Court of Appeal for Ontario
Date: 20211215 Docket: C70004
Judges: Gillese, Brown and Coroza JJ.A.
Between Her Majesty the Queen Respondent and Ali Amiri Appellant
Docket: C70051
And Between Mario Paiva and Michael Schoenborn Respondents (Applicants) and Ali Amiri Appellant (Respondent)
Counsel: Ali Amiri, acting in person Kevin Rawluk, for the respondent Crown Lynda Morgan, for the respondent Mario Paiva Gideon Forrest and Christopher Casher, for the respondent Michael Schoenborn and Legal Aid Ontario
Heard: in writing
On appeal from the judgment of Justice David E. Harris of the Superior Court of Justice, dated November 12, 2021, with reasons reported at 2021 ONSC 7478, dismissing an application for certiorari from the order of Justice Paul F. Monahan, dated August 16, 2021.
On appeal from the judgment of Justice Bruce Durno of the Superior Court of Justice, dated November 19, 2021, granting applications for certiorari.
Reasons for Decision
Overview
[1] The appellant, Ali Amiri, is charged with two counts of threatening to kill his wife. He is self-represented. His summary trial in the Ontario Court of Justice (“OCJ”) is scheduled to start next week, on December 20, 2021.
[2] Mr. Amiri has filed two appeals with this court from decisions of the Superior Court of Justice:
Appeal C70004 appeals the November 12, 2021 decision of Harris J. that dismissed the appellant’s application for certiorari to quash the order of Monahan J. of the OCJ made August 16, 2021;
Appeal C70051 appeals the November 19, 2021 decision of Durno J. that granted applications for certiorari brought by Mario Paiva and Michael Schoenborn to quash the subpoenas issued to secure their evidence.
[3] The respondent Crown seeks a summary determination and dismissal of the appeals under s. 685(1) of the Criminal Code, R.S.C., 1985, c. C-46, which provides:
685 (1) Where it appears to the registrar that a notice of appeal, which purports to be on a ground of appeal that involves a question of law alone, does not show a substantial ground of appeal, the registrar may refer the appeal to the court of appeal for summary determination, and, where an appeal is referred under this section, the court of appeal may, if it considers that the appeal is frivolous or vexatious and can be determined without being adjourned for a full hearing, dismiss the appeal summarily, without calling on any person to attend the hearing or to appear for the respondent on the hearing.
[4] The Registrar has directed both appeals to this panel for consideration.
[5] The general rule is that criminal trials should not be fragmented by interlocutory proceedings. With limited exceptions (which do not apply here), there are no interlocutory appeals in criminal proceedings. The use of certiorari is tightly limited by the Criminal Code and the common law to ensure that it is not used to do an “end-run” around the rule against interlocutory appeals. As a result, certiorari in criminal proceedings is available to parties only for a jurisdictional error by a provincial court judge, which occurs where the court fails to observe a mandatory provision of a statute or where a court acts in breach of the principles of natural justice: R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at paras. 10, 11, 20 and 23.
[6] An appeal from an order dismissing or granting an application for certiorari must raise such a failure or breach as a ground of appeal, both of which involve a question of law: Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535, at para. 23. Accordingly, s. 685 of the Criminal Code applies to the appellant’s appeals.
Appeal C70004
[7] In his ruling dated August 16, 2021, Monahan J. of the OCJ made procedural orders in respect of the hearing scheduled for the following week of the appellant’s third-party records application. Monahan J. permitted a witness to testify remotely at that hearing pursuant to Criminal Code s. 714.1 and appointed counsel for the complainant at the third-party records application, leaving it to the application judge to determine whether, when, and to what extent the complainant would have a right to make submissions on that application.
[8] The appellant applied before Harris J. for certiorari to quash the decision of Monahan J. By reasons dated November 12, 2021, Harris J. dismissed the application, concluding that the appellant’s arguments “are devoid of merit” and “that this is not a case in which the extraordinary remedy discretion ought to be exercised” as “this application is little more than an attempt to make mischief with the Applicant’s trial.”
[9] The appellant appeals from that decision. In his notice of appeal, the appellant contends that Harris J. failed to consider the existence of a legal error “namely under s.7 of [the] Charter that protects the right to procedural fairness” and failed to exercise his discretion judicially in light of the evidence.
