



COURT OF APPEAL FOR ONTARIO

CITATION: Lochner v. Ontario (Attorney
    General), 2019 ONCA 730

DATE: 20190919

DOCKET: C66839

MacPherson, Watt and Miller
    JJ.A.

BETWEEN

Lina Lochner and Silvano Lochner

Applicants (Appellants)

and

Ontario (Attorney General)

Respondent

Lina Lochner and Silvano Lochner,
    self-represented

Gavin MacDonald, for the respondent

Heard: in writing

On appeal from the judgment of Justice
    Laura A. Bird of the Superior Court of Justice, dated March 25, 2019.

REASONS FOR DECISION

[1]

At the request of counsel for the Attorney
    General for Ontario, the respondent in this appeal, the Registrar has referred
    this appeal to the court for summary determination under s. 685(1) of the
Criminal
    Code,
R.S.C.
, 1985, c. C-46
.


[2]

For the reasons that follow, we are satisfied
    that the appeal is frivolous and vexatious and can be determined without being
    adjourned for a full hearing before a panel of the court. As a result, the
    appeal is dismissed.

The Background Facts

[3]

In August, 2006 members of the Emergency Task
    Force of the Toronto Police Service executed a
Feeney
warrant at the
    Lochner residence to arrest Silvano Lochner. During execution of the warrant,
    officers tasered George Lochner whom they erroneously believed was Silvano Lochner.
    Paramedics arrived at the residence, attended to George Lochner and transported
    him to hospital. He was released from hospital the same night.

[4]

The appellants, as well as other family members,
    have sought various forms of redress for this incident since 2006. A civil
    suit, taken over by the Provincial Guardian and Trustee, was settled and the
    settlement approved over then objections of the Lochner family. Complaints to
    the Ontario Civilian Police Commission. Requests of the Chief of Police to institute
    disciplinary proceedings against the officers who executed the warrant.

The Private Prosecution: The First Phase

[5]

On September 23, 2016 the appellant Silvano
    Lochner laid a private information alleging that officers executing the
Feeney
warrant committed the offences of assault with a weapon and assault causing
    bodily harm in doing so.

[6]

In January, 2017 the appellant Lina Lochner, who
    is the appellant Silvano Lochners mother, and his brother laid separate
    informations against the same officers alleging the same offences.

[7]

In February, 2017 the three informants laid a
    further private information against the same officers, alleging that one of
    them had committed perjury during an examination for discovery in 2009. The
    alleged perjury related to the number of taser guns used to disable George
    Lochner during the 2006 execution of the
Feeney
warrant.

[8]

After four pre-enquête appearances in the
    Ontario Court of Justice, the Crown stayed all the outstanding private
    informations on two grounds:

i.

that there was no reasonable prospect of
    conviction; and

ii.

that there was no public interest in continuing
    the prosecution.

[9]

The appellants applied to a judge of the
    Superior Court of Justice seeking an order setting aside the stay entered by
    the Crown and directing a new
pre-enquête
in the
    Ontario Court of Justice. The motion judge dismissed the application on the
    grounds that:

i.

the Crowns exercise of its discretion to stay
    proceedings on the basis of no reasonable prospect of conviction was proper;
    and

ii.

the Crowns assessment of the absence of public interest in
    continuing the prosecution was reasonable.

See,
Lochner v. Ontario (Attorney
    General)
, 2017 ONSC 5293, at paras. 5-7.

The Private Prosecution: The Second Phase

[10]

Within one week of the dismissal of their
    application for an order in lieu of
mandamus
, the appellants laid a
    new information against the officer whom they had previously claimed had
    committed perjury during the same examination for discovery in 2009. The
    substance of the perjury alleged was the same as had been alleged in the
    previous information. In their application to have process issue, the
    appellants said that they had not previously sworn an information for the same
    offence.

[11]

A justice of the peace conducted a pre-enquête on
    two separate days. She found that there was no evidence:

i.

that the officer knowingly made a false
    statement; or

ii.

that the officer made the statement with intent
    to mislead.

As a result of this evidentiary
    deficit, the justice of the peace declined to issue process. The justice
    considered, but did not decide, that the proceedings were frivolous, vexatious
    or an abuse of process.

[12]

The appellants again sought an order in lieu of
mandamus
to compel the conduct of a new pre-enquête on the same information. The
    application was dismissed. The motion judge found:

i.

that the substantive arguments of the appellants
    were totally devoid of merit;

ii.

that, irrespective of the merits of the arguments advanced, the
    relief sought was discretionary and would have been refused in the exercise of
    that discretion; and

iii.

that the application was vexatious in that the appellants sought to
    circumvent the effect of the previous decision on the same information by
    recommencing with a fresh but duplicative information before a different
    justice.

