CITATION: Lochner v. Attorney General of Ontario, 2017 ONSC 5293

COURT FILE NO.: CR-17-10000063-00MO

DATE: 20170920

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LINA LOCHNER, PAUL LOCHNER and SILVANO LOCHNER

Applicants

Self-Represented

• and -

ATTORNEY GENERAL OF ONTARIO

David King, for the Respondent

Respondent

HEARD: July 5, 2017,

at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling

Re: Application for Judicial Review by way of Mandamus

Introduction and Background to this Application....................................................................... 2

The Pre-enquete Hearings............................................................................................................ 5

(i) The October 21, 2016 Pre-Enquete................................................................................... 5

(ii) The November 29, 2016 Pre-Enquete.............................................................................. 7

(iii) The January 13, 2017 Pre-enquete.................................................................................. 8

(iv) The March 1, 2017 Pre-enquete..................................................................................... 11

Applicable Law............................................................................................................................ 13

(i) The pre-enquete procedure relating to the institution of private prosecutions............ 13

(ii) Prosecutorial powers to withdraw or stay charges........................................................ 16

(iii) No judicial review in the absence of flagrant impropriety.......................................... 21

Applying the principles............................................................................................................... 27

(i) What this case is not about............................................................................................... 27

(ii) Did Crown counsel have the common law or statutory power to stay the information’s on March 1, 2017?....................................................................................................................................... 30

(iii) Have the Applicants advanced compelling evidence that the Crown demonstrated conduct that amounts to a “flagrant impropriety”?.................................................................................................... 31

Conclusion................................................................................................................................... 42

Introduction and Background to this Application

[1] On September 23, 2016 and January 26, 2017, Silvano Lochner and his brother Paul and his mother, Lina Lochner, (the “Applicants”) laid Informations commencing private prosecutions for assault with a weapon under s. 267 (a) of the Criminal Code of Canada[^1] (the “Code”) and assault causing bodily harm under s. 267(b) against six members of the Toronto Police Service (“TPS”). On February 16, 2017, the Applicants commenced a further private prosecution against the same six officers for perjury under s. 131(1) of the Code.

[2] Those charges arose out of an incident that occurred ten years earlier, on August 11, 2006, when members of the TPS Emergency Task Force (“ETF”) went to the Lochner residence at 19 Verwood Avenue in Toronto to execute a Feeney Warrant against Silvano Lochner. In the course of clearing the house at that address, the officers did not find Silvano Lochner, but they did find his adult autistic brother George Lochner in an upstairs bedroom. The officers claimed that George Lochner was aggressive and assaultive towards them, and made threatening actions against them. This caused two or more of the officers to taser George Lochner several times to subdue him. It is claimed he was also punched. After taking control of George, they removed him from the house and paramedics on scene took him to the hospital to be checked out. Evidently, his injuries were not severe, although this is vehemently disputed by the Lochners, who state he was in a severe state of distress.

[3] This incident led the Applicants to commence a multi-million dollar civil lawsuit on George Lochner’s behalf against the TPS officers who had interaction with him. The Applicants were represented by senior counsel, Mr. Brian Shiller, during at least part of that litigation. Each of the officers gave evidence on discoveries conducted by Mr. Shiller for the purposes of that civil lawsuit and transcripts were prepared of their civil depositions.

[4] Ultimately, however, the Court ruled that the Applicants had no standing to act on his behalf, and ordered that George Lochner was to be represented by the Public Guardian and Trustee (PGT), and not by the Applicants.[^2] After a number of protracted and unruly appearances before a number of judges of this Court[^3], the case was settled in 2016 for a payment by the TPS to the PGT of $65,000 for the benefit of George Lochner, and that settlement was approved by D. Wilson J. of this Court on March 9, 2016.[^4] The monies have been paid and are being held by the PGT for the ultimate benefit of George Lochner.

[5] On September 23, 2016, six months after that settlement and ten years after the alleged assaults, Silvano Lochner laid an Information commencing a private criminal prosecution against those six TPS officers, seeking to charge each of them with one count of assault with a weapon and one count of assault causing bodily harm. On January 26, 2017, Mr. Lochner’s mother, Lina Lochner, and brother Paul Lochner, also laid further private criminal Informations against those six TPS officers for the same offences. Then on February 16, 2017, all three of the Applicants laid one further Information in an effort to commence a further private prosecution against the same officers, alleging one count of perjury by each officer.

[6] These Informations came before the Ontario Court of Justice for several quite unruly attempts to conduct pre-enquete hearings, first before Justice of the Peace L. Phillips on October 21, 2016, then before Justice of the Peace A. Amenta on November 29, 2016, and then before Justice of the Peace P. Welsh on January 13, 2017. All of these justices of the peace are from outside Toronto because Silvano Lochner was insistent that no Toronto-based judicial officers be involved in adjudicating on his private prosecution. The same applied to Crown Attorneys, and that was why the Crown counsel assigned from the outset was Mr. Thaddeus Ofiara, who was based in Brampton.

[7] On the first three occasions, only the assault charges were before the Court, although there had been mention of the Applicants’ intention to use the depositions given by each officer on discovery in the settled civil litigation as evidence to incriminate them on the assault charges. However, by the time the matter came again before Justice Welsh on March 1, 2017, the Applicants had also laid perjury Informations against each of the officers. After another lengthy set of testy submissions by Mr. Lochner, Crown counsel, Mr. Ofiara, informed the Court that day that the Crown was exercising its discretion “to stay all of the Informations” on the basis of his position that there was neither a reasonable prospect of conviction on any of the charges nor any public interest in the proceedings continuing further. Justice of the Peace Welsh accordingly stayed all charges.

[8] At this hearing, the Applicants sought an order of mandamus compelling the return of the Informations to the Ontario Court and an order that the evidence from the private prosecutions be heard before a new pre-enquete hearing.

[9] It is clear that this proceeding is not about this court determining whether to issue process based upon the evidence that the private informant sought to put before the pre-enquete judge. That decision always remains within the exclusive prerogative and jurisdiction of the pre-enquete justice of the peace or judge in the Ontario Court of Justice. It is only about whether the Crown had the power to stay these proceedings. This is a point that seems to not have been well understood by the Applicants, at least based on the materials they filed before me on this mandamus hearing and the focus of whose argument remained the atrocities that they claim were perpetrated against them and their brother George by officers of the TPS, and less so on the power of the Crown to take the action it did. Before turning to this proceeding, and the four pre-enquete hearings that preceded the Crown’s decision to stay the charges, it is important to have an understanding of the foundation for the allegations. Substantively, the Applicants’ private prosecutions of assault with a weapon and assault causing bodily harm on behalf of George Lochner are based on their contention that George Lochner was tasered at least three if not more times, twice on his chest and stomach area, and once on his back and that he was also punched a number of times.

[10] But the alleged illegality is also founded on the concept that the police had no lawful grounds to be at their residence on August 11, 2006 in the first place. They contend there was no foundation for the “Feeney Warrant” to be issued by a Justice of the Peace and that it was unlawfully issued on the basis of misinformation provided by D.C Gordon Callanan to the issuing justice. As evidence of this they rely on (i) the Feeney Warrant itself, signed by J.P. D. DiLorenzo on August 11, 2006, and (ii) the Transcript of Intake proceedings before J.P. D. DiLorenzo that day.

[11] Moreover, Mr. Lochner, as principal spokesperson for the Applicants, contends that apart from being unlawfully issued, the warrant was unlawfully executed because Silvano Lochner was not at home when the ETF arrived on August 11, 2006 to execute it and it is alleged they knew that but went ahead anyway. He was walking his elderly father in a nearby park at the time the police descended on their residence. However, the warrant contained conditions limiting the time frame within which it could be executed, and it specifically required the police to have reasonable grounds to believe that Silvano Lochner would be found in the residence when it was executed.

[12] For all of these reasons, Silvano Lochner claims that the entry onto his family’s residential property was without lawful authority, constituted trespass to their residence and each of them, and thus, since they were unlawfully present there that day, the police could have no lawful authority for anything that ensued. As such, and apart from a claim of excessive use of force, which could itself cause otherwise lawful police action to become unlawful, the Applicants claim that s. 25 of the Code, which protects officers in the lawful execution of their duties, can provide no defence for the actions of these officers in the circumstances of this case. The foundation for that is their alleged knowledge that they could not enter that residence unless they reasonably believed Silvano Lochner was to be found there, and the contention that none of them could reasonably have had that belief. As such it is claimed they were not lawfully acting in the execution of their duties as police officers when the confrontation with George Lochner occurred in an upstairs bedroom of the Lochner residence.

[13] Beyond the alleged unlawfulness of the entry, the Applicants contend that evidence of the paramedics who attended on George and took him to the hospital shows that he was tasered at least three, if not more times. This is said to be established by the photographs of George Lochner taken after the occurrence showing at least three sets of entry points of taser darts on his upper torso, both in the front and on his back. It is also said to be established by (i) use of force and taser reports prepared by PCs Dominic Bruzzese and Stephen Carmichael, (ii) downloaded data from Taser 19421, (iii) the Ambulance Call Report dated August 11, 2006, (iv) the forensic report prepared by Dr. John C. Butt dated November 19, 2013, and (v) by the expert Taser report of Mr. Liam Hendrikse dated November 20, 2016. The Applicants claim this evidence establishes an excessive use of force by the police that is not protected by their role as police officers.

The Pre-Enquete Hearings

(i) The October 21, 2016 Pre-Enquete

[14] The first pre-enquete hearing in this case commenced on October 21, 2016, after Silvano Lochner alone had laid two Informations alleging that the police committed the offences of assault with a weapon and assault causing bodily harm against his adult autistic brother, George Lochner. Justice of the Peace L. Phillips was presiding, a justice from outside Toronto brought in owing to Silvano Lochner’s insistence that no Toronto Crown Attorneys or judicial officers be involved. As the first pre-enquete hearing commenced, Justice of the Peace Phillips recognized that Mr. Lochner was self-represented, advised him of the purpose of the pre-enquete hearing that was commencing, and how the pre-enquete hearing would proceed. He emphasized to Mr. Lochner that the purpose of the pre-enquete was for him to consider allegations and evidence that Mr. Lochner and any witnesses he called present to the Court to determine if a summons or warrant should be issued. He emphasized that Mr. Lochner needed to establish a prima facia case, requiring that he present some evidence on all elements of the offence or offences that he was alleging.[^5]

[15] Mr. Lochner then commenced giving evidence in chief as the informant relative to the crimes he alleged. He explained that he is the brother of the victim, George Lochner, who is a special needs person who Mr. Lochner acknowledged was an adult autistic. He explained that George Lochner was assaulted by being tasered by the ETF on August 11th, 2006. In addition to being tasered, he alleged that George Lohner was physically assaulted by being punched in the face by the police officers.

[16] He went on to explain that on August 11th, 2006, P.C. Gordon Callanan had obtained a Feeney Warrant to enter the Lochner residence at 19 Verwood Avenue, Toronto, in order to facilitate the arrest of Silvano Lochner. A criminal complaint was made against him on July 22nd , 2006 by a neighbour by the name Olec Caplin. He claimed, however, the police waited three weeks until August 11th , 2006 to get the warrant. Mr. Lochner told the justice that in his opinion the warrant was invalid because (i) there was no basis upon which the Justice of the Peace could have issued the Feeney Warrant, and (ii) the information provided and the procedure followed by Officer Callanan to obtain the warrant was deficient, unlawful and subversive. When asked by the presiding justice whether these were findings of a court or allegations, Mr. Lochner acknowledged they were his personal opinions.

[17] Mr. Lochner continued with his opinion that since the warrant was invalid and unlawful, the ETF officers executing the warrant acted unlawfully and trespassed against the victim, George Lochner, when they entered the Lochner residence. When the officers came to the garage of the Lochner residence, he said that his other brother, Paul Lochner, told the officers that Silvano was not there and that the only person in the residence was George, a special needs adult autistic person.

