



COURT OF APPEAL FOR ONTARIO

CITATION: Currie v. Ontario (Attorney General), 2017 ONCA 266

DATE: 20170331

DOCKET: C62188

Feldman, van Rensburg and Pardu JJ.A.

BETWEEN

Tanner Currie

Appellant/Applicant

and

The
    Attorney General of Ontario, Her Majesty the Queen, and

Christopher Labreche

Respondents

Trent Falldien, for the appellant

Philip Perlmutter and Brent Kettles, for the respondents
    The Attorney General of Ontario and Her Majesty the Queen

Scott K. Fenton, for the respondent Christopher Labreche

Heard: March 13, 2017

On appeal from the order of Justice R. Dan Cornell of the
    Superior Court of Justice, dated April 29, 2016, with reasons reported at 2016
    ONSC 3884.

ENDORSEMENT

[1]

The appellant appeals the dismissal of an application challenging the
    Crowns assumption of a private prosecution and subsequent withdrawal of
    charges.

HISTORY OF THE PROCEEDINGS

[2]

The appellant commenced a private prosecution against the respondent, Constable
    Labreche, claiming he was assaulted while in police custody. Following a pre-enquete
    hearing during which Crown counsel appeared and cross-examined the appellant
    and a witness, a justice of the peace found that a
prima facie
case
    had been made out and issued process compelling Labreche to attend to answer the
    charge of assault. The Crown then intervened to assume carriage of the
    prosecution.

[3]

On March 10, 2015, the appellant brought an application in the Superior
    Court under Rule 14 of the
Rules of Civil Procedure
, R.R.O. 1990, O.
    Reg. 194 (referred to by the parties as the Recusal Application) to challenge
    the actions of the Crown in taking over the private prosecution.
[1]
He claimed breach of his rights under s. 7 of the
Canadian
Charter of
    Rights and Freedoms
and alleged bias. He asserted that the Crowns
    decision to intervene in the prosecution unnecessarily interfered with his wish
    to prosecute the matter privately and was therefore not compliant with s. 11(d)
    of the
Crown Attorneys Act
, R.S.O. 1990, c. C.49 (which provides for
    the circumstances in which Crown Attorneys are to assume the conduct of a
    private prosecution). The appellant claimed relief which included an order
    prohibiting the Crown from prosecuting the matter and an order that the charge
    be prosecuted by the appellants counsel of choice.

[4]

The Recusal Application was supported by the appellants affidavit and
    an affidavit of a law clerk in his lawyers office attaching all correspondence
    between counsel regarding the matter, except for without prejudice
    communications, as well as media posts and releases. The appellant was
    cross-examined on his affidavit.

[5]

The Recusal Application was heard in June 2015 and dismissed on August
    12, 2015 for reasons reported at 2015 ONSC 4448. The application judge, relying
    on
Re Bradley et al. and The Queen
(1976)
, 9 O.R. (2d) 161 (C.A.) and
Ahmadoun v. Ontario
    (Attorney General)
, 2012 ONSC 955, [2012] O.J. No. 639, held that the
    Crown had lawful authority to intervene in the private prosecution and that the
    appellant had failed to demonstrate an abuse of process or bias.

[6]

The Crown, on notice to the appellant and in an attendance in the
    provincial court, withdrew the assault charge on October 6, 2015 on the basis
    that there was no reasonable prospect of conviction. The appellant then moved
    for an extension of time for leave to appeal the order dismissing the Recusal
    Application. The motion was dismissed by Epstein J.A. in chambers on November
    24, 2015.

[7]

On November 5, 2015, the appellant brought a second application in the
    Superior Court (referred to by the parties as the Constitutional Application),
    this time pursuant to the
Criminal Proceedings Rules
. In the
    Constitutional Application the appellant asserted that his rights under s. 7 of
    the
Charter
were breached and he repeated the allegations of bias
    asserted in the Recusal Application.

He sought a declaration of
    unconstitutionality of s. 507.1 of the
Criminal Code
(which provides
    for the referral of private prosecutions to the provincial court after a
    hearing, and for notice to and the participation of the Attorney General in the
    hearing), and s. 11(d) of the
Crown Attorneys Act
. The appellant also
    sought an order setting aside the Attorney Generals intervention in and
    withdrawal of his private prosecution against the officer.

[8]

The application judge, Cornell J., heard and dismissed the Constitutional
    Application on April 29, 2016. He dismissed the application in its entirety on
    the basis of issue estoppel. After referring to the leading authority
    respecting the doctrines of cause of action and issue estoppel,
Danyluk v.
    Ainsworth Technologies Inc.
, 2001 SCC 44, [2001] 2 S.C.R. 460, the application
    judge concluded that the three preconditions to the application of issue
    estoppel had been satisfied: The parties to the proceedings were the same; the
    earlier decision in the Recusal Application was final; and the material that
    was filed in the two applications was virtually identical and the same issues
    were raised. He awarded costs in favour of the Crown in the sum of $2,600 and
    in favour of the officer in the sum of $2,000.

ISSUES AND ARGUMENT

[9]

The appellant raises three arguments on appeal.

[10]

First, the appellant says that the application judge erred in concluding
    that the Constitutional Application was barred by issue estoppel. He contends
    that the Recusal Application challenged the Crowns
intervention
in
    the private prosecution while the Constitutional Application challenges the
    Crowns
withdrawal
of the charge. He asserts that the new issues he
    raises in the Constitutional Application must be considered in the context of
    the entire circumstances, including the allegations of bias he previously
    brought forward. He argues that the Constitutional Application raises new
    arguments, and that the constitutionality of s. 507.1 of the
Criminal Code
and s. 11(d) of the
Crown Attorneys Act
was not at issue in the
    Recusal Application. The appellant also asserts that the court ought to have
    exercised its discretion to not apply issue estoppel and should have determined
    the Constitutional Application on its merits.

