January 14, 2010
In the midst of the frenzy of Fantino coverage, there is a case taking place inside a Toronto court room today that is of great significance but has slipped quietly under the radar of most.
In July of 2009, Gary McHale won an unprecedented order of mandamus which combined with my own truly reshaped the landscape of private prosecution in Canada. A brief history of the significance of both cases is in order.
The case of Parkinson v R. 2009 focused on the discretion of a justice of the peace not to issue process on a charge once evidence had been presented to the court establishing each of the essential elements of a charge. I had established evidence for the court on each of the elements necessary to certify a charge of mischief, but the crown interfered and distracted the justice from the facts which ultimately lead to her decision not to certify the charge.
In the simplest terms, my order of mandamus established that once an informant (in that case myself) had shown some evidence to the court to substantiate the essential elements of the charge, the justice had no choice but to certify the charge despite crown objections.
The case of McHale v R. 2009 centered on the ability of the crown to stand up and stay a charge before the informant (in this case Gary McHale) had a chance to present their evidence to the court. The plan of course was that if Mr. McHale was not allowed to present his evidence, the justice would have no basis and no duty to certify a charge.
In plain terms the ruling in that case by Judge Marshall determined that the crown did not have any right to interfere with the ability of a private informant to present his or her evidence to the court. These 2 rulings were in my humble opinion a tidy one two punch that opened up doors for average people across Canada to lay a charge when they witnessed or were victims of a crime without the crown bringing politics into the court room.
We have contended from day one that it is the will of parliament to allow average people with no legal training nor knowledge of court procedures to seek justice in the courts instead of seeking what the legal system refers to as “self help”. It allows us all to take matters into our own hands when the status quo fails us in a legal, peaceful and democratic manner.
The office of the Attorney General was displeased with these rulings and decided to appeal McHale v R. A Cayuga judge however ruled that this matter should be heard by a panel of 3 judges which is taking place today at Osgoode Hall law school in Toronto.
That hearing is taking place this morning at 10am. Mr. McHale will have 20 minutes to present his case to the panel, and the crown will have 40 to present theirs. A ruling is not expected to be given tomorrow as there is an abundance of evidence and case law for the panel to study before making their decision but this is to the best of my knowledge the first time that a Canadian with no legal background has gone before a panel such as this to argue a case of this magnitude against the finest crown lawyer that your taxes can afford to send.
Gary is walking into a very impressive battle this morning having said very little to the general public about it. He’s too busy studying case law and planning a strategy that will uphold and ensure your rights, and frankly I think it requires recognition.
I for one believe this case to be of great importance and were I not prevented from attending by a conflicting appointment, I would be there front row center to proudly watch Gary make legal history yet again. Win or lose (and I believe he will win) congratulations are in order to Gary for having the fortitude to continue to stand up for what he knows is right at any cost. I’m very proud to have the privilege of calling him a friend.