COURT FILE NO.: CV-20-649707
DATE: 20210628
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lawrence Watts
Applicant
– and –
Attorney General of Canada
Respondent
Self- Represented
Shain Widdifield for the Respondent
HEARD: June 23, 2021
Sharma J.
[1] The applicant, Mr. Watts, is self-represented. He seeks a declaration that s. 380(1) of the Criminal Code, R.S.C., 1985, c. C-46 is unconstitutional as it is silent on the mens rea for the offence of fraud. In his Notice of Application, he argues that this offends sections 7, 11(a), 11(d), or 11(g) of the Canadian Charter of Rights and Freedoms, s. 8, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“Charter”). He also seeks damages.
[2] On January 12, 2021, Justice Fred Myers ordered that the issues related to standing were to be decided first before expenses related to the substantive constitutional challenge were incurred. As a result, this hearing was to determine whether the applicant has private interest or public interest standing to pursue his application, and whether it would be an abuse of process for this application to proceed.
[3] The applicant attached to his affidavit in support of this application an amended Notice of Application. It adds s. 15 of the Charter as a ground upon which the declaration should be sought. The amended application also abandons his claim for damages.
[4] Counsel for the Attorney General (Canada) did not oppose the amendment to the Notice of Application. Accordingly, I granted an Order for the applicant to amend his Notice of Application in the form attached to his affidavit.
[5] The respondent also advised that court staff did not accept for filing his material because it now correctly identified the respondent as the Attorney General (Canada) rather than Her Majesty the Queen. The respondent nevertheless uploaded his material to CaseLines, the document sharing platform used for hearings at the Court. I granted an Order allowing the filing of the respondent’s material with the name of the respondent correctly identified, as uploaded to CaseLines.
[6] For the reasons that follow, I find that the applicant lacks standing to bring this application, and that this application should be dismissed as an abuse of process.
I. BACKGROUND
[7] On October 22, 2015, Mr. Watts was convicted of fraud under s. 380(1) of the Criminal Code. On June 6, 2016, he was sentenced to six years in custody and fined. An appeal to the Court of Appeal was dismissed on February 14, 2018. His application for leave to appeal to the Supreme Court of Canada was dismissed on September 27, 2018.
[8] During his criminal proceedings, Mr. Watts was largely unrepresented. He states that it did not occur to him to challenge the constitutionality of s. 380 of the Criminal Code. Moreover, he states that because of a statement made by the pre-trial judge, he did not believe he could bring a motion to challenge the constitutionality of this provision.
[9] Having said that, Mr. Watts states that his intention in bringing this application is not to have his conviction or sentence overturned or altered. He accepts that if the Court were to grant the declaration he seeks, it would have no retroactive bearing on his conviction or sentence.
[10] Mr. Watts argues that bringing this application will result in a determination as to whether the impugned provision “is or is not compliant with the Constitution”. He believes this declaration would “help [P]arliament, accused persons, and the judicial system operate in a more concise, efficient and fair manner in the future.”
[11] He further argues that as a result of his experience as an unrepresented accused, he is or was a member of a group of unrepresented accused, which group is analogous to an enumerated group under s. 15 of the Charter. He relies on literature and publications about unrepresented litigants being disadvantaged. As a result, and based on his experience, he contends that he is uniquely competent to bring and argue this application.
[12] Mr. Watts is not disputing that, at the preliminary inquiry and at his trial, he was aware of the Supreme Court of Canada’s 1993 decision in R v. Théroux, [1993] 2 S.C.R. 5. In Théroux, the Supreme Court of Canada spelled out the mens rea component of s. 380(1) of the Criminal Code.
[13] Mr. Watts position is that the test in Théroux is too cumbersome and challenging to be understood by an unrepresented accused, which has the effect of disadvantaging unrepresented accused persons. For this reason, he argues it is unconstitutional and the legislature should be required to amend s. 380(1) of the Code by using words such as “knowingly” or “willfully” to clearly establish the mens rea component within the statute. As it stands, Mr. Watts argues that the law for unrepresented accused charged with fraud is too vague.
