Court File No.: 33399
IN THE SUPREME COURT OF
(Appealed from the
Court of Appeal) Ontario
NOTICE OF APPLICATION FOR LEAVE TO APPEAL
(R.40(1) of the Supreme Court Act)
TAKE NOTICE that the Applicant Ms. Jennifer Jeremiah will apply for leave to this Court pursuant to section 40(1) of the Supreme Court Act, R.S.C. 1985, c-S-26, as amended, E.S. 1985 (3rd) Supp., c.34, for an order granting leave to appeal to the Supreme Court of Canada from the order of the Ontario Court of Appeal dated August 25th, 2009, File No. C44442 dismissing the Applicant’s appeal against the dismissal of an action seeking , amongst other relief, damages under section 24 of the Canadian Charter of Rights and Freedoms before Mr. Justice Riopelle of the Ontario Superior Court
of Justice at the City of Toronto, in the Province of Ontario.
TAKE NOTICE that the said application for leave shall be made on the following grounds:
This case is of fundamental importance to all Canadians in that it touches on four issues of paramount importance in our system of justice, namely, freedom of speech, fault-based criminal liability(and s.264.1(1) of the Criminal Code) availability of legal redress against the state for the violation of fundamental rights and access to justice.
In this case – the Applicant – a 47 year of old woman with roughly 17 years of service with her employer was summarily dismissed and charged with one count of uttering a threat to cause serious bodily harm under the Criminal Code of Canada during a meeting with supervisors in which she was resisting management’s efforts to unilaterally change her schedule. She is alleged to have said, “I have a family and I have told them all about you and if anything should happen to me they will be waiting for you.”
The Respondent police officer who was called to take a report the day following the incident took statements from the immediate supervisor – who is the alleged target of the threat and another manager who was present at the meeting. He recorded the alleged words noted above in his memo book. As part of his investigation, he asked the complainant – “what do you think she meant by those words ?” The complainant replied that – they may wait for me after work and beat me up or come and burn my house down.” The complainant also wrote a contemporaneous recording of the alleged words spoken along with a statement prepared for her employer’s human resources department. The Respondent officer did not inquire into and did not receive these versions as part of his investigation. Each version of the complainant’s three statements had a different version of the alleged words spoken.
While conducting pre-trial screening procedures a Crown Attorney wrote the following to the Officer in Charge:
“Al, this could mean anything. e.g they’re driving
her to illness & her family might be there to sue the Bay
& supervisors – So is this a threat to sue them ? In context,
, wouldn’t a judge have a doubt – How do you know that it
is a threat to cause bodily harm ? Should this be peace
bonded ? ( at most ?)
After P.C. Elliot took the statement he caused an Occurrence
to be opened on the Police service computer system P.C.
Herman was ordered to investigate the matter. He determined
that no offence was committed and he closed the Occurrence.
He called the complainant and advised her of this fact.
P.C. Elliott, who, initiated the Occurrence – had went on leave
following its submission. On his return he proceeded
to arrest and charge the Applicant without checking the police
computer system to see that the matter was closed.
The criminal charge against the Applicant was withdrawn. However, she lost her employment on account of a release condition prohibiting her from attending at the place of work or communicating with her supervisors.
Her civil action seeking redress against the police respondents was dismissed on account of the serious and fundamental errors of law made by the trial judge and which errors were hollos bolus accepted by the Court of Appeal for
Adding to the gravity of these errors the Court of Appeal for
went on to overturn the trial judges decision not to order costs against the
Applicant on account of her impecueunosity and ordered her to pay $40,000 to
the police respondents for the trial and $7,500 for the appeal. Ontario
2. Did the charge of uttering a threat to cause bodily harm under section 264.1(1) under the Criminal Code of Canada violate either the Applicant’s right to free speech or her rights under section 15 of the Charter ?
2a. With respect to the subject offence under the Code, how does an innocent meaning to alleged words spoken impact on a police officer’s formulation of reasonable and probable grounds ?
2b. With respect to the subject offence under the Code, how does the absence of any reference to bodily harm impact on a police officer formulation of reasonable and probable grounds ?
3. In the context of a civil action seeking redress for malicious prosecution, negligent investigation and breach of Charter rights flowing from a charge of uttering a threat to cause bodily harm under the Code – where as here – what was actually said is in dispute not only by the Applicant but on account of other statements or recordings made by the complainant – is it correct law for the trial judge to limit the jury to what the police officer wrote in his memo book ?
4. Is our current system of costs to the successful party unsuitable for litigation involving claims by citizens against state actors who allegedly violate their fundamental rights ?
4b. What role ought evidence of impecuniosity play in the adjudication of such costs ?
ERNEST J. GUISTE.
ERNEST J. GUISTE
Trial & Appeal Lawyer
Ernest J. Guiste
(416) 364-0973 fax
Counsel for the Applicant
TO: BORDEN LADNER GERVAIL LLP
Barristers & Solicitors
Doug Smith and Rebecca Bush
Solicitors for the Police Respondents
AND TO: The Registrar of this Court
NOTICE TO THE RESPONDENT(S): A respondent may serve and file a memorandum in reply to this application for leave within 20 clear days after service of the application. If no reply is filed in that time, the Registrar will submit this application for leave to the Court for consideration pursuant to section 43 of the Supreme Court Act.
*Ernest J. Guiste frequently litigates employment cases where alleged criminal conduct forms the basis for the dismissal.