COURT OF APPEAL FOR ONTARIO
CITATION: P.C. v. Ontario (Attorney General), 2020 ONCA 652
DATE: 20201019
DOCKET: C68091
Watt, Trotter and Zarnett JJ.A.
BETWEEN
P.C.
Applicant
(Appellant)
and
Ontario (Attorney General), the O.P.P., C.R., G.M. and C.P.
Respondents
(Respondent)
P.C., acting in person
David Freisen, for the respondent
Heard: in writing
On appeal from the judgment of Justice Helen K. MacLeod-Beliveau of the Superior Court of Justice, dated February 4, 2020, refusing certiorari upholding the order of Justice of the Peace Leona M. Dombrowsky of the Ontario Court of Justice, dated April 9, 2019, refusing to issue process.
By the Court:
[1] P.C. (the appellant) is a private informant. He laid an information before a justice of the peace. In that information, he alleged that a police force and some of its members committed seven indictable offences.
[2] About a month later, the appellant appeared before another justice of the peace who conducted a hearing (the pre-enquete). The pre-enquete was to determine whether the justice of the peace would issue process to compel the appearance of the police force and its named officers to attend and answer to the charges.
[3] At the conclusion of the pre-enquete, the justice of the peace declined to issue process on six of the alleged offences. She ordered the issuance of process on one charge. Crown counsel, who was present at the hearing, stayed that charge at the conclusion of the pre-enquete.
[4] The appellant applied to a judge of the Superior Court of Justice (the application judge) to invoke the extraordinary remedy jurisdiction of that court. He sought orders in lieu of mandamus and certiorari to compel the issuance of process and to quash the stay entered by the Crown.
[5] In written reasons, the application judge dismissed the application in its entirety.
[6] The appellant appeals. He asks this court to make the orders he sought, but did not obtain, from the application judge. As we explain in the reasons that follow, we decline to do so and dismiss the appeal.
The Procedural History
[7] The appellant’s partner is a police officer. The conduct described in the information laid by the appellant is grounded on his partner’s allegations of workplace misconduct by her fellow officers and various supervisors.
[8] The appellant alleged that, over a period of about three years, the police force and the named officers committed seven indictable offences including:
• criminal harassment;
• obstructing justice;
• intimidation; and
• threats and retaliation against an employee.
[9] A justice of the peace received the information under s. 504 of the Criminal Code.
The Pre-enquete
[10] The appellant appeared and was the only person to testify at the pre-enquete. His partner, the source of the allegations contained in the information, was present throughout the hearing. She did not testify.
[11] Apart from some events for which he was personally present and about which he could provide a first-hand account, the appellant's narrative at the pre-enquete consisted of hearsay, sometimes multiple hearsay, tinctured with speculation. For our purposes, its details need not be rehearsed.
[12] From time to time as the hearing progressed, the justice of the peace reminded the appellant about the hearsay nature of his allegations. The justice underscored the need for evidence on each essential element of each offence alleged in the information. Crown counsel, whose appearance was authorized by s. 507.1(4), also objected to the hearsay nature of the appellant's account.
The Decision at the Pre-enquete
[13] The justice of the peace considered the evidence on each count individually. She concluded that no case had been made out for the issuance of process except for the count alleging a breach of s. 425.1(1)(a).
[14] Despite the time periods alleged in the information, the appellant gave evidence that the offences began on the day on which his partner received a negative performance review from a superior officer. The appellant's partner disagreed with the review. She wanted to write a response. A senior officer told her that she could not provide a response and that if she disagreed with the review, things would only get worse for her. The officer suggested that she contact her association representative.
[15] The justice of the peace refused to issue process on the first count alleging an offence under s. 264(2)(d) because there was no evidence that the appellant's partner reasonably feared for her safety, an essential element of the offence charged.
[16] The second count pleaded an offence under s. 139(1) of the Criminal Code. The informant swore that superior officers interfered with an investigation into workplace incidents by another branch of the same force. The justice of the peace concluded that there was no evidence of the essential elements of the offence. In addition, the conduct described had been charged under the wrong section of the Criminal Code.
[17] The third count asserted a breach of s. 423(1)(c) of the Criminal Code. The claim was that a police vehicle had followed a vehicle occupied by the appellant, his partner, and their son. The appellant could not identify the driver of the vehicle on the one occasion on which this occurred. The justice of the peace refused to issue process because there was no evidence of persistent conduct as required for the offence charged.