II. ISSUES & ANALYSIS
[14] The issues to be determined in this hearing are:
a. Does Mr. Watts have private interest standing or public interest standing to bring this application?
b. Does the doctrine of abuse of process prevent Mr. Watts from continuing with this application?
Does Mr. Watts have private interest standing?
[15] To establish private interest standing, an applicant must be personally and directly affected by the impugned provisions. This is because court resources ought to be reserved to decide actual controversies between parties, not academic or hypothetical questions in matters where parties have no direct stake in the answer (see Larouche v Court of Queen’s Bench of Alberta, 2015 ABQB 25 at para 47 citing Robinson v Western Australian Museum, (1977) 138 CLR 283 at 327).
[16] Mr. Watts acknowledged in his affidavit that if the declaration he sought was granted, it would not have any impact on him, his prior conviction, or his sentence. During his cross-examination, he acknowledged he has nothing at stake personally in this application. Rather, his personal interest is to see it clarified for the benefit of others.
[17] To the extent that Mr. Watts had private interest standing with respect to this issue, it became moot when his conviction was entered and all possible routes of appeal extinguished. “Mootness is like an absence of standing in that the court is being invited to rule on an issue that has no direct impact on the parties to the proceeding” (see Prof. Hogg, Constitutional Law of Canada, [Toronto: Carswell, 2009] at pp 59-17).
[18] For these reasons, I find there is no basis to conclude that Mr. Watts has private interest standing to pursue this application.
Does Mr. Watts have public interest standing?
[19] The leading case on public interest standing in constitutional cases is Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (“Downtown Eastside”). The first paragraph of this decision succinctly describes the competing interests engaged when determining whether a litigant should have public interest standing:
… The law of standing answers the question of who is entitled to bring a case to court for a decision. Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensure that courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, at p. 631. The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue. In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations.
[20] Downtown Eastside requires a Court to consider three factors when assessing whether a litigant has public interest standing: (1) whether there is a serious justiciable issue raised; (2) whether the applicant has a real stake or a genuine interest in it; and (3) whether in all the circumstances, the proposed application is a reasonable and effective way to bring the issue before the courts?
[21] In my view, this application does not raise a serious justiciable issue.
[22] As I explained to Mr. Watts during the hearing, our common law system requires the Court to regularly interpret statutory provisions enacted by the legislature. This is how our constitutional democracy and our common law system operate. Courts, lawyers and litigants must look not only at statutory authority, but also at case law for authoritative interpretations of statutes. Therefore, in this case, the requirement to consider Supreme Court of Canada jurisprudence to interpret a statutory provision is not a serious justiciable issue. It is simply how our common law system operates. To rule otherwise would impose a burden on the legislature to amend legislation each time a court interprets a statutory provision.
[23] Alternatively, Mr. Watts argues that either the statutory provision is vague or that the Supreme Court of Canada’s guidance in interpreting this section is complex, placing an unfair burden on unrepresented accused.
[24] I accept that unrepresented accused have unique challenges in accessing our justice system. I also accept the literature and policy statements advanced by the applicant which attest to the challenges self-represented litigants face in our justice system. That literature also speaks to solutions that justice system participants can engage to better respond to those challenges.
[25] However, to grant standing to challenge a law as unconstitutional merely because it is difficult to understand judicial interpretation of that law would result in courts being overburdened with claims of marginal significance. It would deplete the court’s limited resources.
[26] Furthermore, I find it difficult to accept that the jurisprudence in this area is exceedingly complex or confusing. The actus reus and mens rea component of fraud are set out schematically and succinctly by the Supreme Court of Canada in Théroux in one single paragraph:
To establish the actus reus of fraud, the Crown must establish beyond a reasonable doubt that the accused practised deceit, lied, or committed some other fraudulent act. Under the third head of the offence it will be necessary to show that the impugned act is one which a reasonable person would see as dishonest. Deprivation or the risk of deprivation must then be shown to have occurred as a matter of fact. To establish the mens rea of fraud the Crown must prove that the accused knowingly undertook the acts which constitute the falsehood, deceit or other fraudulent means, and that the accused was aware that deprivation could result from such conduct
[27] With respect to the second prong of the test in Downtown Eastside, in my view, Mr. Watts does not have a real stake or genuine interest in this application.