[18] Silvano Lochner told the justice his opinion that the officers who executed the warrant could have had no reasonable grounds to believe that Silvano was present in the Lochner resident. He gave hearsay testimony that when the officers descended on the residence without any prior warning, his brother Paul and mother Lina were in the garage. He told Justice of the Peace Phillips that the police officers attacked Paul Lochner, pushed him to the ground, punched him in the head, pointed guns at his head, placed him in handcuffs, and also descended upon his mother, Lina Lochner, who was 76 years old at the time. When asked if any of this information was personally known to him, Silvano Lochner acknowledged it was not, and that it was all hearsay since he was not there at the time, but he nevertheless insisted that it was “all documented” by the police, allegedly as set out in their sworn depositions given in connection with the civil lawsuit. His continuing delivery of hearsay testimony gave rise to an admonition from Justice of the Peace Phillips that Mr. Lochner should restrict his evidence, and “limit your testimony as to the parts that -- that you are -- have some firsthand information about.”

[19] Mr. Lochner then testified at some length to his understanding of the requirements of a Feeney Warrant and the specific condition that that the police were not to enter the dwelling unless they had reasonable grounds to believe that the person to be arrested, Silvano Lochner, was present there immediately before they entered.

[20] He then gave hearsay evidence detailing the taser hits his brother George had received in the upstairs bedroom, alleging that the officers tasered George at least three, if not more times, contrary to the officers’ notes and discovery testimony obtained in the course of the now-settled civil lawsuit. He testified that in his opinion those officers had tried to circumvent and misrepresent the facts.

[21] As the hearing progressed, Justice of the Peace Phillips repeatedly asked Mr. Lochner to please stop interrupting his questions, but that admonition plainly went unheeded for the remainder of the hearing, as did Phillips J.P.’s repeated requests that Mr. Lochner lower his voice. The J.P. continued to try to redirect Mr. Lochner that he needed to focus his testimony and provide evidence relative to the elements of the offences of assault causing bodily harm and assault with a weapon, the alleged charges set out in the Informations.

[22] Despite those efforts, Mr. Lochner continued for a further 12 pages of the transcript before the morning recess to focus on the warrant process used by the police and its deficiencies, with no reference at all to the actual elements of the offences charged. The J.P. asked him where the evidence was to support all of these factual claims. Mr. Lochner explained that he had gotten it all from the civil depositions of the police officers given in connection with the civil litigation.

[23] The level of tension escalated after the morning recess. Mr. Lochner plainly had little or no first-hand non-hearsay evidence to present for virtually any of the allegations he was making, but he continued to insist that the evidence he relied upon would be found in the depositions given by the police officers in the civil proceeding. Once again, Justice of the Peace Phillips reminded Mr. Lochner that he needed to focus his testimony on the charges that were laid before the Court and any first-hand and obviously non-hearsay information that he could provide relative to those allegations and the elements of those offences as established by the Code. His entreaties continued to be ignored.

[24] This led to the final accusation by Mr. Lochner that brought the first pre-enquete to an end. In response to the request to provide first-hand information relative to the allegations in the Informations, an exchange ensued with Mr. Lochner accusing the Justice of the Peace of not keeping an open mind.[^6]

[25] After continuing attempts to get Mr. Lochner to give first-hand evidence or call witnesses, the hearing ended when Justice of the Peace Phillips recused himself based on Mr. Lochner’s allegations of bias. The matter was rescheduled to return before another out of town justice of the peace on November 29, 2016. However, that return date was granted with the stipulation by order of Justice of the Peace Phillips that the Applicants appear by counsel on that date, an order that was itself vociferously challenged by Mr. Lochner as unconstitutional and meant to deprive him of audience because of his claimed inability to afford to retain counsel.

(ii) The November 29, 2016 Pre-Enquete

[26] Justice of the Peace Amenta was presiding when the matter returned on November 29, but nothing of substance happened that day. Mr. Lochner had retained Mr. Tyler MacDonald as counsel only days before that hearing, and, not surprisingly, he had inadequate time to review the extensive materials and prepare for a new pre-enquete hearing.[^7]

[27] Justice Amenta granted the adjournment with the Crown’s consent, until January 13, 2017, but very reluctantly, given that he was an out of town justice of the peace who had come in specifically for this hearing, had read the transcript from the prior hearing and was prepared to proceed. Equally important, the adjournment meant his day was wasted since there was likely no other work that could be assigned to an out of town justice of the peace.

(iii) The January 13, 2017 Pre-enquete

[28] On January 13, 2017, the matter returned before Justice of the Peace P. Welsh from Cayuga. He came into Toronto specifically for the hearing, but yet another adjournment request was made because Mr. Lochner fired Mr. MacDonald as counsel the night before the hearing. The adjournment request was also made because Mr. Lochner intended to bring a motion to permit the civil depositions of the officers to be used as evidence against them in this criminal proceeding. He also wanted to retain new counsel. On the basis of the acrimonious first pre-enquete hearing of October 21, Crown counsel told the justice of the peace that the matter should not proceed in the absence of a lawyer assisting the court.[^8]

[29] When Justice of the Peace Welsh asked Mr. Lochner’s lawyer, Mr. MacDonald, for his comments, he elaborated as follows:

MR. MACDONALD: Mr. Lochner seeks to obtain some further evidence before proceeding with the pre-enqete hearing. One of the things he wants to obtain is a use of force report prepared by Mr. Brag. That’s one of the accused; that’s one of the defendants named in the Information. He wants to obtain an affidavit of the paramedics who attended to George Lochner, who’s the victim, and he wants to investigate further into how many officers went into the house and into George Lochner’s room on the day in question when this happened. And I’ll add to that, what you’ve just heard from Silvano Lochner that he wants to introduce transcripts of discovery proceedings of the -- of the accused persons who were discovered in separate civil proceedings. And he wants to introduce those for incriminating purposes, for purposes of incrimination.[^9]

[30] A discussion followed between Mr. Ofiara, the Crown, and Mr. MacDonald about whether the Lochners would need to be represented when the matter returned, or even if Mr. MacDonald could repair the relationship with Mr. Lochner that would permit the matter to continue that day. That discussion started in court but then moved outside the court during a recess called by the J.P. to permit solicitor client discussions to occur in private. What followed after the recess leading to the adjournment, however, was another example of the conduct of the Applicants in court, among each other and towards the other participants in the process. It vividly shows the difficulties that these hearings have encountered during the hearings and the ungovernability of these litigants:

THE COURT: Okay, good morning again.

MR. OFIARA: Good morning again, Your Worship.

MR. MACDONALD: Good morning again, Your Worship.

THE COURT: I just -- I remind the parties once again this is an in camera proceeding.

LINA LOCHNER: You not finish today, why can't stay. (speaks a different language).

PAUL LOCHNER: I'll be silent, let her talk.

SILVANO LOCHNER: Okay. You have to leave Paul.

THE COURT: Okay, so this is...

SILVANO LOCHNER: Sorry, Your Honour.

-- Proceedings recorded but not transcribed as it is indiscernible

THE COURT: Okay.

MR. MACDONALD: Listen to the judge, ma.

THE COURT: Okay.

PAUL LOCHNER: I'll decide.

SILVANO LOCHNER: Okay.

PAUL LOCHNER: Let her talk.

THE COURT: Okay, I'm sorry folks, I -- I -- I understand that you want to watch and I understand that, but I have to follow the law.

PAUL LOCHNER: I know, but we're not going to proceed today. We're going to...

THE COURT: I understand.

SILVANO LOCHNER: Paul you have to wait outside. Don't you understand the law?

PAUL LOCHNER: I'm speaking.

SILVANO LOCHNER: Okay.

PAUL LOCHNER: Let me decide.

SILVANO LOCHNER: Okay. Officer.

PAUL LOCHNER: I've got to see the papers, the disclosure. I was a part of this. You're trying to torture and kill me. I have two families. And put guns to my head and killed my father.

SILVANO LOCHNER: Okay.

PAUL LOCHNER: Sit down and tortured him and tried to decapitate him.

MR. MACDONALD: Okay, hold on a minute.

SILVANO LOCHNER: Okay. Fine. You're creating a commotion.

PAUL LOCHNER: What's the, what's the delay? Why don't you see?

SILVANO LOCHNER: Stop this. Stop this.

PAUL LOCHNER: Leave me alone.

SILVANO LOCHNER: They're gonna call security.

PAUL LOCHNER: Security? I need a security after eleven years. Five minutes they put on their report. They were thirty minutes (indiscernible) That fucking asshole, he's trying to fucking walk. (indiscernible). You know what I'm going through every night. The nightmares.

SILVANO LOCHNER: Okay, I can't continue today, I'm sick.

-- Proceedings recorded but not transcribed as it is mainly indiscernible.

SILVANO LOCHNER: I've already been to the hospital this week, Your Honour, I had a heart attack. I cannot continue. I...

PAUL LOCHNER: Get the date. Get the date.

SILVANO LOCHNER: I can't. I can't.

PAUL LOCHNER: Get the date. Get the date.

SILVANO LOCHNER: We paid this lawyer $50,000. My mother's 90 years old she had to borrow the money. This is ridiculous.

PAUL LOCHNER: Get the date.

SILVANO LOCHNER: Okay, I'm not staying in the court if you're yelling like this, Paul. That's okay. We'll stick around.

SILVANO LOCHNER: No.

MR. MACDONALD: Get the date.

SILVANO LOCHNER: I can't, you do it.

MR. MACDONALD: Okay.

SILVANO LOCHNER: I can't, I'm having a heart attack.

MR. MACDONALD: You should -- you should still be here Silvano.

SILVANO LOCHNER: I'm having a heart attack. This is ridiculous. That Crown Attorney is trying to protect the police. I can't; I can't take this. I can't. This is too stressful for our family, Your Honour. My brother was almost murdered by the police. I had to -- get a date for the first week of March please.

MR. MACDONALD: Thank you. So, Your Worship, I do have instructions for Mr. Silvano Lochner that he is discharging me for today's pre-enqête hearing. As to what might happen in the future, he wants to set a new date. It may be that he decides to retain me as counsel for that day or he may retain someone else. That's -- that's what I have to put to you from our discussions.

THE COURT: And -- and this -- you're consenting to this, Mr. Ofiara?

MR. OFIARA: Yes.

THE COURT: All right. So I will grant the request for an adjournment to allow Mr. Lochner to either retain new counsel or if solicitor client relationship can be mended, to re-retain you Mr. MacDonald. The other -- the other reason that was given for the request for an adjournment was to obtain some additional evidence for the purposes of the pre-enqête.[^10]

(iv) The March 1, 2017 Pre-enquete

[31] It was on March 1, 2017 that the Crown exercised its power to stay the proceedings, and a number of excerpts from the transcript that day need to be referenced to understand how that came about and exactly what was said. When the matter returned on March 1, Justice of the Peace P. Welsh was presiding again, as he had on January 13.

[32] What had changed between those two dates, however, is that the Applicants had laid an Information alleging perjury on the part of the six TPS officers in relation to their the civil depositions in the civil proceedings. Before getting into what happened on March 1, it is important to note that an exchange of emails had previously taken place between Mr. Ofiara and Mr. Silvano Lochner.

[33] Noting that there were now three different Informations before the Court, the justice of the peace called upon Crown counsel to assist[^11], but of particular importance in this exchange is Crown counsel’s report to Justice of the Peace Welsh on the outcome of that exchange of emails with Mr. Silvano Lochner:

MR. THADDEUS: I've, Your Worship received a box of things from Mr. Lochner over the last few months. I -- it's -- it's the moving target. I've received so many different things from him and so many different approaches to this matter.

SILVANO LOCHNER: Yeah, and he was sent an email with that, so he's fully aware of what's happening and...

MR. OFIARA: I thought I was speaking, Mr. Lochner.

SILVANO LOCHNER: I'm sorry.

MR. THADDEUS: So, yes, I take it there's probably at least three different Informations before the Court.

THE COURT: Well, this was provided to me today...

SILVANO LOCHNER: Okay, so...

THE COURT: Sir, I'm going to have to explain to you something, okay?

SILVANO LOCHNER: Okay.

