Court File and Parties
COURT FILE NO.: M180/18; M181/18; M251/18 DATE: 20190320 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – GOLAM MEHEDI Applicant
Counsel: Paul M. Alexander, for the Crown Golam Mehedi, appearing in person
HEARD: January 28, 2019
MOLLOY J.:
REASONS FOR DECISION
A. OVERVIEW
[1] Golam Mehedi brought three applications for certiorari, seeking to proceed with criminal charges he had attempted to file against three separate individuals. The Crown opposes all three applications and brought its own application to have Mr. Mehedi declared a vexatious litigant.
[2] The first certiorari application (M180/18) relates to Mr. Mehedi’s allegation that he was sexually assaulted by a male co-worker (A.A.). The Justice of the Peace accepted the Crown’s submission that the allegations, if capable of proof, made out all of the elements of sexual assault and ruled that a summons would issue. The Crown then immediately intervened to assume carriage of the case, and withdrew the charge on the basis that there was no reasonable prospect of conviction. Mr. Mehedi seeks judicial review of the Crown’s decision.
[3] Mr. Mehedi’s second application (M181/18) relates to his allegations against a female security officer (S.K.) at the front entrance to the Courthouse at 361 University Avenue. Mr. Mehedi testified before Justice of the Peace Woldemichael on August 2, 2018 that S.K. had wanded him at the security entrance, which he characterized as both a sexual and physical assault. The Justice of the Peace declined to issue process and Mr. Mehedi seeks to review that decision.
[4] The third application (M251/18) relates to Mr. Mehedi’s allegations against a police officer (S.M.) who he said assaulted him by shouting at him and being aggressive when he went to 51 Division in an attempt to have A.A. charged with assault. He testified before Justice of the Peace Ng on November 1, 2018. The Justice of the Peace found that the allegations did not amount to an assault and refused to issue process. Mr. Mehedi seeks to review that decision.
[5] The Crown filed an application to have Mr. Mehedi declared to be a vexatious litigant and for an order that he not be permitted to institute proceedings in the Superior Court of Justice for the review of lower court proceedings or Crown action with respect to any private criminal information, except with leave of a Judge of the Superior Court based on written submissions of no more than three pages in length. The Crown relies on the three applications before me as well as four other such applications in the recent past.
[6] All of these applications were argued together before me on January 29, 2019. There is no merit whatsoever to the three certiorari applications brought by Mr. Mehedi. They are dismissed. I find Mr. Mehedi to be a vexatious litigant. Without some controls placed on his actions, he will continue to squander the limited resources of the Court and the Crown on matters that are wholly without merit. In my view, the requirement that Mr. Mehedi file a written application for leave to bring any further such proceedings strikes a balance between protecting the integrity of the judicial system, without denying him the ability to proceed with any proceeding that might have an arguable basis.
[7] My reasons for these conclusions follow.
B. ALLEGED SEXUAL ASSAULT BY CO-WORKER (M 180/18)
Factual Background
[8] In January 2018, Mr. Mehedi was working at a food packaging plant, Select Food Products, having been placed there through an employment agency. On January 22, 2018, Mr. Mehedi complained to management of Select Foods that his supervisor A.A. had sexually assaulted him. He said that A.A. had passed behind his back and deliberately pressed his “abdominal part” (an expression Mr. Mehedi typically uses to mean “penis”) against Mr. Mehedi’s “backside.” His employer moved him to a different area away from A.A. However, on January 25, 2018, the two men were working in the warehouse at the same time. A.A. was climbing up on a skid and placed his hand on Mr. Mehedi’s shoulder to steady himself. Mr. Mehedi complained again to his employer that this was a sexual assault. He refused to report for work the next day because he was so upset. The employment agency fired him.
[9] Mr. Mehedi attended at 51 Division in an attempt to have criminal charges laid against A.A., stating that A.A. had touched him with his “abdominal part” on the first occasion and that he had touched his shoulder on the second occasion, characterizing both as sexual assault. The police declined to lay charges.
[10] On the same day that Mr. Mehedi attempted to file criminal charges, he also commenced a civil action against his former employer for $1 million.
