Court of Appeal for Ontario
Date: 2019-09-19 Docket: C66839 Judges: MacPherson, Watt and Miller JJ.A.
Parties
Between
Lina Lochner and Silvano Lochner Applicants (Appellants)
and
Ontario (Attorney General) Respondent
Counsel:
- Lina Lochner and Silvano Lochner, self-represented
- Gavin MacDonald, for the respondent
Heard: In writing
On appeal from: The judgment of Justice Laura A. Bird of the Superior Court of Justice, dated March 25, 2019.
Reasons for Decision
[1] At the request of counsel for the Attorney General for Ontario, the respondent in this appeal, the Registrar has referred this appeal to the court for summary determination under s. 685(1) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] For the reasons that follow, we are satisfied that the appeal is frivolous and vexatious and can be determined without being adjourned for a full hearing before a panel of the court. As a result, the appeal is dismissed.
The Background Facts
[3] In August 2006, members of the Emergency Task Force of the Toronto Police Service executed a Feeney warrant at the Lochner residence to arrest Silvano Lochner. During execution of the warrant, officers tasered George Lochner whom they erroneously believed was Silvano Lochner. Paramedics arrived at the residence, attended to George Lochner and transported him to hospital. He was released from hospital the same night.
[4] The appellants, as well as other family members, have sought various forms of redress for this incident since 2006. A civil suit, taken over by the Provincial Guardian and Trustee, was settled and the settlement approved over the objections of the Lochner family. Complaints were made to the Ontario Civilian Police Commission. Requests were made of the Chief of Police to institute disciplinary proceedings against the officers who executed the warrant.
The Private Prosecution: The First Phase
[5] On September 23, 2016, the appellant Silvano Lochner laid a private information alleging that officers executing the Feeney warrant committed the offences of assault with a weapon and assault causing bodily harm in doing so.
[6] In January 2017, the appellant Lina Lochner, who is the appellant Silvano Lochner's mother, and his brother laid separate informations against the same officers alleging the same offences.
[7] In February 2017, the three informants laid a further private information against the same officers, alleging that one of them had committed perjury during an examination for discovery in 2009. The alleged perjury related to the number of taser guns used to disable George Lochner during the 2006 execution of the Feeney warrant.
[8] After four pre-enquête appearances in the Ontario Court of Justice, the Crown stayed all the outstanding private informations on two grounds:
i. that there was no reasonable prospect of conviction; and
ii. that there was no public interest in continuing the prosecution.
[9] The appellants applied to a judge of the Superior Court of Justice seeking an order setting aside the stay entered by the Crown and directing a new pre-enquête in the Ontario Court of Justice. The motion judge dismissed the application on the grounds that:
i. the Crown's exercise of its discretion to stay proceedings on the basis of no reasonable prospect of conviction was proper; and
ii. the Crown's assessment of the absence of public interest in continuing the prosecution was reasonable.
See, Lochner v. Ontario (Attorney General), 2017 ONSC 5293, at paras. 5-7.
The Private Prosecution: The Second Phase
[10] Within one week of the dismissal of their application for an order in lieu of mandamus, the appellants laid a new information against the officer whom they had previously claimed had committed perjury during the same examination for discovery in 2009. The substance of the perjury alleged was the same as had been alleged in the previous information. In their application to have process issue, the appellants said that they had not previously sworn an information for the same offence.
[11] A justice of the peace conducted a pre-enquête on two separate days. She found that there was no evidence:
i. that the officer knowingly made a false statement; or
ii. that the officer made the statement with intent to mislead.
As a result of this evidentiary deficit, the justice of the peace declined to issue process. The justice considered, but did not decide, that the proceedings were frivolous, vexatious or an abuse of process.
[12] The appellants again sought an order in lieu of mandamus to compel the conduct of a new pre-enquête on the same information. The application was dismissed. The motion judge found:
i. that the substantive arguments of the appellants were totally devoid of merit;
ii. that, irrespective of the merits of the arguments advanced, the relief sought was discretionary and would have been refused in the exercise of that discretion; and
iii. that the application was vexatious in that the appellants sought to circumvent the effect of the previous decision on the same information by recommencing with a fresh but duplicative information before a different justice.
See, Lochner v. Ontario (Attorney General), 2017 ONSC 2994.
