SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-30000013-00M0
DATE: 20130327

RE: R. v. Ronald Faulkner

BEFORE: M.A. Code J.

COUNSEL:
Heather Davies, for the Crown

Ronald Faulkner representing himself

HEARD: March 25, 2013

m.a. code J.

ENDORSEMENT

[1] Ronald Faulkner [hereinafter, Faulkner] is charged in a seventeen count Indictment with criminal harassment, fail to comply with a recognizance, and attempt to obstruct justice. This matter has been proceeding before the courts for some four and a half years and it is the subject of a Motion to be heard on April 8, 2013, at the start of trial, alleging a violation of Faulkner’s s. 11(b) Charter right to trial within a reasonable time.

[2] On January 15, 2013, that is, less than three months before trial, Faulkner served and filed a Motion in the nature of certiorari seeking to quash a decision denying bail made by Lipson J. in the Ontario Court of Justice. The bail decision was made over two years ago, on February 18, 2011. As ancilliary relief, Faulkner also seeks the removal of Crown counsel from the present prosecution on the basis of alleged misconduct at the bail proceeding before Lipson J. The Crown filed their response to the Motion on March 18, 2013 and it was heard by me on March 25, 2013. I am also assigned to hear the trial.

[3] These are my reasons for dismissing both aspects of the Motion. In short, the certiorari Motion relating to Lipson J.’s bail decision is dismissed because Faulkner had a statutory appeal or review available, pursuant to s. 520 of the Criminal Code, and he exercised it at the time. There is no merit to the claim of Crown misconduct at the bail hearing because it is factually misconceived.

[4] It is long-settled law that certiorari is a discretionary common law remedy, permitting review of jurisdictional errors committed by statutory tribunals, and that it should generally be denied when the tribunal’s enabling statute provides for a right of appeal. The Criminal Code, in s. 520, provides for a right of appeal or review from a denial of bail in the Ontario Court of Justice. Faulkner exercised that right on April 19, 2011 and was granted the relief he sought when Thorburn J. of this Court allowed his bail review. Accordingly, seeking prerogative relief some two years later, on the eve of trial, is an entirely academic exercise. There is no need to discuss the merits of the Motion and it should be dismissed, as a matter of discretion, because of the availability of a statutory appeal through s. 520 and also because of the two year delay in bringing the Motion.

[5] In R. v. Papadopoulos (2005), 2005 8662 (ON CA), 201 C.C.C. (3d) 363 at para. 20 (Ont. C.A.) the Court illustrated the discretionary nature of the prerogative writs by referring to “unnecessary delay” or a lack of “good faith”, by the party who seeks prerogative relief, as proper reasons for declining to grant relief:

The decision whether to grant or not to grant a prerogative remedy is ultimately a matter of discretion, exercised by the superior court as part of its general and inherent jurisdiction: R. v. Nat Bell Liquors Ltd. (1922), 1922 488 (UK JCPC), 37 C.C.C. 129 (S.C.C.); R. v. Workmen’s Compensation Board Ex parte Kuzyk, 1968 180 (ON CA), [1968] 2 O.R. 337 (C.A.); and R. v. Krawkowski and the Queen (1983), 1983 1825 (ON CA), 4 C.C.C. (3d) 188 (S.C.C.). While this authority must be exercised in accordance with established principles, there are cases where the court has exercised its jurisdiction not to award the remedy whether or not there was jurisdictional error – e.g., where there has been unnecessary delay in applying for the writ, or where the applicant has not acted in good faith in seeking the order: see for example, Young v. Attorney-General of Manitoba, Boxall and Fryer (1960), 1960 298 (MB CA), 129 C.C.C. 110 (Man. C.A.) and Krawkowski, supra. [Emphasis added].

[6] Another well-established basis for declining prerogative relief, as an exercise of discretion, is the availability of an adequate alternative remedy. Lamer C.J.C., speaking for seven members of the Court on this point, reviewed the leading authorities and described this aspect of discretion in Matsqui Indian Band v. Canadian Pacific Ltd., 1995 145 (SCC), [1995] 1 S.C.R. 3 at paras. 30-37:

The respondents had the right to seek judicial review before the Federal Court, Trial Division. That does not mean, however, that they have a right to require the court to undertake judicial review. There is a long-standing general principle that the relief which a court may grant by way of judicial review is, in essence, discretionary. This principle flows from the fact that the prerogative writs are extraordinary remedies.