THE COURT: Everything is being recorded, and we can't talk over each other. So when someone else is talking, you need not to talk...

SILVANO LOCHNER: I understand.

THE COURT: ...do you understand that?

SILVANO LOCHNER: Yes, Your Honour -- Your Worship.

THE COURT: Good, so, Mr. Crown there's a package provided to me today alleging perjury.

MR. THADDEUS: Yes.

THE COURT: Are you aware of that?

MR. THADDEUS: Yes, I can give you the -- what I would describe as the origins of that, Your Worship. So, back when there was the original Information alleging the number of assaults against George Lochner by members of the Toronto Police Service, Mr. Silvano Lochner decided that he would proceed by way of filing discovery transcripts from a civil proceeding. And he provided me with notice pursuant to the preliminary inquiries sections of the Code. And, so I sent him an email at that point in time saying, well that's all fine and good, Mr. Lochner, but if Constable Smith gives evidence at a discovery proceeding, that transcript of Constable Smith cannot be used against Constable Smith to facilitate criminal proceedings, unless you're charging him with perjury. He sends an email back and says, well, I guess I'm going to charge them all with perjury now. So, that's just to give Your Worship the, sort of, the flavour of what we're dealing with. (My emphasis)

THE COURT: All right. Well, what are we going to deal with today, then?[^12]

[34] Several counsel also appeared that day to address the Court on behalf of individuals who had been subpoenaed to appear by Mr. Lochner. Constable Greg Chan was one of those subpoenaed, but through counsel he asked the justice of the peace to be excused from testifying. The basis of that request was that P.C. Chan was not at the Lochner house the night of the assault and had no involvement in those matters or the allegations. His only connection with the allegations was that he was given the tasers that were used that evening and he connected them to a computer so that the data stored on those tasers could be downloaded. He then printed that downloaded report. The report, itself, was hearsay. Constable Chan did not create the data which constitutes the report and which was downloaded from the tasers. His counsel noted that he could not testify whether or not that data was accurate because he was not an expert on the operation of the taser. Further, he had no memory of these events a decade earlier, and since 2008 was not even authorized to operate a taser. As such, he took the position through counsel that he had no material evidence to provide to the Court on the pre-enquete. Justice of the Peace Welsh agreed and released P.C. Chan from the subpoena.

[35] Justice of the Peace Welsh indicated that the pre-enquete would proceed that day only on the assault charges laid in 2016. However, Mr. Lochner was not willing to proceed only on that charge.[^13]

[36] It turned out that court staff had suggested to Mr. Lochner that the newly laid perjury matter would proceed at the pre-enquete along with the others, but Justice of the Peace Welsh rebuffed that suggestion observing that the “Court Services Branch does not direct the court how they will conduct things.” Again Justice of the Peace Welsh told Mr. Lochner that the pre-enquete would be proceeding on only the assault charges. Mr. Lochner continued to argue and insist on the perjury charges being heard as well.[^14]

[37] It was at this critical point, with tensions mounting and the testiness of the exchanges escalating, that Justice of the Peace Welsh called upon Crown counsel to make submissions as Mr. Lochner continued to protest in the background. It was at the end of these comments that Mr. Ofiara advised the Justice of the Peace of the Crown’s intention to bring the proceedings to an end.[^15]

[38] Mr. Lochner appeared to not understand what had just happened. Suddenly he said he was willing to proceed on the assault charges alone. Mr. Lochner continued to berate Justice of the Peace Welsh for several further minutes. He insisted that he was going to call witnesses but Justice of the Peace Welsh assured him he would not be calling any witnesses, as the proceedings were being stayed.[^16]

Applicable Law

(i) The pre-enquete procedure relating to the institution of private prosecutions

[39] The charges laid initially in this matter were assault with a weapon, and assault causing bodily harm. The charge laid just before the final pre-enquete hearing was one of perjury. As such, at a pre-enquete hearing, the onus would fall to Silvano Lochner, Paul Lochner and Lina Lochner to present some admissible evidence “to make out a case for issuing process” for each of those charges before process would issue commencing formal prosecutions and requiring the persons alleged to have committed the alleged crimes to appear before the Court. Thus, a private citizen seeking to bring a private prosecution must present first hand or otherwise admissible evidence that addresses each of the essential elements of each of those three offences. In this case this would require the Applicants to present evidence before the justice of the peace on the essential elements of each of the three alleged offences.

[40] In the case of the allegation of assault with a weapon, this required that the Applicants adduce evidence (i) that the six police officers applied force to George Lochner, (ii) that they applied that force intentionally, (iii) that George Lochner did not consent to the force they applied to him, (iv) that the police officers knew that George Lochner did not consent to the application of that force, and (v) that the six police officers each used a weapon for the purpose of applying that force to him. In the case of the allegation of assault causing bodily harm, this required that the Applicants adduce evidence the same as in items (i)-(iv) above, and in addition, that the actions of the police officers caused bodily harm to George Lochner.

[41] Finally, relative to the allegation of perjury, it required that the Applicants adduce evidence (i) that each of the six police officers made a statement under oath before a person authorized by law to receive it, (ii) that the statement was false, (iii) that each of the six police officers knew that the statements each gave were false, and (iv) that each of the six police officers made each of their statements with the specific intention to mislead.

[42] The procedure and standard of proof applicable at a pre-enquete relative to criminal allegations instigated by both police officers and private individuals is set out in s. 504 of the Code. It was described fully in the 2011 decision in R. v. Vasarhelyi[^17], where the Court of Appeal for Ontario considered section 507 of the Code and the procedure to be followed for issuing process when an Information is laid under s. 504.

[43] Without referring to some of the minutia of the historical development of the provisions and portions not relevant here, paras. 34-41, 44-46, and 49 of Vasarhelyi describe the process and applicable rules:

34 Section 504 of the Criminal Code describes who may lay an information before a justice of the peace alleging that a person or persons committed an indictable offence. The section describes the form of the information and defines the circumstances in which the justice is required to receive it.

35 Receipt of a sworn information by a justice of the peace does not, on its own, require the person alleged to have committed the offence to answer to the charge. The next step is a hearing or an inquiry to determine whether the person alleged to have committed the offences described in the sworn information should be compelled to appear in answer to those charges. This hearing or inquiry determines whether process should issue.

36 The Criminal Code contains two separate provisions for inquiries about the issuance of process. The distinction resides in the status of the informant. One provision governs where the informant is a law enforcement official and the other, where the informant is a private citizen. Where, as in this case, the informant is a private citizen, s. 507.1 of the Criminal Code governs the inquiry into the issuance of process, commonly described as the pre-enquete.

37 Under s. 507.1, the purpose of the pre-enquete is to determine whether process should issue to compel the appearance of the prospective accused to answer to the charges contained in the information. The designated justice or provincial court judge who presides at the pre-enquete decides whether a case has been made out for the issuance of process on the basis of "the allegations of the informant and the evidence of witnesses".

38 The language used in s. 507.1(3), which defines the conditions to be satisfied before process may issue, is discretionary: "the judge or designated justice may issue a summons or warrant". The standard or test the judge or justice is to apply emerges from s. 507.1(2): "that a case for doing so is made out". Sections 507.1(5)-(7) describe the effect of a finding that no case has been made out for the issuance of process.

Evidence at the Pre-enquete

39 Section 507.1(3)(a) distinguishes between "the allegations of the informant", on the one hand, and "the evidence of witnesses", on the other. Unlike s. 507(1)(a)(ii), applicable to informations laid by law enforcement officers, where the introduction of the evidence of witnesses is only required where the justice "considers it desirable or necessary to do so", s. 507.1(3)(a) appears to make the introduction of "evidence of witnesses" essential. Such a requirement serves as an important control over invocation of the criminal process to further the fevered imaginings of a private informant.

40 Despite this apparent requirement of "the evidence of witnesses" at the pre-enquete under s. 507.1(3), the section does not specify or otherwise describe, in express words, the substance or kind of evidence that must or may be introduced on the inquiry…

41 The absence of express provisions governing the evidence of witnesses at the pre-enquete is alleviated by the provisions of s. 507.1(8), which incorporate by reference ss. 507(2)-(8). Among the incorporated provisions of ss. 507(2)-(8) is s. 507(3)(b), which requires a justice who hears the evidence of a witness under s. 507(1), a provision like ss. 507.1(2) and (3), to "cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied".

44 Sections 540(7)-(9) entered service on June 1, 2004, as part of a comprehensive series of amendments intended to expedite the hearing and circumscribe the scope of the preliminary inquiry. The current regime for private prosecutions, including the procedure to be followed at the pre-enquete, came into force on July 23, 2002. The referential incorporation of the provisions of s. 540 by what is now s. 507(3) continues provisions to the same effect that have been in force since prior to the 1955 revision of the Criminal Code.

45 Sections 540(7)-(9) and sections 540(1)-(6) serve entirely different functions.

46 The admissibility of evidence at a preliminary inquiry is the focus of ss. 540(7)-(9). In other words, these provisions have to do with what the justice may receive as evidence at the inquiry. Sections 540(7)-(9) expand the scope of what may be received as evidence beyond what the traditional rules of admissibility would permit. Provided the information tendered for reception is credible and trustworthy, and the opposite party has received reasonable notice of the intention to introduce it, together with disclosure, the justice may admit the information as evidence even though the traditional rules of evidence would exclude it.

49 Unlike a preliminary inquiry to which s. 540 applies directly, a pre-enquete is not an adversarial proceeding. The person against whom the informant seeks to have process issued is not present and is not represented by counsel. The Attorney General is entitled to notice of the hearing, an opportunity to attend, to cross-examine and call witnesses and to present any relevant evidence at the pre-enquete without being deemed to intervene in the proceeding. The Attorney General may also enter a stay of proceedings on a private information as soon as the information has been laid or withdraw the information once a justice has determined that process should issue: Criminal Code, s. 579(1); R. v. Dowson, 1983 59 (SCC), [1983] 2 S.C.R. 144; and R. v. McHale (2010), 2010 ONCA 361, 256 C.C.C. (3d) 26 (Ont. C.A.), at para. 89, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 290.

(ii) Prosecutorial powers to withdraw or stay charges

[44] McHale v. Ontario (Attorney General) is the controlling appellate decision on the power of the Attorney General to exercise the core prosecutorial discretion to withdraw and to stay charges.[^18] In that case, Mr. McHale appeared before a justice of the peace on August 19, 2008, alleging that three named individuals committed a common nuisance on a specific date one year earlier. The justice was satisfied of the facial sufficiency of the Information (an aspect I will note has never been met here). Mr. McHale appeared at the pre-enquete on October 7, 2008.

[45] Mr. McHale objected to the participation of Crown counsel present, because of his participation in earlier proceedings that had involved him. Regardless, Crown counsel continued and he then withdrew the charges against the three named individuals on the basis that the prosecutions were an abuse of process and not in the interests of justice. Importantly, this exercise of Crown discretion to withdraw the charges occurred before the justice of the peace had heard or considered any evidence from McHale or the Crown.

[46] Mr. McHale then successfully applied for an order of mandamus before T.D. Marshall. J.[^19] The judge decided that the case should be returned to a justice of the peace for a pre-enquete to determine whether process should issue to compel the named individuals to appear on the charges Crown counsel had withdrawn. The Crown was not entitled to withdraw the information prior to the pre-enquete, and Marshall J. rejected Crown counsel’s reliance on the Crown Attorneys Act, provincial legislation, because interpreting that Act to permit Crown counsel to withdraw the Information would have created a conflict with the federal Criminal Code.

[47] The Crown appealed that decision but the appeal was dismissed. Watt J.A., writing for a unanimous bench found that the applications judge was correct in finding the withdrawal of the Information sworn by McHale prior to the pre-enquete to have been premature. This was not because the Crown lacked the authority to withdraw an Information generally, or because of any constitutional conflict between the Crown Attorneys Act and the Code. Rather, it was because Mr. McHale, as a private informant, had the right to have a judge listen to his allegations and evidence and to decide whether there was evidence of the essential elements of the offence charged. Because the pre-enquete was conducted in camera, there was no risk of prejudice to the interests of the named individuals.

