OPINION: Nothing frivolous or vexatious about my suit against Strait board employee
I’d like to weigh in on Martin Herschorn’s Jan. 23 opinion piece, “Nothing amiss in private prosecutions.”
I believe it is misleading, and potentially damaging to my character, for the Public Prosecutions Service to imply that my attempt at a private prosecution of a Strait regional school board employee was frivolous, vexatious, or an abuse of process — or, an attempt to settle some neighbourly dispute.
To my recollection, Crown attorney Mark Gouthro indicated to Supreme Court Justice Patrick Murray, and the open court in November, that the Crown did not hold the position that my private prosecution was frivolous, vexatious or an abuse of process, or that I was disgruntled neighbour, using the criminal process for revenge.
The letter from the director of public prosecutions, from my perspective, appears to imply differently.
The PPS can stop a private prosecution, both before and notably after the private prosecutor and witnesses have testified under oath before a judge.
Why stop the evidence from being put before a judge?
Further, if the Crown stops the prosecution before the court has heard witness testimony or evidence, does the Crown act in a way that is accountable to the public?
The Law Reform Commission of Canada’s “Working Paper 62-Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor” has answered this question with a “No.” The LRCC states:
“The present Code allows a stay to be entered before a decision has been made to issue process. In any case where a justice would have refused to issue process, this power is unnecessary. Further, in such a case the accused is denied the benefit of a judicial determination that there was no case to meet. In all cases the stay can be used to stop a private prosecution, thus depriving a private complainant of the right to bring an action. This will be accomplished by the clerk of the court entering a stay, acting on the instruction of the prosecutor. Thus the procedure need not take place publicly, and no explanation for the use of the power needs to be given. Particularly where the stay is entered before process is issued, the whole procedure need come under no public scrutiny. In our view, this is unsatisfactory, and steps should be taken to increase accountability in the use of the power.”
Prior to commencing this private prosecution, I obtained the opinion of lawyer Wayne MacMillan in Port Hawkesbury. Mr. MacMillan has practised criminal law for 38 years, has been a practising partner at EMM Law for 34 years, and acts as an agent for the federal Crown Prosecution Service.
Upon Mr. MacMillan’s examination of the evidence, he held the position (forwarded to the provincial Crown), that, “Once you review this matter you will appreciate that it is not really a complex case …. In our opinion (the SRSB employee’s) action amounted to fraud under the Criminal Code.”
Cpl. Karen Richardson of the Cheticamp RCMP viewed the same body of evidence (in a Power Point presentation) and on June 8, 2017, emailed me to say, “I reviewed your Power Point when we spoke last, and I’m of the opinion that your charge is supported.”
The PPS has missed the mark in its assessment of this matter. If it has material that supports the implication that my private prosecution was a backdoor attempt for the private prosecutor to use the criminal process to settle a neighbourly dispute, I welcome the opportunity to see that evidence in open court. I trust, in turn, the PPS would give me the opportunity to place all of my evidence before the court as well — an opportunity that has thus far been denied.
Jeremy Pike lives in Pleasant Bay, Inverness County.