Thank you for your email of today's date in response to my email of January 23, 2012. As your response appears to be a standard statement of the position of the Attorney General, I have taken the liberty of publishing your reply on my blog. Please advise if you intended your email to be confidential.
Although it appears you have pasted my email of February 7 into your reply, you have not addressed any of the issues raised in that email. Accordingly, I would appreciate a response to the particular circumstance raised in this case.
Per my blog post entitled Political Interference and the Statutory Responsibility of Fredericton City Council, there are limits to the unfettered discretion (i.e. independence) of the Crown Prosecutor. The Supreme Court of Canada in Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339 after extensively reviewing the independence of the Crown Prosecutor stated that:
That said, the general rule of judicial non-intervention in the prosecutorial exercise is not absolute. In the public law context, this Court in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, unanimously affirmed the availability of the doctrine of abuse of process in criminal proceedings, but (at p. 137) strictly limited judicial discretion to stay proceedings as a result of abuse of process to the "clearest of cases". In Power, L'Heureux-Dubé J. for a majority of this Court described the high threshold that must be met to justify judicial interference with a Crown attorney's decision to prosecute an accused (at pp. 615-16):
Where the factors exist that might justify judicial review of Crown prosecutor's discretion, I suggest to you that the Attorney General is not only permitted but has a duty to intervene to ensure that proceedings are not unfair to the point they are contrary to the interest of justice or likely to bring the administration of justice into disrepute. I am suggesting to you, in my email of yesterday, that precisely such factors manifestly exist in the case of Charles Leblanc.I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence [page365] that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice... . Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare. [Emphasis by the SCC]
The matter has not yet been submitted to the Crown Prosecutor, notwithstanding the suggestion by Mayor Woodside that the Crown Prosecutor had approved the issuance of a search warrant prior to the involvement of the Justice of the Peace. In these circumstances, where there is a real apprehension of bias, conflict of interest, abuse of process and manifest infringement on free speech and press freedom, it would be appropriate for the Attorney General to become involved at least to the extent to ensure appropriate procedures and safeguards have been put into place to avoid manifest or deliberate infringement of constitutional rights to free speech and a fair trial.
I am submitting to you that extraordinary circumstances exist that require additional scrutiny by your office. I would appreciate at least learning that you are aware of the extraordinary circumstances of this case and that you have considered the possibility of involvement under exceptions that have been established by the Supreme Court of Canada.
I am available at your convenience should you require additional particulars of this matter.
Yours truly,
Peter Dauphinee
On 08/02/2012 10:20 AM, Blais, Marie-Claude (Hon.) (JUS) wrote:
Mr. Peter Dauphinee
Dear Mr. Dauphinee:
Hon. Marie-Claude Blais, Q.C.
Minister of Justice and Consumer Affairs and
Attorney General)
Yours truly,
(Original signed by)
Hon. Marie-Claude Blais, Q.C.
Minister of Justice and Consumer Affairs and
Attorney General
/nao6907
This message is intended for the person to whom it is addressed and is to be treated as confidential or private communications. It must not be forwarded unless permission has been received from the originator. If you have received this message inadvertently, please notify the sender and delete the message. Then delete your response. Thank you for your cooperation.
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Ce message est destiné à la personne désignée dans la présente et il doit demeurer confidentiel. Il ne doit pas être réacheminé sans la permission de l’expéditeur. Si ce message vous a été envoyé par erreur, veuillez aviser l’expéditeur et effacer le message. Effacez ensuite votre réponse. Merci de votre collaboration.
Ce message est destiné à la personne désignée dans la présente et il doit demeurer confidentiel. Il ne doit pas être réacheminé sans la permission de l’expéditeur. Si ce message vous a été envoyé par erreur, veuillez aviser l’expéditeur et effacer le message. Effacez ensuite votre réponse. Merci de votre collaboration.