[48] In paras. 57-69 of his reasons in the McHale case, Watt J.A. details the precise manner in which the applicable common law and statutory principles interact, their history, and the purpose of the pre-enquete process in the context of private prosecutions. The core governing conclusions are set out at paras. 70-77 of the Court of Appeal’s reasons. I cannot express that framework with any greater clarity than did Watt J.A., and accordingly the relevant paragraphs bear repetition in full:

70 It is well-settled that criminal proceedings are instituted or commenced by the laying or receipt of an information in writing and under oath. Anyone named as a person who committed the offence described in the information is a person "charged" with an offence for the purposes of s. 11(b) of the Charter: R. v. Kalanj, 1989 63 (SCC), [1989] 1 S.C.R. 1594, at p. 1607.

71 A criminal prosecution only commences after a justice has made a decision to issue process: Dowson, at p. 150. As Chief Law Officer of the Crown, the Attorney General has supervisory control over criminal prosecutions. It seems reasonable to conclude that this supervisory authority begins contemporaneously with the commencement of a criminal prosecution. And that moment, at least in the absence of some statutory provision to the contrary, is after a justice has decided to issue process at the conclusion of a pre-enquete.

72 Policy considerations also favour the conclusion that the withdrawal authority of the Attorney General crystallizes and may be exercised as of the moment the justice determines to issue process at the conclusion of the pre-enquete.

73 The Criminal Code permits private prosecutions. A private informant may lay an information in conformity with s. 504. Receipt of the information commences criminal proceedings. Parliament enacted, more accurately continued, a procedure aimed at the determination by a judicial officer of whether the informant has made out a case for prosecution. This procedure is the pre-enquete, a hearing that provides the private informant the opportunity to present her or his case for prosecution.

74 Conduct of the pre-enquete vindicates the interest of the private informant who seeks prosecution of another for an alleged crime. The pre-enquete assures the private informant that an independent judicial officer will hear the informant's allegations, listen to the evidence of the informant's witnesses, and decide whether there this is evidence of each essential element of the offence charged in the information. The pre-enquete also ensures that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution. To insist that the withdrawal power await the determination about issuance of process also reduces the risk that the Criminal Code's provisions for private prosecution will to begin and end with the right to lay a private information.

75 To hold that the authority to withdraw arises immediately upon the decision to issue process does not prejudice the interest of the persons named as responsible for the crimes alleged in the private information. The pre-enquete is conducted in camera. A decision by the Attorney General to withdraw the information once the decision to issue process has been made requires no public appearance, nor any response by those named in the information.

76 The nexus between the decision to issue process and the withdrawal authority of the Attorney General also ensures that the decision to withdraw is informed by knowledge of the substance of the case the private prosecutor proposes to pursue. The fuller evidentiary record also establishes the basis upon which the withdrawal decision is grounded should accountability concerns later surface.

77 It is for those reasons that I agree in the result with the application judge that the purported withdrawal of the informations here, before the pre-enquete had begun, was premature. The withdrawal authority requires the commencement of a prosecution, a point that coincides temporally with the determination by the justice that process shall issue. Withdrawal then is permissible while the in camera proceedings remain extant. Those named in the original information need not appear.

[49] Paragraphs 76 and 77 are particularly relevant here. The withdrawal of Informations by the Attorney General is the exercise of a common law power of the prosecutor. Given the policy considerations that continue to permit the commencement of private prosecutions, the need to ensure that any decision to withdraw prosecutions is made on the basis of evidence presented by the private individual informant, and issues of accountability of the Crown, it is essential that the criminal process have commenced. McHale establishes plainly that before the Crown may swoop in and take over the charges and withdraw them at any time after the prosecution has commenced, but the pre-enquete hearing must have commenced. In McHale the pre-enquete had not commenced before Crown counsel withdrew the charges.

[50] In the context of how the pre-enquete proceedings unfolded in this case, however, it is also important to note that Watt J.A. went on to consider the Crown Attorney’s power to stay proceedings prior to or during the conduct of a pre-enquete hearing. While it may be considered obiter dictum, the direction provided by the Court relative to the Crown Attorney’s power to stay proceedings prior to or during the conduct of a pre-enquete hearing was meant to provide direction should the issue arise in future. This is clear from paras. 78 and 82 where Watt J.A stated:

78 At first sight, it seems unnecessary to determine whether an agent of the Attorney General is entitled to stay proceedings taken on a private information before the pre-enquete has begun under s. 507.1(3). After all, the Crown Attorney who appeared as the pre-enquete was about to begin in this case did not invoke s. 579(1) to enter a stay of proceedings. That said, it may well be that, as the pre-enquete is scheduled to begin, or at some time before the decision about the issuance of process is made, the Crown Attorney may invoke s. 579(1) to stay the proceedings. Thus the need to determine when this authority may be exercised.

82 The matter in which the authority to stay proceedings makes its way into this case renders an expansive discussion of the subject neither essential nor advisable. That said, brief reference to the authority to direct entry of a stay, the time at which a stay may be directed, and the availability of a stay as a basis upon which to refuse to issue mandamus may be of some assistance at the pre-enquete.

[51] Watt J.A. emphasized that the legal authority of the Attorney General or an instructed agent to direct entry of a stay of proceedings under s. 579 is different from the authority to withdraw charges. The former is statutory while the latter is a common law power. The only persons who may direct entry of a stay of proceedings under section 579 of the Criminal Code are the Attorney General and counsel acting on instructions by the Attorney General as its lawful deputy for the purpose of directing entry of the stay. That authority can only be exercised by the Attorney General or lawful deputy directing the Court to make an entry on the court record that proceedings are stayed by the direction of the Attorney General. Once made, that entry has the effect of staying proceedings.

[52] Unlike its predecessor provision[^20], s. 579(1) permits the direction to enter a stay to be given “at any time after any proceedings in relation to an accused ... are commenced.” Previously, a stay could be entered “at any time after an indictment has been found”, which the Court in R. v. Dowson interpreted to mean “as of the moment a summons or warrant is issued” or “once a determination to issue a process is made.”[^21] However, it is clear from Watt J.A.’s reasons that the replacement of s. 508 by s. 579(1) has affected the timing when a stay may be entered because of Parliament’s decision to permit a statutory stay to be entered at any time after any proceedings in relation to an accused are commenced. At para. 86 of McHale, Watt J.A. states as follows:

The Criminal Code provides no definition of the term "proceedings" as it is used in s. 579(1) or elsewhere in the Criminal Code. Courts have interpreted "at any time after any proceedings in relation to an accused ... are commenced" in present s. 579(1) as "any time after an information is laid": see Campbell v. Attorney-General of Ontario (1987), 1987 4268 (ON SC), 58 O.R. (2d) 209 (H.C.J.), at p. 220, aff'd (1987), 1987 4333 (ON CA), 60 O.R. (2d) 617 (C.A.); R. v. Wren, [1987] B.C.J. No. 1336 (C.A.), at p. 2; R. v. Pardo (1990), 1990 10957 (QC CA), 62 C.C.C. (3d) 371 (Que. C.A.), at pp. 373-4. Laying or receipt of an information commences criminal proceedings. It seems to logically follow from the decisions mentioned that laying an information falls within "proceedings in relation to an accused". The same could be said of a pre-enquete, a proceeding to determine whether process should issue.

[53] Since s. 579(1) permits the Attorney General or its lawful deputy to direct entry of a stay at any time after an Information has been laid, and since laying an Information that commences criminal proceedings and also attendance before a justice of the peace to conduct a pre-enquete are both a “proceeding in relation to an accused” within the meaning of those terms in s. 579(1) of the Criminal Code, the s. 579 stay route could have been exercised in McHale any time after the Informations were laid, unlike the right of the Crown to withdraw the charges, which could only occur after the pre-enquete had taken place and process had issued. At para. 90 of his reasons, Watt J.A. addresses this seeming anomaly:

90 It may seem anomalous to some that of two available steps to terminate proceedings initiated by a private information one is available at any time after the information is laid, but the other not until a determination has been made that process shall issue. The difference resides in the source of the authority. The common law, infused by policy considerations, compels one conclusion, the plain language of the statute, another.

(iii) No judicial review in the absence of flagrant impropriety

[54] The second aspect to the Attorney General’s decision to intervene in a private prosecution and stay proceedings is that it is generally not capable of being judicially supervised or reviewed. Kreiger v. Law Society of Alberta[^22] establishes that principle as one of the incidents of the “core” nature of the prosecutorial powers of the Attorney General, and the exercise of discretion whether or not to prosecute cases, whether bought by police or private informants. At paras. 46-47 in Kreiger, the Court explained that:

46 Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 1975 1357 (NB CA), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 1989 4780 (SK CA), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.

47 Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. (My emphasis)

[55] Nevertheless, while generally not open to judicial review or scrutiny, there does remain a narrow and highly deferential supervisory review power in this Court in relation to the exercise of Crown prosecutorial discretion in circumstances of bad faith or an improper purpose, improper conduct of a quality that is captured in the expression “flagrant impropriety.” This concept assumes and presumes that the prosecution exercises its functions properly, but where there is evidence in the case of a private prosecution like this, not merely of the Crown having acted unreasonably, but rather with flagrant impropriety in staying charges, this Court may intervene and return the matter to the Ontario Court for another pre-enquete.

[56] In Ahmadoun v. Ontario (Attorney General)[^23], in the course of determining that the Crown misconduct alleged by the applicant was without foundation, Code J. references paras. 49 and 51 of Kreiger where the Supreme Court comments on the underlying concepts of bad faith or improper motives as described in R. v. Campbell[^24], and the affirmation of those principles in R. v. Nixon.[^25] Relative to Campbell, the Supreme Court in Kreiger observed:

49 In Campbell v. Attorney-General of Ontario, it was held that an Attorney General's decision to stay proceedings would not be reviewed save in cases of "flagrant impropriety". See also Power, supra; Chartrand v. Quebec (Minister of Justice). Within the core of prosecutorial discretion, the courts cannot interfere except in such circumstances of flagrant impropriety or in actions for "malicious prosecution": Nelles, supra. In all such cases, the actions of the Attorney General will be beyond the scope of his office as protected by constitutional principle, and the justification for such deference will have evaporated.

51 Review by the Law Society for bad faith or improper purpose by a prosecutor does not constitute a review of the exercise of prosecutorial discretion per se, since an official action which is undertaken in bad faith or for improper motives is not within the scope of the powers of the Attorney General. As stated by McIntyre J. in his concurrence in Nelles, supra, at p. 211: "public officers are entitled to no special immunities or privileges when they act beyond the powers which are accorded to them by law in their official capacities". We agree with the observation of MacKenzie J. that "conduct amounting to bad faith or dishonesty is beyond the pale of prosecutorial discretion" (para. 55). (Citations omitted)

[57] Consistent with that approach, in Nixon, Charron J. commented on behalf of a unanimous Supreme Court bench at paras. 52 and 64 on the difference between whether a Crown prosecution decision was “reasonable or unreasonable” as opposed to demonstrating “flagrant impropriety”:

52 … The application judge's assessment of a decision made in the exercise of prosecutorial discretion for "reasonableness" runs contrary to the principles set out in Krieger. Paperny J.A. reiterated these principles, and explained that it is not the role of the court to look behind a prosecutor's discretionary decision to see if it is justified or reasonable in itself (paras. 46-49). By straying into the arena and second-guessing the decision, the reviewing court effectively becomes a supervising prosecutor and risks losing its independence and impartiality. Due regard to the constitutionally separate role of the Attorney General in the initiation and pursuit of criminal prosecutions puts such decisions "beyond the legitimate reach of the court" (Krieger, at para. 32). Thus, the court does not assess the reasonableness or correctness of the decision itself; it only looks behind the decision for "proof of the requisite prosecutorial misconduct, improper motive or bad faith in the approach, circumstances or ultimate decision to repudiate" (Court of Appeal decision, at para. 49).

