Court File and Parties

Citation: R. v. Alrifai, 2008 ONCA 564 Date: 2008-07-22 Docket: C47195

Court of Appeal for Ontario Cronk, Gillese and Watt JJ.A.

Between: Her Majesty the Queen (Respondent) and Ahmad Alrifai (Applicant/Appellant)

Counsel: Joseph Markin for the appellant Matthew Horner for the respondent

Heard: June 20, 2008

On appeal from the order of Justice Ian V. B. Nordheimer of the Superior Court of Justice, dated May 7, 2007, refusing to issue mandamus.

Reasons for Decision

WATT J.A.:

[1] On September 22, 2006, Ahmad Alrifai (the appellant), a self-employed limousine driver, and his legal agent, Harry Kopyto, appeared before a justice of the peace. Their purpose, they said, was to lay an information before the justice, have the justice receive it, and persuade the justice to issue process compelling a Peel Regional Police officer to answer a charge under s. 39.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA). The conduct alleged to have breached the section took place on April 13, 2006.

[2] Section 39.1(9) HTA prohibits institution of a prosecution for an offence under the section without the consent of a police officer or an officer appointed for the purpose of carrying out the provisions of the HTA.

[3] The appellant and Harry Kopyto are not police officers. Nor are they officers appointed for carrying out the provisions of the HTA. And what is more, when they appeared before the justice of peace on September 22, 2006, not only did they not have the required consent, they had sought and had been refused consent by the only person they had asked, a police sergeant at a Division of the Toronto Police Service.

[4] The justice of the peace refused to receive the information the appellant and Koypto sought to lay. The justice reasoned that he had no authority to receive the information in the absence of the consent required by s. 39.1(9) of the HTA.

[5] The appellant sought an order in lieu of a writ of mandamus from a judge of the Superior Court of Justice (the application judge) directing the justice of the peace “to hear and consider the allegations of the Informant and evidence of witnesses and comply with s. 504 of the Criminal Code of Canada [sic]”. The application judge dismissed the application. The appellant appeals.

THE FACTS

[6] Shortly after 8:00 a.m. on April 13, 2006, a police officer stopped the appellant who was driving his limousine south on Highway 427, just south of Highway 401. The appellant had a passenger in his limousine. When the appellant failed to produce any licence that authorized him to transport passengers for compensation from an airport to another destination, the officer called a licenced limousine company to pick up the passenger and issued the appellant a ticket.

[7] Sometime later, the appellant claims that he went to 23 Division police station to seek consent to prosecute the officer who had stopped his limousine and had contacted the other company to transport the passenger to his or her destination. According to the appellant, a police officer, Sgt. Little refused to consent to the institution of the prosecution.

THE STATUTORY PROVISIONS

[8] Section 23(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (POA) describes the authority to lay an information and the correlative duty of a justice of the peace to receive the information laid by an informant:

23. (1) Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information.

[9] Section 24(1) of the POA sets out the obligations of the justice who receives an information laid under s. 23. The obligations are these:

24. (1) A justice who receives an information laid under section 23 shall consider the information and, where he or she considers it desirable to do so, hear and consider in the absence of the defendant the allegations of the informant and the evidence of witnesses and,

(a) where he or she considers that a case for doing so is made out,

(i) confirm the summons served under section 22, if any,

(ii) issue a summons in the prescribed form, or

(iii) where the arrest is authorized by statute and where the allegations of the informant or the evidence satisfy the justice on reasonable and probable grounds that it is necessary in the public interest to do so, issue a warrant for the arrest of the defendant; or

(b) where he or she considers that a case for issuing process is not made out,

(i) so endorse the information, and

(ii) where a summons was served under section 22, cancel it and cause the defendant to be so notified.

[10] The offence with which the appellant sought to charge the police officer who had stopped the appellant’s limousine on April 13, 2006 is created by s. 39.1(3) of the HTA:

39.1(3) No person shall arrange or offer to arrange for a passenger to be picked up in a motor vehicle other than a bus for the purpose of being transported for compensation except under the licence, permit or authorization that is required to do so, as described in subsection (1).

