Court of Appeal for Ontario

Date: 2019-02-08 Docket: C64224

Judges: Feldman, Lauwers and Nordheimer JJ.A.

Between

Susan Zreik Applicant (Appellant)

and

Her Majesty the Queen (Attorney General of Ontario) and Director of the Special Investigations Unit Respondents (Respondents)

Counsel

Michael Moon, for the appellant

Emtiaz Bala and Joanna Chan, for the respondents

Heard

January 29, 2019

On Appeal

On appeal from the order of Justice Thomas A. Bielby of the Superior Court of Justice, dated July 25, 2017, with reasons reported at 2017 ONSC 4516.

Nordheimer J.A.

[1] Background and Overview

[1] Ms. Zreik appeals from the order of the application judge who dismissed her application for an order in the nature of mandamus with certiorari in aid on the basis that the application ought properly to be heard in the Divisional Court pursuant to the provisions of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 ("JRPA").

[2] Background

[2] The application arises out of a police involved shooting that occurred on March 20, 2015 in a residential complex in the City of Mississauga. During the course of this shooting, a young man was killed. The appellant, who was an innocent bystander standing inside her own home, was hit by one of the bullets fired by the police officers involved.

[3] The Director of the Special Investigations Unit conducted an investigation into the police shooting. Among other conclusions, the Director concluded that no charges should be laid against any of the police officers involved arising out of the fact that the appellant was shot. The Director found that the appellant was "simply in the wrong place at the wrong time".

[4] The appellant then brought this application, pursuant to the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 ("Criminal Proceedings Rules"), challenging the decision of the Director not to lay charges against any of the three police officers who were involved in her being shot.

[5] The respondents disputed the jurisdiction of the application judge to hear the matter. They contended that the application was in the nature of judicial review and ought to be heard by the Divisional Court as required by the JRPA.

[6] The application judge agreed with the respondents. He dismissed the application without prejudice to the appellant commencing an application under the JRPA. In doing so, the application judge concluded, at para. 79:

I concur with the submissions of counsel for the respondents that the proper forum is dictated by the legislation under which the decision in issue was rendered. In our case the SIU and its mandate flows from a provincial statute. The case law indicates that as such the relief sought herein is a matter of judicial review by virtue of the JRPA.

[7] The appellant submits that the application judge erred in his conclusion. In particular, the appellant submits that the application is in the nature of a criminal proceeding and is thus covered by the Criminal Proceedings Rules. Rule 43.02 of the Criminal Proceedings Rules provides that applications made for extraordinary remedies in criminal matters shall be heard by a judge of the Superior Court of Justice in the region "in which the proceedings to which the application relates have been, are being or are to be taken."

[8] The respondents, on the other hand, say that the application judge reached the correct conclusion that the application must proceed by way of judicial review in the Divisional Court. The respondents do, however, part company with the application judge with respect to the reasoning that the application judge employed to reach the decision that he did.

[9] The respondents concede that the issue is not determined by the fact that the statute that creates the Special Investigations Unit is a provincial statute. That concession is a fair one given that, if that were the determining factor, almost any proceeding involving the police would be captured since almost all police services are created by statute. Indeed, Crown counsel who prosecute such offences are also a creation of the Province as is the Ontario Court of Justice in which the majority of criminal matters are heard.

[10] The respondents submit that what determines whether the particular application is a matter of a criminal nature, such that the Criminal Proceedings Rules apply, or is a civil proceeding such that the JRPA applies, depends on whether there is a pre-existing criminal proceeding, i.e., a criminal prosecution. If, as in this case, there is no outstanding prosecution, then the respondents say that the matter is presumptively an application to which the JRPA applies.

[3] Analysis

[11] I agree with the appellant that the application judge erred in the conclusion that he reached. In my view, the issue raised is clearly one relating to a criminal matter and consequently the Criminal Proceedings Rules direct that it be heard by a single judge of the Superior Court of Justice. Indeed, I note that the application judge found that "[t]here is no doubt" that the investigations undertaken by the Special Investigations Unit are criminal in nature (at para. 72).

[12] However, contrary to the appellant's position, it is not the provisions of the Criminal Proceedings Rules that confer the jurisdiction on the Superior Court of Justice. The Criminal Proceedings Rules are procedural rules only. They do not, and cannot, confer jurisdiction on a court. Rather, what leads to the conclusion that the Superior Court of Justice has jurisdiction over this application is the combined effect of ss. 774 and 482 of the Criminal Code.

[13] I begin with s. 774, which reads:

This Part applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition.

[14] Thus, s. 774 brings within the scope of the Criminal Code any application for an extraordinary remedy if it involves a criminal matter. Of importance is the fact that s. 774 provides that the "proceeding" is the proceeding by which the extraordinary remedy is sought. That is clear from the wording "proceedings … by way of …". In this case, therefore, the proceeding with which we are concerned in deciding on the proper forum is the application for mandamus.

[15] Section 482(1) then provides:

Every superior court of criminal jurisdiction and every court of appeal may make rules of court not inconsistent with this or any other Act of Parliament, and any rules so made apply to any prosecution, proceeding, action or appeal, as the case may be, within the jurisdiction of that court, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, action or appeal.

