Monday, 11 January 2016

A person who represents himself has a fool for a client                      

There are times when people representing themselves try to sue everyone they think was responsible for their problems. This article is about such a person.  

Robert Bruce Grant was convicted by a jury for the charge of aggravated assault and subsequently, he was sentenced to prison. The Ontario Court of Appeal later quashed his conviction by his jury for the charge of aggravated assault. Unfortunately, by the time that court made its decision, he had already served 25 months of his sentence in prison. The Court of Appeal had ordered a new trial, but the charges were then withdrawn by the office of the prosecutor.

As to be expected, he was extremely upset that he spent that many months in prison for a crime he didn’t commit. He decided to sue those whom he believed were responsible for his imprisonment. In his statement of claim, Grant (who represented himself) sought damages against the Crown (the Province of Ontario) and the other defendants for malicious prosecution, negligence, breach of his Charter rights, abuse of process and intentional infliction of mental suffering. This article is involving his claim against the province of Ontario and the crown attorney that prosecuted him.

He went after the province since he alleged that the Province of Ontario was liable for the acts of the assistant Crown Attorney who prosecuted him during his criminal proceedings.      

Now here is what happens when a citizen who is not a lawyer represents himself.

The Crown brought in a motion to strike Grant’s claim for two reasons. First, the Crown was not the proper party for Mr. Grant’s claims and the appropriate party should have been the Attorney General. Second, even assuming that Mr. Grant had served the Attorney General, the statement of claim as presently pleaded did not disclose a reasonable cause of action.

The judge was prepared to permit Grant an opportunity to amend his claim. He didn’t get the chance to do it because he didn’t know that he had the opportunity to do so, Why didn’t he know he could amend his claim? He didn’t show up at the motion even though he was served a document giving him the place, date and time of the hearing.                                                        

I should point out that an amended claim can be refused in the clearest cases where there is no chance that the deficiencies in the original pleading (claim) can be cured by an amendment.

The motion judge said in part; “My conclusions, however, leave Mr. Grant in the position that his claim against the Crown should be dismissed, and should he wish to pursue an action against the Attorney General, he must first bring a motion to join the Attorney as a party defendant and properly plead his claims in light of the reasons that follow.”

Technically and substantively speaking, the Crown, i.e., Her Majesty the Queen in Right of Ontario is not liable for the torts of a crown attorney while the crown attorney discharges prosecutorial functions. Rather, crown attorneys are agents of the Attorney General pursuant Crown Attorneys Act, and the Attorney General is the proper party for an action against a crown attorney.      

The judge said, “Since the Crown (the Province) is not the proper defendant for claims arising from alleged prosecutorial misdeeds, it follows that Mr. Grant has not disclosed a reasonable cause of action against the Crown. It follows further that it makes no sense to grant leave to permit him to amend his statement of claim to plead against the Crown. Any such action must be against the Attorney General. The ultimate conclusion is that the Crown’s motion under rule 21.01 (1) should succeed and the statement of claim should be struck as against the Crown without leave to amend as against the Crown.”

The judge then said, “Addressing the second reason for dismissing the action, on the assumption that the Crown could be liable for the torts of Crown Attorneys, the present pleading does not disclose a reasonable cause of action on the basis of any of the causes of action alleged. In each instance, Mr. Grant fails to plead the constitute elements of the cause of action nor the material facts necessary to support his claims. Further, Mr. Grant’s pleading of malicious prosecution is substantially and substantively deficient.”

If Grant was entitled to proceed to trial, his statement of claim had to disclose facts, which, if taken as true, would show that the action of the prosecution had caused an infringement  of  his rights under  section 7 of the Charter that states;  “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

There are four elements to a claim of malicious prosecution: (1) the criminal proceeding must have been initiated by the defendant; (2) the proceedings must have been terminated in favour of the plaintiff; (3) the defendant must have shown to have prosecuted without reasonable and probable clause; and (4) the defendant must have been motivated by malice or a primary purpose other than that of carrying the law into effect.