[11] When the police refused to proceed with criminal charges, Mr. Mehedi sought to lay a private information. At the pre-enquette before Justice of the Peace Madigan, Mr. Mehedi stated for the first time that A.A. had touched him with his penis. The Crown took the position that the facts alleged by Mr. Mehedi would, if believed, satisfy the test for the constituent elements of sexual assault and that the Justice of the Peace was therefore required to issue process, which the Justice of the Peace did. However, the Crown then immediately intervened to assume carriage of the prosecution, and immediately stayed the charge on the ground that there was no reasonable prospect of conviction.
Analysis
[12] The Crown had authority to assume carriage of the prosecution as soon as the Justice of the Peace issued process. Further, the Crown has the power under s. 579(1) of the Criminal Code to direct a stay at any time after a proceeding is commenced. This includes the power to do so at the end of the pre-enquette when the decision is made to issue process and before any further steps are taken in the criminal proceeding. [1]
[13] This Court is only entitled to interfere with the discretion of the Crown Attorney to stay proceedings if there has been a flagrant impropriety or abuse of process. [2]
[14] Mr. Mehedi does not come close to discharging his onus of establishing impropriety or abuse of process by the Crown. On the contrary, I find that the Crown carried out its duties in good faith throughout. It follows that there is no basis for me to interfere with the decision of the Crown Attorney in respect to this prosecution. This application is dismissed.
C. ALLEGED SEXUAL ASSAULT BY SECURITY OFFICER (M 181/18)
[15] On April 24, 2018, Mr. Mehedi entered the Courthouse at 361 University Avenue and proceeded through the usual X-Ray scanning area. When he passed through the first device, the machine beeped. He was therefore individually wanded by one of the uniformed security guards, S.K. Mr. Mehedi alleged that in the course of wanding him, S.K. hit him in the abdominal area (penis). He characterized this as a sexual assault. He also claimed to have been discriminated against in violations of his equality rights under s. 15 of the Charter of Rights and Freedoms.
[16] Mr. Mehedi complained to S.K.’s supervisor and also sought to have criminal charges laid against S.K. by the Toronto Police Service. Both refused to take any steps. Mr. Mehedi filed a complaint with the Office of the Independent Police Review Director (OIPRD), which was dismissed on the basis that S.K. was a court officer and not a police officer covered under the Police Services Act and the matter was therefore not within the jurisdiction of the OIPRD. In his written materials, Mr. Mehedi has advised that he has now sued the OIPRD for $1 million.
[17] Mr. Mehedi also attempted to lay a private information against the officer. A pre-enquette was heard before Justice of the Peace Woldmichael on August 2, 2018. After hearing sworn evidence from Mr. Mehedi and submissions from Mr. Mehedi and the Crown, the Justice of the Peace refused to issue process, finding that what happened was, at most, an accident and not sexual assault.
Analysis
[18] The scope of certiorari and mandamus on the review of decisions made by a Justice of the Peace as to whether to issue process is limited in scope. This Court can only intervene by way of extraordinary remedy if the Justice of the Peace erred in jurisdiction or failed to act judicially. [3]
[19] There was no error of jurisdiction by the Justice of the Peace in this case. The hearing was conducted fairly. Mr. Mehedi had a full opportunity to be heard. The Justice of the Peace reached a conclusion that was supported by the evidence and there is no basis to interfere. Indeed, although this is not the test, I would have made the same decision on the facts of this case.
[20] Therefore, this application is dismissed.
D. ALLEGED ASSAULT BY POLICE OFFICER (M251/18)
[21] This application is factually related to Mr. Mehedi’s attempt to have his fellow employee, A.A., charged with sexual assault (see his application in M180/81). Mr. Mehedi alleged that when he went to 51 Division on February 1, 2018 seeking to have A.A. charged criminally, the police officer at the desk, S.M., assaulted him. Mr. Mehedi thereupon sought to proceed with a private prosecution against S.M. for criminal assault.
[22] A pre-enquette hearing proceeded before Justice of the Peace Ng on November 1, 2018. Mr. Mehedi testified that S.M. did not actually touch him, but that he yelled at him and proceeded towards him with his hands outstretched, which was threatening, constituting an attempted assault and assault. He also claimed that various Toronto Police officers (including S.M.) violated his privacy rights by concluding that he had mental health issues. Mr. Mehedi was cross-examined by the Crown with respect to four prior unsuccessful attempts to privately lay criminal charges.