From: Peter Dauphinee [mailto:peter.dauphinee@gmail.com]
Sent: Wednesday, February 08, 2012 2:37 AM
To: Blais, Marie-Claude (Hon.) (JUS)
Cc: mail@ccla.org; Alward, David Hon. (PO/CPM)
Subject: Approval by Crown of Search Warrant of Charles Leblanc
Sent: Wednesday, February 08, 2012 2:37 AM
To: Blais, Marie-Claude (Hon.) (JUS)
Cc: mail@ccla.org; Alward, David Hon. (PO/CPM)
Subject: Approval by Crown of Search Warrant of Charles Leblanc
Dear Ms Blais,
I have not yet received any response from you to my earlier email raising concerns about the Fredericton Police Department's raid on Charles Leblanc on January 19, 2012.
I learned with alarm today that one of your Crown Prosecutors was involved in approving the search warrant before it was submitted to the Justice of the Peace. This was reported in today's Daily Gleaner, who quoted Mayor Woodside as follows:
I have not yet received any response from you to my earlier email raising concerns about the Fredericton Police Department's raid on Charles Leblanc on January 19, 2012.
I learned with alarm today that one of your Crown Prosecutors was involved in approving the search warrant before it was submitted to the Justice of the Peace. This was reported in today's Daily Gleaner, who quoted Mayor Woodside as follows:
"In this case, a charge is presented to the Crown and the Crown will then look at whatever evidence is there and then decide whether or not the case will go forward ... There was a search warrant sought from the Crown. The Crown then had to approve the search warrant, then present it back to the police with the approval and then present it to a judge, so there were two sets of eyes (reviewing it). That process was followed," the mayor said Monday.
If this is indeed the procedure that was followed, it is disturbing that any Crown Prosecutor in Canada would approve a search warrant based on s. 301 of the Criminal Code of Canada. That section is notable not only for having been found unconstitutional in four provinces (R. v. Finnegan, [1992] A.J. No. 1208 (Alta. Q.B.) ; R. v. Lucas, 1995 CarswellSask 130 (Sask. Q.B.) ; R. v. Gill, 1996 CarswellOnt 1314 (Gen. Div.); and R. v. Byron Prior,276 Nfld & PEIR 99) but also for the extraordinary ease with which this information can be located. Also, a glance at those cases quickly establishes that a different result is unlikely in any other Court.
It is also disturbing that the Crown Prosecutor would approve a search warrant to be executed by the Fredericton Police Force in such a little used section of the Criminal Code based solely on a complaint by a member of the Fredericton Police Force. On the face of it, there is a serious apprehension of bias. Further, the words alleged to constitute the libel are in the nature of schoolyard insults, typically not intended to be believed in any literal sense, and unlikely to sustain a criminal code charge of defamatory libel.
The participation of the Crown in this matter can only escalate a deeply troubling crisis, which now threatens to taint the independence of the Crown's office as it has tainted the impartiality of the police and civic authorities in Fredericton.
The facts about Charles Leblanc's treatment by the police over the past 6 years show a shocking pattern of bullying and intimidation against a man who lacks even the meanest resources to defend himself other than by exercising his passion of documenting his experiences and interests. In the course of this, Charles has become an effective journalist, He has interviewed dozens of Members of the Legislature and cabinet ministers, civic authorities, and citizens. Charles' widely recognized journalistic activities raise alarms about the seizure of his computer equipment and archives and suspicions that the effort to imprison and silence Charles is precisely due to his effectiveness as a journalist.
A close examination of the facts leading up to Charles' arrest will show that a small number of individuals associated with law enforcement have recurred over the years as antagonists of Charles. Aside from the impropriety of representatives of public security bodies placing themselves in an antagonistic relationship with a citizen, one of these individuals was the complainant named in the search warrant that was approved by one of your Crown Prosecutors and executed on January 19.