64 This approach is consistent with the principles set out in Krieger. Acts of prosecutorial discretion are not immune from judicial review. Rather, they are subject to judicial review for abuse of process…

[58] Based on these high authorities, in Ahmadoun, Code J. summarized the scope of this Court’s ability to intervene at paras. 13-14, which I adopt as directly applicable here:

13 Prior to Krieger and Nixon, a considerable body of case law had developed wherein private prosecutors challenged decisions by Crown counsel to intervene in a case and to either proceed with it or stay it. None of these challenges were successful. The Courts consistently upheld the power of the Crown to take over a private prosecution and generally held that the Crown's decision to prosecute or stay the privately laid charges could only be reviewed on a standard of "flagrant impropriety" and not on a standard of "reasonableness". Krieger and Nixon, of course, have now confirmed this approach to the issue. See: Re Bradley and the Queen (1975), 1975 766 (ON CA), 24 C.C.C. (2d) 482 (Ont. C.A.); Campbell v. Ontario (Attorney General), supra; Re Osiowy and the Queen (1989), 1989 4780 (SK CA), 50 C.C.C. (3d) 189 (Sask. C.A.); Re Chartrand and Quebec (Attorney General) (1987), 1987 751 (QC CA), 40 C.C.C. (3d) 270 (Que. C.A.); Kostuch v. Alberta (Attorney General) (1995), 1995 6244 (AB CA), 101 C.C.C. (3d) 321 (Alta. C.A.); Re Baker and The Queen (1986), 1986 1151 (BC SC), 26 C.C.C. (3d) 123 (B.C.S.C.); Re Hamilton and The Queen (1986), 1986 1181 (BC SC), 30 C.C.C. (3d) 65 (B.C.S.C.).

14 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".[^26]

[59] These references show that a decision by Crown counsel to stay proceedings in a private prosecution cannot be reviewed by this Court on a standard of reasonableness, but only flagrant impropriety, yet there remains one further question that must be answered to complete the picture: what standard of conduct is required to meet the high threshold of flagrant impropriety, and what evidence must be present to inform such a conclusion?

[60] In a second McHale v. Ontario[^27] decision, decided after the previously-noted Court of Appeal decision[^28], Mr. McHale again sought to review a prosecutorial stay of a private prosecution he sought to commence. Tucker J. first noted that there are very few if any cases in Canada where the exercise of prosecutorial discretion to stay proceedings has been overturned:

5 Although there may not be any case in Canada where the court has overturned a prosecutorial stay, it is clear that the possibility of such is discussed in the case law, albeit described as occurring only in the rarest of cases where there is clear evidence of abuse of process. I quote from Perks v. Ontario (Attorney General), [1998] O.J. No. 421, at para. 11:

Here the Applicant wants to force a prosecution to proceed when the Attorney General believes it to be contrary to the public interest. While there are cases which have applied the same test to applications to force a prosecution to continue as to applications to stay a prosecution ... I note that in none of these cases was the application successful. For my part, I view the circumstances in which such an application could be successful, or in which an evidentiary hearing should be permitted, to be even more circumscribed than described in cases like Power and Durette, 1992 2779 (ON CA), [1992] O.J. No. 1044. I need not attempt to exhaustively define the circumstances, but a case where corruption on the part of the prosecutor could be shown is the one obvious example. Failing that, however, I can at present imagine no other situation which would call for the extraordinary intervention of a judge to place an accused in jeopardy, which generally involves potential penal consequences, in contradiction to the express view of the Attorney General. As L'Heureux-Dubé noted in Power, at p. 19, "In our system, a judge does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them." Nor in my view, does a judge have the authority to interfere with a prosecutor's decision to stop a prosecution.

12 For these reasons, I am of the view that the Applicant was not entitled to an evidentiary hearing before the Justice of the Peace, and that there is no basis to make an order of mandamus to compel such a hearing.

[61] Tucker J. went on to address what could constitute “flagrant impropriety” at paras. 12-17:

12 Mr. McHale filed his own affidavit in his own application a reported discussion he had with Mr. King, the Crown in the case at issue. At best, this is untested by cross-examination and at worst it is hearsay and self-serving.

13 This leaves me with only the acceptable evidence in this case, which is the reasons given by the prosecutors for staying the action. The Crown's position in law may be wrong, for example, the matter had to be heard before a provincial court judge rather than a justice of the peace, or that a "proclamation" was required in order to proceed with the prosecution, but that is not for me to determine on this hearing.

14 At para. 6 of R. v. LaForme, [2003] O.J. No. 845, the court held as follows:

"... a wrong or incorrect decision by the Crown not to prosecute would not necessarily constitute a flagrant impropriety."

15 At para. 8 in Perks v. Ontario (Attorney General) flagrant impropriety was described as "misconduct bordering on corruption, violation of the law, bias or improper motive".

16 In R. v. Larosa, 2002 45027 (ON CA), [2002] O.J. 3219 para. 79 the court held that "an allegation must be supportable by the record before the court, or if the record is lacking or insufficient, by an offer of proof". Here the record is sufficient and it is clear.

17 What is relevant to the court is that a reasoned explanation was provided to the court that discloses no bias. The Crown, Mr. King, indicated to the court that he was staying the information pursuant to s. 579, that there were several problems with the prosecution, including the fact that the "riot act" had not been read and, as such, the legal requirement of the charge could not be established. Accordingly, the record here as in Perks v. Ontario (Attorney General), supra, para. 9, "discloses no basis to embark on an evidentiary hearing."

[62] These were the authorities referred to me by Crown counsel on this application, but the list seems incomplete without referring to one other decision. In my view, the Supreme Court’s decision in R. v. Anderson[^29] is the controlling authority. In that case, the Supreme Court reviewed the standard of review for exercises of prosecutorial discretion, which would include the decision to withdraw or stay proceedings. The Supreme Court commented:

49 The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type of prosecutorial conduct that constitutes abuse of process. In Krieger, this Court used the term "flagrant impropriety" (para. 49). In Nixon, the Court held that the abuse of process doctrine is available where there is evidence that the Crown's decision "undermines the integrity of the judicial process" or "results in trial unfairness"[^30] (para. 64). The Court also referred to "improper motive[s]" and "bad faith" in its discussion (para. 68).[^31]

50 Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system.

[63] Because trial fairness is not an issue here, this having been a pre-enquete hearing, what is at issue is whether the Crown’s conduct in this case “undermines the integrity of the judicial process."

[64] In summary, based on the governing jurisprudence, the following are the legal principles applicable on this mandamus application:

(i) It is open to the Crown to exercise its prosecutorial discretion to withdraw an Information laid in a private prosecution at any time after legal process has issued, that is, at any time during or after a pre-enquete hearing is conducted, but not before;

(ii) It is open to the Crown to exercise the statutory power under s. 579 of the Criminal Code to stay proceedings in a private prosecution at any time after an Information has been laid, since laying an information that commences criminal proceedings and also attendance before a justice of the peace to conduct a pre-enquete hearing are both a “proceeding in relation to an accused” within the meaning of those terms in s. 579(1) of the Code;

(iii) In the absence of “flagrant impropriety” of the Crown in either withdrawing charges or entering a stay under s. 579 of the Code, the exercise of those core prosecutorial or statutory powers by the Attorney General or his lawful delegate is not subject to review by this Court on an application for mandamus or other judicial review;

(iv) This Court may exercise a narrow and highly deferential supervisory review power relative to the exercise of Crown prosecutorial discretion in circumstances of bad faith or an improper purpose, improper conduct the qualities of which constitute “flagrant impropriety.” Where there is compelling evidence not merely of the Crown having acted unreasonably, but rather with flagrant impropriety in staying charges, this Court may intervene and return the matter to the Ontario Court for another pre-enquete;

(v) In Ontario, a “wrong or incorrect” decision by the Crown not to prosecute would not necessarily constitute a flagrant impropriety justifying intervention by this Court on an application for mandamus;

(vi) Flagrant impropriety will only be found to be present where there is compelling evidence of Crown misconduct bordering on corruption, violation of the law, bias or improper motive, and any such allegation must be supportable by the record before the Court, or if the record is lacking or insufficient, by an offer of proof; and

(vii) As such, this Court can only interfere with the prosecutor’s decision to stay these proceedings if the applicant has proven on a balance of probabilities that the prosecutor’s decision seriously compromised the integrity of the justice system. If the claimant establishes a proper evidentiary foundation, in some cases, the Crown may be required to provide reasons justifying its decision.

Applying the principles

(i) What this case is not about

[65] In the paragraphs that follow, I address each of these issues against the background of these proceedings.

[66] Before addressing the two live issues here, in the circumstances of this case and given the conduct of the Applicants on this mandamus application, before other judges of this Court in the civil proceedings that preceded this application, and before a number of justices of the peace in the Ontario Court of Justice, I feel it is necessary to address that conduct and its implications.

[67] It is no secret that the Applicants have been difficult, aggressive and disrespectful litigants. There have been numerous instances on appearances where there have been shouting matches in the courtroom, with the Applicants accusing various justices of the peace, judges of this Court, lawyers and the Public Guardian and Trustee of Ontario, of all manner of faults, ranging from allegations of bias and conspiracy against them, to allegations of intentional deception and corruption.

[68] I also was accused by Mr. Silvano Lochner of bias and corruption on the hearing of this application, immediately before he stormed out of my courtroom in an outrage. After listening to his submissions for about three hours, this happened when I asked him on two occasions and then told him strongly and firmly on the third to sit down and allow Crown counsel to make his submissions without interruption. I asked Mr. Lochner to extend the same courtesy to Mr. King to make his submissions as Mr. King and the Court had shown to Mr. Lochner as he had made his submissions. He was not pleased with my admonition. A minute or two later, Mr. King made a comment to which Mr. Lochner took strong exception and he again intervened strongly. I told him to sit down and to wait until his reply to address this and any other points to which he took exception. He responded by accusing me of having a closed mind and being “corrupt.” He stormed out of the courtroom, hurling invective as he departed. His brother and mother also started pitching in to the melee.

[69] I chose to call a recess. Court security came to tell me that Mr. Lochner was in the hallways yelling at people and the security officers and disturbing other courtrooms. They had to caution him. When we returned, I asked Mr. Paul Lochner to request that his brother, Silvano, return. He spoke in an agitated manner for some minutes, but finally did go out, and persuaded Mr. Silvano Lochner to return. The Crown then completed its submissions and then Mr. Lochner was given another lengthy period to reply. There were no further major blow-ups that day, and at the end of the hearing I reserved this decision.

[70] I recount these incidents because this tenor of conduct reflected in the transcripts was consistent with and mirrored the Lochner family’s conduct in the civil proceedings. On one of those occasions, as Dunphy J. recorded in his June 22, 2016 decision dismissing the remaining civil actions of Paul Lochner and Mrs. Lina Lochner[^32], their conduct required the police to be called into court to provide security and to actually eject them from the courtroom. At paragraphs 3-8 of his reasons, Dunphy J. stated as follows:

3 Following what can only be described as a tumultuous hearing lasting approximately 90 minutes, I found it necessary to clear the courtroom and to proceed to consider the motion based upon the written materials filed and such oral submissions as were able to be made in the chaotic conditions the moving parties created in the courtroom.

4 The behaviour of the plaintiffs was nothing short of outrageous, all allowances being made for the high emotions and deep feelings this case has engendered. The volume of shouting brought in security forces on multiple occasions and thoroughly disrupted proceedings in neighbouring courtrooms. The plaintiffs made threatening gestures in the direction of Mr. Love and hurled invective and abuse at him that was endured with a stoicism that should not be required of any barrister putting on a gown to appear in court. Accusations of perjury were made liberally and utterly without foundation. They interrupted me repeatedly and did not hesitate to leaven their submissions with baseless accusations of bias, corruption and bribery on my part from the first moment the court was called to order. Although I managed to restore a semblance of order for a time, it was only for a time. The plaintiffs (I include in their number Mr. Silvano Lochner who spoke on their behalf at their request and has done so at previous appearances as well) were utterly ungovernable and disrespectful of the court process. In the end, they had to be removed by court security personnel.