[13] The appellants appealed the motion judge's decision to this court. The appeal was dismissed for the reasons given by the justice of the peace and by the motion judge: Lochner v. Ontario (Attorney General), 2019 ONCA 52.
The Private Prosecution: The Third Phase
[14] Two days after this court dismissed their appeal from the second refusal of an order in lieu of mandamus, the appellants swore a third information alleging the same perjury by the same officer at the same examination for discovery. Once again, the appellants denied having previously sworn an information about the same matter. They also denied that another justice of the peace had refused to issue process for the same offence.
[15] On this occasion, the appellants swore the information in a different territorial jurisdiction than had been the case for the two prior informations. A justice of the peace conducted a hearing under s. 504 of the Criminal Code, but declined to receive the information because the appellants had failed to adduce any evidence to support the allegations that the proposed accused had committed perjury.
[16] For a third time, the appellants applied to a judge of the Superior Court of Justice for an order in lieu of mandamus compelling the justice of the peace to hold a hearing. Among other things, they argued that the justice of the peace committed jurisdictional error by converting the hearing under s. 504 to a pre-enquête under s. 507.1.
[17] The motion judge dismissed the appellants' application. In her view, even if the justice of the peace committed jurisdictional error by converting a hearing about receipt of the information under s. 504 to a pre-enquête about the issuance of process under s. 507.1, the appellants had suffered no prejudice. This was so, the motion judge reasoned, because even if the information had been received, process would not have issued at the conclusion of the pre-enquête for lack of evidence of the essential elements of the offence.
[18] The motion judge declined to exercise her discretion to grant an order in lieu of mandamus for a second reason – the conduct of the appellants. That conduct included:
i. disregard of a prior decision of a judge of the Superior Court of Justice which characterized their second attempt to have an information received as an abuse of process;
ii. providing false information on an intake form required of private informants that they had not previously sworn an information alleging the same offence;
iii. failing to disclose that on a prior occasion another justice of the peace had refused to issue process on the basis of the same information; and
iv. contravening s. 507.1(7) of the Criminal Code by seeking another pre-enquête after an earlier refusal, in the absence of any new evidence in support of the allegations.
See, Lochner v. Ontario (Attorney General), 2019 ONSC 1908.
This Appeal
[19] After a thorough review of the materials filed by the appellants, we are satisfied that this appeal is at once frivolous and vexatious and can be determined without a full hearing of oral arguments before a panel of this court.
[20] To begin, the notice of appeal filed in this court reveals no arguable grounds of appeal. In generic terms, the notice recites that the motion judge erred:
i. in law;
ii. in fact;
iii. in both law and fact; and
iv. in making assumptions, rather than findings of facts.
[21] The additional materials filed by the appellants, in particular, their factum, do not lay bare any substantial ground of appeal that would warrant an oral hearing by a panel of this court. It necessarily follows, in our view, from the absence of legal merit in the proposed appeal that the appeal is frivolous, as that term is used in s. 685(1) of the Criminal Code.
[22] Second, we also consider the proposed appeal is vexatious.
[23] As we have said, the proposed appeal lacks merit. It appears to have been initiated in pursuit of an unyielding course of harassment extending for more than a decade. After each failure, the appellants simply begin again with the same threadbare allegations before a different justice of the peace. They do not disclose their previous failures, indeed deny their existence by positive misstatement, calculated omission or both. They ignore the prohibition in s. 507.1(7) of the Criminal Code which requires new evidence as a condition precedent for a fresh pre-enquête after a prior refusal to issue process.
[24] The appellants have engaged in an unremitting regimen of forum shopping clothed in deceit to make it appear as a matter of first impression. On seven previous occasions, they have been told that their allegations do not satisfy the standard required for the receipt of an information under s. 504 or for the issuance of process under s. 507.1. Yet they persist. In our view this warrants characterizing the proposed appeal not only as frivolous, but also as vexatious and not requiring an oral hearing before a panel of this court.
Conclusion
[25] For these reasons, we are satisfied that the proposed appeal does not show a substantial ground of appeal, is both frivolous and vexatious and does not warrant an oral hearing before a panel of this court.
[26] The appeal is dismissed.
"J.C. MacPherson J.A."
"David Watt J.A."
"B.W. Miller J.A."