[11]

Second, the appellant says that his application has merit and ought to
    be determined by this court in his favour. He says that the conduct of the
    Crown in this case demonstrates bias and that the laws permitting the Crown to
    assume carriage of a private prosecution are constitutionally invalid. In oral
    argument, the appellants counsel focussed on what was depicted in a video
    recording of the alleged assault, and asserted that there was only one possible
    interpretation of the events that occurred, that the evidence disclosed a
    triable issue of excessive force that ought to have gone to trial, and that
    Crown counsel therefore misled the court in her detailed explanation of why
    there was no reasonable prospect of conviction when she withdrew the charges
    against the officer.

[12]

Third, the appellant challenges the award of costs made against him in
    favour of the Crown and the officer.

DISPOSITION

[13]

We do not give effect to any of these arguments.

[14]

The appeal can be disposed of on the issue estoppel ground. We are
    satisfied that the application judge did not err in applying issue estoppel.

[15]

It is clear from a review of the two applications and the materials
    relied on by the appellant for each, that the Constitutional Application raises
    exactly the same issues as were dealt with in the Recusal Application. The
    essence of the appellants complaint in both applications is the same  he
    questions the Crowns decision to take over the private prosecution of the
    respondent Labreche. In both applications he alleges bias on the part of the
    Crown and breach of his s. 7
Charter
rights. He also relies on much of
    the same evidence in both applications  his affidavits set out the same basic
    chronology of what occurred and the same conduct alleged to constitute bias by
    the Crown.

[16]

The fact that there was a new development following the Recusal
    Application  the withdrawal of the charges  does not change the character of
    the proceedings. The appellant seeks to challenge the Crowns ability to assume
    carriage of the prosecution, and his exclusion from it. In the Constitutional
    Application he seeks once again an order that he be able to continue the
    private prosecution in his own name, which was denied with the dismissal of the
    Recusal Application. Advancing new legal arguments and asserting additional
    claims for relief will not avoid the application of issue estoppel:
Las
    Vegas Strip Ltd. v. Toronto (City)
(1996), 30 O.R. (3d) 286
(Gen.
    Div.), at para. 25, aff'd
(1997), 32 O.R. (3d) 651
(C.A.);
Britannia Airways Ltd. v. Royal Bank
, [2005] O.J. No. 2 (S.C.), at
    para. 14;
Naken v. General Motors of Canada Ltd.
, [1983] 1 S.C.R. 72,
    at p. 101;
Eimskip, USA, Icelandic Steamship Inc. v. Nordica Foods A/S
,
    2015 NLCA 17, 365 Nfld. & P.E.I.R. 291, at paras. 59-60;
Danyluk
,
    at paras. 24, 54.

[17]

Finally, the appellant submits that the court ought to have exercised
    its discretion to refuse to apply issue estoppel.
Danyluk
recognizes such
    discretion where the application of the doctrine would result in an injustice
    (at paras. 63-64). The appellant has had his day in court on the issues he
    seeks to raise again in the Constitutional Application and there is simply no
    basis for refusing to apply issue estoppel in this case.

[18]

Having decided that the appeal should be dismissed on the issue estoppel
    ground, it is unnecessary to address the appellants second ground of appeal 
    that his Constitutional Application ought to have succeeded on the merits. We
    note however, that we have serious concerns about the appellants standing, as
    a complainant, to challenge the exercise of prosecutorial discretion. The
    question of standing ought to be addressed before any such application is
    considered on the merits. We also observe that, although framed as a
    constitutional challenge to the legislative regime for private prosecutions,
    the appellant does not put forward evidence or argument in support of a
    constitutional challenge. Rather, his focus is on the merits of the Crowns
    assessment of the available evidence leading to the decision to withdraw the
    charge, with which he strongly disagrees. And finally, the triable issue
    standard the appellant advances is entirely misplaced; without suggesting that
    the exercise of discretion was in fact reviewable at the behest of the
    appellant, the question for the Crown was not whether there was a triable issue
    respecting theofficers guilt, but whether there was a reasonable prospect of conviction.

COSTS APPEAL

[19]

There is no merit to the appeal respecting costs. The appellant included
    the officer as a respondent to the Constitutional Application. Costs were
    awarded in favour of both successful respondents in the exercise of the
    inherent jurisdiction of the Superior Court to control its own process:
Foessl
    v. Attorney General for Ontario
, 2016 ONCA 304. The application judge found
    that the application was improper and exercised his discretion to award costs. The
    appellant was attempting to raise for a second time, issues that had already
    been determined. The Constitutional Application, although styled as such,
    advanced no arguable constitutional issue. There is no basis to interfere with the
    application judges decision respecting costs.

RESULT

[20]

The appeal is therefore dismissed. The respondent Labreche sought his
    costs on appeal. Failing an agreement on costs, the appellant and this
    respondent may provide written submissions to the court, limited to three
    pages, not including any bill of costs, as follows: the respondent Labreche
    within 15 days of the date of this endorsement, with responding submissions by
    the appellant within 15 days thereafter, and no reply submissions.

K. Feldman J.A.

K. van Rensburg J.A.

G. Pardu J.A.





[1]

Although the
    applicant brought the application under r. 14, early in the argument, all
    counsel agreed to the application being converted to an application for prerogative
    relief in the nature of
certiorari
,
mandamus
and/or prohibition
    pursuant to r. 43.01 of the
Criminal Proceedings Rules for the Superior
    Court of Justice.