In exercising his discretion, Joyal J. [the judge at first instance] relied on the adequate alternative remedy principle. He found that the statutory appeal procedures were an adequate forum in which the respondents could pursue their jurisdictional challenge and obtain a remedy, and he therefore decided not to undertake judicial review.

The adequate alternative remedy principle was fully discussed in Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561, at p. 586, where Beetz J., for the majority, held at p. 576 that “even in cases involving lack of jurisdiction”, the prerogative writs maintain their discretionary nature. Dickson J. (as he then was, dissenting), took a narrower view of discretion in the case of jurisdictional error (pp. 608-9). He nevertheless concluded, at p. 610, that where a jurisdictional error “derives from a misinterpretation of a statute, a statutory right of appeal may well be adequate” … Beetz J. reached the conclusion that the university’s own appeal procedure was an adequate alternative remedy and that the lower court should therefore have exercised its discretion not to grant a remedy.

On the basis of the above, I conclude that a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an applicant to proceed through a statutory appeal procedure. These factors include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant. [Emphasis added].

Also see: R. v. Dubois (1986), 1986 60 (SCC), 25 C.C.C. (3d) 221 at 232-3 (S.C.C.).

[7] Applying the principles set out in Matsqui and in Papadopoulos, there has been an extraordinary two year delay in seeking prerogative relief and there is a full, speedy, and convenient statutory appeal to this Court in cases where bail has been denied. For both of these reasons, the certiorari Motion dated January 15, 2013 is dismissed. I note that Hill J. arrived at the same conclusion in R. v. Villota (2002), 2002 49650 (ON SC), 163 C.C.C. (3d) 507 at paras. 120-126 and 131-3 (Ont. S.C.J.) and I adopt his reasoning.

[8] As noted above, the ancilliary relief sought, as part of the certiorari Motion, is removal of Crown counsel from the present prosecution due to alleged misconduct at the bail hearing before Lipson J. I doubt whether this relief is truly ancilliary to certiorari. However, I am assigned to conduct the trial in this matter and there is no question that, as the trial judge, I have jurisdiction to remove counsel for misconduct. Ms. Davies, counsel for the Crown on the certiorari Motion, sensibly agreed that I should hear and decide Faulkner’s allegation of misconduct by Crown counsel on its merits. In effect, I have allowed Faulkner to re-frame this part of the relief sought as simply an originating Motion pursuant to the Court’s inherent jurisdiction to control its own processes, including the conduct of its officers.

[9] MacDonnell J. reviewed the leading authorities on this point in R. v. Johnson (2009), 199 C.R.R. (2d) 333 at para. 17 (Ont. S.C.J.) and stated the following:

There is no doubt that courts have an inherent authority to remove counsel from the record, an authority which “stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to [the court’s] supervisory jurisdiction”: McDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235, at 1246. In R. v. Brown [Removal of Crown Attorney], [1996] O.J. No. 5319 (Sup. Ct.), Trafford J. stated:

In my opinion this court, as an incident of its inherent power to control its own processes, has the jurisdiction to remove counsel from the record where it is necessary to do so for the purposes of ensuring the appearances of fairness and integrity in the trial and to otherwise maintain the public trust or confidence in the administration of criminal justice. This applies to counsel for the Crown and the defence. The power is a discretionary one. This jurisdiction, however, should be exercised with the greatest of care in reviewing all of the circumstances of the alleged forensic misconduct. An order removing counsel should be made only when it is necessary to do so … This jurisdiction should be exercised sparingly.

See slso R. v. Khan, [2002] O.J. No. 3623 (Supt. Ct.), and R. v. J.C., [2002] O.J. No. 1576, (Sup. Ct.). [Emphasis added].

[10] The reasons of the Divisional Court in Everingham v. Ontario (1992), 1992 7681 (ON SC), 88 D.L.R. (4th) 755 at paras. 23 and 29 (Ont. Ct. – Gen. Div.) are also of assistance. The court set out the test for removal of counsel in the following terms:

The standard for the removal of counsel is objective. The standard is that of a reasonably informed member of the public: MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235, per Sopinka at pp. 1259-60. The personal feelings of the litigant are only one element in the application of an objective standard … The issue is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor.