[28] If Mr. Watts’ arguments about the unconstitutionality of s. 380(1) of the Criminal Code have merit, someone who is charged with fraud would be better positioned to bring such a challenge. Mr. Watts has already been convicted and has exhausted all appeals. The issue, in relation to Mr. Watts, is moot.
[29] He also argues that as a former member of a group – namely, unrepresented accused – he is uniquely able to bring this application. I disagree.
[30] I make no finding as to whether or not unrepresented accused may be an analogous group under s. 15 of the Charter as that issue is not before me and must be determined on a proper factual record. But even if that conclusion were reached, Mr. Watts is a former member of such a group, not a current one. Therefore, he has no direct or genuine interest in the outcome of this constitutional issue other than to see this issue addressed for other unrepresented accused. This, in my view, is not a sufficiently direct or genuine interest.
[31] The final prong of the test is whether the proposed application is a reasonable and effective way to bring the issue before the courts. I have already addressed the point that someone who is charged with fraud would be much better positioned to bring this challenge, rather than Mr. Watts. While raising a Charter challenge in the context of a prosecution will not necessarily constitute a more reasonable and effective way to bring the issue to court (see Downtown Eastside para. 69), the record does not support Mr. Watts’s position that he is well suited to bring these Charter challenges to court.
Is the Application an Abuse of Process?
[32] The respondent argued that this application is an abuse of process. This will be so if the application is an attempt to relitigate a criminal conviction, casting doubt over the validity of that conviction and inordinately taxing the administration of justice as a result (See Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para 54 (“C.U.P.E.”)).
[33] Mr. Watts attests in his affidavit that his intention is not to relitigate his criminal conviction or overturn the prior decisions in his criminal case. Although his intention or motive is of little or no import in the analysis (see C.U.P.E. at para 46).
[34] The doctrine of abuse of process concentrates on the integrity of the judicial process. In the event Mr. Watts were successful on this application, it would undermine the credibility of the first proceeding in which he was convicted, and the judicial process itself (see C.U.P.E. at paras 51 - 52). This is not to say that litigants should not appeal or seek judicial review of decisions – our judicial system is designed such that finality should be sought by litigants. But once those routes have been extinguished, the Court should seek to prevent a collateral attack in a subsequent proceeding because it would impeach the integrity of the judicial system.
[35] In my view, it would be an abuse of the court’s process to allow Mr. Watts’ application to proceed. It would bring into question the outcome achieved in his case and the credibility of the judicial system as a whole. The fact that Mr. Watts intends to rely on his own experience as an unrepresented accused involving the same offence in this new proceeding underscores the potential to cast doubt on the legitimacy of his own criminal conviction. It would be a collateral attack, regardless of his intention.
[36] Therefore, I find that Mr. Watts lacks private interest and public interest standing to continue this application. I also find that the application should be dismissed because it amounts to an abuse of the court’s process.
III. COSTS
[37] The respondent seeks partial indemnity costs of $22,594.68, inclusive of disbursements.
[38] Pursuant to s. 131(1) of the Courts of Justice Act, the Court has a broad discretion when determining the issue of costs. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v Public Accountants Counsel for Ontario, [2004] OJ. No. 2634 (C.A.). In determining the costs issue, I have considered the factors set out in rule 57.01(1), as well as the principle of proportionality set out in rule 1.04(1.1). I keep in mind the Court should seek to balance the indemnity principle with the fundamental objective of access to justice.
[39] I order the applicant to pay the respondent’s costs fixed in the amount of $12,000.00 inclusive of disbursements, within 30 days.
M.D. Sharma J.
Released: June 28, 2021
COURT FILE NO.: CV-20-649707
DATE: 20210628
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lawrence Watts
Applicant
– and –
Attorney General of Canada
Respondent
REASONS FOR JUDGMENT
M. D. Sharma J.
Released: June 28, 2021