5 The plaintiffs filed extensive written material in support of this motion and touched upon virtually all of the themes raised in their written argument in oral argument before their egregious and contumelious behaviour necessitated their ejection from the courtroom. In the circumstances, I have decided to proceed to render a decision on the motion.

6 For the reasons that follow, I dismiss this motion. The plaintiffs made no effort to satisfy their burden of establishing at least prima facie evidence of the merits of their own claim, focusing substantially all of their energies on the (settled) claim of their son and brother Mr. George Lochner. Their failure to attend the trial was unreasonable and at all events deliberate. They do not meet the test for setting aside a judgment granted in default of appearance at trial.

7 This court must be very wary of allowing the admirable precepts of access to justice and reasonable accommodation of self-represented parties to be stretched and abused by over-indulgence of unacceptable behaviour. Access to justice is a right, but not without limit. Parties responding to self-represented litigants also have a right to access to justice on a level playing field. No litigant has the right to operate by rules of their own choosing while exhibiting open contempt for rulings of the court and its procedures.

8 These litigants have abused the process of the court in the most egregious fashion and have been doing so repeatedly over an extended period of time. It is too late to nip this behaviour in the bud; it is not too late to stop indulging it.

[71] That invective was also directed towards the PGT when the Court ordered that George Lochner’s autism required that the PGT be appointed to act as his litigation guardian, and that the Applicants had no standing to represent him; a ruling upheld by the Court of Appeal. It was also directed at the Crown Attorney assigned to this private prosecution.

[72] The Applicants have been largely ungovernable in these court proceedings. They have rejected applicable principles of law that govern these proceedings, their role in them, or the evidence that they may legally present. They have repeatedly interrupted proceedings, attempting to speak over either counsel for the TPS in the civil actions, or Crown counsel in these private criminal prosecutions or the presiding judges or justices of the peace on those occasions, if they perceived any statement having been made that did not accord with their long established biases and beliefs of what transpired on August 11, 2006. A review of the transcript of proceedings on these four pre-enquetes demonstrates they plainly believe that they are up against a corrupt justice system, and a panoply of corrupt state participants, including Crown attorneys, civil lawyers who are employees of the Civil law side of the Crown Law Office, and justices of the peace or judges of this Court. This has made for very difficult proceedings.

[73] But it is very important to emphasize here that while the conduct of the Lochner family in these proceedings adds a great deal of colour, very little of it favourable to them, that is not what this proceeding is about.

[74] This Court can only scrutinize the exercise of prosecutorial discretion if the Applicants are able to advance compelling evidence that the Crown demonstrated conduct that amounts to a “flagrant impropriety.” Absent flagrant impropriety on the part of Crown counsel in staying these charges, the exercise of that Crown power is not subject to review or reversal by this Court. Thus, the key issue is whether the Crown’s conduct in staying the charges constituted a flagrant impropriety, as defined by the governing case law, and whether the Applicants have advanced compelling evidence of such conduct. In the end, if the Crown had the power to stay the proceedings, the only question is what evidence is there of flagrant Crown impropriety?

(ii) Did Crown counsel have the common law or statutory power to stay the Informations on March 1, 2017?

[75] My decision to provide extensive background of the four separate pre-enquete hearings conducted here over six months relative to this private prosecution might suggest some complexity on this question, but the conclusion is not complicated. On the simple question whether Crown counsel had the common law or statutory power to stay the Informations on March 1, 2017 as he did, I find that Crown Counsel did have the power to stay these proceedings, and that is exactly what he did.

[76] After three prior attempts to conduct pre-enquete hearings, with hours of evidence heard from Mr. Silvano Lochner, but nobody else, such as George Lochner who is the alleged victim and complainant in this case, the Crown determined at the fourth hearing “that there was not a reasonable prospect of conviction on these charges” and he requested a stay of the proceedings. As Watt J.A. makes plain in his reasons in McHale, the Attorney General certainly had the power to stay the proceedings on that day under s. 579 of the Code as a parallel statutory power to the Crown’s common law powers.

[77] Mr. Ofiara did not specifically mention s. 579 of the Code as the authority he was relying upon to bring the proceedings to an end, but contextually, it is plain and obvious that he was relying upon his statutory power under that section in acting as he did, and not relying upon common law prosecutorial powers. At page 19 of the transcript of proceedings that day, Crown counsel told Justice Welsh:

So, there's no public interest in preceding either. And I'm going to ask that all Informations before the court today be stayed, please.

[78] Even if there was any doubt in the choice of words used and the reference to “Informations” relative the power he was calling upon to bring the proceedings to an end, and I do not believe there was, any such uncertainty was clarified minutes later when Mr. Ofiara spoke again. After the first statement, Mr. Lochner continued to berate Justice of the Peace Welsh about wanting to continue to proceed, and not adjourn the matter as he had sought to do previously when the justice of the peace indicated the perjury charges would not be heard that day. Mr. Ofiara intervened and said plainly and unequivocally that he had “just stayed the proceedings, Your Worship”, to which the justice of the peace responded “I know you did. So, this is over.”

[79] Unless I find that the Applicants have advanced compelling evidence that the Crown demonstrated conduct that amounts to “flagrant impropriety”, this mandamus application must fail.

(iii) Have the Applicants advanced compelling evidence that the Crown demonstrated conduct that amounts to a “flagrant impropriety”?

[80] At para. 38(a) of the Applicants’ factum on this application, they draw upon R. v. Power[^33] at para. 12 to frame the issue as follows:

Is there conspicuous evidence of improper motive or bad faith or of an act so wrong in staying the charges against the accused that it violates the conscience of the community, such that it would be genuinely unfair and indecent to allow such conduct to prevail?

[81] In posing that test in Power, however, L’Heureux-Dube J. acknowledged in the very next sentence that cases of this nature will be extremely rare. Indeed, at page 12, the learned judge emphasized the same point that is emphasized in all of the cases that follow Power, that “[i]n our system, a judge does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them”, and as such judges do not generally have the authority to interfere with a prosecutor’s decision to stop a prosecution.”

[82] The Crown’s stated reasons for terminating these prosecutions were as set out in the transcript of the last day’s hearing on March 1, 2017. As noted above, the Crown stated as follows:

We came back on the third day, after I had numerous correspondence back and forth with Mr. MacDonald about how we were going to proceed. I had also requested of Mr. MacDonald that he provide me with a copy of the discovery transcript that George Lochner -- George Lochner statement during the civil proceeding. Mr. MacDonald's instruction from Silvano Lochner was that was not going to be provided.

In my respectful submission, given the fact that George Lochner's the main victim in this allegation it would be incumbent upon the Crown to be able to review that transcript and find out exactly what George Lochner said at the time.

So, now we're here again and this time, Mr. Lochner doesn't like what's going on and once again he is requesting that the matter come back and he have another go at it. In my respectful submission, this is -- this has been going on far too long. I have now reviewed -- sit down, Mr. Lochner, please. I have had the opportunity, Your Worship to extensively review every piece of paper that Mr. Lochner has provided me, both in person and by email. And at this point in time, I can indicate to the court, that there is not a reasonable prospect of conviction on these charges, and the fact that this matter had been previously set for a civil trial in Superior Court, and the Lochner family didn't show up on the trial date.

So, there's no public interest in preceding either. And I'm going to ask that all Informations before the court today be stayed, please. (My emphasis)

[83] However, in my review of the entirety of the proceedings through four pre-enquete hearings, there were not only substantive, but also evidential and procedural factors that would have been informative to the Crown’s decision to stay this prosecution using the words that he did. Mr. King emphasized those aspects of the matter in his submissions. In my view, it is important to understand how those issues may reasonably have affected the Crown’s decision to stay the proceedings and to state that he was doing so because there was no reasonable prospect of conviction and because it was not in the public interest that the proceedings continue. To the extent that such factors are present, they undermine a claim that the Crown’s conduct was flagrantly improper, bordering on corruption.

[84] Dealing first with the assault charges, the foundation for the Applicants’ allegations is that the police were not acting lawfully when they entered the Lochner residence. This assertion is based on the claim that the “Feeney warrant” was improperly obtained and executed. As such it is claimed that the police officers may not rely on a defence of lawful execution of their duties. As Eccles v. Bourque[^34] establishes, however, a case referred to and relied upon by the Applicants, s. 25 of the Code serves to absolve from blame anyone who does something that he or she is required to do by law and it authorizes the use of as much force as is necessary to do what is required.

[85] Mr. Lochner’s argument about absence of lawful authority is based upon his construction of a theory that he advances to suggest that when they went into the residence, not only had the officers knowingly violated the terms of the warrant by entering to make sure that Silvano Lochner was not present when they allegedly knew instead that they needed to know that he was present before entering, but that they all knew and intentionally acted in that way, knowing they had no legal authority. Thus, as stated at paras. 71 and 74 of the Applicants’ factum:

71. Consequently, the Crown Attorney's decision to stay the charges of assault and default causing bodily harm cannot be said to have been made in good faith because section 25 of the Criminal Code cannot protect the accused from criminal liability as they violated the conditions of the Feeney warrant and thus committed a trespass. The accused were no longer acting within their legal duties as police officers.

72. Consequently, as the accused were not authorized by law to use any force on Lena, Paul and George Lochner who were all located in a dwelling, which as per section 2 of the Criminal Code includes the attached garage and the house, there was no justification for use of any force at all.

[86] On their civil depositions, however, the police officers all gave sworn evidence that they believed, in good faith, that they did have the legal authority to enter into the Lochner residence that day. While this plainly does not dispense with the Applicants’ argument, as Mr. King observed in his submissions, it could and likely would have raised a significant potential evidential problem in the mind of the Crown Attorney, a problem the Crown needed to consider in determining whether the case should proceed.

[87] A person can only trespass on another person’s property where they enter into that property knowing that they have no permission or authority to do so, express or implied.[^35] If the officers reasonably believed that they did have the authority to enter the Lochner residence that day because their entry had been authorized by a justice of the peace who issued a warrant, then even if they misconstrued the precise nature of their authority and the condition precedent that they only enter if they knew that Silvano| Lochner was present, if they did so in good faith, then it is not clear how the element of knowledge of absence of lawful authority could be established.

[88] The inference advanced in Mr. Lochner’s theory is one inference that is capable of being drawn from the circumstances as a whole, but it can only satisfy proof to the criminal standard if that is the only reasonable inference that can be drawn from the totality of the circumstances. Given the evidence that was available, in its totality, the inference suggested by Mr. Lochner does not appear to be the only reasonable inference that could be drawn. If there is more than one inference possible, the element is not proven.

[89] This leads to the second potential problem with this prosecution, and how it proceeded to the fourth pre-enquete hearing. That relates to the use of the civil discovery depositions, not only as evidence which the Applicants sought to use to incriminate the police officers, but also the use of George Lochner’s evidence at the civil discovery as his evidence of the assaults. This aspect is significant because for all his protestations to the contrary, Silvano Lochner’s statements to the justices of the peace at the pre-enquete hearings of what had happened to George Lochner are all inadmissible hearsay.

[90] While Mr. Lochner and the other two applicants can certainly give information at a pre-enquete hearing of what happened to them, they can never in any criminal trial testify as to what happened to George Lochner or what precipitated it. They were not there. The only persons who could testify to those events are George Lochner and the police officers who were there.

[91] As Mr. King observed in his submissions, this itself potentially raised several problems from the Crown’s perspective. The first is that Mr. Lochner mentioned numerous times at the first and third pre-enquete hearings that he intended to advance the civil depositions given by the officers in connection with the civil lawsuit, which had been settled by then, as the evidence of the actions of the officers and for the purpose incriminating them in relation to the two assault Informations. However, the foundational legal rule is that the use of the officers’ civil depositions in a self-incriminatory manner such as this is specifically prohibited by s. 11 of the Canadian Charter of Rights and Freedoms. Section 11 stipulates that:

11. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

[92] Mr. Lochner was advised of this rule several times. Indeed his own counsel, Mr. Tyler MacDonald, noted on the record at the January 13, 2017 pre-enquete that Mr. Lochner wanted to use those discovery transcripts of the accused police officers, from when they were discovered in the separate civil proceedings, but for incriminating purposes. He told Mr. MacDonald, and later the Court, that he wanted to bring some kind of unspecified motion in front of this or some other court, which he did not specify, to get permission to do so.