[23] The Justice of the Peace declined to issue process. The Justice of the Peace held that the officer was simply performing his duty in asking Mr. Mehedi to leave and that he did not assault Mr. Mehedi, even if Mr. Mehedi’s perception was that his actions were threatening. The Justice of the Peace described Mr. Mehedi as being “over-sensitive” and also found him to be vexatious.
Analysis
[24] As I noted above, this Court’s only power to intervene is where there is a jurisdictional error or a failure by the Justice of the Peace to act judicially.
[25] Based on the evidence at the pre-enquette, it was open to the Justice of the Peace to conclude that there was insufficient evidence to support a criminal charge of assault in any of the ways in which assault could be committed.
[26] Further, a justice of the peace has jurisdiction to consider the credibility to the extent it relates to a proceeding that is frivolous or vexatious. [4] In this case the Justice of the Peace committed no error of jurisdiction in considering whether Mr. Mehedi’s claim was vexatious, nor in reaching the conclusion it was vexatious. I see no error, jurisdictionally or otherwise. I would have, and in fact have, reached the same conclusion.
[27] This application is also dismissed.
E. VEXATIOUS LITIGANT
Jurisdiction
[28] A Superior Court judge has inherent jurisdiction to control the process of the Court and to prevent abuse of the court system. Orders restricting the right of vexatious litigants to have access to the Court’s process without leave are more commonplace in civil proceedings, where the inherent jurisdiction has been codified in the Courts of Justice Act, s. 140. [5] However, the inherent jurisdiction remains and can be exercised in criminal cases, provided that the individual against whom such an order is made has some mechanism to access the Court for a claim that has merit. [6] Typically, that mechanism is the requirement for obtaining leave of the Court before any materials can be filed.
[29] I agree with the position of the Crown that access to justice for the public at large is enhanced if vexatious litigants are prevented from wasting judicial resources with repeated and unmeritorious claims. There are a limited number of judges, a limited number of courtrooms, and a limited number of Crown Attorneys. If valuable court time is wasted on frivolous cases, other cases will necessarily be delayed, which is unfair to both the accused persons, the complainants, the witnesses, and families of the parties in those cases. [7]
[30] Again as pointed out by the Crown, in the post- Jordan era in which our courts are now operating, it is necessary for the courts to take a more active role in managing their resources and preventing delay. Moldaver J. (writing for the majority in Jordan) held:
Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. As Sharpe J.A. wrote in R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493:
The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants and legal aid. . . . It is in the interest of all constituencies — those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and on appeal — to make the most of the limited resources at our disposal. [para. 32] [8]
The Test
[31] The test for finding a person to be a vexatious litigant in the criminal context is similar to that applied in civil cases. The question is whether that person has persistently and without reasonable grounds instituted vexatious proceedings, or conducted proceedings in a vexatious manner. Relevant factors to take into account are:
- whether the person has brought proceedings to determine an issue that has already been determined by a court of competent jurisdiction to be without merit or vexatious;
- whether it is obvious that the proceeding cannot possibly succeed or if no reasonable person would expect it to be successful;
- whether there are repeated proceedings brought on the same issue, rolled into subsequent litigation or supplemented; and
- whether the person persistently brings unsuccessful appeals from every decision against him or her.
[32] These factors are not exhaustive and each case is assessed on its own merits within the context of the person’s history of proceedings in the court. [9]
Factual Background
[33] In addition to the three applications that were before me and which I have dismissed, the Crown relies on four other examples of proceedings brought by Mr. Mehedi, which the Crown submits are vexatious. Each involved attempts to lay a private prosecution which were unsuccessful, and applications to this Court for review, which were also unsuccessful. Each also involved other related proceedings, all of which were unsuccessful.
