Lochner v. Ontario (Attorney General), 2018 ONSC 2994

COURT FILE NO.: M322/17

DATE: 20180514

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LINA LOCHNER and SILVANO LOCHNER v. ONTARIO (ATTORNEY GENERAL)

BEFORE: MOLLOY J.

COUNSEL: Silvano Lochner, in person

Melissa Mandel, for the Respondent, Attorney General of Ontario

HEARD: May 7, 2018

ENDORSEMENT

Introduction

1The applicants request a new hearing before a Justice of the Peace with respect to their sworn information to have a criminal charge of perjury laid against Police Constable David Bragg. The applicants had previously attended before Justice of the Peace R. Wong for a pre-enquete hearing on October 10 and November 6, 2017. J.P. Wong refused to issue process on the grounds that there was no evidence on two of the constituent elements of the offence.

2The applicants submit that the Justice of the Peace was biased, lost jurisdiction by refusing to hear relevant evidence, and conducted the proceeding in a manner that was a denial of natural justice.

3I dismissed the application, indicating that written reasons would follow. The Justice of the Peace committed no errors of jurisdiction. The Justice of the Peace was fair and unbiased in her conduct of the proceeding. The viva voce evidence that Mr. Lochner sought to introduce related to a point that the Justice of the Peace was prepared to accept for purposes of the argument, making that evidence redundant. The Justice of the Peace then found that there was no evidence to establish that the officer deliberately lied under oath, or that he did so with the intention of misleading. That conclusion was within her jurisdiction. This application is therefore without merit.

4Quite apart from the merits of this application, I would dismiss it as an exercise of my discretion to deny the relief sought. On February 16, 2017 these same applicants swore a private information before a different Justice of the Peace alleging that P.C. Bragg and five other officers had committed the offence of perjury. The Crown intervened and stayed the charges. The applicants sought an order of mandamus requiring a new pre-enquete hearing. That application was dismissed by Quigley J. on September 20, 2017.¹ Six days later, the applicants swore another information, this time against P.C. Bragg alone, but making the same allegation against him as in their previous information. Quigley J.’s reasons dealt extensively with the merits of the perjury allegation. The applicants sought to avoid the effect of that decision by simply attempting to start the process all over again by filing a new information before a different Justice of the Peace. This application is vexatious. The remedy of mandamus is a discretionary one and I would have declined to grant it in these circumstances.

Background

5This proceeding relates back to an incident that occurred 12 years ago. On the evening of August 11, 2006, officers of the Emergency Task Force (ETF) of the Toronto Police Service went to the Lochner family residence to execute a Feeney warrant for the arrest of Silvano Lochner (Silvano). Four officers entered the home. Silvano was not there. However, in the course of clearing the house, the officers found Silvano’s disabled adult brother, George Lochner (George),² in one of the bedrooms, whom they initially thought was Silvano. In the course of subduing and arresting George, the officers tasered him multiple times. He was attended to on scene by paramedics attached to the ETF, transported to hospital, and released that same night.

6The Lochners allege that the police used unnecessary and excessive force to subdue George. Paul Lochner (Paul) is the brother of Silvano and George. On the evening in question, he and his mother Lina Lochner (Lina) were not in the house, but were in the garage next to the house. Paul also alleges that he was assaulted by police.

7In 2007, Lina, Paul and George Lochner commenced a civil action in the Ontario Superior Court against seven individual police officers and the Toronto Police Services Board seeking damages in the millions of dollars for assault, battery, wrongful arrest, wrongful detention and violation of their constitutional rights, in addition to punitive and exemplary damages. Initially, they were represented by a lawyer and Silvano was named as the Litigation Guardian for George. Later in the litigation, the court removed Silvano as Litigation Guardian, and substituted the Public Guardian and Trustee (PGT). The Lochner family applied twice after that to remove the PGT, but were unsuccessful both times. Ultimately, a motion was brought by the PGT for approval of a settlement negotiated for George. That motion was hotly contested, but was ultimately successful. On March 9, 2016, D. Wilson J. approved the settlement in the amount of $65,000, with $5,000 going to the PGT for its costs and $60,000 paid into court for George’s benefit. Wilson J. provided an extensive written endorsement setting out her reasons for approving the settlement, which included references to allowances made for weaknesses in the case for the disabled plaintiff. In that endorsement, she noted that the PGT had actually incurred more than $100,000 in fees in its representation of George.

