T-1267-98
Between:
STEVE JASLOWSKI,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent.
Let the attached version of the transcript of my Reasons delivered orally from the bench at Winnipeg, Manitoba, on August 12, 1998, be filed to comply with Section 51 of the Federal Court Act.
F.C. Muldoon
Judge
Ottawa, Ontario October 14, 1998
SUIT NO.T-1267-98
IN THE FEDERAL COURT OF CANADA
BETWEEN:
STEVE JASLOWSKI,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent.
-------------------------------------------------------------Transcript of decision given by Justice Muldoon on Wednesday
the 12th day of August, A.D., 1998. -------------------------------------------------------------
REPORTED BY:
Sherryl Puchlik, Official Examiner, Q.B.
1 1 WEDNESDAY, AUGUST 12TH, 1998 2
3 THE COURT: Regrets to say, because of Mr.
4 Jaslowski's sense of injustice and sentiment of being
5 wronged, that this application must succeed. The Attorney
6 General of Canada has not been officially involved in this
7 case. Mr. Jaslowski pins his hopes on Section 579 and 579.1
8 of the Criminal Code of Canada, a copy of which the Court
9 has supplied to him, and which is before this judge this 10 moment.
11 The provisions of the Criminal Code permit
12 the provincial Attorney General, who is the principal
13 Attorney General in Canada under the Criminal Code, the
14 principal Attorney General, to intervene and stay any
15 proceedings which are brought under the Criminal Code. That
16 would include proceedings for perjury or conspiracy and so
17 on. Indeed, such is what happened. The Attorney General of
18 Manitoba did direct a stay of the proceedings which were
19 instituted as a private prosecution by Mr. Jaslowski. The
20 Court of Queen's Bench of Manitoba upheld that intervention
21 and stayed. It was affirmed by the Manitoba Court of Appeal
22 and by the Supreme Court of Canada.
23 The Court might mention the case of O'Grady
24 v. White of 1983 or '84, a decision of the Federal Court of
25 Appeal rendered by Mr. Justice Urie in regard to the
2
1 operation of an application or a writ of mandamus. The
2 Crown, in this case the Applicant, cites Apotex v. the
3 Attorney General of Canada[1994] 1FC 742, a decision of the
4 Federal Court of Appeal, and [1994] 3SCR 1100, a decision of
5 the Supreme Court of Canada.
6 The provisions of the Criminal Code cited by
7 Mr. Jaslowski therefore, are provisions which permit the
8 Attorney General to stay proceedings, but do not pose an
9 obligation on the Attorney General to continue proceedings
10 or to prosecute. Section 579 deals with the Attorney
11 General of the province and gives that discretion to stay
12 proceedings. Note the word "may". "The Attorney General or
13 counsel instructed by him for that purpose may at any time
14 after any proceedings in relation to an accused or a
15 defendant are commenced, and before judgment, direct the
16 clerk or other proper officer of the Court to make an entry
17 on the record in the proceedings, that the proceedings are
18 stayed by his direction, and such entry shall be made
19 forthwith thereafter whereupon proceedings shall be stayed
20 accordingly and any recognizance relating to the proceedings
21 is vacated." Note how Parliament expresses that. The
22 Attorney General may; but having exercised that discretion
23 giving the Attorney General permission, then it is mandatory
24 that the proceedings are stayed as can be seen by the
25 expression of the word "shall". So the Attorney General may
3
1 direct that proceedings be stayed, and when the Attorney
2 General of the province does, proceedings shall be stayed,
3 and of course, that is not this Court's expression, that is 4 what Parliament enacted. Subsection 579 (1) of the Criminal 5 Code of Canada.
6 Subsection 2 of that section permits the
7 Attorney General to recommence those stayed proceedings
8 within one year, and again, it says in Subsection 2,
9 proceedings stayed in accordance with Subsection 1, may be
10 recommenced. Not shall be, may be. There is no duty or
11 obligation on the part of the Attorney General to recommence
12 or reopen such proceedings.
