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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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