Thorburn v. R., (2010) 500 A.R. 1 (QB)

• Judge: Marceau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 19, 2010
• Citations: (2010), 500 A.R. 1 (QB);2010 ABQB 390

Thorburn v. R. (2010), 500 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JN.109

Michael Mark Shawn Thorburn (appellant) v. Her Majesty the Queen (respondent)

(100046275X1; 2010 ABQB 390)

Indexed As: Thorburn v. R.

Alberta Court of Queen's Bench

Judicial District of Peace River

Marceau, J.

June 4, 2010.

Summary:

Thorburn and Penner were involved in a personal dispute. An information was sworn that led to charges against Penner. The Crown stayed the charges. Thorburn filed two private informations alleging that 1. Penner had engaged in criminal harassment (Criminal Code, s. 264) of Thorburn and breached a recognizance order (Code, s. 145(3)), and 2. by staying charges against Penner, the Attorney General Redford and Alberta Justice lawyers Stilwell, Brydon, and Sherwin had conspired and obstructed justice (Code, s. 139(2)), and breached Thorburn's Charter rights under s. 7. The hearing judge ordered that 1. no process issue on either private information, and 2. the informations were frivolous, vexatious, and an abuse of the court process, and consequentially that the courts would not accept any private informations sworn by Thorburn without leave of himself. Thorburn appealed.

The Alberta Court of Queen's Bench confirmed the hearing judge's decision to not issue process for the private informations. Subject to the relevant parties' submissions, the hearing judge's order restricting Thorburn's laying of private informations under ss. 504 and 507.1(1) of the Code was quashed. The matter was returned to the Provincial Court for a new hearing to determine whether future s. 507.1 hearings for any further private informations laid by Thorburn should be heard by a specific judge.

Actions - Topic 2601

Duplicitous or vexatious actions - General - Thorburn and Penner were involved in a personal dispute - An information was sworn that led to charges against Penner - The Crown stayed the charges - Thorburn filed two private informations alleging that 1. Penner had engaged in criminal harassment (Criminal Code, s. 264) of Thorburn and breached a recognizance order (Code, s. 145(3)), and 2. by staying charges against Penner, the Attorney General Redford and Alberta Justice lawyers Stilwell, Brydon, and Sherwin had conspired and obstructed justice (Code, s. 139(2)), and breached Thorburn's Charter rights under s. 7 - The hearing judge ordered that 1. no process issue on either private information, and 2. the informations were frivolous, vexatious, and an abuse of the court process, and consequentially that the courts would not accept any private informations sworn by Thorburn without leave of himself - The Alberta Court of Queen's Bench conditionally quashed the hearing judge's order restricting Thorburn's laying of private informations under ss. 504 and 507.1(1) of the Code - The court had grave reservations in relation to the conclusion that provincial legislation, here s. 23.1(1) of the Judicature Act, could authorize a provincial court judge to restrict a person's capacity to lay private informations under ss. 504 and 507.1 of the Code for the following reasons - First, there was an issue in relation to the language of the hearing judge's order, that "leave" was required for Thorburn to swear a private information before a justice per s. 504 of the Code - Section 23.1(1) of the Judicature Act also spoke of a litigant requiring "leave of the Court." - "Leave", in a legal context, meant "permission - Section 504 of the Code did not provide discretion to a justice who received an information in writing and under oath - Second, there seemed to be no basis in s. 504 for a direction that a specific justice of the peace or provincial court judge be the sole justice to whom a person could lay and swear a private information - Third, the federal government had exclusive jurisdiction over criminal matters under s. 91 of the Constitution Act - Thus there was both a question of paramountcy, whether the Judicature Act was incompatible and contrary to the Criminal Code, and whether the Judicature Act extended its authority into jurisdiction that was exclusive to Parliament - If any of the three relevant parties (Thorburn, the Federal and Alberta governments) wished to raise the constitutional issue, they had to do so with proper notice within six months of the date of the judgment - Otherwise the judgment would stand - See paragraphs 45 to 68.

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - [See Actions - Topic 2601 ].

