COURT FILE NO.: 07-CV-330473 PD3
DATE: 20180209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW CURNEW
Plaintiff
– and –
ARUN MAINI
Defendant
Andrew Curnew, Self-Represented
Keith Geurts, Kyle Magee and Annie Norwood, for the Defendant
HEARD: February 5 and 6, 2018
G. DOW, J.
REASONS FOR DECISION
[1] The trial in this matter commenced before me on February 5, 2018. The defendant, Arun Maini (“Mr. Maini”) made a motion at the opening of trial to dismiss the action of the plaintiff, Andrew Curnew (“Mr. Curnew”) as an abuse of process. Alternatively, Mr. Maini sought to strike out certain paragraphs of the Statement of Claim that specifically dealt with what will come to be known as the “Additional Statement of Facts”.
[2] The Additional Statements of Facts was tendered as evidence in the criminal trial before Justice J. Wilson in March, 2005 with reasons on April 6, 2005. Mr. Curnew opposed this motion or sought, as a last alternative, that the action be stayed to permit him to make an application for reconsideration of the convictions by Justice J. Wilson on April 6, 2005. These convictions were upheld by the Court of Appeal with reasons released on November 12, 2010. This motion was referenced in the Trial Management Report provided to me in accordance with Rule 50.08. The Trial Management Report sets out timelines for the service of material including factums and will say statements of non-expert witnesses.
[3] Following commencement of the trial, I made an order excluding witnesses. I also heard from counsel for one of the prospective witnesses, B.C., that an order be made banning publication of information that can reveal his identity given his role as a police informant. I was referred to a prior order in R. v. G.L. & K.L. made by Justice Trafford on December 13, 2004, in this regard. I confirmed members of the press were in the courtroom and I was advised that this matter had been the subject of a newspaper article in the days before this trial commenced. I alerted counsel to the Practice Direction which governs how to proceed, including notice to the media. I did make a temporary order banning publication of information which can identify B.C. subject to compliance with the Practice Direction.
[4] I also received motion material from the Crown Law Office seeking to quash a summons to witness served on the Crown Attorney who conducted the trial before Justice J. Wilson. It was agreed that submissions on this issue could be deferred pending my determination of this motion.
Background
[5] Mr. Curnew was charged with 17 offences in or about April, 2003. This was triggered by his one time girlfriend, KM going to the police and complaining of being assaulted by Mr. Curnew. The apprehending of Mr. Curnew, along with a search of his parent’s home where he was residing at the time resulted in additional charges relating to possession of handguns, ammunition, and drugs.
[6] Mr. Curnew retained Mr. Maini to represent him and the matter proceeded to trial in March, 2005. Mr. Maini also represented Mr. Curnew with regard to earlier events and charges from 2002 which proceeded to trial before Justice Matlow in September, 2003. Justice Matlow acquitted Mr. Curnew on all charges. In addition, there is disputed evidence about Mr. Curnew being subject to charges arising from a large guns and gang case involving approximately 80 individuals called Project Shirlea by those involved. Those charges did not proceed. Mr. Maini deposed Mr. Curnew was never arrested or brought to court with respect to these charges.
[7] At the trial before Justice J. Wilson, Mr. Curnew gave evidence and Mr. Maini had concerns about Crown efforts to call reply evidence to demonstrate Mr. Curnew was not accurate in portions of his evidence. According to Mr. Maini, he and the Crown prepared the Additional Statement of Facts to address these concerns and which Mr. Curnew says contradicted some of his evidence and thus undermined his credibility.
[8] In the 61 page transcript of reasons by Justice J. Wilson, she convicted Mr. Curnew on 13 of the 17 charges and commented unfavourably about his demeanor and credibility as a witness. Mr. Curnew discharged Mr. Maini and retained new counsel, (now Justice) James Stribopoulos to conduct sentencing submissions which culminated with Reasons for Sentence on June 28, 2005.
[9] In April, 2007, this action was commenced and served on Mr. Maini, September 25, 2007. The Statement of Defence served is dated November 14, 2007.
[10] (Justice) Stribopoulos also represented Mr. Curnew in the appeal which raised ineffective assistance of counsel as one of the grounds with specific reference to the Additional Statement of Facts. It appears additional evidence was sought to be put before the Court of Appeal including an affidavit from Mr. Maini and cross-examination on that affidavit. The Reasons of the Court of Appeal dealt with the ineffective assistance of counsel from paragraphs 20 through to 32 in which the appeal was dismissed. As part of these reasons, the Court of Appeal reviewed a number of steps taken by Mr. Maini. In evaluating the grounds of appeal, the Court of Appeal noted both at paragraphs 29 and 31 stated that the trial judge had “many reasons” for rejecting Mr. Curnew’s evidence apart from the Additional Statement of Facts.