[10] The appellant’s appeal from the order of Harris J. is now moot as the trial judge has decided the issues: on November 22, 2021, the trial judge, Kranjc J., decided the application to appoint counsel to conduct the cross-examination of the complainant; on December 6, 2021, the trial judge dismissed the appellant’s third-party records application.
[11] Given the mootness of the appeal and the absence of any special circumstance that would merit hearing a moot appeal, it is now “frivolous or vexatious and can be determined without being adjourned for a full hearing” within the meaning of s. 685. Accordingly, we dismiss Appeal C70004.
Appeal C70051
[12] In support of his third-party records application, the appellant secured the issuance of two subpoenas by a judge of the OCJ. The first was directed at Mario Paiva, the family litigation lawyer for the appellant’s wife, the complainant in the charges. The second sought evidence from Michael Schoenborn, an employee of Legal Aid Ontario (“LAO”) who conducted a mediation of the issues in the family law litigation between the appellant and his wife. Both subpoenas required the witnesses to bring their sealed files to court.
[13] The first stage of the appellant’s third-party records application was scheduled to be heard on November 22, 2021. Messrs. Paiva and Schoenborn each applied for certiorari to quash the subpoenas. Durno J. heard the applications on November 10, 2021.
[14] On November 19, 2021, Durno J. released reasons granting both applications and quashing the subpoenas. He quashed the subpoena for Mr. Paiva on the basis that the evidence sought was protected by solicitor-client privilege and the appellant’s “attempts to show the crime/fraud exception are doomed to failure.” He quashed the subpoena for Mr. Schoenborn on the basis that provincial legislation – s. 39 of the Legal Aid Services Act, 2020, S.O. 2020, c. 11, Sched. 15 - “precludes the witness and the file the applicant seeks from being subpoenaed.”
[15] On November 22, 2021, the trial judge, Kranjc J., held a Step 1 hearing on the appellant’s third-party records application, but only in respect of the appellant’s request for certain phone records of the complainant. The trial judge noted that the subpoenas to Messrs. Paiva and Schoenborn had been quashed, so that part of the application did not proceed.
[16] In his November 23, 2021 notice of appeal to this court (incorrectly styled as a notice of application for certiorari & mandamus), the appellant asserts that the ruling by Durno J. “falls under denial of natural justice namely he will not be able to advance his defence in presenting the evidence as whole to demonstrate before the trial Judge that the complainant fabricated the criminal charges with ulterior motives.” The appellant contends that Durno J. erred by “conclud[ing] that it’s not on reasonable inferences that Paiva is intending to defraud the applicant” and “failed to exercise his discretions judicially in light of evidence by quashing the Schoenborn subpoena as he made an overriding and palpable error of facts.”
[17] In our view, the appellant’s appeal is frivolous or vexatious and can be determined without being adjourned for a full hearing.
[18] In respect of the subpoena issued for Mr. Paiva, Durno J. gave extensive reasons why the evidence the appellant sought did not fall within the crimes/fraud exception to solicitor-client privilege. His reasons describe in detail the evidence placed before him on the certiorari application. That evidence supports his conclusion that the appellant’s argument was based on a “bald conclusory statement that Mr. Paiva is a party to the plot to defraud him” rather than “on reasonable inferences” and that “the vast majority of the [appellant’s] speculative assertions relate to events well after” the dates of the alleged death threats specified in the information.
[19] So, too, in respect of the subpoena issued for Mr. Schoenborn. Noting that the last of the alleged threats took place about six months before the settlement conference mediated by Mr. Schoenborn, Durno J. stated that “there is nothing in the [appellant’s] material that would indicate there is anything in the file about the threats, let alone that it would likely be material” (emphasis in original). He characterized the subpoena as a “poorly disguised fishing expedition”, a description essentially admitted to by the appellant:
During submissions, I asked Mr. Amiri three times if his intention in relation to both files he had subpoenaed was to have the judge review the contents to see if there was something in there that could help him. His first two answers were unresponsive. He then submitted that the judge would look into Mr. Paiva’s file and find evidence Ms. Nazer fabricated the criminal complaint and also fabricated her position regarding property.
Disposition
[20] Accordingly, for the reasons set out above, we summarily dismiss both appeals.
“E.E. Gillese J.A.”
“David Brown J.A.”
“S. Coroza J.A.”