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of Appeal had ordered a new trial, but the charges were then withdrawn by the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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