Appeal Court decision shows every state failure not fatal to Crown case

By John L. Hill

Law360 Canada (April 27, 2023, 10:38 AM EDT) --
John L. Hill
John L. Hill
Barely a week goes by that someone on social media is not touting the latest conspiracy theory. So many people want to believe that the governments and the institutions that control our daily lives have been corrupted and are working stealthily against our interest.

Achille Currado, formerly a constable with the London Police Service, became convinced that a man he met online was working with a well-known Toronto criminal lawyer in an undercover investigation into police corruption that linked the London police chief with organized crime. It was all a hoax. In order to assist the fraudster, Currado released police information and used his influence to attempt to free a prisoner. Currado had believed con artist Darko Jovanovich’s assertion that major crime was going on with the support of his police department superiors. By being gullible and fully accepting the conspiracy theory, he failed to use proper procedures. Currado not only breached police policy but handed over a large sum of Currado’s own money unaware he was being duped and that nothing amiss was happening within the London Police Service except for Currado’s own misconduct.

Currado was found guilty of obstructing justice and breach of trust in September 2019. In February 2021, Currado was sentenced to 15 months of house arrest. According to a Feb. 13, 2021, article in the London Free Press, Currado retired from the force to access his pension and pay off debts incurred by dealing with the con artist.

The former police officer, however, did not leave quietly. After his conviction but before sentencing, Currado won the right to argue his disciplinary hearing was an abuse of process. He maintained the London Police Service had a conflict of interest in investigating one of their own and not turning the case over to the Ontario Provincial Police. A hearing of this allegation was held in December 2020 and in January 2021, Ontario Court Justice Robert Rogerson held no abuse of process occurred although the judge acknowledged Currado had himself been victimized. Currado appealed. On April 25, 2023, Justice David Doherty handed down the decision of a three-judge panel of the Court of Appeal (R. v. Currado 2023 ONCA 274).

The Court of Appeal was asked to consider if state conduct not amounting to unfair conduct to Currado could still run the risk of undermining the integrity of the judicial process and thus breach s. 7 of the Charter. This is referred to as the “residual” category for determining if abuse of process occurred (R. v. Babos 2014 SCC 16).

Currado had argued that the actions of the London Police Service in not turning the investigation over to the OPP until late in the game put the LPS in a conflict situation. The Appeal Court disagreed. It stated, “Not every state misstep or failure to comply with the various duties and obligations placed on the prosecution will be sufficiently serious or significant to justify a finding that the state conduct has so offended notions of fair play and decency as to undermine the integrity of the justice system.” This was in line with the conclusion reached by Justice Rogerson.

Nonetheless, at the Court of Appeal, Currado’s counsel said the abuse actually ran deeper than criticizing who does what when. The LPS had become a victim of Currado’s misconduct and thus, having dual status as an investigator and a victim, there was an inherent or institutional conflict that would inevitably compromise the integrity of the trial process. The LPS had filed a “victim impact statement.”

Nonetheless, the Court of Appeal rejected this argument. The police service was not a “victim” as the term is defined under s. 2 of the Criminal Code. Currado’s offences were against the administration of law and justice as governed by Part IV of the Code. The Crown is not required to prove harm or other loss. Furthermore, the use of the term “victim impact statement” is a harmless misnomer.

The court concluded that any reasonably informed person, looking at the matter realistically and practically, would not see any absence of fair play and decency that would trigger a finding of abuse of process. The LPS might have avoided this criticism by an earlier hand over of the investigation to the OPP. Nonetheless, Currado’s conviction and penalty stands.

People who buy into conspiracy theories may feel the deck is stacked against them by the deep state powers. Whether they be Jan. 6 rioters, Ottawa convoy protesters, or police constables who think their superiors have run amok, they must sooner or later accept that the rule of law applies to all and taking that law into one’s own hands can seldom be justified. Our Court of Appeal got it right.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

Photo credit / Yutthana Gaetgeaw ISTOCKPHOTO.COM 

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