COURT FILE NO.: M251/19
DATE: 20200213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PATRICK ELLIS
Applicant
Laurie Gonet for the Crown
Patrick Ellis, Self-Represented Applicant
HEARD: February 10, 2020
T. DUCHARME J.
REASONS FOR JUDGMENT
INTRODUCTION
[1] The applicant was charged with assault with a weapon on October 6, 2015, as a result of an incident that occurred on a Toronto Transit Commission bus. The complainant on that charge was the bus driver, Marlon John. The Crown ultimately withdrew the charge against the applicant on December 16, 2015.
[2] The applicant laid a private information for assault and assault causing bodily harm against Mr. John on March 8, 2017. Process was issued and the Crown intervened and assumed carriage of the prosecution at the conclusion of the pre-enquete hearing at the Ontario Court of Justice. On March 16, 2018, as a result of pre-trial discussions, Mr. John pleaded guilty to assault and was sentenced to an absolute discharge. The applicant strongly objects to the content of the agreed statement of facts as well as the sentence imposed.
[3] The applicant started a civil action against the Attorney General, the Toronto Police Service and the Toronto Transit Commission on February 10, 2016. The action against the Attorney General was dismissed on July 21, 2016. Additionally, the applicant has attempted to commence further litigation concerning R. v. John since the Crown took over carriage of the matter.
Other Related Litigation
[4] The applicant filed an application for prohibition in the Superior Court of Justice on August 1, 2017, to prevent the Crown from assuming carriage of the prosecution in R v. John. I dismissed the application on August 8, 2017.
[5] The applicant further filed an application in the Superior Court of Justice seeking disclosure of the Crown’s case against Mr. John and to transfer the case to the “Torah Unified Court”. The Honourable Madame Justice Corrick dismissed that application on September 11, 2017.
[6] Following the conviction of Mr. John, the applicant purported to appeal the conviction and sentence. The appeal was dismissed by The Honourable Mr. Justice Campbell on April 13, 2018. The issue of standing was not canvassed in that case. I am told that the applicant has appealed this decision to the Court of Appeal for Ontario.
[7] The applicant returned to the Ontario Court of Justice to lay an additional private information for obstruct justice against 10 members of the Toronto Police Service and the Crown with carriage of the prosecution against Mr. John. The Justice of the Peace refused to issue process as the applicant was not in possession of photo identification. In July 2018, the applicant brought an application for mandamus in the Superior Court of Justice as a result of process not issuing. The Honourable Mr. Justice Faieta found the Justice of the Peace did commit a jurisdictional error in not issuing process but found the grounds for the obstruct against the police and the Crown were non-existent. In addition, The Honourable Mr. Justice Faieta declared the applicant a vexatious litigant.
[8] Ultimately, process did issue against the 10 police officers and the Crown intervened and assumed carriage of the prosecution and stayed the charges. The applicant then made an application for mandamus in the Superior Court of Justice to extend the stay of proceedings for an additional 12 months. The Crown brought an application to dismiss on the basis that the applicant had no standing as the Crown had intervened and assumed carriage of the prosecution. On October 12, 2018, The Honourable Madame Justice Forestell ruled the relief sought by the applicant was unavailable and did not address the issue of standing.
The Current Application
[9] On November 25, 2019, the applicant sought orders in the Superior Court of Justice seeking judicial review and an order quashing the pleading, trial, agreed statement of facts, conviction and sentencing of Marlon John. The applicant also alleged there were constitutional issues and that the Attorney General had abused the process.
[10] By Notice of Motion, dated December 6, 2019, the applicant sought, among other things, to change the hearing date. When this motion was addressed on December 16, 2019, before The Honourable Mr. Justice Goldstein, the issue of the applicant’s standing in the main application was raised by the respondent. The Honourable Mr. Justice Goldstein shortened the time set for the main application on February 10, 2020 to 30 minutes and identified the only issue to be addressed on that day as standing. If the applicant was found to have standing, a further date would be set after February 10, 2020 to address the issues the applicant was trying to raise in the main application.
The Issue of Standing
[11] Section 11(d) of the Crown Attorneys Act states:
- The Crown Attorney shall aid in the local administration of justice and perform the duties that are assigned to Crown Attorneys under the laws in force in Ontario, and, without restricting the generality of the foregoing, every Crown Attorney shall,
(d) watch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his or her interposition.[^1] [Emphasis added.]
[12] The Crown Attorney’s right to intervene and assume carriage of a prosecution has been dealt with by a number of courts. In R. v. McHale, the Court of Appeal found:
The Attorney-General, and his agent the Crown Attorney, represent the Sovereign in the prosecution of crimes. The role of the private prosecutor, permitted by statute in this country, is parallel to but not in substitution for the role of the Attorney-General, and where the two roles come into conflict, the role of the Crown’s prosecutor is paramount, where in his opinion the interests of justice require that he intervene and take over the private prosecution.[^2]
[13] Absent flagrant impropriety, there is no avenue of judicial review of the Attorney General’s decision to intervene in a private prosecution and stay the charges. With reference to the Supreme Court of Canada’s decision in Kreiger v. Law Society of Alberta, this court found that this principle flowed from the “’core’ nature of prosecutorial powers of the Attorney General”.[^3] It is clear that, once the Attorney General intervenes in a private prosecution, he or she assumes carriage of the file and there is no avenue by which to challenge this. Further, it is also well settled that the Attorney General’s discretion to withdraw a charge prior to plea is unfettered.
[14] In the circumstances before the court, once the Attorney General assumed carriage of the prosecution, the applicant became the complainant witness in the Crown’s case. He is not a party to the case. As such, Mr. Ellis has no standing to seek to review, in any form, the prosecution of the case against Mr. John.
CONCLUSION
[15] For the foregoing reasons, the application of Mr. Ellis is dismissed.
T. Ducharme J.
Released: February 13, 2020
COURT FILE NO.: M251/19
DATE: 20200213
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PATRICK ELLIS
Applicant
REASONS FOR JUDGMENT
T. Ducharme J.
Released: February 13, 2020
[^1]: Crown Attorneys Act, R.S.O. 1990, c. C.49; TAB 12. [^2]: R. v. McHale, 2010 ONCA 361, 256 C.C.C. (3d) 26, at para. 41; see also Bourree v. Parsons, 29 C.C.C. (3d) 126 (Dist. Ct.). [^3]: Lochner v. Ontario (Attorney General), 2017 ONSC 5293, at para. 54.