R v. McMeekin, 2012 ABQB 472

Court of Queen ’ s Bench of Alberta Citation: R v. McMeekin, 2012 ABQB 472 Date: 20120719 Docket: 0607739P1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Gregory Andrew McMeekin Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Peter B. Michalyshyn _______________________________________________________ I. Introduction [ 1 ] Gregory Andrew McMeekin appeals a decision denying him costs in the within criminal proceedings.

For reasons which follow his appeal is dismissed. [ 2 ] McMeekin was charged with causing an animal to be in distress, contrary to section 2(1) of the Animal Protection Act , R.S.A. 2000, c. A-41 . The alleged offense date is June 8, 2006.

[ 3 ] The decision appealed from is reported at R. v. McMeekin , 2011 ABPC 359 . Johnson P.C.J. sets out the history relevant to these costs proceedings. (For further history of the same proceedings, amongst other things, see McMeekin v. Alberta (Attorney General) , 2012 ABQB 456 .) [ 4 ] McMeekin was first summonsed to appear in court July 26, 2006. In due course a trial date was set of November 14, 2007. That date was adjourned to enable McMeekin to obtain disclosure. A new trial date was set for June 30, 2008. On that date it was discovered a CART (Real Time Reporter) had not been scheduled.

A new trial date was set for March 17, 2009. McMeekin did not appear on that date. An ex parte trial proceeded and he was convicted. McMeekin successfully appealed the conviction. A new trial date was set for November 12, 2009. On that date the Crown sought and was allowed an adjournment owing to witness unavailability. A new trial date was set for April 27, 2010. Owing to the fact McMeekin wished to raise issues arising under the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, the presiding Commissioner declined jurisdiction and the proceedings were adjourned to June 24, 2010 before a Provincial Court Judge. [ 5 ] The trial began on June 24, 2010. It did not finish in the time allotted. Continuation dates were set for December 14th and 15th, 2010, and then again for June 20 - 22, 2011. [ 6 ] On June 20, 2011 the Crown closed its case and McMeekin ’ s case opened. Shortly thereafter a mistrial was declared. As stated by Judge Johnson, at p. 4 of her reasons: As a result of the numerous doubts expressed by Mr.

McMeekin about the ability of the Court to give him a fair trial, ultimately the Court declared a mistrial. [ 7 ] The proceedings were put over to July 21, 2011 to fix new trial dates. However, on July 13, 2011 the Crown directed the Clerk of the Court to stay the proceedings. [ 8 ] On July 22, 2011 McMeekin brought an application before Burrows J. for costs against the Crown. The application was dismissed. McMeekin sought leave to appeal to the Court of Appeal. His appeal was dismissed by Bielby J.A. on September 8, 2011, but with a direction he could apply for costs before the original trial judge: R. v.

McMeekin , 2011 ABCA 253 . [ 9 ] McMeekin then brought his costs application back to Judge Johnson. That application was heard on October 13, 2011. In reasons given November 29, 2011 the costs application was dismissed. Again, it is that decision he appeals to this court. [ 10 ] On December 29, 2011 McMeekin filed a “ motion record ” and “ affidavit ” in this court effectively appealing Judge Johnson's November 29, 2011 costs decision.

He seeks some $153,000 in costs for various steps in the proceedings back to 2006, and an order for payment of “ approx. $10,000,000" for alleged “ Actions relating to Prejudice, Abuse of Process, defamation, [and] Act [sic] of Malice … ” by a number of parties, not all of whom were parties to the within appeal. II. Issue [ 11 ] The only issue is whether Judge Johnson was in error when refusing to award costs against the Crown. III. Analysis

Standard of Review [12] McMeekin did not address the issue of standard of review in his written materials before this court, or in oral argument. [13] As argued by the Respondent, the standard of review on a question of law alone is correctness; the standard of review for afinding of fact and factual inferences drawn from those facts is palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 atpara. 25, [2002] 2 S.C.R. 235; the application of a legal standard to the facts is a question of law: R v. Shepherd, 2009 SCC 35 at para.20, [2009] 2 S.C.R. 527; as noted in R. v.

