ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12821-15
DATE: 2015-08-12
BETWEEN:
Tanner Currie
Applicant
– and –
The Attorney General of Ontario, Her Majesty the Queen and Christopher Labreche
Respondents
Trent Falldien, for the Applicant
Brent Kettles, for The Attorney General of Ontario
Scott K. Fenton, for Christopher Labreche
HEARD: June 26, 2015
DECISION ON APPLICATION
POUPORE, j.
Overview
[1] The applicant, Tanner Currie, has brought an application under rule 14.05(3)(g.1) of the Rules of Civil Procedure, R.R.O 1990, O. Reg. 194, seeking a remedy under s. 7 of the Canadian Charter of Rights and Freedoms. Early in the argument it was agreed by all counsel that the application be converted to one seeking prerogative relief in the nature of certiorari, mandamus and/or prohibition pursuant to rule 43.01 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7.
Facts
[2] On June 8, 2014, the applicant was charged by Constable Christopher Labreche of the Greater Sudbury Police Service for public intoxication, contrary to s. 31(4) of the Liquor Licence Act, R.S.O. 1990, c. L.19, and with resisting arrest, contrary to s. 129(a) of the Criminal Code, R.S.C. 1985, c. C-46. The applicant alleged that, during the arrest, Labreche punched him and threw him into a glass window.
[3] The charges against the applicant were withdrawn on August 27, 2014.
[4] A few months later, on December 5, 2014, the applicant swore an information against Labreche alleging that he committed an assault and an aggravated assault. The allegation of aggravated assault was withdrawn at the request of the applicant’s counsel, Mr. Falldien, during a pre-enquete hearing held on January 26, 2015.
[5] Following the pre-enquete hearing, on January 26, 2015, Justice of the Peace McKechnie found that a prima facie case had been made out and issued process compelling Labreche to attend before a court of competent jurisdiction to answer the charge of assault.
[6] On March 10, 2015, the applicant initiated the present application under Rule 14 seeking the following relief:
a. an order setting aside the Crown Attorney’s and/or the Attorney General of Ontario’s exercise of discretion, as made on January 26, 2015, to intervene with the private prosecution of Constable Christopher Labreche for allegedly assaulting the Applicant Tanner Currie on June 8, 2014;
b. an order that the Crown Attorney’s office and the Attorney General of Ontario are prohibited from prosecuting Constable Christopher Labreche for allegedly assaulting the Applicant Tanner Currie on June 8, 2014;
c. an order that the above noted charge against Constable Christopher Labreche be prosecuted by the Applicant’s counsel of choice;
d. an extension or abridgement of time if necessary;
e. costs of this Application, if opposed; and
f. such further and other relief that this Honourable Court deems just and appropriate.
[7] The applicant alleges that the Crown Attorney’s office and the Attorney General of Ontario are biased in the prosecution of Labreche.
Issues
[8] The main issues to be determined in this application are:
Is there jurisdiction under rule 14(5)(3)(g.1) for the relief sought?
What is the Attorney General’s authority to intervene in a private prosecution?
Is the Attorney General bias in her prosecution against Labreche and if so, does that bias rise to the level of “abuse of process”?
Analysis
Jurisdiction
[9] The application was brought under Rule 14 of the Rules of Civil Procedure. It has been agreed by counsel that there is no authority under the Rules of Civil Procedure to deal with matters governed by the Criminal Code or the Criminal Proceedings Rules. The order sought by counsel early in the proceedings rectified the jurisdiction issue.
The Attorney General’s Authority to Intervene in Private Prosecutions
[10] In Re Bradley et al. and the Queen (1975), 1975 766 (ON CA), 9 O.R. (2d) 161 (C.A.), Arnup, J.A. stated the following, at p. 169:
The Attorney-General, and his agent the Crown Attorney, represent the Sovereign in the prosecution of crimes. The role of the private prosecutor, permitted by statute in this country is parallel to but not in substitution for the role of the Attorney-General, and where the two roles come into conflict, the role of the Crown’s prosecutor is paramount, where in his opinion the interests of justice require that he intervene and take over a private prosecution.