[16] It is this section of the Criminal Code that provides the jurisdiction for the Superior Court of Justice to adopt the Criminal Proceedings Rules which, in turn, provide for the forum where applications for extraordinary remedies in criminal matters will be heard and determined. I note, in this regard, that s. 482 expressly mentions prosecutions as distinct from proceedings as distinct from actions as distinct from appeals. In other words, the wording of s. 482 confirms that a proceeding is something different than a prosecution. A proceeding does not have to include, and does not have to arise out of, a prosecution. This conclusion also accords with two definitions in the Criminal Proceedings Rules, namely, the definitions for "application" and for "proceeding".

[17] The proper analytical approach begins with s. 774 of the Criminal Code. Where criminal matters are concerned and are the subject of an application for an extraordinary remedy, the Criminal Code applies to those applications, not a provincial statute such as the JRPA. The process to then be followed flows from the Criminal Code. On the other hand, if the application is fundamentally concerned with non-criminal matters, then the application falls within provincial jurisdiction such that the JRPA would apply.

[18] It is this fact that distinguishes this case from the decision of this court in Avon v. Ontario (Ministry of Community Safety and Correctional Services), 2013 ONCA 249, on which the application judge principally relied. In that case, this court expressly stated that the issue involved a provincial law, "not a colourable attempt to legislate criminal law". It thus was not a criminal matter. As the court said, at para. 5:

In our view, the Criminal Proceedings Rules have no application to the circumstances of this case. The remedy sought here is removal of the applicant's name from a provincial sex offender registry, maintained by a provincial ministry, under a provincial law enacted under provincial legislative authority.

[19] Here, on the other hand, we are dealing with an application by which the appellant seeks to compel the Director of the Special Investigations Unit to lay criminal charges against one or more police officers. I agree with the application judge that it is hard to see how that could be characterized as anything but a matter of a criminal nature.

[20] While not determinative, I find some support for my conclusion in the fact that, if the conclusion reached by the application judge, and urged by the respondent, were correct, the following would be the result. If criminal charges were laid, and an application was brought to quash the laying of those charges, the respondents accept that that would be a criminal proceeding that would be properly heard by a Superior Court judge under the Criminal Proceedings Rules. However, if the charges were not laid, and an application is brought to compel the laying of those charges, the respondents say that the application would be heard through the civil process before the Divisional Court. Generally speaking, courts strive to interpret legislation to avoid such a result.

[21] I am also reinforced in my conclusion by another example, where no charges have yet been laid. If the police obtain a search warrant under the Criminal Code, and a person brings an application to quash that warrant, there can be no doubt that that application would be properly brought before a Superior Court judge under s. 774 of the Criminal Code. That would be the result even though, at that stage, there likely will have been no charges yet laid in relation to the matter. This conclusion is consistent with the conclusion that was reached in R. v. Canadian Broadcasting Corporation, 2006 NLCA 21, 207 C.C.C. (3d) 309.

[22] I am further reinforced in my conclusion by the decision in R. v. Ross, 2000 SKQB 134, aff'd, 2000 SKCA 69. In that case, an individual who had been convicted of sexual assault and was serving his term of imprisonment, sought to have charges laid against certain individuals who had participated in his prosecution. The Supervisor of the Justices of the Peace refused to send a justice of the peace to the institution to consider the individual's request. When the individual sought an order for mandamus to compel a justice of the peace to attend, that application was dismissed as frivolous by Milliken J. of the Saskatchewan Court of Queen's Bench. The individual then brought an application seeking to compel Milliken J. to receive the information. In dismissing this second application, Gunn J. relied upon s. 774 as providing jurisdiction to consider the matter. This appears to be the only case where this same issue, a mandamus application to compel the laying of charges, has been considered.

[23] Two other decisions touch on this question. The first is Holmes v. White, 2013 ONSC 4225, 309 O.A.C. 341, which involved an application for mandamus brought in Divisional Court. The applicant sought an order to compel three police forces to investigate and lay criminal charges against members of the CN Railway police. The respondents brought a motion to quash the application for delay, abuse of process and as disclosing no cause of action. Ramsay J. quashed the application on all three grounds. In my view, the case is of no assistance on the question of jurisdiction, which was neither argued nor considered by the application judge.

[24] The second is Ontario v. O'Neil, 2015 ONSC 241, which involved an application for mandamus brought in Superior Court. The applicant sought an order to compel the Special Investigations Unit to criminally investigate officers who were involved in his arrest. In dismissing the application, Korpan J. appears to have concluded that the application was one to which the JRPA applied and thus could not be heard by her as a single judge, but rather had to be heard by a panel of the Divisional Court absent urgency, which was not demonstrated. In reaching her decision, the application judge neither mentioned, nor addressed, the question that is raised here. While I conclude that her decision is in error, it also does not directly address the issue or analysis that is before us.

[4] Conclusion

[25] In the end result, I find that the application judge erred in concluding that this application should be heard by the Divisional Court. I would allow the appeal, set aside the order below, and remit the matter back to the Superior Court of Justice to be heard on its merits. We were asked to deal only with the narrow issue of jurisdiction. Nothing in these reasons should be taken as any commentary on the availability of the relief sought or the merits of the application.

Released: February 8, 2019

"K.F."

"I.V.B. Nordheimer J.A."

"I agree. K. Feldman J.A."

"I agree. P. Lauwers J.A."