13 Now so far, the Attorney General of Canada is
14 not involved at all. But when we go to Section 579.1,
15 Subsection 1 says that "the Attorney General of Canada or
16 counsel instructed by him or her for that purpose, may
17 intervene in proceedings in the following circumstances ..."
18 may intervene, not shall, may intervene. The circumstances
19 are that the proceedings are in respect of a contravention
20 of a conspiracy or attempt to contravene or counselling the
21 contravention of an Act of Parliament or a revelation made
22 under that Act, other than this Act, meaning the Criminal
23 Code, or a regulation made under this Act. So in
24 proceedings taken under the Criminal Code of Canada, and
25 that is the statute under which Mr. Jaslowski instituted his
4
1 private prosecution, the Attorney General of Canada may not 2 intervene, only in relation to other Federal Acts, an Act of 3 Parliament or a regulation.
4 "B", The proceedings have not been instituted by
5 an Attorney General. Meaning a provincial Attorney General.
6 "C", judgment has not been rendered; and "D", the Attorney
7 General of the province in which the proceedings are taken
8 has not intervened. But of course in the case of Mr.
9 Jaslowski's private prosecution, the Attorney General of the
10 province has intervened. So clearly, even if the Attorney
11 General of Canada were minded to intervene in Mr.
12 Jaslowski's private prosecution, Parliament has blocked that
13 possibility of intervention.
14 In subsection 2 of Section 579.1, it says
15 that Section 579 applies with such modification as the
16 circumstances require to proceedings in which the Attorney
17 General of Canada intervenes pursuant to this section.
18 Section 579 applies in cases in which the Attorney General
19 of Canada intervenes pursuant to this section. The kind of
20 intervention which is described both in section 579 and
21 579.1 is intervention to stay proceedings. Not to
22 institute, not to carry on, not to prosecute, but to stay
23 proceedings, which is what happened when the Attorney
24 General of Manitoba stayed the proceedings in Mr.
25 Jaslowski's private prosecutions.
5
1 There is no comfort for Mr. Jaslowski, the
2 plaintiff in the action and respondent in this motion, in
3 those sections of the Criminal Code. Indeed, what those
4 sections of the Criminal Code, properly read and understood
5 mean, is that the Attorney General of Canada not only cannot
6 be compelled to institute proceedings, cannot be compelled
7 to recommence proceedings, but must not intervene in the
8 circumstances which are presented in this case.
9 Therefore, whether it be by statement of
10 claim or notice of application considering the Attorney
11 General of Canada to be a federal tribunal board or other
12 commission, commission or other board, the Attorney General
13 of Canada simply cannot be compelled in these circumstances
14 to do anything. And on that basis, the statement of claim,
15 even if converted to a notice of application, cannot
16 possibly succeed. So there is no point in the Court being
17 asked to convert, because it could not possibly succeed: and 18 that being the case, the statement of claim ought to be 19 struck.
20 Now it seems harsh sometimes when a person
21 comes before the Court not represented by counsel. But the
22 same law applies whether a person be represented by counsel
23 or not. Here it would be a short matter one supposes even
24 if Mr. Jaslowski had consulted legal aid counsel, that he
25 would be told, he would have been informed that this cannot
6
1 possibly succeed, and it cannot. So the same rules apply,
2 the same laws apply, whether a party be represented by
3 counsel or not. The Court has some sympathy for a party who
4 is not represented by counsel. Sympathy does not provide
5 for a different set of rules or a different set of laws. It
6 doesn't provide for two classes of litigants. Even the
7 greatest sympathy in the world does not. In that case, the
8 Crown has asked for costs and the Crown's application for
9 costs has merit. The amount suggested may seem a large
10 amount to Mr. Jaslowski, after all, five hundred dollars is
11 not to be sneezed at. But in terms of costs, it is a modest
12 amount, especially when it includes disbursements, as the
13 Crown has suggested it to be. So the Court will not award
14 the Crown a penny more than five hundred dollars, because it
15 has set its sights on five hundred dollars and that is where
16 it is stuck. But the Court will award the Crown costs
17 against Mr. Jaslowski in the form of a judgement for five
18 hundred dollars including disbursements in this matter, and
19 that Statement of claim is struck out as disclosing no
20 reasonable cause of action. Are there any questions?