2010: Alleged Sexual Assault at George Brown College
[34] In 2009/2010, Mr. Mehedi was a student at George Brown College. He alleged that between September 24 and November 16, 2009, another male student (“S.B.”) exposed his penis to him in a hallway and on a later occasion touched his chest twice. Mr. Mehedi filed a complaint with George Brown College, which conducted an investigation and then dismissed the complaint. Mr. Mehedi sought to have S.B. charged criminally with sexual assault. After conducting a pre-enquette hearing on January 19, 2010, Justice of the Peace Haddad refused to issue process. Mr. Mehedi filed a certiorari application in this Court, which was heard and dismissed by Benotto J. (as she then was) on May 11, 2010. Justice Benotto found that the Justice of the Peace had exercised his jurisdiction judicially and there was no basis upon which to intervene, and further stated, “Indeed, by way of obiter, I add that I agree with the decision and would have come to the same conclusion.” Mr. Mehedi also filed a civil action and a human rights complaint against George Brown College. After a mandatory mediation session, he settled both proceedings pursuant to signed Minutes of Settlement. George Brown College absorbed all the costs and paid Mr. Mehedi $10,800 as compensation. Two weeks after cashing that cheque, Mr. Mehedi commenced another proceeding against George Brown College seeking to reopen the matter. The Human Rights Tribunal dismissed that application on a summary hearing on the basis that there was no reasonable prospect it could succeed. Mr. Mehedi then sought judicial review of that decision in the Ontario Divisional Court. That application was dismissed. Justice Nordheimer (as he then was), delivered the unanimous decision of the Court and stated, “The Human Rights Tribunal was correct in finding that there was no basis upon which the settlement could be revisited and thus no basis upon which the applicant’s current complaint could succeed.”
2016: Alleged Fraud regarding the “Job Success” Program
[35] In 2010, Mr. Mehedi engaged an organization known as “Job Success” for a career-related service. He alleged he had been defrauded and sued civilly. The Crown does not take issue with whether this action was commenced in good faith, or with the merits of the claims made. Mr. Mehedi entered into a settlement, on the basis of which the action was dismissed. Subsequently, he brought a motion to set aside the Minutes of Settlement and re-open the action, which motion was dismissed on July 15, 2016.
[36] Mr. Mehedi then attempted to have the individuals involved with Job Success charged with criminal fraud. He brought a certiorari application in this Court in August 2016, which was dismissed on November 21, 2016 because there had been no decision by a Justice of the Peace refusing to issue process, and therefore nothing for this Court to review.
[37] On November 24, 2016, Mr. Mehedi attended in the Ontario Court of Justice and started the process for a private information charging three people with fraud. A pre-enquette hearing was held before Justice of the Peace Roffey on April 6, 2017. The Justice of the Peace refused to issue process. Mr. Mehedi then swore out a second information against a fourth individual for the same offence. A pre-enquette hearing was held in respect of that matter on June 22, 2017 before Justice of the Peace R. Giuoletti, who also refused to issue process.
[38] Mr. Mehedi brought an application for certiorari to quash the decisions of Justices of the Peace Roffey and Guilietti, which application was dismissed by Dambrot J. on November 20, 2017. Mr. Mehedi appealed that decision to the Ontario Court of Appeal. The appeal was heard on February 13, 2019, and dismissed for written reasons issued on February 26, 2019. [10]
2016: Alleged Sexual Assault by a Female Colleague
[39] In January 2016, Mr. Mehedi (then 54 years old) was enrolled in a social services worker program with Seneca College. As part of that course, he was placed as a volunteer/intern with Culturelink, a not-for-profit agency providing programs for recent immigrants. The agency is located across the street from a high school and many of the students at that school also did volunteer work with the agency. On February 24, 2016, there was an incident involving Mr. Mehedi and an 18-year-old volunteer student from the high school when they were alone together in an elevator. When the student returned to school she told a teacher that she had been inappropriately touched by Mr. Mehedi. The police were called and investigated. The student did not want to press charges, and the police proceeded no further. Mr. Mehedi gave a different version of the event, the issue being who initiated hugging. A senior employee of Culturelink (C.R.) investigated the incident, at the conclusion of which she suspended Mr. Mehedi.