[11] Subsequently, Mr. Curnew has marshalled additional evidence to support his theory which maintains his innocence with regard to all of his convictions by Justice J. Wilson and to support his allegations of negligence against Mr. Maini. This material is contained in the Responding Record of Mr. Curnew dated January 29, 2018 and includes six affidavits, five of which were sworn on January 28, 2018. The following are some of the concerns raised in this material:
a) affidavit testimony from Joseph Natale, a friend of Mr. Curnew since high school and now a lawyer who deposes his willingness to testify and attendance at the courthouse in March, 2005 regarding how KM sustained some of her injuries, such as a broken nose;
b) Joseph Natale also deposed why KM might have given the police her original statement (which she subsequently attempted to recant) with her original statement accepted by Justice J. Wilson;
c) Joseph Natale’s deposing Mr. Maini refused to speak to him or call him as a witness;
d) Joseph Natale observing Mr. Curnew’s mother give a tape recording to Mr. Maini who handed it over to the officer in charge, Detective MacDonald;
e) Mr. Curnew’s mother deposing she observed B.C. at their home on April 4, 2003;
f) Mr. Curnew’s mother had contact with Detective MacDonald on April 4, 2003 and observed him removing items from their home;
g) Mr. Curnew’s mother deposing being followed by Detective MacDonald while she and her husband were at Casino Rama;
h) Mr. Curnew’s mother taping Detective MacDonald threatening she and her husband about disclosing B.C.’s identity which she handed to Mr. Maini;
i) Mr. Curnew’s father deposing about being followed at Casino Rama and being threatened by Detective MacDonald and Detective Tighe with regard to keeping the identity of B.C. secret;
j) Mr. Curnew’s father observing Mr. Maini turn over the tape recording his wife gave him of Detective MacDonald to Detective MacDonald;
k) statements from B.C. pursuant to a Notice of Examination dated January 23, 2018 where he is represented by counsel and asked questions by Gregory Lafontaine (designated as representing Mr. Curnew) with no one attending on behalf of Mr. Maini (I heard submissions about how they were not notified in advance of the time and location of this examination) which indicates B.C. attended at Mr. Curnew’s home on April 4, 2003 with two handguns on his person which he left in a bedroom because he thought he saw a police officer in a car drive by as he was exiting the home;
l) B.C. attempting to contact or speak with Mr. Maini before Mr. Curnew’s trial and Mr. Maini refusing to speak with him;
m) affidavit evidence from Mr. Curnew’s cousin who was raised by Mr. Curnew’s parents and was living with them as of April 4, 2003 in which she deposes the pajamas which KM initially testified was used to conceal one of the guns seized by Detective MacDonald were actually hers and could be confirmed by embroidery on it which matched a tattoo on her body and that she discussed this information with Mr. Maini;
n) affidavit evidence from Mr. Curnew’s current spouse, Dr. Rita Kilislian, whom he met in 2008 and attaching various documents such as:
(i) an expert report from Brian Greenspan, criminal lawyer opining the decision to file the Additional Statement of Facts by Mr. Maini “failed to satisfy the standard of a reasonable competent lawyer”;
(ii) the affidavit of Mr. Maini sworn November 5, 2009 which was utilized in the 2010 Court of Appeal hearing without the exhibits referred therein attached. Mr. Maini explains why each of the paragraphs of the Additional Statement of Facts was phrased in the manner it was and included.
Analysis
[12] Mr. Maini takes the position the action is a collateral attack on the decision of Justice J. Wilson. I have great concern that the main subject matter of this action was also the subject of analysis by the Court of Appeal. The Court of Appeal reviewed additional evidence and submissions regarding the ineffective assistance of counsel and rejected same. It is clear Mr. Curnew has not yet sought to renew an application to overturn the convictions, based on the additional evidence he has obtained since the release of the reasons by the Court of Appeal dated November 12, 2010. Similarly, there is no pending application under Section 696.1 of the Criminal Code to the Minister of Justice for review of his convictions.
[13] Mr. Maini submits the finding of negligence on his part requires a finding that Mr. Curnew ought not to have been convicted of what the Court of Appeal upheld. Further, it included consideration of Mr. Maini’s conduct and performance as counsel. Mr. Curnew’s submissions were similarly clear that the current evidence demonstrates he ought not to have been convicted of the offences and that such evidence was available to Mr. Maini in a manner that his failure to inquire about and obtain same fell below the requisite standard of care.
[14] Both Rule 21.01(3)(d) and Rule 25.11 provide for dismissal of an action on the basis of abuse of the court process. At the heart of the abuse of process issue is the following question: in the face of the decision of the Court of Appeal upholding Mr. Curnew’s conviction and dismissing his argument of ineffective assistance of counsel, how can a subsequent trial court find he was wrongfully convicted by reason of that counsel’s negligence? Mr. Maini relies on the decision of Brown v. Lee, 2012 ONSC 4154. This was an action also involving the plaintiff commencing a civil action for damages arising from the negligence of his counsel in a criminal proceeding. The plaintiff was convicted and was unsuccessful in overturning the conviction before the Court of Appeal. Justice Stevenson concluded that because the negligence claim necessitated proving on a balance of probabilities that an acquittal would have resulted, but for the negligence of the defendant, re-litigation of the criminal proceeding was required and was also an abuse of the process of the court. Here the argument appears to be even stronger, given portions of Mr. Maini’s conduct was considered and reviewed by the Court of Appeal, unsuccessfully.