See,
Lochner v. Ontario (Attorney
    General)
, 2017 ONSC 2994.

[13]

The appellants appealed the motion judges
    decision to this court. The appeal was dismissed for the reasons given by the
    justice of the peace and by the motion judge:
Lochner v. Ontario (Attorney
    General)
, 2019 ONCA 52.

The Private Prosecution: The Third Phase

[14]

Two days after this court dismissed their appeal
    from the second refusal of an order in lieu of
mandamus
, the
    appellants swore a third information alleging the same perjury by the same
    officer at the same examination for discovery. Once again, the appellants
    denied having previously sworn an information about the same matter. They also
    denied that another justice of the peace had refused to issue process for the
    same offence.

[15]

On this occasion, the appellants swore the
    information in a different territorial jurisdiction than had been the case for
    the two prior informations. A justice of the peace conducted a hearing under s.
    504 of the
Criminal Code
, but declined to receive the information
    because the appellants had failed to adduce any evidence to support the
    allegations that the proposed accused had committed perjury.

[16]

For a third time, the appellants applied to a
    judge of the Superior Court of Justice for an order in lieu of
mandamus
compelling the justice of the peace to hold a hearing. Among other things, they
    argued that the justice of the peace committed jurisdictional error by
    converting the hearing under s. 504 to a pre-enquête under s. 507.1.

[17]

The motion judge dismissed the appellants
    application. In her view, even if the justice of the peace committed
    jurisdictional error by converting a hearing about receipt of the information
    under s. 504 to a pre-enquête about the issuance of process under s. 507.1, the
    appellants had suffered no prejudice. This was so, the motion judge reasoned,
    because even if the information had been received, process would not have
    issued at the conclusion of the pre-enquête for lack of evidence of the
    essential elements of the offence.

[18]

The motion judge declined to exercise her
    discretion to grant an order in lieu of
mandamus
for a second reason 
    the conduct of the appellants. That conduct included:

i.

disregard of a prior decision of a judge of the
    Superior Court of Justice which characterized their second attempt to have an
    information received as an abuse of process;

ii.

providing false information on an intake form required of private
    informants that they had not previously sworn an information alleging the same
    offence;

iii.

failing to disclose that on a prior occasion another justice of the
    peace had refused to issue process on the basis of the same information; and

iv.

contravening s. 507.1(7) of the
Criminal Code
by seeking
    another pre-enquête after an earlier refusal, in the absence of any new
    evidence in support of the allegations.

See,
Lochner v. Ontario (Attorney
    General)
, 2019 ONSC 1908.

This Appeal

[19]

After a thorough review of the materials filed
    by the appellants, we are satisfied that this appeal is at once frivolous and
    vexatious and can be determined without a full hearing of oral arguments before
    a panel of this court.

[20]

To begin, the notice of appeal filed in this
    court reveals no arguable grounds of appeal. In generic terms, the notice
    recites that the motion judge erred:

i.

in law;

ii.

in fact;

iii.

in both law and fact; and

iv.

in making assumptions, rather than findings of
    facts.

[21]

The additional materials filed by the
    appellants, in particular, their factum, do not lay bare any substantial ground
    of appeal that would warrant an oral hearing by a panel of this court. It
    necessarily follows, in our view, from the absence of legal merit in the
    proposed appeal that the appeal is frivolous, as that term is used in s. 685(1)
    of the
Criminal Code
.

[22]

Second, we also consider the proposed appeal is
    vexatious.

[23]

As we have said, the proposed appeal lacks
    merit. It appears to have been initiated in pursuit of an unyielding course of
    harassment extending for more than a decade. After each failure, the appellants
    simply begin again with the same threadbare allegations before a different
    justice of the peace. They do not disclose their previous failures, indeed deny
    their existence by positive misstatement, calculated omission or both. They
    ignore the prohibition in s. 507.1(7) of the
Criminal Code
which
    requires new evidence as a condition precedent for a fresh pre-enquête after a
    prior refusal to issue process.

[24]

The appellants have engaged in an unremitting
    regimen of forum shopping clothed in deceit to make it appear as a matter of
    first impression. On seven previous occasions, they have been told that their
    allegations do not satisfy the standard required for the receipt of an
    information under s. 504 or for the issuance of process under s. 507.1. Yet
    they persist. In our view this warrants characterizing the proposed appeal not
    only as frivolous, but also as vexatious and not requiring an oral hearing
    before a panel of this court.

Conclusion

[25]

For these reasons, we are satisfied that the
    proposed appeal does not show a substantial ground of appeal, is both frivolous
    and vexatious and does not warrant an oral hearing before a panel of this
    court.

[26]

The appeal is dismissed.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.