[40] Mr. Mehedi sued Culturelink for $100,000. Each party brought motions for summary judgment, which were heard by Dunphy J. on September 1, 2017. In a written decision dated September 6, 2017, Dunphy J. dismissed Mr. Mehedi’s action in its entirety and ordered him to pay full indemnity costs fixed at $9,605.25. [11] At one point in his decision, Dunphy J. stated that “the greater part of [Mr. Mehedi’s] allegations were the very definition of frivolous or vexatious.” [12] In addition, Dunphy J. noted the following:
[16]….Mr. Mehedi’s admissions in his own statement of claim are largely sufficient to dispose of contradictory accounts of the facts that he has advanced long after the fact. There are few cases where credibility can so readily be assessed as here. Mr. Mehedi’s evolving story line was riddled with internal contradictions, obviously self-interested, often incomprehensible and at times appeared delusional. …
[27]…. Mr. Mehedi made a number of intemperate and at times clearly fabricated statements in his factum, his affidavit, on cross-examination and in argument regarding the motives, integrity or behaviour of the defendant, other employees or volunteers with the defendant and the young woman who complained about his behaviour in the elevator. He alleged, among other things, that the complainant had sexually assaulted him the prior day; that other volunteers or employees of the defendant had been making inappropriate sexual advances towards him; that there was a conspiracy or other fraudulent behaviour aimed at harming him; that counsel for the defendant was acting in a criminal fashion and that there were various unspecified breaches of fiduciary duty.
[54]… Mr. Mehedi is clearly incapable of showing any insight into how wrong and inappropriate his behaviour towards a high school girl volunteering with him at the defendant agency was. He has lashed out in lieu of examining his own conduct in the mirror. He has done much more than this though. He has accused opposing counsel of criminal conduct, he has attempted to smear the reputation of Ms. Rivera and the complainant with ridiculous and unfounded complaints, he has accused the defendant of fraud and breach of fiduciary duty without any foundation.
[55] The court system is not an appropriate place to vent frustration, rage or similar feelings. Where a party has been required to respond to claims advanced as recklessly as these were, the court can and should send a message. Serious allegations require serious evidence. The privilege of advancing claims in litigation is not to be seen as license to smear without foundation in fact. [13]
[41] It is unclear when Mr. Mehedi first alleged that he had been sexually assaulted by C.R. (the person who investigated the high school student’s complaint and suspended him). However, he did at some point go to the police with that allegation, and the police refused to lay a charge. Mr. Mehedi sought to bring a private information against C.R. on April 16, 2018. He alleged sexual assault and sexual harassment. A pre-enquette proceeded before Buchanan J. in the Ontario Court of Justice on April 24, 2018. Mr. Mehedi testified and alleged that between January 15, 2016 and February 24, 2016, C.R. winked at him repetitively (approximately 20 times), spread her legs in front of him in a suggestive manner that he found upsetting, and attempted to hug him on 10 separate days, which he resisted and merely shook her hand. Buchanan J. refused to issue process, ruling that the evidence before him did not constitute a criminal offence.
[42] Mr. Mehedi sought certiorari, in this Court, which application was dismissed by London-Weinstein J. for written reasons dated October 11, 2018. It would appear that Mr. Mehedi has appealed that decision to the Ontario Court of Appeal, but that the appeal has not yet been decided.
Analysis and Conclusion
[43] Mr. Mehedi has repeatedly brought proceedings that are completely without merit, exhausting every avenue of review and appeal along the way. None of these attempts to invoke criminal process have been rooted in any reality of criminal wrongdoing, but have merely been a further manifestation of some personal grievance or vendetta when all else has failed.
[44] As is demonstrated by Mr. Mehedi’s track record set out above, the vetting process of the pre-enquette and the ability of the Crown to stay charges that have no prospect of conviction are not sufficient safeguards against Mr. Mehedi. Regardless of what happens in the Ontario Court of Justice, he persists in bringing proceedings in the Ontario Superior Court that are completely without any possibility of success. He has repeatedly abused the process of this Court and wasted the valuable time and resources of the judicial system.
[45] I find Mr. Mehedi to be a vexatious litigant. In fairness to other users of the judicial system, his conduct cannot be permitted to continue uncontrolled.