Constitutional Law - Topic 6471

Federal jurisdiction (s. 91) - Criminal law - "Procedure in criminal matters" - General - [See Actions - Topic 2601 ].

Criminal Law - Topic 4264.1

Procedure - Indictment - Preferring of indictments - Private prosecutions - The Alberta Court of Queen's Bench discussed the processes pursuant to which an individual could lay a private information under ss. 504 and 507.1 of the Criminal Code - See paragraphs 14 and 15.

Criminal Law - Topic 4264.1

Procedure - Indictment - Preferring of indictments - Private prosecutions - Section 507.1 of the Criminal Code allowed the provincial court judge evaluating a private information to refuse to issue process where there was no "... case ... made out ..." - Section 507.1 required the hearing judge to hear and evaluate evidence of the deponent and the Crown, and decide whether to issue process on that basis - It did not expressly address vexatious or mentally disordered deponents - The Alberta Court of Queen's Bench held that there existed a residual authority on the s. 507.1 hearing judge to test the mental state and intentions of the informant, and reject a private information where the court concluded the deponent of the information as mentally disordered or vexatious - See paragraphs 24 to 30.

Criminal Law - Topic 4264.1

Procedure - Indictment - Preferring of indictments - Private prosecutions - Thorburn and Penner were involved in a personal dispute - An information was sworn that led to charges against Penner - The Crown stayed the charges - Thorburn filed two private informations alleging that 1. Penner had engaged in criminal harassment (Criminal Code, s. 264) of Thorburn and breached a recognizance order (Code, s. 145(3)), and 2. by staying charges against Penner, the Attorney General Redford and Alberta Justice lawyers Stilwell, Brydon, and Sherwin had conspired and obstructed justice (Code, s. 139(2)), and breached Thorburn's Charter rights under s. 7 - The hearing judge ordered that no process issue on either private information - With respect to the Penner private information, the hearing judge concluded that the actions alleged were too trivial to constitute breach of a recognizance - The judge also investigated Thorburn's mental state and concluded that Thorburn's interpretation of the events was the product of disordered and obsessive thinking - Thorburn had laid the private information against Penner for improper purposes - Thorburn appealed, asserting that (1) the hearing judge failed to properly consider the evidence he filed and reviewed in support of his allegations; (2) the hearing judge was inappropriately influenced by the fact that the Crown had stayed charges against Penner based on the same or similar allegations and events; and (3) the materials he provided were not accepted as exhibits by the court - The Alberta Court of Queen's Bench confirmed the hearing judge's decision to not issue process for the Penner private information - Thorburn argued it was significant that the hearing judge had not accepted the documentary evidence as exhibits, however that process was not mandated by the procedure set out in s. 507.1, nor was it required - Moreover, the evidence before the court supported the hearing judge's conclusions - See paragraphs 31 to 33.

Criminal Law - Topic 4264.1

Procedure - Indictment - Preferring of indictments - Private prosecutions - Thorburn and Penner were involved in a personal dispute - An information was sworn that led to charges against Penner - The Crown stayed the charges - Thorburn filed two private informations alleging that 1. Penner had engaged in criminal harassment (Criminal Code, s. 264) of Thorburn and breached a recognizance order (Code, s. 145(3)), and 2. by staying charges against Penner, the Attorney General Redford and Alberta Justice lawyers Stilwell, Brydon, and Sherwin had conspired and obstructed justice (Code, s. 139(2)), and breached Thorburn's Charter rights under s. 7 - The hearing judge ordered that no process issue on either private information - With respect to the Redford et al. private information, the hearing judge found that Thorburn had failed to allege a factual matrix that supported the alleged obstruction of justice, conspiracy and breach of s. 7 Charter security of the person rights - Thorburn appealed - The Alberta Court of Queen's Bench confirmed the hearing judge's decision to not issue process for the Redford et al. private information - Thorburn's allegations and evidence fell short of proof of obstruction of justice, criminal conspiracy and breach of s. 7 Charter security of the person rights - See paragraphs 34 to 43.