This is a very cursory sample of the pertinent facts which indicate bias, conflicts of private interests with public duties, and abuse of process, all matters which invite your intervention. In the interest of justice, all of the facts pertaining to the persecution of Charles Leblanc must be examined and appropriate actions taken forthwith to ensure that the grave injustices perpetrated against Charles Leblanc cease immediately and steps taken to ensure that he and other citizens are no longer subject to such arbitrary and callous treatment within this jurisdiction.
Yours truly,
--
It is also disturbing that the Crown Prosecutor would approve a search warrant to be executed by the Fredericton Police Force in such a little used section of the Criminal Code based solely on a complaint by a member of the Fredericton Police Force. On the face of it, there is a serious apprehension of bias. Further, the words alleged to constitute the libel are in the nature of schoolyard insults, typically not intended to be believed in any literal sense, and unlikely to sustain a criminal code charge of defamatory libel.
The participation of the Crown in this matter can only escalate a deeply troubling crisis, which now threatens to taint the independence of the Crown's office as it has tainted the impartiality of the police and civic authorities in Fredericton.
The facts about Charles Leblanc's treatment by the police over the past 6 years show a shocking pattern of bullying and intimidation against a man who lacks even the meanest resources to defend himself other than by exercising his passion of documenting his experiences and interests. In the course of this, Charles has become an effective journalist, He has interviewed dozens of Members of the Legislature and cabinet ministers, civic authorities, and citizens. Charles' widely recognized journalistic activities raise alarms about the seizure of his computer equipment and archives and suspicions that the effort to imprison and silence Charles is precisely due to his effectiveness as a journalist.
A close examination of the facts leading up to Charles' arrest will show that a small number of individuals associated with law enforcement have recurred over the years as antagonists of Charles. Aside from the impropriety of representatives of public security bodies placing themselves in an antagonistic relationship with a citizen, one of these individuals was the complainant named in the search warrant that was approved by one of your Crown Prosecutors and executed on January 19.
This is a very cursory sample of the pertinent facts which indicate bias, conflicts of private interests with public duties, and abuse of process, all matters which invite your intervention. In the interest of justice, all of the facts pertaining to the persecution of Charles Leblanc must be examined and appropriate actions taken forthwith to ensure that the grave injustices perpetrated against Charles Leblanc cease immediately and steps taken to ensure that he and other citizens are no longer subject to such arbitrary and callous treatment within this jurisdiction.
Yours truly,
--
From: Peter Dauphinee [mailto:peter.dauphinee@gmail.com]
Sent: Monday, January 23, 2012 5:32 PM
To: Blais, Marie-Claude (Hon.) (JUS)
Subject: Fredericton Police action against Charles Leblanc
Sent: Monday, January 23, 2012 5:32 PM
To: Blais, Marie-Claude (Hon.) (JUS)
Subject: Fredericton Police action against Charles Leblanc
Dear Attorney General Blais,
I am writing to draw your attention to some of the troubling aspects of the recent action taken by the Fredericton Police against Charles Leblanc.
The arrest last week of Charles Leblanc , and seizure of his computer equipment, constitutes an egregious abuse of state power, and infringes on Charles Leblanc's constitutional rights. Both the city and the police force are in a direct conflict of interest in the matter. Immediate steps to either end the matter or turn the investigation over to an outside body, namely, the RCMP must be taken. Further thoughts on the matter are contained in the attached.
I am writing to draw your attention to some of the troubling aspects of the recent action taken by the Fredericton Police against Charles Leblanc.
The arrest last week of Charles Leblanc , and seizure of his computer equipment, constitutes an egregious abuse of state power, and infringes on Charles Leblanc's constitutional rights. Both the city and the police force are in a direct conflict of interest in the matter. Immediate steps to either end the matter or turn the investigation over to an outside body, namely, the RCMP must be taken. Further thoughts on the matter are contained in the attached.
I hope before this goes any further you will intervene to ensure that the matter is placed on a sound and proper legal footing that respects Charles Leblanc's constitutional rights and the administration of justice in the province is not impugned by this abusive and unconstitutional action.
Yours truly,
Peter Dauphinee
--
Peter Dauphinee
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