[11] The factual basis advanced by Faulkner for removal of Crown counsel is simply misconceived. He submits that the Crown initiated the laying of charges against him, that the charges were without merit, and that the Crown deliberately misstated facts relating to the charges at the bail hearing before Lipson J. Relying on the above three factual assertions, Faulkner then employs excessive and unnecessary rhetoric in his submissions, describing the conduct as “villainous, vicious, vile, atrocious, unpardonable wrongdoing”, and refers to the alleged misstated facts as “flat out perjury”.

[12] There is simply no evidence before me that the Crown initiated the laying of the charges or that the charges were without merit. The Information was sworn by a police officer and I have not heard any evidence from the witnesses about the events that led to the charges in question. Accordingly, the first two factual bases for removal of Crown counsel have not been proved.

[13] The only factual basis for removal, on which evidence was tendered by Faulkner, is the allegation that Crown counsel misstated facts at the bail hearing. I have reviewed the transcript of proceedings before Lipson J. where Crown counsel read in what she described as “the allegations” and what Lipson J. referred to as “the synopsis” of the charges. Both counsel and Lipson J. invited defence counsel to ask for further clarification of the facts, if necessary, and defence counsel stated that she was “content [to have] my friend read in the allegations. I may ask for some corrections”. Crown counsel then proceeded to read from various documents, including what appears to be the “will say” statement of the complainant in which she provided her account of the relevant events. Faulkner filed the “will say” statement, as part of his certiorari Motion, and I have compared it to the transcript from the bail hearing.

[14] The factual allegations read in by Crown counsel, pursuant to the above procedure which is the norm at most bail hearings, are lengthy. They extend from page two of the transcript to page forty-one. The alleged misstatements of fact, relied on by Faulkner, are found at pp. 34-36. They occurred after Crown counsel had read in the complainant’s account of the three most recent incidents involving Faulkner and after Lipson J. had asked a few clarifying questions. They constitute a very small part of the totality of the factual allegations that were read in by the Crown.

[15] I am satisfied that the Crown accurately read in the complainant’s account of the three most recent incidents at the bail hearing. The Crown described an incident where the complainant alleged that Faulkner was “yelling” about her having intercourse with a man, an incident where Faulkner “pushed past her”, causing her to lose her balance, and an incident where Faulkner “came within inches of her”, looked at her, and stated the name of her son’s girlfriend. The Crown’s account of these three incidents was almost a verbatim reading of the complainant’s “will say”.

[16] The only possible inaccuracies are the following four points, relied on by Faulkner. First, Lipson J. asked if there was “physical contact” during the second incident and the Crown replied “correct”. This was a reasonable inference from the complainant’s account. Second, the Crown stated that Faulkner “looked [the complainant] in the eye” during the third incident. Again, this was a reasonable inference from the complainant’s account. Third, the Crown stated that Faulkner spoke in a “loud” voice during the third incident. Although the complainant’s “will say” did not address this specific point, the officer who was accompanying her at the time made a note that Faulkner “read aloud” the name of the son’s girlfriend. Fourth, and last, Lipson J. asked the Crown whether Faulkner was “yelling” during the third incident and the Crown replied “yes”. This last statement appears to be inaccurate. It was only during the first incident that Faulkner was described as “yelling”.

[17] It can be seen that three of the four alleged inaccuracies are not, in fact, misstatements of the investigative material in the Crown’s possession at the time of the bail hearing. There is only one factual inaccuracy and it is insignificant. The Crown and Lipson J. simply mixed up the first and third incidents during a brief exchange which occurred after the Crown had accurately read in the factual allegations relating to all three incidents.

[18] In conclusion, nothing in the materials before me suggests any kind of misconduct by Crown counsel and the application to remove her from the present prosecution is dismissed. I hope that Faulkner will reduce the level and tone of his rhetoric, in future, as a result of his experience on this Motion. He is a trained lawyer, although no longer practicing, and he should realize that higher standards are expected of him in the court room.

M.A. Code J.

Date: March 27, 2013