If he hired a lawyer or at least sought assistance from Ontario Legal Aid, the lawyer representing him would obtain a copy of the decision of the Court of Appeal and if that court stated that his rights were denied, contrary to section 7 of the Charter and went into detail as why his rights were denied to him, that information could be entered into his claim and thusly fulfill his legal obligation to submit the facts supporting his allegation. This of course he never did. By representing himself, he didn’t think that far ahead.

The judge in his civil case also said in part, “A review of Mr. Grant’s pleading indicates that he may have properly pleaded the first two elements of a claim for malicious prosecution, but I find that he has not pleaded a reasonable cause of action with respect to the third and the fourth elements of the claim of malicious prosecution.”

The fourth element would be difficult to prove. Proving that the prosecutor acted with malice is extremely difficult to prove and yet this is what he was claiming.

Let me give you an example of a prosecutor acting against a defendant with malice. Many years ago, as a process server, I served a $5 million dollar claim against a woman who was sued for damages in a car accident in which she was at fault. Her husband, a retired boxer tried to drag me back to their apartment and force me to take the document back. I punched him in the face and knocked him out. The police officer accused me of striking him with a eight inch flashlight he found in my car. On the day of my trial, the prosecutor approached me and my lawyer and said that she would withdraw the charge of assault with a weapon and reduce it to a charge of simple assault. I declined the offer. At trial, the boxer’s wife and adult daughter were shown the flashlight before the trial began. I testified that I hit the man with my fist and nothing else. The wife and daughter said the same thing. The prosecutor knew this when she approached me and my lawyer with her offer. She acted with malice. Since I was acquitted, I didn’t sue her. I went after the police officer however. I filed a complaint against him and it wasn’t heard for five years. During that time, he couldn’t get promoted.  

The judge in Grant’s hearing brought about by the Province said in part; “If, however, the allegations in paragraphs 13 and 14 (of Grant’s claim) are taken to be against the Crown, then they would be deficient to establish the third element of the tort of malicious prosecution that the defendant prosecuted without reasonable and probable clause. In essence, this paragraph alleges that the complainant or victim of the assault was unreliable and not credible and should not have had her day in court. However, it is not for the Crown to predetermine whether the complainant would or should be believed, and the allegations in paragraphs 13 and 14 are insufficient to establish a reasonable cause of action against the prosecuting attorney.

As for the pleading of malice, Rule 25.06 (8) of the Rules of Civil Procedure requires that full particulars of malice must be pleaded. In the pleading in the immediate case, the only reference to malice is in paragraph 15 of the statement of claim which states: “The Defendant Her Majesty the Queen through the prosecutor willfully and maliciously made inflammatory remarks to the jury and vitiated a fair trial.

It wasn’t the province that made the remarks. It was the prosecuting attorney who made those remarks but Grant didn’t sue the prosecuting attorney.

For malice it must be shown that the prosecuting attorney had an improper purpose in pursuing the prosecution amounting to the perpetration of fraud on the process of criminal justice. The bald pleading in paragraph 15 is insufficient to rise to a pleading of malice.

The judge finally said, “In the immediate case, however, the deficiencies in pleading the various causes of action are pronounced. Further, the claim for negligence, even if it was properly pleaded, does not lie against a Crown Attorney.”

He granted the Crown’s motion and awarded costs of $3000 against Grant.

Despite the fact that a person should not represent himself, I did this twice. The first time was in the 1980s when I was charged with impersonating a peace officer. I was acquitted but the same crown that prosecuted me re the assault on the boxer, appealed the decision of the judge who acquitted me re the assault and impersonating a peace officer. Process servers are peace officers. I hired a lawyer to represent me at the appeal. He failed miserably so I filed my own appeal to the Ontario Court of Appeal. The respondent was the office of the Attorney General. His representative approached me a minute before the three appeal judges entered the court. He said that I was right. He also told the judges the same thing and they agreed.

The second time I represented myself was when I was sued for $5 million dollars for defamation with respect to something I said in my blog about a business woman. I prepared my own defence which basically said that it isn’t defamation if what I say in my blog is merely my opinion. She lost that case.

I have had the advantage of not only practicing law but also teaching law. Now if I was charged with a serious criminal offence, I wouldn’t hesitate to retain the services of a good criminal lawyer.      

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