[15] These Reasons were adopted in Harris v. Levine, 2014 ONSC 1300 by Justice Penny (at paragraph 10). In that matter, like here, the appeal of the conviction raised (but did not pursue) ineffective assistance of trial counsel. This decision was considered by the Court of Appeal, (2014 ONCA 608) with the Court of Appeal noting, (at paragraph 10), “allegations of ineffective representation generally should be made by way of a direct attack in the context of the criminal proceeding”.
[16] Of concern and raised by Mr. Curnew is the delay in bringing this motion. Rule 21.02 expressly states the motion shall be made “promptly”. Mr. Curnew relied on the statement in Fleet Street Financial Corp v. Levinson, [2003] O.J. No. 441 (at paragraphs 13 through 17) that delay provides a discretion to the court to refuse the relief sought. However, I also note Rule 21.02 combines that discretion with taking same into account when awarding costs. Further, Rule 25.01 does not contain the same limitation. As such, and given my reasons below, I am not prepared to exercise any discretion I may have to dismiss this motion on that basis.
[17] Mr. Curnew raised the application of and comments of the Court of Appeal in Wernikowski v Firm of Kirkland, Murphy & Ain, (1999), 1999 CanLII 3822 (ON CA), 128 OAC 33 in which the Court of Appeal reviewed this area of the law. That is, it also involved a plaintiff’s action for damages arising from the alleged negligence of the defendant which arose from the plaintiff being convicted of a criminal offence. The law in Ontario (as referenced and applied in both Brown v. Lee and Harris v. Levine, supra) is summarized at paragraph 45 of that decision and notes “the mere fact that the negligence action will involve the relitigation of issues finally decided in prior proceedings will not, standing alone, warrant the striking of the claim as an abuse of process”. Further “Each case will turn on its own facts”. I appreciate Mr. Wernikowski, like the plaintiff here, was trying for years to have his complaints about his lawyer presented in an appropriate form. To that end, the Court of Appeal directed courts in Ontario “should be slow to close the courtroom door” on litigants without giving him or her “any chance to prove the merits” of his or her claim. However, the court also states, at paragraph 48, “where possible, all matters affecting the propriety of a conviction, including allegations of ineffective representation, should be addressed in the criminal proceedings”.
[18] Mr. Curnew also raised the comments of the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 which addressed the issues of issue estoppel, abuse of process and collateral attack. Within the analysis of abuse of process, the court addressed circumstances where re-litigation may “enhance rather than impeach the integrity of the judicial system”. Mr. Curnew relied on the three examples cited being; first, discovery of fraud or dishonesty; second, new evidence; or third, the original result should not be binding in the new context (at paragraph 52). The court noted specifically concerns when re-litigating criminal matters. For Mr. Curnew to be successful in this matter as pleaded, the decision of Justice J. Wilson and the Court of Appeal must be found to be incorrect. I am not prepared to proceed down that path, particularly when Mr. Curnew has an alternative. My conclusion is to follow the statement of the Court of Appeal in Harris v. Levine, supra, as quoted above.
[19] My impression of Mr. Curnew’s extensive materials, is that they have been developed subsequent to his hearing in the Court of Appeal. Mr. Curnew’s extensive submissions focused on why and how he was wrongfully convicted. As stated, to proceed with this trial and have Mr. Curnew be successful would require findings in direct conflict with the decision of the Court of Appeal from November 12, 2010. That decision included, in part, a review of some of the actions of Mr. Maini as counsel. Mr. Curnew has available to him alternative proceedings to challenge the appropriateness of the criminal convictions and ineffective assistance of counsel other than a negligence action. To that end, having reviewed the allegations raised in the Statement of Claim and the evidence presented before me, I conclude it is not appropriate for Mr. Curnew to proceed with a trial of this matter at this time.
[20] However, I am also mindful of the volume of additional evidence obtained by Mr. Curnew not available to the Court of Appeal and that Mr. Curnew could be successful in an application under Section 696.1 of the Criminal Code. I agree with being cautious about denying a person the opportunity to present their case on its merits. This maintains the integrity of the judicial system.
[21] To that end, my decision is to stay this action as it is pleaded pending a successful review of the convictions upheld by the Court of Appeal, released on November 12, 2010.
_____________________________ Mr. Justice G. Dow
Released: February 9, 2018
COURT FILE NO.: 07-CV-330473 PD3
DATE: 20180209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW MR. CURNEW
Plaintiff
– and –
ARUN MR. MAINI
Defendant
s
REASONS FOR DECISION
Mr. Justice G. Dow
Released: February 9, 2018