8The claims of Paul and Lina Lochner were not settled. However, they were subsequently dismissed without a hearing on the merits when they failed to attend on the date fixed for their trial.

9On September 23, 2016, Silvano laid an information commencing a private criminal prosecution against the six ETF officers involved in the incident with George on August 11, 2006, seeking to charge each of them with one count of assault and one count of assault causing bodily harm. On January 26, 2017, Lina and Paul filed informations seeking to lay the same charges against the same six officers. Then, on February 16, 2017, Silvano, Paul and Lina filed an information seeking to charge the same six officers with one count each of perjury relating to testimony they gave under oath during examinations for discovery in the civil lawsuit. P.C. Bragg was one of the officers subject to the perjury allegation. The substance of the allegation, as set out in the information, was that P.C. Bragg gave false sworn evidence in his examination for discovery by stating that only two taser guns were deployed against George. Ultimately, on March 1, 2017, the Crown stayed all of these charges, stating on the record that there was no reasonable prospect of conviction on any of the charges and no public interest in the proceedings continuing.

10The Lochners applied for an order of mandamus compelling the return of the informations to the Ontario Court of Justice for a new pre-enquete hearing. That application was argued before Quigley J. and was dismissed. The central issue was whether the Crown acted improperly in staying the charges. For written reasons issued on September 20, 2017, Quigley J. concluded that there was no impropriety in the Crown acting as it did.³

11Six days after the decision of Quigley J., the applicants Silvano and Lina filed a new information against P.C. Bragg alleging that he committed perjury in his examination for discovery on June 22, 2009. As before, the substance of the allegation is that P.C. Bragg testified there were only two taser guns fired, whereas the applicants allege that there were three. In their application, the applicants falsely stated, under oath, that they had not previously sworn an information for this offence.

The Pre-Enquete Hearing and Decision of J.P. Wong

12The pre-enquete hearing proceeded before J.P. Wong on October 10, 2017. Silvano Lochner was the spokesperson for the three applicants, as he frequently is, and was before me. He advised the Justice of the Peace that he proposed to provide viva voce evidence from himself, two paramedics who attended at the scene, and Sgt. Michael Carmichael.

13Silvano Lochner was not present at the time of the incident involving his brother George and the police. He had no firsthand evidence to provide and no other evidence apart from what was already in the sworn information and the documents filed. However, he was permitted to give viva voce evidence at the hearing, which was almost entirely hearsay or in the nature of argument. In the course of his testimony/submissions, Mr. Lochner stated that the purpose of the other witnesses he proposed to call was to establish that three tasers had been used against his brother (rather than two) and he outlined the evidence he expected the paramedics and Sgt. Carmichael would give on this issue. He also referred to documentary evidence including the charting notes of the paramedics indicating that George had been tasered three times, with a total of six darts, and computer reports generated after the tasers were used.

14At the conclusion of Mr. Lochner’s evidence, he asked the Justice of the Peace if she wanted to hear from the witnesses he had described and she replied, “I don’t believe I need to.”⁴ This was not a refusal to hear evidence, but merely a statement that she did not need to hear from those witnesses.

15In the course of Mr. Lochner’s evidence/submissions, the Crown proposed that they “assume” three tasers were used and move on to the evidence of how that was perjury. The Justice of the Peace also asked him to focus on the evidence with respect to the intention to mislead. Mr. Lochner’s entire focus, however, was that the officer got it wrong and that it should be inferred that he deliberately lied with an intent to mislead. He stated that “in the absence of reasonable explanation for any [error] that may arise, a strong inference that the accused was aware that his testimony was false, then that goes to show the intent of misleading the Court. Because the accused – it’s clear his testimony is false. The, the, the remarks are believed clear that his testimony – and there’s no explanation as to why he made these mistakes. The Court hasn’t raised any issues as to how he made these mistakes.”⁵

16At this point, the Court ran out of time for the courtroom they were in and suggested finding a different courtroom. However, Silvano Lochner stated that his mother was “very ill” and they had to go to the doctor. Therefore the matter was adjourned.