Griffin, 2011 ABCA 197 at para. 21, 510 A.R. 142, citing other appellate authorities, anappellate court would not ordinarily interfere with a discretionary decision to award costs, but it may do so: ... where it finds that the trial judge has misdirected himself as to the applicable law or made a palpable error in his assessment of thefacts,…the criteria for the exercise of judicial discretion are legal criteria, and their definition as well as a failure to apply them or amisapplication of them raises questions of law.

Costs against the Crown [14] Costs against the Crown are available to protect against abuse of process. Such awards however are made sparingly: R. v.Taylor, 2008 NSCA 5, 261 N.S.R. (2d) 247. After reviewing the cases, Saunders J.A. in Taylor concluded as follows at para. 54: Distilling the relevant legal principles from these several authorities leads me to three general conclusions. First, in criminal proceedings,where exceptional circumstances exist, a costs award may be made against the Crown, whether as a remedy pursuant to s. 24(1) of theCharter or pursuant to the court's own inherent jurisdiction.

Second, the prosecution's own misconduct may draw a costs sanction incriminal proceedings where, for example, its actions go well beyond inadvertence or carelessness, and amount to oppressive or otherwiseimproper conduct. Examples would include a Crown Attorney's failure to disclose evidence.

Third, whether seen as a remedy under s.24(1) of the Charter, or an exercise of the court's own inherent jurisdiction, the imposition of a costs award against the Crown in criminalproceedings will be an unusual order, reserved to situations which may be seen to involve circumstances of a marked and unacceptabledeparture from the reasonable standards expected of the prosecution, or if not involving prosecutorial misconduct, conduct by the policeor systemic failures so extraordinary as to be virtually unique in character… [Emphasis added.] [15] The Alberta Court of Appeal in Griffin also cites this paragraph from Taylor, then goes on to note R. v.

Neil, 2003 ABCA 45at paras. 6-8, 320 A.R. 274 which summarizes the law as requiring “rare”, “unique”, “never again to occur” circumstances to justify anaward of costs against the Crown.

Griffin cites Ontario v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 as authority that anaward of costs against the Crown is exceptional, and requires, at minimum, a marked and unacceptable departure from the reasonablestandards expected of the prosecution. [16] Applied to the case on appeal, as argued by the Respondent Judge Johnson reviewed the record of the proceedings beforeher, then made the following unassailable findings of fact: [30] … It is true that this matter has taken a great deal of time to bring to an end.

However, it is clear that the passage of time alone doesnot establish a breach of s. 11(b) [of the Charter]. As will be clear from Morin [R. v. Morin, (SCC), [1992] 1 S.C.R.771, 134 N.R. 321], there are various reasons for delays and there are inherent time requirements for any case. Here, the record shows avariety of reasons for why matters did not start or conclude on any given day. Some of those delays were related to resources, witnessesor time restrictions, some were attributable to Mr. McMeekin. [31] Indeed, the record will show that considerable resources were directed to attempting to assist Mr.

McMeekin, who was representinghimself.

[ 17 ] After appropriately instructing herself with regard to the law regarding costs against the Crown, Judge Johnson applied that law to the facts and concluded: [35] Here, the materials before the Court reveal no unacceptable behaviour or misconduct on the part of the prosecution.

There is an absence of the kind of evidence necessary to form the basis for an award of costs. [ 18 ] This is an unassailable application of the law to the facts. [ 19 ] Judge Johnson acknowledged McMeekin ’ s emphasis on Morin , but concluded, appropriately, that Morin does not support McMeekin ’ s cause for costs against the Crown. [ 20 ] Finally, Judge Johnson went on to note that even if McMeekin had made out a breach of s. 11(

b) of the Charter , the correct remedy under s. 24(1) would have been to stay the proceedings. [ 21 ] In none of this has McMeekin succeeded in showing that Judge Johnson misdirected herself as to the applicable law or made palpable errors in her assessment of the facts. [ 22 ] Accordingly the costs appeal is dismissed.