Criminal Law - Topic 4264.1

Procedure - Indictment - Preferring of indictments - Private prosecutions - Thorburn and Penner were involved in a personal dispute - An information was sworn that led to charges against Penner - The Crown stayed the charges - Thorburn filed two private informations alleging that 1. Penner had engaged in criminal harassment (Criminal Code, s. 264) of Thorburn and breached a recognizance order (Code, s. 145(3)), and 2. by staying charges against Penner, the Attorney General Redford and Alberta Justice lawyers Stilwell, Brydon, and Sherwin had conspired and obstructed justice (Code, s. 139(2)), and breached Thorburn's Charter rights under s. 7 - The hearing judge ordered that 1. no process issue on either private information, and 2. the informations were frivolous, vexatious, and an abuse of the court process, and consequentially that the courts would not accept any private informations sworn by Thorburn without leave of himself - The Alberta Court of Queen's Bench quashed the hearing judge's order restricting Thorburn's laying of private informations under ss. 504 and 507.1(1) of the Code - The common-law and the text of s. 507.1(1) of the Criminal Code implicitly provided authority by which a judge could seize himself of all future s. 507.1 hearings that flowed from the private informations of a particular person - Rather than a general "leave" requirement, the hearing judge had authority to make a more restricted order which designated himself or another provincial court judge to hear Thorburn's future s. 507.1 hearings - The hearing judge had jurisdiction to restrain Thorburn on that basis - However, the hearing judge declared Thorburn a vexatious litigant without notice to Thorburn or without asking for submissions from either party on that point - On this basis the court concluded that the hearing judge breached the requirements of natural justice by concluding Thorburn was a vexatious litigant and requiring Thorburn to obtain leave prior to filing any further private informations - The court issued an order of mandamus instructing the Provincial Court to hold a separate hearing with a different judge to evaluate whether Thorburn was a vexatious litigant and should be restricted in some manner from filing private informations - See paragraphs 69 to 87.

Criminal Law - Topic 7142

Extraordinary remedies - Mandamus - When available - [See fifth Criminal Law - Topic 4264.1 ].

Cases Noticed:

R. v. Blythe (1973), 13 C.C.C.(2d) 192 (B.C.S.C.), refd to. [para. 11].

Fry v. R., [1998] B.C.A.C. Uned. 73; 38 R.F.L.(4th) 328 (C.A.), refd to. [para. 11].

Grinshpun v. R. (2004), 205 B.C.A.C. 110; 337 W.A.C. 110; 246 D.L.R.(4th) 428; 2004 BCCA 579, leave to appeal refused (2005), 341 N.R. 198; 220 B.C.A.C. 320; 362 W.A.C. 320 (S.C.C.), refd to. [para. 11].

R. v. Parkinson (J.), [2009] O.T.C. Uned. 78; 2009 CarswellOnt 157 (Sup. Ct.), refd to. [para. 11].

R. v. Halik (M.), [2010] O.T.C. Uned. 125; 2010 ONSC 125, refd to. [para. 11].

R. v. Carson (G.) - see Canadian Broadcasting Corp. v. New Brunswick (Attorney General).

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81; 139 D.L.R.(4th) 385, refd to. [para. 12].

R. v. Whitmore and Carmichael (1989), 35 O.A.C. 373; 51 C.C.C.(3d) 294 (C.A.), folld. [para. 22].

R. v. Edge (C.) (2004), 355 A.R. 233; 2004 ABPC 55, refd to. [para. 22].

Aasland Informations, Re (2000), 186 Man.R.(2d) 161; 54 W.C.B.(2d) 198 (Prov. Ct.), refd to. [para. 26].

R. v. Friesen (F.), [2008] O.T.C. Uned. 642; 229 C.C.C.(3d) 97; 76 W.C.B.(2d) 606 (Sup. Ct.), refd to. [para. 29].

R. v. Scully, [2007] O.J. No. 2837 (Sup. Ct.), refd to. [para. 29].

Kostuch v. Alberta (Attorney General) (1995), 174 A.R. 109; 102 W.A.C. 109; 128 D.L.R.(4th) 440 (C.A.), leave to appeal denied (1996), 204 N.R. 72; 193 A.R. 160; 135 W.A.C. 160 (S.C.C.), refd to. [para. 38].