17The pre-enquete resumed on November 6, 2017. The Justice of the Peace began by summarizing the proceedings on October 10, 2017 as being that P.C. Bragg had given sworn testimony in the past that there were only two tasers deployed whereas Mr. Lochner gave verbal testimony and “provided various documentary evidence in support of their being three tasers instead of two.” She then stated that the hearing that day (November 6) would be limited to submissions. Silvano Lochner immediately responded by stating, “I’m asking you to recuse yourself for your criminal conduct on October the 10^th.” The basis for this position was that the Justice of the Peace had refused to permit him to call the witnesses he wanted to call in order to prove that three tasers had been used. The Crown took the position that even taking Mr. Lochner’s evidence as being true, the elements of perjury had not been made out. Mr. Lochner became quite abusive and there was much shouting from both him and his mother. He refused to make submissions and said he would be refiling his information in a different jurisdiction before a different Justice of the Peace. The Justice of the Peace therefore proceeded to give oral reasons for her ruling, declining to issue process.

18In her reasons, the Justice of the Peace correctly stated the essential elements of the offence of perjury: a statement was made under oath; the statement was false; the declarant knew that it was false; and the declarant made the statement with the intent to mislead.⁶ She found that the first element was satisfied. She then started to give her reasons as to the second element, stating “Whether or not the statement is false is unclear from the documentation…”⁷ Before she could get any further, she was interrupted by extremely abusive conduct from Silvano Lochner and also to some extent, Lina Lochner. His statements included the following:

• What a joke.
• What a criminal.
• Arrest me. I don’t care. Put me in jail so we can fucking say what a criminal you are. You refused to allow witnesses to testify and now you’re saying there’s no witnesses. I’m going to fucking appeal this.
• What a bitch.
• Are you fucking crazy?
• Fuck off.⁸

19He then left.

20The Justice of the Peace then continued where she had left off by stating there were some issues with respect to the evidence on the second element, that she was not in a position to address its credibility, but that she would therefore proceed “on the assumption that even though such documentation that there might be is fuzzy, that there is some evidence to that effect.”⁹ Thus, she held the second element was met. There was “some evidence” that the statement was false.

21The Justice of the Peace then proceeded to the third element and on this point held that there was no evidence whatsoever that P.C. Bragg knew that his statement was false. She stated that at the time of the execution of the warrant there were all kinds of people involved and the situation was confusing. She held that in this “highly dynamic situation” it is difficult to draw the inference that the officer knew his testimony was false as he may have forgotten or been unaware of the use of a third taser.¹⁰

22Similarly, on the fourth element, the Justice of the Peace held that there was no evidence that the officer made the misstatement with the intention to mislead.

23Finally, the Justice of the Peace considered the final test to be met before process should issue, i.e. whether the proceedings could be considered to be vexatious, frivolous or an abuse of process. She stopped short of making such a finding notwithstanding the fact that previous charges had been filed and stayed. However, she noted that it was “coming close to that [frivolous and vexatious], and coming very close to an abuse of process.”¹¹

No Loss of Jurisdiction by Failing to Hear Relevant Evidence

24All of the witnesses Mr. Lochner proposed to call related to establishing that three tasers had been used, and not just two as P.C. Bragg had said on his examination for discovery. Given that the Justice of the Peace was prepared to accept that there was “some evidence” to support that element of the offence, there was no need to hear further evidence on the point.

25Pre-enquete hearings cannot be permitted to become full trials on the merits. The Justice of the Peace was entitled to control the process before her and to refuse to hear evidence that was simply redundant and unnecessary. She accepted, on the basis of the documents filed by Mr. Lochner, that there was some evidence that three tasers were used. Mr. Lochner’s focus during argument on the Justice of the Peace’s reference to there being some problems with this evidence is irrelevant.