[11] Section 39.1(9) requires the consent of a police officer or an officer appointed to carry out the provisions of the HTA to the institution of a prosecution under s. 39.1. The section says nothing about the form of consent or about what is meant by its opening words, “no prosecution shall be instituted”. Section 39.1(9) is in these terms:

39.1(9) No prosecution shall be instituted under this section without the consent of a police officer appointed for carrying out the provisions of this Act.

THE DECISION OF THE APPLICATION JUDGE

[12] The application judge dismissed the appellant’s application for an order in lieu of mandamus. The dismissal rested on three grounds:

i. The justice of the peace was correct in holding that he could not consider the information in the absence of the consent required by s. 39.1(9) of the HTA;

ii. Even if the justice of the peace was required to receive the information, the lack of consent meant that the justice had no authority to decide whether process should issue, thus the result would be the same;

iii. The appellant’s constitutional challenge to s. 39.1(9) failed.

THE GROUNDS OF APPEAL

[13] The appellant reinvigorates the submissions made without success before the application judge.

[14] The appellant says that, even without the consent required to institute the prosecution, the justice of the peace was obliged to receive the information and to determine whether a prima facie case for the issuance of process on the basis of the informant’s allegations and the evidence of any witnesses offered on the informant’s behalf, had been made out. After all, a private citizen has an inalienable right to lay an information and have a hearing conducted to decide whether process should issue.

[15] It is the position of the appellant that a prosecution is not instituted until process is issued. The effect of s. 39.1(9) of the HTA is to give police officers a veto power over prosecutions, including, as here, prosecutions of fellow officers who commit offences under s. 39.1. The only check on arbitrariness is to have the justice of the peace conduct a hearing to determine whether the informant has presented a prima facie case. Refusal of consent in such circumstances would be an abuse of process.

[16] The appellant further contends that the consent requirement in s. 39.1(9) of the HTA offends s. 15(1) of the Charter. The section creates an inequality between police and other informants, one that is not justifiable under s. 1 of the Charter.

ANALYSIS

The Consent Requirement and Receipt of an Information

[17] Section 23(1) of the POA entitles anyone who has the required state of belief to lay an information in the prescribed form and under oath before a justice. The section imposes a correlative duty on the justice to receive the information compliant with the section. In other words, s. 23(1) creates a right (for the informant) and a duty (for the justice).

[18] Section 23(1) is a provision of general application, predictably silent about the right of an informant to lay an information and the duty of a justice to receive it where the statute allegedly contravened requires consent to the institution of a prosecution. Further, neither s. 23(1) nor any other provision of the POA to which we have been referred defines or otherwise elucidates the meaning to be assigned to the introductory words “no prosecution shall be instituted”, as the limitation appears in s. 39.1(9) of the HTA and elsewhere in the catalogue of provincial statutes.

[19] In R. v. Linamar Holdings Inc., 2007 ONCA 873, [2007] O.J. No. 4859, this court considered the meaning to be assigned to the provisions of s. 69 of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, which provides that no “prosecution … shall be instituted” more than one year after the last act upon which the prosecution is based occurred. Linamar argued, as the appellant does here, that a prosecution is not instituted until an information is laid and a summons or warrant issued.

[20] This court concluded in Linamar at para. 8:

Second, a prosecution is instituted within the meaning of s. 69 once the information is laid before a justice of the peace.

[21] Section 39.1(9) of the HTA requires consent to the institution of a prosecution. Similar language, that is to say, “no prosecution shall be instituted …”, appears in other provincial statutes, for example, s. 44(2) of the Human Rights Code, R.S.O. 1990, c. H.19; s. 75(4) of the Police Services Act, R.S.O. 1990, c. P.15; s. 32 of the Public Vehicles Act, R.S.O. 1990, c. P.54; and s. 22.12(4) of the Regulated Health Professions Act, Schedule 2, S.O. 1991, c. 18, to name but a few.