21 MR. FRASER: No, My Lord. I found the
22 citation for O'Grady and White, it's in the bottom of -
23 THE COURT: Thank you.
24 MR. JASLOWSKI: One question Your Honour.
25 What about the Charter of Rights where I'm guaranteed
7
1 fundamental justice?
2 THE COURT: Yes, the Charter of Rights exits,
3 but point out to me where you're guaranteed success on this
4 application under the Charter of Rights? Where is the
5 fundamental justice requirement in this case, where has it
6 been violated? I think I have to ask myself, the Court has
7 to ask itself that question, and on the most favourable
8 construction of the Canadian Charter of Rights and Freedoms,
9 especially section 7 which is the fundamental justice
10 provision, this Court cannot see that that has been
11 violated. In other words, there is no merit in invoking
12 Section 7 of the Canadian Charter of Rights and Freedoms in
13 this case. The Court cannot see it, and knows that you feel
14 strongly Mr. Jaslowski. Litigants who lose their actions
15 usually do feel strongly, but as the Court has suggested, a
16 very short brief consultation with a lawyer would have
17 perhaps given you the information that there is no
18 reasonable cause of action described in your statement of 19 claim, including the Charter of Rights and Freedoms. Any 20 other questions?
21 MR. FRASER: My Lord, I will say that the
22 Crown's decision to ask for five hundred dollars inclusive
23 of disbursements was so not to make this unduly punitive,
24 but the Crown hopes that this matter is not pursued anymore,
25 and the Crown will say on the record that we won't be as
8
1 generous should it proceed any further.
2 THE COURT: Is that guaranteeing Mr.
3 Jaslowski that you will not enforce your judgment? Is your 4 last statement a guarantee that you will not enforce your 5 judgment?
6 MR. FRASER: No, I'm not saying I will not 7 enforce the judgment.
8 THE COURT: So he may be proceeding further 9 in this matter.
10 MR. FRASER: I'm saying that should this
11 matter be appealed, the Crown in preparation of it's
12 material in responding would not look so generously upon the 13 costs.
14 THE COURT: I understand, but we must not -
15 Mr. Fraser, it is not appropriate to try to intimidate Mr.
16 Jaslowski by making that declaration.
17 MR. FRASER: It's not an intimidation, My 18 Lord.
19 THE COURT: He's entitled to try and appeal
20 if he wishes, but of course, if he loses, he'll be subject
21 to costs. If he wins, he will get it all back.
22 MR. FRASER: Yes, of course.
23 THE COURT: And it's not for us to predict
24 what the Court of Appeal will do if he were to appeal. So,
25 let's try to leave it in that neutral atmosphere, that he is
9
1 entitled to appeal if he chooses. If he loses, then he has 2 to pay costs again, probably. It is within the discretion 3 of the Court of Appeal.
4 MR. FRASER: I apologize. It wasn't meant to
5 be an intimidation, simply an acknowledgement that the Crown 6 was aware that the costs being sought were below what might 7 be awarded otherwise.
8 THE COURT: I think so, yes, that's quite
9 right. Well, Court will rise. 10
11 (ADJOURNED GENERALLY AT 10:20 A.M.)
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1267-98
STYLE OF CAUSE: Steve Jaslowski v. Her Majesty the Queen
PLACE OF HEARING: Winnipeg, Manitoba DATE OF HEARING: August 12, 1998 REASONS FOR ORDER OF: Muldoon, J. DATED: October 14, 1998
APPEARANCES:
Steve Jaslowski Winnipeg Manitoba
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Winnipeg, Manitoba FOR RESPONDENT
SOLICITORS OF RECORD:
FOR PLAINTIFF
FOR DEFENDANT
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