R. v. Ng (K.-F.) (2003), 327 A.R. 215; 296 W.A.C. 215; 2003 ABCA 1, leave to appeal denied (2004), 330 N.R. 396; 363 A.R. 399; 343 W.A.C. 399 (S.C.C.), refd to. [para. 39].

Stanny, Re (2008), 462 A.R. 347; 2008 ABPC 305, affd. (2009), 484 A.R. 163; 10 Alta. L.R.(5th) 114; 2009 ABQB 161, consd. [para. 46].

Manitoba (Attorney General) v. Lindsay (1997), 120 Man.R.(2d) 141; 13 C.P.C.(4th) 15 (Q.B.), refd to. [para. 50].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93; 53 D.L.R.(4th) 1, refd to. [para. 50].

Manitoba (Attorney General) v. Lindsay (2000), 145 Man.R.(2d) 187; 218 W.A.C. 187; 2000 MBCA 11, refd to. [para. 50].

Stanny v. Alberta - see Stanny, Re.

Stanny, Re (2009), 484 A.R. 163; 10 Alta. L.R.(5th) 114; 2009 ABQB 161, refd to. [para. 51].

Reference Re Young Offenders Act and Youth Court Judges, [1991] 1 S.C.R. 252; 121 N.R. 81; 89 Nfld. & P.E.I.R. 91; 278 A.P.R. 91, refd to. [para. 61].

Quebec (Attorney General) v. Lechasseur, [1981] 2 S.C.R. 253; 38 N.R. 516; 128 D.L.R.(3d) 739, refd to. [para. 62].

R. v. Shubley, [1990] 1 S.C.R. 3; 104 N.R. 81; 37 O.A.C. 63; 65 D.L.R.(4th) 193, refd to. [para. 63].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 63].

Lupyrypa v. R. (2008), 451 A.R. 245; 2008 ABQB 427, refd to. [para. 71].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 81].

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101; 144 D.L.R.(4th) 577, refd to. [para. 81].

Devon Canada Corp. v. Energy and Utilities Board (Alta.), [2003] A.R. Uned. 183; 3 Admin. L.R.(4th) 154; 2003 ABCA 167, refd to. [para. 81].

Del Bianco et al. v. 935074 Alberta Ltd. et al. (2008), 429 A.R. 94; 421 W.A.C. 94; 2008 ABCA 124, refd to. [para. 82].

Kallaba v. Bylykbashi (2006), 207 O.A.C. 60; 265 D.L.R.(4th) 320 (C.A.), leave to appeal refused (2006), 358 N.R. 394; 227 O.A.C. 394 (S.C.C.), refd to. [para. 82].

Pawlus v. Pope et al. (2004), 357 A.R. 347; 334 W.A.C. 347; 2004 ABCA 396, refd to. [para. 83].

Hillcox v. Morrow (1995), 175 A.R. 141; 57 A.C.W.S.(3d) 728 (Q.B.), refd to. [para. 83].

O'Neill et al. v. Deacons et al. (2007), 441 A.R. 60; 2007 ABQB 754, refd to. [para. 84].

Haljan v. Serdahely Estate - see Serdahely Estate, Re.

Serdahely Estate, Re (2008), 453 A.R. 337; 2008 ABQB 472, refd to. [para. 84].

Del Bianco et al. v. 935074 Alberta Ltd. et al., [2007] A.R. Uned. 556; 156 A.C.W.S.(3d) 786; 2007 ABQB 150, refd to. [para. 84].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 504 [para. 55]; sect. 507.1 [para. 69].

Judicature Act, R.S.A. 2000, c. J-2, sect. 23.1(1) [para. 47].

Counsel:

Michael Mark Shawn Thorburn, for himself;

Jeff Morrison (Alberta Justice), for the respondent.

This case was heard on January 19, 2010, by Marceau, J., of the Alberta Court of Queen's Bench, Judicial District of Peace River, who delivered the following reasons for judgment on June 4, 2010.