[11] In Ahmadoun v. Ontario (Attorney General), 2012 ONSC 955, 281 C.C.C. (3d) 270, at paras. 9-14, Code J. reviewed the case law with respect to the Crown’s authority to intervene in private prosecutions and concluded, at para. 14, that:
It is clear from the above authorities that Crown counsel’s decisions in this case, to intervene and take control of a private prosecution and to enter a stay of proceedings were both decisions within the “core” discretion that are generally immune from judicial review, subject only to the abuse of process doctrine. The Applicant Ahmadoun conceded this and seeks to take on the difficult burden of establishing “abuse of process”.
[12] The Attorney General has authority to intervene in private prosecutions.
Abuse of Process
[13] The applicant attempts to make out an abuse of process by proving that the Attorney General of Ontario is biased against the applicant in the prosecution of Labreche. The bias is stated to consist of two different incidents:
- The Crown Attorney prosecuting the applicant on the charges of public intoxication and resisting arrest offered to withdraw the charges in exchange for certain conditions, namely:
a)the applicant was to pay for the broken window;
b) the applicant was to take an alcohol and drug abuse program; and
c)the applicant was to perform 10 hours of community service.
- After being arrested, the applicant was taken to the Greater Sudbury Police Service dispatch station. Later, the applicant attempted to obtain the police video taken at the dispatch station of the event. Nearly two months of efforts at obtaining the video were said to be ignored before the video was eventually obtained.
[14] In Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges Act, Superintendent), 2010 ONCA 856, 272 O.A.C. 177, at paras. 23-24, the Ontario Court of Appeal reviewed the governing principles regarding claims of reasonable apprehension of bias:
[23] The well-settled test for establishing a reasonable apprehension of bias was set out by de Grandpré J. in his dissenting judgment in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information … [T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
See also Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 60; R. v. S.(R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 31; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, at para.81.
[24] The threshold for a finding of real or perceived bias if high. Mere suspicion is insufficient to support an allegation of bias. Rather, a real likelihood or probability of bias must be demonstrated: S.(R.D.), at paras. 111-14. As stated in Wewaykum at para. 76, citing de Grandpré J. in Committee for Justice and Liberty at p. 395, the grounds for the alleged apprehension of bias must be “substantial”.
[15] The applicant’s evidence tendered in these proceedings to substantiate the Crown’s offer to settle the charge against the applicant consists of a statement in the applicant’s affidavit about what his lawyer at the time, Michael Venturi, told him about what the Crown was willing to settle for. This statement is clearly hearsay and not admissible. Even if it were proved, I am not satisfied that the Crown’s offer to settle the applicant’s charges would prove a bias in the Crown’s prosecution of Labreche.
[16] On October 16, 2014, the applicant forwarded a request to the Crown Attorney’s office for a copy of the dispatch video. The applicant was referred to the Attorney General’s office. A request was then made to the Attorney General, which request was denied.
[17] The video in question was supplied to counsel for the applicant at the time, Mr. Venturi, as part of the Crown’s disclosure on the charges of public intoxication and resisting arrest. When the applicant discharged Mr. Venturi, the video in question was forwarded to the applicant’s new counsel Mr. Falldien.
[18] I see no bias in the Attorney General’s prosecution of Labreche as a result of the applicant’s disclosure application and how it was handled.
[19] Nothing in this matter presented to this court demonstrates an abuse of process by the Crown in its exercise of discretion to assume the prosecution of Labreche.
[20] As a result, the application is denied.
The Honourable Mr. Justice John S. Poupore
Released: August 12, 2015
COURT FILE NO.: 12821-15
DATE: 2015-08-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tanner Currie
Applicant
– and –
Attorney General of Ontario, Her Majesty the Queen and Christopher Labreche
Respondents
DECISION ON application
Poupore J.
Released: August 12, 2015