[46] The Crown does not propose that Mr. Mehedi be prevented from filing complaints or seeking to lay criminal charges in the Ontario Court of Justice. The pre-enquette hearing and the Crown’s discretionary power to stay are sufficient to control the process in that court. What the Crown proposes at the Superior Court level is that Mr. Mehedi not have access to further proceedings without first obtaining leave. By imposing a requirement of a written application for leave with a strict page limit, there will be some control over this waste of court resources in the future, while at the same time preserving Mr. Mehedi’s right to pursue an appeal or review when he can display, at the very least, an arguable case. Based on my review of Mr. Mehedi’s Notices of Application in the seven cases I have referred to above, none would have resulted in leave being granted.
[47] Accordingly, an Order will issue in the form attached as Appendix “A”. Mr. Mehedi is required to file a copy of these reasons with each application he may file for leave to bring a proceeding.
MOLLOY J.
Released: March 20, 2019
APPENDIX “A”
Court File No. M180/18, M181/18, M251/18
ONTARIO SUPERIOR COURT OF JUSTICE
THE HONOURABLE MADAM JUSTICE MOLLOY ) MONDAY, THE 20th DAY ) OF MARCH, 2019
B E T W E E N:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Applicant
- and-
GOLAM MEHEDI Respondent
ORDER
THE APPLICATION, made by Her Majesty the Queen for an order pursuant to the Court's inherent jurisdiction, was heard this 28th day of January, 2019, at the courthouse, 361 University, Toronto, Ontario, and adjourned on that date to the 20th day of March, 2019;
ON READING the Application Record, Factum, and Book of Authorities of the Applicant, and upon hearing submission by counsel for the Applicant and the Respondent, appearing in person;
THIS COURT ORDERS as follows:
a) The Respondent is enjoined from, either directly or indirectly, instituting or continuing proceedings in any Superior Court in Ontario for the review of lower court proceedings or Crown action with respect to any private criminal information, except with leave of a Judge of the Ontario Superior Court of Justice. b) Any request for leave referred to in paragraph a), above, shall be a written request, no more than three pages in length without any additional material, unless specifically requested by the judge hearing the application. Such request is to be filed at 361 University Avenue and considered by this Court without the need for submissions from the Crown. c) Court staff shall refuse materials from Mr. Mehedi which do not comply with this Order or with any subsequent Order following a request for leave. d) The Crown is not required to accept service of material with respect applications of the nature identified in paragraph a) above, unless those materials are accompanied by an order giving leave as described in paragraphs a) and b) above. e) For greater clarity, the phrase "any Superior Court in Ontario" in a) above includes the Ontario Court of Appeal.
MOLLOY J.
COURT FILE NO.: M180/18; M181/18; M251/18 DATE: 20190320 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – GOLAM MEHEDI Applicant REASONS FOR DECISION Molloy J. Released: March 20, 2019
[1] McHale v. Ontario (Attorney General), 2010 ONCA 361. [2] Ahmadoun v. Ontario (Attorney General), 2012 ONSC 955 at para. 13, and the cases referred to therein. [3] R. v. Russell, 2001 SCC 53; R. v. Sazant, 2004 SCC 77; R. v. Kurdyak, [2007] O.J. No. 4146 (Sup.Ct.), aff’d 2008 ONCA 402. [4] R. v. Kurdyak, [2007] O.J. No. 4146 (Sup.Ct.), aff’d 2008 ONCA 402; R. v. Nenchev, 2014 ONSC 3892. [5] Courts of Justice Act, s. 140 [6] R. v. Tran, 2017 ONCA 482; R. v. Coote, 2011 ONSC 858, aff’d 2011 ONCA 562; Ewanchuk v. Canada (Attorney General), 2017 ABQB 237; Ontario v. Jogendra, 2012 ONSC 3303, aff’d. 2012 ONCA 834. [7] R. v. Coote, per Van Rensburg J., 2011 ONSC 858 at para. 65 [8] R. v. Jordan, 2016 SCC 27 at para. 116 [9] Ontario v. Jogendra, supra, Note 2, and cases referred to therein. [10] R. v. Mehedi, 2019 ONCA 148. [11] Mehedi v. Culturelink Settlement & Community Services, 2017 ONSC 5225 [12] Ibid, para. 28 [13] Ibid, paras. 16, 27, 54 and 55