26Likewise, Mr. Lochner in his argument before me misapprehended the meaning of the Justice of the Peace’s reasons on this issue. Again he objected to her references to credibility issues and to her making an “assumption” as opposed to making a finding on the evidence. He made extensive references to the principle in Ares v. Venner and the admissibility of medical records. Unfortunately, he missed the point entirely. He was successful on this point before the Justice of the Peace. She did rely on those records and she found there was “some evidence” that there were three tasers used, which is the test she was required to apply. There is no error in jurisdiction on this point.

No Breach of Natural Justice

27Mr. Lochner was given the opportunity to make submissions on the remaining elements of the test. Instead, he flew into a rage and became hostile and abusive. Then, he walked out of the hearing. This was an exercise of his own free will. The Justice of the Peace warned him that the matter could therefore be deemed to be abandoned. She continuously urged him to stop his tirades and to participate in the process. He did not. Therefore, she proceeded in his absence and without the benefit of any submissions he might have made. That is a problem entirely of his own making. It is not a refusal by the Justice of the Peace to hear from him, nor is there any breach whatsoever of the principles of natural justice.

No Bias

28The accusation of bias is entirely without foundation. The justice of the peace was a model of patience in the face of extremely discourteous, indeed outrageous, behavior.

No Error of Jurisdiction

29The Justice of the Peace found that there was no evidence with respect to the officer having knowledge that his statement was false or with respect to his intention to mislead. That is a matter of the sufficiency of the evidence. She committed no error in coming to the conclusion she did.

30I find no error of jurisdiction, no bias, no breach of procedural fairness and no denial of natural justice. This application is therefore dismissed.

Discretionary Nature of the Mandamus Remedy

31Further, the applicants are not entitled to a remedy even if there had been a reviewable error by the Justice of the Peace. Mandamus is an extraordinary remedy and a discretionary one. In the circumstances of this case, I would not issue mandamus to require a new pre-enquete hearing with respect to this charge because I consider the application itself to be an abuse of process.

32The Lochner applicants previously sought to file a charge of perjury against this same person for exactly the same alleged offence. The Crown, in its exercise of discretion, stayed that charge. The applicants sought mandamus at that time. Their application was dismissed by Quigley J. for extensive, detailed reasons. Before Quigley J., the applicants had argued that upon finding there had been three taser deployments an inference could be drawn that the officers who testified to the contrary were guilty of perjury (the same argument that was advanced before the Justice of the Peace here). That argument was dismissed by Quigley J., for reasons which included the following:

93Mr. 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.

94That 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.

95Plainly, 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.

111The 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.

112does 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.

113Proof 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.

33In the face of that ruling, Silvano Lochner merely turned around and filed a new information alleging exactly the same offence of perjury, on exactly the same grounds, against P.C. Bragg. Further, in his information he swore that no prior information had previously been sworn regarding this offence, which is untrue.

34The applicants are attempting to re-litigate a matter that has already been decided. In these circumstances I would not exercise my discretion to grant the remedy sought.

Footnotes

1. 1Lochner v. Ontario (Attorney General), 2017 ONSC 5293.
2. 2The precise nature of George’s disability is not apparent from the material filed before me. In some places he is referred to as autistic. However, a decision in a related matter refers to a capacity assessment being done by a psychologist who diagnosed George as having a developmental disability, likely stemming from an early cerebral injury. (See decision of D. Wilson J., 2016 ONSC 1614 at para. 7). The exact diagnosis does not have any impact on the matter before me. Suffice to say that there is a cognitive disability of sufficient severity that George is not competent to instruct counsel, or to make his own decisions about litigation.
3. 3Lochner v. Ontario (Attorney General), 2017 ONSC 5293.
4. 4Transcript of Proceedings, October 10, 2017 at p. 31, line 6.
5. 5Transcript of Proceedings, October 10, 2017, at p. 33, lines 2 to 15.
6. 6Transcript of Proceedings, November 6, 2017, at p. 11, lines 1-4.
7. 7Ibid, lines 5-9.
8. 8Ibid, pages 11-12.
9. 9Ibid, page 13, lines 1-12.
10. 10Ibid, page 13, lines 14-30.
11. 11Ibid, page 14, line 11 to page 15 line 4.