Court File and Parties

COURT FILE NO.: CV-15-540441 DATE: 20161024 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bradley John Albon, Applicant AND: The Attorney General of Ontario, Respondent

BEFORE: Pollak J.

COUNSEL: Alan Young, for the Applicant Alex Alvaro and Dan Guttman, for the Respondent

HEARD: July 25, 2016

Endorsement

[1] The Applicant, Mr. Bradley Albon, describes his Application as follows:

“On behalf of Mr. Bradley Albon ("the Applicant"), the Innocence Project ("the Project") in 2012 undertook a re-investigation of Mr. Albon's 1986 conviction for manslaughter. As part of this re-investigation, the Project has sought disclosure of the police investigative files and other materials from the Crown Law Office and other state agencies. The Project wrote to the Crown Law Office initially on July 27, 2012. After three years, full and complete disclosure has yet to be received. To facilitate the process of post-conviction disclosure, Mr. Albon now seeks a declaratory judgment to the effect that a superior court has jurisdiction under section 24(1) of the Charter of Rights and Freedoms to make orders of disclosure and production in a post-conviction setting. In his application, Mr. Albon is not seeking an order under section 24(1) of the Charter, but is raising a pure and preliminary question of law: whether a superior court is a court of competent jurisdiction for the purpose of providing remedies for individuals advancing bona fide and genuine claims of wrongful conviction.”

[2] The Respondent, the Attorney General of Ontario (“the AGO”), brings this motion to strike the Application. The AGO relies on the following arguments to support its motion:

(i) “The Applicant lacks standing. He seeks to assert rights on behalf of convicted and still incarcerated offenders whose appeals have been exhausted. The Applicant, however, has not exhausted his appeals. Nor is he still incarcerated. He completed his sentence over two decades ago. Charter s. 24(1) is limited to persons "whose rights have been infringed or denied". It cannot be used to assert the alleged rights of hypothetical third parties. Further, the Application is premature. There are two different statutory mechanisms available to the Applicant that he has declined to pursue that potentially offer him the relief he seeks.

(ii) In the alternative, it is plain and obvious that this s. 7 Charter application will fail as the Applicant cannot meet the first step of the s. 7 test. No right to life, liberty or security of the person is at stake. After completing his sentence over two decades ago, the Applicant's "liberty" is no longer in jeopardy. Section 7 of the Charter can have no application. That is the end of the matter.

(iii) In the further alternative, even if the second step of s. 7 is reached, the principle of fundamental justice that an accused person has the right to make full answer and defence is now exhausted, as is the presumption of innocence. Accordingly, a convicted offender, who has fully served their sentence, has no constitutional right to "orders of production".

(iv) It is important to emphasize at the outset that, contrary to the Applicant's factum at para. 21, this case does not involve the question of whether there is a constitutionally protected right to the disclosure of new evidence indicating innocence after conviction. There is no allegation in the record here that the police or Crown have any such evidence or ever failed to disclose such evidence. Rather, this case concerns an assertion of a constitutional right to obtain a) a copy of the trial disclosure and b) orders of production (i.e. an order that would require a party other than the Crown to make production).

(v) With that in mind, AGO makes the following points in this Reply Factum:

(a) The Applicant does not have public interest standing to raise the rights of convicted persons who have exhausted their appeals;

(b) It is plain and obvious on the application record filed that the Applicant cannot meet his onus of establishing a deprivation of security of the person and therefore cannot establish an infringement of s. 7 of the Charter;

(c) In his factum, the applicant erroneously minimizes the powers of the Court of Appeal under s. 683 of the Criminal Code; and

(d) The Canadian law on the granting of declaratory remedies underscores that this Application is premature.”

Issues

[3] The Applicant’s position is that the application has merit and should proceed for the following reasons:

(i) “The threshold for striking an application is high and is not met;

(ii) The merit of the application must be considered in the context of wrongful convictions;

(iii) The principles of fundamental justice extend to include rights to post-conviction production and disclosure;

(iv) Neither ministerial nor appellate review are prerequisites to seeking and obtaining declaratory relief;

(v) The Applicant has standing to bring this application;

(vi) The application is neither abstract nor premature:

(a) The application is purposeful, practical, and preventive

(b) The application is not premature.”

[4] The parties agree that the principles applicable on a motion to strike a claim as disclosing no reasonable cause of action are the following:

(i) The allegations of fact, unless patently ridiculous or incapable of proof, must be accepted as proven.

(ii) To succeed, the moving party must show that it is plain, obvious and beyond doubt that the applicant could not succeed.

(iii) A claim will not be dismissed simply because it is novel.

(iv) A claim must be read generously with allowance for inadequacies due to drafting deficiencies.

[5] Mr. Albon’s submission is that the AGO does not argue that his Application is certain to fail, that it contains a radical defect, or that it does not contain a "scintilla of a cause of action." The AGO’s submissions are with respect to the substantive issues on the Application. The AGO has not argued that the application is frivolous and completely devoid of merit.

[6] It is submitted that the AGO has not met its burden of proving that the Application should be struck. I agree with the submissions of the Applicant that the AGO has not met the criteria for this motion which I have set out above. While it may be that the AGO has many valid arguments on the merits of the Application, I do not find that it is “plain, obvious and beyond doubt” that the application could not succeed.

[7] I therefore dismiss this motion.

Pollak J. Date: October 24, 2016