Court File and Parties
COURT FILE NOS.: CR 19-005-00MO CR 19-004-00MO CR 19-006-00MO
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN
- and- Laura Pinkerton, Respondent
-and- Peter Diavolitsis, Joseph Marcuccio, Gerard McAndrew, Steve Moutsatsos, Rose Muscolino, Brian Searle, James Simmons, and Stefan Zhelev, (the “Weaver Simmons Applicants”), Applying to Quash Subpoenas
Mike Varey, Douglas Smith, Myles MacLeod, and Gordon Smith (the “Martian Properties Applicants”), Applying to Quash Subpoenas
Donna Noble, Applying to Quash Subpoena
BEFORE: A.D. Kurke, J.
COUNSEL: Laura Pinkerton, self-represented M. Haraschuk and S. Farrell, for the Weaver Simmons Applicants T.P. Waltenbury, for the Martian Properties Applicants A. Redinger, for Donna Noble
HEARD: April 1, 2019
AMENDED ENDORSEMENT
[1]
Background
The Respondent is charged that she:
On or about the 30th day of May in the year 2018 at the Town of Gore Bay in the [Northeast] Region, did commit forcible entry on the real property of Martian Properties Inc. at 1 Water St., Gore Bay, contrary to Section 72(1) of the Criminal Code.
2The Applicants apply for certiorari to quash subpoenas issued by J.P. Kreling in Ottawa on November 15, 2018, at the request of the Respondent, requiring that the Applicants attend as witnesses to give evidence at the Respondent’s trial in Gore Bay on May 2, 3, and 15, 2019.
3The Respondent is an officer, director and shareholder of 917488 Ontario Inc., which owned a hotel at 1 Water Street, Gore Bay (“the property”). The property was encumbered with a mortgage that went into default. After a contested hearing, in a decision dated June 24, 2016 Gordon R.S.J. confirmed the default judgment obtained by the mortgagee Apea Investment Group Inc. (“Apea”) against 917488 Ontario Inc., and a writ of possession for Apea. By endorsement dated June 29, 2016, Gordon R.S.J. also declined to issue a writ of possession to the Respondent for the property pursuant to a claim made against 917488 Ontario Inc. by 900351 Ontario Inc., a different company also controlled the Respondent. Apea sold the property on June 29, 2017 to Martian Properties Inc. under power of sale.
4In paragraph 5 on page 31 of her factum, the Respondent describes the May 30, 2018 incident as follows:
The incident that lead to the Respondent’s arrest was captured by her on video and audio while utilizing her cell phone. The evidence shows the Respondent arriving with [two other persons] at 1 Water Street in Gore Bay…going up to employees of Manitoulin Transport / Martian Properties on the property and telling them they have 15 minutes to cease and desist their work and leave the property. The employees who are employed by Manitoulin Transport / Martian Properties were fearful and called 911 for assistance on the property owned by the Respondent’s company 900351 Ontario Inc.
5The Respondent’s defence appears based on an argument relating to her right to enter the property. In the context of a subpoena that issued for the Respondent’s sister, the Respondent explained to J.P. Kreling:
I need to subpoena her. She is my sister. This has been a family estate in the family since 1972. I didn’t forcibly enter my own home and she can testify that it is our family estate and that when I need to get in my house, if my keys aren’t with me, that we had a special window that we go through that we slide open and she’s part of it. That’s my sister.
6No evidence at the hearing before J.P. Kreling or in the review in this court places any of the individual Applicants on the property on May 30, 2018 when the Respondent allegedly entered it. Rather, the Respondent’s focus is on her right to enter her own property, and it is her position that the Applicant witnesses whom she seeks to present at trial go to further her claim that the property is still hers.
7Before J.P. Kreling on November 15, 2018 in Ottawa, the Respondent explained that she has “been charged with forcible entry on [her] own piece of property”. In summary, the Respondent asserted that the Weaver Simmons Applicants, the Martian Properties Applicants, and Donna Noble were part of a 25-year-long conspiracy that cheated her out of the property, title to the property, and money, using void and abusive mortgages. One or more of the Applicants threatened her with arrest, refused to help her protect her property, refused to acknowledge problems with the mortgages on the property or with title to the property, or took part in the destruction of buildings that were on the property.
8Section 698(1) of the Criminal Code provides:
698(1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.
9In a proceeding to quash a subpoena, the onus lies on the party seeking to call the witness to establish on the balance of probabilities that the witness would likely or probably have evidence to give that is material to the issues raised. It is not enough that the witness “may have” material evidence to give: R. v. Harris, [1994] O.J. No. 1875 (C.A.), at paras. 4-5.
10On a charge of forcible entry, a person’s entitlement to enter the real property in question is not at issue, as a result of s. 72(1.1) of the Criminal Code, which states as a matter of law that “it is immaterial whether or not [the accused] is entitled to enter the real property”. This is because the provision is not intended to protect property rights, but rather “to preserve public peace by prohibiting potentially violent confrontations over entitlement to land between those claiming possession and those in actual possession”: R. v. J.D., [2002] O.J. No. 4916 (C.A.), at paras. 15, 18, 21, and 23.
11Under s. 72(1) of the Criminal Code, the property must be in “actual and peaceable possession” of another. The question of whether a person is in actual and peaceable possession is also defined by the Criminal Code as a question of law: s. 72(3).
[12]
Analysis
In this case, the Justice of the Peace did not consider whether the Applicants would likely have material evidence to give. If he had done so, he would have realized that the Applicants could only offer evidence about immaterial matters or matters prohibited by law.
13The issue at trial will involve the Respondent’s alleged entry onto the property on May 30, 2018, and whether that entry could lead to a breach of the public peace by offering the potential for a violent confrontation with others who were in actual and peaceable possession of the property.
14The evidence of the Applicants in relation to the Respondent’s theory of a 25-year-long cabal to divest her of her property is not material to any issue that will be before the court on the Respondent’s trial. Even if the Applicants could be shown to be likely to give evidence that would support this theory, such evidence goes only to the Respondent’s entitlement to enter the property, which is not material to what the trial court will have to decide.
15Nor can the evidence of the Applicants, at its highest, have any effect on the determination of the peaceable possession of those at 1 Water Street when the Respondent allegedly entered on May 30, 2016. To admit such evidence to attack the peaceable possession of the property by the persons there on that date falls afoul of the rule against “collateral attack”. This rule prohibits the proffering of evidence whose effect is to call into question the validity of a court order in an unrelated proceeding. As stated in R. v. Wilson, [1983] S.C.J. No. 88 (S.C.C.), at para. 8:
It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally - and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.
16On the evidence at this hearing, the decision of Gordon R.S.J. of June 24, 2016, and his endorsement of June 29, 2016, which confirmed default judgment in favour of the mortgagee and Apea’s entitlement to a writ of possession, appear to provide a valid basis for establishing the peaceable possession of the property at the time of the Respondent’s entry. The property was sold to the current possessors under power of sale on the basis of those decisions, which have not been overturned. The validity of those decisions may not be attacked at the Respondent’s trial.
[17]
Conclusion
Accordingly, for the above reasons, the Justice of the Peace exceeded his jurisdiction in issuing the subpoenas that require the Applicants to attend and give evidence at the Respondent’s trial, currently scheduled for May 2, 3, and 15, 2019. The Applicants have no material evidence to offer.
18The Applicants’ subpoenas are therefore quashed.
A.D. Kurke J.
Date: 2019-04-04
