought the application under r. 14, early in the argument, all counsel agreed to the application being converted to an application for prerogative relief in the nature of certiorari, mandamus and/or prohibition pursuant to r. 43.01 of the Criminal Proceedings Rules for the Superior Court of Justice.