[22] The court in Linamar contrasted the commencement of a prosecution or proceedings, on the one hand, with the institution of a prosecution or proceedings, on the other. At paragraph 10 of Linamar, the court held:

[10] The respondents also rely upon language in Southam Inc. v. Coulter (1990), 1990 CanLII 6963 (ON CA), 75 O.R. (2d) 1 (C.A.) where the court, referring to passages from Dowson, held at p. 7 that “a prosecution commences only after a justice of the peace has decided to issue process”. It may be that in some contexts a prosecution only commences with the issue of process but that does not answer the question of when a prosecution is instituted. The laying of the information before a justice of the peace is the first formal step taken in the proceedings before the Provincial Offences Court and in our view constitutes the institution of the proceedings.

[23] Under Linamar, a prosecution is instituted within the meaning of s. 39.1(9) of the HTA once the information has been laid before the justice of the peace. The section requires that a police officer or officer appointed for the purpose of carrying out the provisions of the HTA consent to the institution of the prosecution, that is to say, to the laying of the information. Absent the consent required by the statute, the justice of the peace, following Linamar, was not required to receive the information under s. 23(1) of the POA. It follows that the justice of the peace was correct in declining to receive the information and the application judge was right in refusing to compel the justice to do so.

Consent and the Conduct of the Process Hearing

[24] Even if it were open to conclude, despite Linamar, that a prosecution is not instituted until what might be termed the “process hearing” has been undertaken, the absence of consent would nonetheless foreclose the issuance of process.

[25] The determination of whether to issue process to compel the appearance of a defendant to answer an allegation of a breach of a provincial statute involves the exercise of a judicial discretion under s. 24(1) of the POA. The justice must consider whether a case for issuing process has been made out on the basis of the allegations of the informant and the evidence of any witnesses who testify. Where a consent to the institution of proceedings is required by statute, but is lacking, the statutory authority to issue process under s. 24(1) is simply not engaged. Satisfaction of a condition precedent to its exercise is lacking.

[26] Extraordinary remedies are discretionary: they do not issue as of right. Nor do they issue where no useful purpose would be served by their issuance. R. v. Board of Broadcast Governors v. The Minister of Transport, 1962 CanLII 223 (ON CA), [1962] O.R. 657 (C.A.) at 671. In this case, to remit the matter to the justice of the peace to conduct a process hearing would serve no useful purpose: the absence of consent bars the issuance of process.

The Constitutional Challenge

[27] The appellant challenges the constitutional integrity of the consent requirement in s. 39.1(9) of the HTA. He alleges that the requirement of consent to institution of a prosecution where the informant is not a police officer or an officer appointed for the purpose of carrying out the provisions of the HTA offends s. 15(1) of the Charter. The provision is discriminatory because it creates two classes of informant: the officers described in s. 39.1(9) who, on their own, can institute a prosecution, and everybody else. In the result, the appellant says, the section offends s. 15(1) of the Charter.

[28] A claimant under s. 15(1) of the Charter must establish three things:

i. differential treatment under law;

ii. on the basis of an enumerated or analogous ground; and

iii. the differential treatment constitutes discrimination.

Auton v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657 at 670.

[29] Even if we cede to the appellant that s. 39.1(9) has the effect of treating some informants differently than others, the appellant’s case founders: the differential treatment of informants, in essence on the basis of occupation, is not based on an enumerated or analogous ground, nor is the differential treatment discriminatory. Rudolf Wolff & Co. v. Canada, 1990 CanLII 139 (SCC), [1990] 1 S.C.R. 695 at paras. 13-14; Delisle v. Canada (Deputy Attorney General), 1999 CanLII 649 (SCC), [1999] 2 S.C.R. 989 at para. 44; and Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673 at paras. 65-67.

CONCLUSION

[30] For these reasons, I would dismiss the appeal.

RELEASED: July 22, 2008 (“E.A.C.”)

“David Watt J.A.”

“I agree E.A. Cronk J.A.”

“I agree E.E. Gillese J.A.”