[93] Mr. MacDonald also noted that those discovery transcripts were given under oath and compelled to some degree. As such, he claimed the law was clear that they could not be used to simply incriminate a person. The transcripts of the police officers’ depositions could be used should that person testify in order to impugn their credibility. However, the central point was that those transcripts were not available to be used in an incriminating way, yet Mr. Lochner intended to bring a motion, of some kind, to be permitted to use those discovery transcripts for an incriminating purpose.

[94] That is what led to the Applicants’ laying perjury charges against the officers on February 16, 2017. As Mr. Ofiara recounted on March 1, 2017 before J.P. Welsh:

I can give you the -- what I would describe as the origins of that, Your Worship. So, back when there was the original Information alleging the number of assaults against George Lochner by members of the Toronto Police Service, Mr. Silvano Lochner decided that he would proceed by way of filing discovery transcripts from a civil proceeding. And he provided me with notice pursuant to the preliminary inquiries sections of the Code. And, so I sent him an email at that point in time saying, well that's all fine and good, Mr. Lochner, but if Constable Smith gives evidence at a discovery proceeding, that transcript of Constable Smith cannot be used against Constable Smith to facilitate criminal proceedings, unless you're charging him with perjury. He sends an email back and says, well, I guess I'm going to charge them all with perjury now. So, that's just to give Your Worship the, sort of, the flavour of what we're dealing with.

[95] Plainly, the laying of the perjury charges by Mr. Lochner was an afterthought, not connected to the original charges of assault, and frankly, not well thought out. It was a tactic pursued by Mr. Lochner, seemingly given the language of the email exchange, for the principal purpose of avoiding the need to present evidence at the pre-enquete, that is, the testimony of witnesses rather than his lengthy, hearsay raging about the Feeney Warrant, about the number of taser probe wounds sustained by George Lochner, and that could actually provide evidential support for the Informations laid by the Applicants. Being unprepared to accept the advice he was provided by his own counsel, Mr. MacDonald at one time, as well as Crown counsel, that the civil depositions from the civil case could not be used to incriminate the six officers, he effectively changed gears and started to pursue charges of perjury against the police officers with a vengeance.

[96] Before leaving the issue of the evidence from the civil proceedings, there is a further aspect to that proceeding that Mr. King alluded to and that I expect would also have been a cause of considerable concern to the Crown from a procedural perspective, were the case not to be stayed. That relates to the evidence of George Lochner and the fact that these events took place over ten years ago. The reason that would have been a cause for concern was that the Applicants intended as well that the evidence of George Lochner that would be used on the pre-enquete as to what actually happened ten years ago, was George Lochner’s discovery transcript, also obtained during those civil proceedings. Mr. Lochner did not call and gave no indication of an intent to call George Lochner as a witness on the pre-enquete. As Watt J.A. points out in R. v. Vasarhelyi, above, such an approach is impermissible in the case of Informations laid by private citizens as set out in s. 507.1(3)(a) of the Code:

Unlike s. 507(1)(a)(ii), applicable to informations laid by law enforcement officers, where the introduction of the evidence of witnesses is only required where the justice "considers it desirable or necessary to do so", s. 507.1(3)(a) appears to make the introduction of "evidence of witnesses" essential. Such a requirement serves as an important control over invocation of the criminal process to further the fevered imaginings of a private informant.

[97] The first problem that Crown counsel may reasonably have perceived with that proposed approach, apart from its failure to comply with the pre-enquete procedure mandated by Parliament, would necessarily have related to the fact that with George Lochner sitting in the courtroom for all of these hearings, there would necessarily be concern about the credibility and reliability of that evidence, and whatever evidence he would provide as the actual victim and the real complainant, were this matter to proceed to a trial. However, Mr. Silvano Lochner refused to permit Crown counsel to have a copy of George Lochner’s evidence from those civil discoveries. This in itself is telling relative to the animus and demeanour of the Applicants in bringing these prosecutions. As the jurisprudence makes plain, in the pre-enquete process the Crown does not play an adversarial role, and Mr. Ofiara was entitled to have that transcript.

[98] In order for these prosecutions to have any hope of success, Crown counsel who would have to take over the prosecution of the charges, if process were issued, would necessarily have been concerned about the credibility and the reliability of George Lochner’s evidence. If process were to be issued against the named officers, George would have to testify at a preliminary inquiry, and if committals were entered, at a trial in this Court. He would be subject to cross-examination by six counsel representing each of the six accused officers.

[99] George Lochner is a 49-year-old adult male who is autistic. He has special needs. There is no basis of which I am aware that would permit his evidence in the civil proceeding to be used as his evidence at the preliminary inquiry or at trial, except by agreement of counsel, and in any event, even if it was agreed as is sometimes done in the case of young and vulnerable persons, that his civil discovery evidence could be used at trial, he would nevertheless be subject to cross-examination on that evidence. As Mr. Ofiara mentioned before the Court, this would have raised concerns about the credibility and reliability of a witness’s evidence, particularly relative to events long past[^36], because these are the realities of what George Lochner would face in giving evidence in this case. Mr. King raises these concerns in his submissions.

[100] It would have been reasonable for Crown counsel in this case to be concerned about this issue and to have considered it as part of his assessment of whether there were reasonable prospects of conviction in this case. Yet without providing a copy of George Lochner’s discovery evidence to Crown counsel in this case, Mr. Silvano Lochner was insistent on using that evidence and did not call upon George to provide his own evidence at any time in the four pre-enquete hearings.

[101] However, concerns about credibility and reliability of his testimony, and its independence from influence by the other members of the Lochner family had already been judicially addressed by D. Wilson J. in her Endorsement approving of the settlement of the civil action in Lochner v. Callanan et al.[^37] Exactly the same concern about credibility and reliability are evident from paras. 27-31 of those reasons. They are even more of a concern here since the burden of proof is the criminal standard of proof beyond a reasonable doubt, not just proof on a balance of probabilities. Wilson J. stated as follows:

27 It is not clear that the Plaintiffs will be successful at trial in establishing liability against the Defendants. Given the different version of events that are described by the parties, credibility will be an important factor. However, there are other difficulties the Plaintiffs face at trial in proving their case.

28 It is clear that the warrant secured by the police was invalid since it was not signed. However, s. 25(2) of the Criminal Code, R.S.C. 1985, c. C-46, provides that if the police were acting in good faith, their actions were justified. None of the evidence suggests that the police knew that the warrant they had obtained was defective as the Justice of the Peace had signed the wrong form. Thus, it is far from clear that the court will quash the warrant that was issued; that is an issue for the trial judge to determine based on the totality of the evidence. From my perspective as the judge reviewing the Rule 7 motion for approval, I say simply that it is a risk for George associated with proceeding to trial.

29 To be successful on their claim, the Plaintiffs must prove the police used excessive force in the circumstances. On this argument, credibility will be critical. Only George can offer evidence at trial on this issue, whereas four of the Defendants will testify on this point. Some of George's testimony at discovery cannot be supported on the facts. For example, he was adamant that six officers from the Emergency Task Force entered his room; there is nothing in the evidence that suggests anything other than that there were four officers who entered the house. Another example is George's assertion that he was struck by the Taser 20 times; there is simply no evidence to support this contention. I do not say this to be critical of George; he has deficits which will likely prevent him from being a strong witness at trial. Furthermore, the expert retained by the solicitor for the Plaintiffs was of the opinion on the facts that the Defendants did not use excessive force.

30 While Silvano argues that the Court will find George was Tasered 3 times by the Defendants, I do not agree with this position. My review of the evidence in its totality does not give credence to this theory. Silvano will not be permitted to offer his opinion on the number of Tasers at trial and Dr. Butt in his expert report did not find evidence of 3 Tasers being used on George. In any event, the issue of liability will not turn solely on the number of times George was Tasered by the police officers.

31 In my view, there is a significant risk that the Plaintiffs may not be able to establish liability at trial. This is a factor to be considered by the court when determining if the proposed settlement is in the best interests of George.

[102] Just as D. Wilson J. considered the risk of likelihood of success at trial in the civil matter to be relevant to whether the proposed settlement there was in George Lochner’s best interests, so too, as Mr. King argued, Crown counsel appearing on these pre-enquete hearings would have had the same concern about probability of success in assessing whether to stay the proceedings in this case.

[103] Finally, in this part of my analysis, I turn to the perjury charges. The applicants have correctly set out the five elements of the defence of perjury that must be proven beyond a reasonable doubt in order to establish guilt. At paragraph 41 of the applicant factum, they acknowledge that section 133 of the Code provides that there can be no conviction on the charge of perjury on the evidence of only one witness unless the evidence of that witness is corroborated by other evidence implicating the accused. However, on the authority of R. v. Reyat[^38], the Applicants allege that the corroboration requirement is not applicable here, where the case is circumstantial, and based largely on inferences they claim should be drawn from the testimony of the officers given in their civil depositions.

[104] In order to reach a guilty verdict based on circumstantial evidence, the Applicants correctly note that the Court must be “…satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.”[^39] In this case, the Applicants allege that there are too many allegations or averments of perjury to list, referring to paragraphs 50-52 to several examples of problems they say are present in the civil depositions of several of the officers. They allege that the accused had a direct motive to exaggerate the level of threat that was presented by George Lochner, but then had to misrepresent the number of tasers used because the second taser to the chest was not immediately deployed despite the level of threat the accused claimed George presented.

[105] The Applicants go on to list other aspects of the civil depositions of the officers that they claim support their allegations of perjury, based on the theory that the officers in their depositions allegedly failed to get the story straight and could not have made those mistakes by coincidence. The Applicants claim that “The fact that not even one of them got important facts right, such as to how many tasers were deployed and when, leads to an inescapable inference of collusion among the four officers prior to their sworn depositions.”

[106] However, the elements of the offence require proof beyond a reasonable doubt. To be convicted of these offences, the officers must have made knowingly false statements under oath or affirmation, and each of the accused, at the time of giving those statements, must have had a knowing and direct intention to mislead. The Applicants indicate at paragraph 47 of their factum that they rely on the inferences they asked the Court to draw from the circumstantial evidence: including the photographs of George Lochner’s injuries, the sworn depositions of the accused, the notebook entries of the accused, Use of Force reports of the accused, the taser reports of the accused, the Ambulance Call Report, Dr. John C. Butt’s report dated November 19, 2013, and Mr. Liam Hendrickse’s report dated February 20, 2017. They claim that the only reasonable inference that can be drawn from all of that evidence is that the officers knowingly made false statements under oath or affirmation, and that each of the accused, at the time of giving those statements, had a knowing and direct intention to mislead.

[107] Mr. King pointed out a number of problems with the perjury charges. The first is that they have never been laid out with specificity relative to each of the officers. There is no indication of what particular statements made by each of the officers were alleged to be knowingly false, because there was no proper information laid specifying that a particular officer made a particular statement and that such statement was false. It is inadequate to ground charges against a group of separate individuals without specifying what false statement each of them is alleged to have made with the intent to mislead.

[108] The second problem, whether Mr. Lochner considers the laying of those charges to be improperly motivated or not, is that those charges only came to be levied as a tool for Mr. Lochner to be able to use the civil depositions of the officers as evidence relative to the assault charges. The Applicants may not consider this to be an improper motive, but certainly if those grab bag of unspecified allegations were to proceed forward, Crown counsel could reasonably have expected that the defence counsel for the officers would seek to undermine the validity of those charges given their genesis and the evidence that was said to support them. As Mr. King rightly expressed it, along with other difficulties, that would be just one more hurdle that the Crown would have to overcome to have prospect of success on this prosecution.

[109] The absence of specificity relative to each officer is another significant hurdle to any reasonable prospect of conviction. Our system of justice does not permit a broad allegation to be made against a “group” of people for having allegedly punched George Lochner, or having tasered him more than twice, and then having lied about it unless there is reliable evidence first that George was punched, and evidence of who punched him. Similarly, allegations of having lied about who punched George Lochner, if indeed he was punched and did not acquire some of his injuries simply as a result of the altercation, requires evidence not only that he was punched, but who it was that punched him, and who it was that lied about him being punched and who the author of such an assault may have been.

