Case information

Canadian Charter of Rights and Freedoms — Right to life, liberty and security of person — Fundamental justice — Estoppel — Crown taking carriage of private prosecution against police Constable and withdrawing assault charge — Recusal application challenging intervention of Crown dismissed — Motion for extension of time to appeal recusal decision dismissed — Subsequent application dismissed in its entirety on the basis of issue estoppel — Whether current application should be barred due to issue estoppel — Whether there is evidence on record of bias on part of Crown to substantiate order setting aside Crown’s withdrawal of assault charge — Whether legislative regime for private prosecutions violates s. 7 of Charter — Whether s. 7 of Charter protects rights of victims of crime to a fair and unbiased prosecution of charges issued against an alleged offender — Whether applicant’s s. 7 Charter rights been violated.

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The respondent, Constable Labreche arrested the applicant, Mr. Currie for public intoxication and resisting arrest. The charges were later withdrawn.

Mr. Currie commenced a private prosecution against Constable Labreche, claiming he was assaulted while in police custody. A justice of the peace found that a prima facie case had been made out and issued process compelling Constable Labreche to attend to answer the charge of assault. The Crown then intervened to assume carriage of the prosecution.

Mr. Currie brought an application in the Superior Court of Justice to challenge the actions of the Crown in taking over the private prosecution. The application was dismissed finding that the Crown had lawful authority to intervene in the private prosecution and that Mr. Currie had failed to demonstrate an abuse of process or bias.

The Crown, on notice to Mr. Currie and in an attendance in the provincial court, withdrew the assault charge on the basis that there was no reasonable prospect of conviction. Mr. Currie then moved for an extension of time for leave to appeal the order dismissing his application. The motion was dismissed.

Mr. Currie brought a second application in the Superior Court of Justice seeking a declaration that s. 507.1 of the Criminal Code and s. 11(d) of the Crown Attorney’s Act, R.S.O. 1990, c. C.49 be declared unconstitutional and the Attorney General’s intervention in the matter be set aside. The application was dismissed in its entirety on the basis of issue estoppel.

The Court of Appeal dismissed the appeal.