So too is the absurd plea for $10 million in damages. [ 23 ] McMeekin ’ s motion record and affidavit raise a number of other points worth mentioning. [ 24 ] McMeekin argues that Bielby J.A. commented in her September 8, 2011 decision denying leave to appeal that a “ grey area ” existed regarding costs against the Crown in the event of a mistrial/stay of proceedings. No such comments appear in Justice Bielby's decision. [ 25 ] McMeekin argues, erroneously, that Judge Johnson failed to consider Morin or s. 11 of the Charter . Granted, Judge Johnson did not address s. 12 of the Charter.

Section 12 , which prohibits cruel and unusual punishment, has no application in the circumstances as presented to Judge Johnson, or to this court. [ 26 ] McMeekin further argued Judge Johnson declared a mistrial only once she realized the Crown would fail to obtain a conviction. That argument is utterly unfounded on the evidence. [ 27 ] McMeekin further argued the Crown's decision to instruct a stay of proceedings deprived him of his right to a fair trial and to clear his good name and reputation.

McMeekin ’ s right to a fair trial in these stayed proceedings does not include a right to ‘ clear his good name and reputation ’ . [ 28 ] Particularly in his written materials before this court McMeekin raised unfounded and inappropriate allegations against the Crown, against third parties not party to the appeal, and indeed against the Provincial Court. [ 29 ] These, and other allegations were considered and similarly rejected in McMeekin v.

Alberta (Attorney General) , 2012 ABQB 456 at paragraphs 156-172 . [ 30 ] With regard only to the materials placed before me, McMeekin ’ s allegations would be sanctionable if made by an officer of the court. Yet as a self-represented litigant throughout, McMeekin appears to believe he enjoys a form of immunity from the

consequences of his misconduct. As noted by Shelley J. in McMeekin v. Alberta (Attorney General) , 2012 ABQB 456 , at paragraphs 200-201, and 209 : [200] My review of Mr. McMeekin's conduct in this action, and in others, satisfies me that is exactly what Mr. McMeekin has intended. His 'missteps' in this proceeding were not accidental, but intentional.

I can and do infer that he knows and intends that he will advance spurious claims, adopt vexatious litigation strategies, demand unreasonable (and impossible) remedies, breach court procedure and protocol, and attempt to soil the reputations of those he encounters without any valid basis. [201] I do not pretend to fully understand why Mr. McMeekin persists in this manner, but have no doubt that he knows very well that he is ignoring court procedure, court etiquette, and advancing spurious, exaggerated claims. That is not tolerable. Mr.

McMeekin has no right to force on an ever expanding cast of Defendants in this matter the cost and time commitments necessary to respond to his allegations and abuse of court processes. … [209] Mr. McMeekin's litigation history indicates he is not simply a self-represented litigant who has accidentally or inadvertently taken incorrect or invalid steps. Instead, he follows specific strategies to advance his frivolous and vexatious activities.

I can only conclude that his persistent misconduct is intentional. [ 31 ] Justice Shelley directed that a copy of her decision be provided to the Minister of Justice and Attorney General of Alberta for review under s. 23.1(2) of the Judicature Act, R.S.A. 2000, c. J-2. Doubtless a copy of the within decision dismissing McMeekin ’ s appeal regarding costs against the Crown will form part of that review. Heard on the 2 nd day of May, 2012. Dated at the City of Edmonton, Alberta this 19 th day of July, 2012. Peter Michalyshyn J.C.Q.B.A. Appearances: Julie Snowdon Crown Prosecutor ’ s Office

for the Crown Gregory Andrew McMeekin for the Accused