[110] The fact that one officer or another did not see George being punched does not cause them to be liars. All of these elements must be proven beyond a reasonable doubt for a conviction to be entered against one or more of the officers. There are also problems with the taser evidence which suggests based on some of the time frames of deployment that George was tasered when the EMS records show that he was already in their care by that particular time; a ridiculous proposition. So the recording of times of deployment is not definitive, and in turn calls into question the ability to prove much relating to the tasers or how many of them were deployed, by the alleged time of their deployment.

[111] The Applicants contend, however, that there is only one reasonable inference that can be drawn from the evidence they claim to have, but very little of which was actually called on the pre-enquetes held because there were no witnesses called who spoke other than Mr. Silvano Lochner, and the justice of the peace was satisfied that several individuals who were subpoenaed would not and could not have had material evidence to present on those issues.

[112] It does not appear to me that guilt is the only reasonable inference that is available against this factual background. There is no question that George Lochner was injured as a result of the actions of the ETF at the Lochner residence on August 11, 2006. Against the background of evidence, certainly there may remain uncertainty about the actual number of taser hits that George Lochner sustained. But in a dynamic and fastly-unfolding circumstance where the officers testify that George Lochner was lying on the bed, but then suddenly jumped out of bed teeth clenched, hands clenched into a fist, eyes squinting, and aggressively charged at the ETF team, events that would have taken place in a matter of seconds, it is not surprising to me that each of the officers would not have had exactly the same version of events, and it does not appear to me on the discovery transcripts from the civil proceedings that they all provided exactly the same evidence.

[113] Proof of a charge of perjury against one individual can itself be a difficult and daunting task, and they are relatively rare in our law. As I have explained, proof of the charge of perjury against six individuals on the basis of collusion, and solely on the basis of inferences sought to be drawn from external evidence that is untested is a substantially more difficult task, as Mr. King noted in his submissions.

[114] Here, a substantial portion of the evidence proffered by the Applicants is claimed to be expert evidence, but it may or may not ultimately be accepted by triers of fact, and a significant portion of it is opinion evidence obtained long after the events took place, which does not enhance its reliability. That, together with the evidence of George Lochner, which as I have explained is itself potentially subject to difficulty, does not appear to present a case where the prospects of conviction are strong, regardless of what Mr. Silvano Lochner’s own biased view of the case is.

[115] So in the end, given all of the potential evidentiary difficulties, as Mr. King argued in his submissions on this application, it is and was appropriate for Crown counsel to consider (i) the reasonability of prospects of conviction, and (ii) whether carrying on with this prosecution was in the public interest. It is key to remember that both of those conclusions must be positive for a prosecution to proceed. The absence of either one is fatal. Plainly, as the transcripts show, the Crown had concluded based upon having read all of the materials filed by the Applicants, having considered those materials and the evidential strength they offered in the context of the circumstances as a whole, did not permit him to conclude that there was a reasonable prospect of conviction.

[116] Alternatively, even if he concluded that there was a reasonable prospect of conviction, which he plainly did not, it was equally open to the Crown to stay the proceedings as not being in the public interest. Amongst the factors which could have led to this conclusion was (i) the length of time that had passed since the events, (ii) the fact that George Lochner did receive recognition and compensation was ordered for him in a now-settled civil proceeding, which itself was considered to have questionable prospects of success on even the civil standard that applied there, even if that is unsatisfactory to the Applicants, and (iii) the amount of time that had already been consumed by these four pre-enquete hearings over six months relative to alternative demands being made on the already-strained court resources.

[117] All of these factors would have been and were appropriate factors for Crown counsel to consider in determining if there was a public interest in the matter proceeding. The simple fact is that the Crown cannot continue to prosecute a matter where there is no reasonable prospect of conviction, and in this Crown counsel’s judgment, that was exactly what he was confronted with.

[118] But I would again remind the Applicants that the test to be applied on this application is not the reasonability of Crown counsel’s conduct. Against this background of evidentiary problems, a reasonable person apprised of all the facts, while sympathetic to the circumstances, the injuries George Lochner sustained, and the actions that caused them, might well conclude that the reasonable prospects for conviction are and remain questionable, which in turn calls into question whether the continuance of these proceedings serves any real public interest at this time.

[119] Finally, against this background of evidentiary challenges faced by the Crown, I consider whether there has been compelling evidence presented to demonstrate that the Crown acted with “flagrant impropriety” and in a biased manner verging on corruption, to stay the proceedings as he did. In my view, the answer to that question is negative, and there has been no persuasive evidence of any Crown impropriety in its conduct of this matter and in its decision to bring the proceedings to an end.

[120] At paras. 78 and 79, the concluding paragraphs of their factum, the Applicants make the following concluding assertions:

The applicants have provided this Honourable Court with an evidentiary record which establishes that the accused did commit the offensive perjury, assault and assault causing bodily harm. However, in its decision to stay the charges, the Crown simply ignored that evidentiary record because of its obvious bias in favour of the police, which resulted in the obstruction of justice. In fact, the Crown did not provide the court with any reasoned explanation, which discloses no basis as to why the charges were stayed.

The Crown’s allegation that this matter had been previously set for civil trial in Superior Court, and that the Locker family did not show up on the trial date is false. To the contrary, the Office of the Public Guardian and Trustee, which is part and parcel of the Ministry of the Attorney General, settled George Lochner’s claim against the accused for $60,000. Now the same Attorney General is claiming that there is no prospect of conviction although the facts and legal issues are all the same. (My emphasis)

[121] There is no evidence here of flagrant impropriety on the part of Crown counsel as the agent of the Attorney General in bringing these proceedings to a halt. It was suggested that it was when confronted with Mr. Hendrikse’s report that the Crown decided to pull the charges to protect the officers, but in fact even when he knew of that report and its contents, at the commencement of the March 1, 2017 pre-enquete, the Crown still indicated his willingness to proceed with the hearing and called upon the Applicants to present evidence. It was only a couple of hours later, when the fourth pre-enquete fell into acrimonious disarray because the justice of the peace would only proceed that day on the assault charges, that the futility of it all would have been plain and evident to the Crown. At that point, he chose to act and stayed the proceedings. In my view, looking at his conduct overall throughout the six months during which the hearings failed to proceed forward, he exercised his prosecutorial power and brought the proceedings to an end. While it is plain that the conduct of these Applicants throughout those proceedings would have sorely tried his patience, as it did the presiding justices of the peace, the transcripts show that Mr. Ofiara was at all times polite and motivated by proper concerns in acting as he did. There is no evidence before me of bad motive, bad faith, improper purpose or flagrant impropriety verging on corruption in this case. Nothing that even approaches it.

Conclusion

[122] For all of the foregoing reasons, I am satisfied that the Crown had the power to stay the proceedings as he did, and that there was no flagrant impropriety of any kind by Crown counsel in his actions throughout the proceedings. This Court has no power to intervene in the exercise of prosecutorial discretion made in this case.

[123] The application for mandamus is dismissed.

Michael G. Quigley J.

Released: September 20, 2017

CITATION: Lochner v. Attorney General of Ontario, 2017 ONSC 5293

COURT FILE NO.: CR-17-10000063-00MO

DATE: 20170920

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LINA LOCHNER, PAUL LOCHNER and SILVANO LOCHNER

Applicants

• and –

ATTORNEY GENERAL OF ONTARIO

Respondent

REASONS FOR RULING

Re: Application for Judicial Review by way of Mandamus

Michael G. Quigley J.

Released: September 20, 2017

[^1]: [^2]: Insert citations at SCJ and CA. [^3]: Insert citations at SCJ. 2015 ONSC 5598 [^4]: 2016 ONSC 1614. [^5]: Transcript of Proceedings, October 21, 2016, p. 4, lines 3-26. [^6]: Transcript of Proceedings, October 21, 2016, pages 54, line 8 to page 57, lines 24. [^7]: Transcript of Proceedings, November 29, 2016, page 5, line 27 to page 6, line 29. [^8]: Transcript of Proceedings, January 13, 2017, page 4, lines 13-21. [^9]: Transcript of Proceedings, January 13, 2017, page 9, line 8 to page 11, line 1. [^10]: Transcript of Proceedings, January 13, 2017, page 12, line 28 to page 16, line 6. [^11]: I note that the March 1, 2017 transcript refers to Mr. Ofiara, Crown counsel, as “Mr. Thaddeus”, obviously due to confusion by the reporter of his first and last names. It is of no import [^12]: Transcript of Proceedings, March 1, 2017, page 3, line 29 to page 5, line 18. [^13]: Transcript of Proceedings, March 1, 2017, page 8, line 21 to page 9 line 25. [^14]: Transcript of Proceedings, March 1, 2017, page 11, line 17 to page 12, line 26. [^15]: Transcript of Proceedings, March 1, 2017, page 13, line 8 to page 15, line 18. [^16]: Transcript of Proceedings, March 1, 2017, page 19, line 1 to page 21, line 26. [^17]: 2011 ONCA 397, [2011] O.J. No. 2238, leave to appeal refused [2011] S.C.C.A. No. 470. [^18]: [2010] O.J. No. 2030 (C.A.). [^19]: 2009 100207 (ON SC), [2009] O.J. No. 5743 (S.C.J.). [^20]: The predecessor of s. 579(1) was s. 508(1) in the 1970 statutory revision. [^21]: See Dowson, above, at p. 157. [^22]: 2002 SCC 65 [^23]: 2012 ONSC 955, [2012] O.J. No. 639 (S.C.J.). [^24]: (1987), 1987 4268 (ON SC), 31 C.C.C. (3d) 289 (Ont. H.C.J.), affd. 1987 4333 (ON CA), 35 C.C.C. (3d) 480 (Ont. C.A.). [^25]: (2011), 2011 SCC 34, 271 C.C.C. (3d) 36 (S.C.C.). [^26]: See also R. v. Laforme, [2003] O.J. No. 845, where Kent J. notes at para. 6, relative to the question whether a wrong or incorrect opinion can be unreasonable and therefore constitute a flagrant impropriety, that while Chartrand, a decision of the Quebec Court of Appeal in Ontario provides some authority for that proposition, it has been rejected in Ontario in Campbell, and as such, a “wrong or incorrect” decision by the Crown not to prosecute would not necessarily constitute a flagrant impropriety justifying intervention by this court on an application for mandamus. [^27]: [2011] O.J. No. 3099 (S.C.J.). [^28]: McHale v. Ontario (Attorney General), above at note 5. [^29]: 2014 SCC 41, [2014] 2 S.C.R. 167. [^30]: Anderson, at para. 64. [^31]: Ibid., at para. 68. [^32]: Lochner v. Toronto (City) Police Service, [2016] O.J. No. 3396 (S.C.K.) [^33]: [1994] 1 S.C.R. 610. [^34]: (1973), 1973 1116 (BC CA), 22 C.R.N.S. 199 at 201, 14 C.C.C. (2d) 279 (B.C.C.A.). [^35]: Trespass is defined by the act of knowingly entering another person’s property without permission. In Ontario, and other provinces of Canada, trespass is a provincial offence. Subsection 2(1) of the Trespass to Property Act, R.S.O. 1990, c. T.21, provides that “Every person who is not acting under a right or authority conferred by law and who, (a) without the express permission of the occupier, the proof of which rests on the defendant, (i) enters on premises when entry is prohibited under this Act, or (ii) engages in an activity on premises when the activity is prohibited under this Act; or (b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $10,000.” [^36]: See R. v. Sanichar, ONCA. [^37]: 2016 ONSC 1614. This decision was included in the Applicant’s Supplementary Compendium on this application, at Tab 8. [^38]: 2012 BCCA 311 at para. 49. [^39]: R. v. Griffin, 2009 SCC 28 at para. 33. See also R. v. Ngo, 2009 BCCA 301 at paras. 54-55