Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
Andrie Jerome Samuels, Applicant
-and-
Her Majesty the Queen, The Attorney General of Canada, Respondents
BEFORE: F.L. Myers J.
READ: January 4, 2017
ENDORSEMENT
Background
1By endorsement dated December 9, 2016, reported at 2016 ONSC 7748, the court directed the registrar to deliver a notice in Form 2.1A to the applicant to advise him that the court was considering dismissing this proceeding under Rule 2.1. Mr. Samuels has delivered written submissions to explain his view as to why the application should not be dismissed. In the prior endorsement, I described the application as follows:
In this application, Mr. Samuels seeks to stay criminal charges against him based on alleged violations of his rights under ss. 7 and 24(1) of the Charter of Rights and Freedoms. Essentially, he says that criminal charges were brought against him as a result of civil proceedings that he had commenced previously to challenge the legality of wiretap and other investigative processes that the state had brought to bear against him and others.
The criminal proceedings against the applicant remain ongoing. If the criminal charges are an abuse of process or if the state has violated Mr. Samuel’s rights in investigating and proffering evidence in those proceedings, relief can readily be sought by Mr. Samuels in those proceedings. A civil claim to try to stay ongoing criminal proceedings appears to be an abuse of process on the face of the application. Mr. Samuels ought therefore be provided with an opportunity to make written submissions as to why this application should not be dismissed on that basis.
2In addition to the application seeking a stay of the criminal charges against him generally, Mr. Samuels has also seeks to schedule a motion to compel oral examinations of police officers and counsel to the Public Prosecution Service of Canada. For those examinations he seeks an order “unsealing” various wiretap authorization and related orders.
3Despite the explicit wording of the Notice of Application and his proposed motion, Mr. Samuels submits that in this proceeding he is not challenging the legality of the issuance of the wiretap authorizations at all. Rather, he says that he seeks to “have the court examine state misconduct that violates his rights” under the Charter of Rights. He says that improprieties that he has discovered impair his constitutionally protected right to make full answer and defence and to have a fair trial of his criminal charges. He says that he has raised his concerns in Practice Court attendances in the criminal proceedings. He says that he only recognized the scope of the breaches of his rights after being provided with some disclosure after the court unsealed some wiretap evidence in the criminal proceedings in October, 2016. Mr. Samuels also notes that he is being held in frequent lockdown at Toronto South Detention Centre pending his criminal trial and this too violates his rights. He submits finally that:
Should the Court not review the applicant’s application and evidence being proffered, the constitutional breaches will continue to perpetuate and manifest further and bring the integrity of the justice system into [disrepute].
4This is not the only civil claim that Mr. Samuels has brought before this court. In action CV-16-5575570 Mr. Samuels is already challenging the constitutionality of the frequent lockdowns that he says are being improperly inflicted upon him. In addition, in Samuels v. Attorney General (Canada), 2016 ONSC 7937, the Divisional Court upheld a stay of two other proceedings brought by Mr. Samuels (and others) in relation to the same wiretap authorizations that are the subject matter of this application. Dambrot J., for the Divisional Court, described the two other claims as follows:
- The moving parties commenced two civil actions against the defendants in December 2014 and January 2015, alleging negligence, invasion of privacy, abuse of process, false and misleading evidence, fabricated evidence, defamation, conspiracy to injure the plaintiffs, fraud, misrepresentation and various breaches of the Charter of Rights and Freedoms. At the heart of their claims is the allegation that the authorization was obtained by fraud.
Analysis
5It is apparent that this application is an abuse of process on its face. If Mr. Samuels wishes to seek a stay of his criminal charges as a result of breaches of his rights, the place to make those arguments is in his criminal proceedings. He has disclosure and examination rights in the criminal process. Moreover, there is no entitlement to bring a civil proceeding for a free-standing “examination” of state misconduct. If Mr. Samuels establishes in his criminal proceedings that his rights were violated, then he will be entitled to seek relief in that proceeding and in the civil proceedings that he have already been stayed pending that eventuality. It is an abuse of process to bring a second action to seek relief that either is not available or that is already before the court in another matter. It is also an abuse of process to bring a new proceeding to try to get around a stay granted in earlier proceedings.
6I am already case managing Mr. Samuels’ claim against his lockdowns. Commencing a second proceeding for those alleged breaches is also an abuse of process.
7I am very dubious of whether a civil action will lie to stay a criminal charge based on alleged breaches of the [Charter](https://www.canlii.org/en/ca/laws/