Court
File No.: 33399
IN THE SUPREME COURT OF CANADA
(Appealed from the Ontario
BETWEEN:
JENNIFER JEREMIAH
Applicant
(Appellant)
and
Respondents
(Respondents)
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 Ontario
Adding to the gravity of these errors the Court of
Appeal for 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
M5G
1Z6
Ernest J. Guiste
(416) 364-8908
(416)
364-0973 fax
Counsel
for the Applicant
TO: BORDEN LADNER GERVAIL LLP
Barristers &
Solicitors
M5H 3Y4
Doug Smith and
Rebecca Bush
(416) 367-6015
(416) 361-2725
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.
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