[18] For similar reasons, a count charging a breach of s. 423(1) arising out of a single incident, when the appellant was stopped and issued a ticket for a seatbelt infraction, did not warrant issuance of process. Once again, the requirement that the conduct be persistent was lacking. Further, there was no evidence that the officer who issued the ticket lacked the authority to do so or was acting beyond the scope of that authority.
[19] A further count under s. 423(1) claimed persistent conduct because a police vehicle drove slowly by the appellant’s home one day. So did a vehicle with a commissionaires' insignia, which the appellant said had “something to do with the law". This count also failed. The police force had the authority to patrol roads within its jurisdiction and one occurrence did not amount to persistent conduct.
[20] The appellant also pleaded that a breach of s. 425.1(1)(a) occurred when his partner wanted to provide a statement about her unfavourable performance review but was prevented from doing so by senior officers until she was interviewed by officers from another unit responding to her claim of harassment. The justice issued process on this count.
[21] The Crown stayed the information on this count on two grounds:
i. absence of evidence of an essential element of the offence, specifically, that the police force that employed the appellant’s partner took disciplinary proceedings against her with intent to compel her to refrain from providing information; and
ii. lack of any reasonable prospect of conviction.
[22] The justice of the peace declined to issue process on a count charging a breach of s. 425.1(1)(b). The allegation was that the police force and two named officers transferred the appellant’s partner to another location in retaliation for her providing information about harassment. The justice of the peace found no evidence of retaliation, thus refused to issue process on this count.
The Decision of the Application Judge
[23] The application judge was satisfied that the justice of the peace had made no jurisdictional error in concluding that she would not issue process on six of the seven counts contained in the appellant’s information. The essence of the application judge's reasons appears in four paragraphs of her written reasons:
I find in this case that the Justice of the Peace carefully considered the evidence in relation to each charge and came to a reasonable conclusion within the jurisdiction of the Justice of the Peace in refusing to issue process on Counts # 1, 2, 3, 4, 5, and 7 as the applicant P.C. had failed to establish a prima facie case on the required elements of the offences alleged. In refusing to issue process, the Justice of the Peace found that there was insufficient prima facie direct, reliable or trustworthy evidence given by P.C. in support of his allegations which is evident from the record of the proceedings.
An error about the nature of the evidence relied upon amounting to a jurisdictional error by the Justice of the Peace remediable by mandamus has been held to be doubtful. An order in the nature of mandamus cannot compel a court of limited jurisdiction to exercise a jurisdiction or duty in a particular way. Errors in the admission or exclusion of evidence are not generally in the nature of jurisdictional errors. Jurisdiction has to do with the authority to decide an issue or perform a duty, not the nature or correctness of the decision made. (See R. v. Vasarhelyi, 2011 ONCA 397 Watt, J.A.).
An order for mandamus is a discretionary order and is not as of right. The test or standard of review on a mandamus application in response to a Justice of the Peace’s refusal to issue process following a pre-enquete hearing is the applicant must demonstrate that there has been jurisdictional error or that the Justice of the Peace did not exercise his or her discretion judicially, according to law. (See McHale v. Ontario (Attorney General) 2011 ONSC 4535).
P.C.’s evidence given in his testimony at the pre-enquete hearing was almost entirely hearsay, or double hearsay or speculation about his wife K.C.’s personal employment situation and her ordeal with the respondents while at work, in the community and at home. There was no evidence against the [police force] per se. The evidence of the essential elements of the offences alleged, were not addressed by P.C. at the pre-enquete hearing. The evidence at the pre-enquete hearing, I find, could not reasonably justify the issuance of any process by the Justice of the Peace on any evidentiary standard within the criminal context.
[24] In connection with the stay entered by the Crown on the count on which the justice of the peace decided to issue process, the application judge was satisfied that no jurisdictional error had occurred. The Crown had the absolute right to direct entry of the stay and did so in accordance with the governing principles.
The Grounds of Appeal
[25] The appellant advances six grounds of appeal. As we understand his submissions, he contends that:
i. the application judge erred in exercising her discretion to dismiss the application for orders in lieu of mandamus and certiorari, specifically because the justice of the peace did not know the required elements of the offences alleged;
ii. the justice of the peace had no jurisdiction to conduct the pre-enquete, only a provincial court judge has authority to do so;
iii. the application judge erred in granting standing to lawyers for the putative accused to seek a publication ban;
iv. the application judge erred in plagiarizing part of the submissions by a lawyer for a putative accused seeking a publication ban as part of her reasons for judgment;
v. the application judge erred in failing to set aside the stay of proceedings entered on the count on which process was issued; and
vi. the application judge erred in questioning whether the employment grievance of the appellant’s partner was best addressed in civil proceedings as a labour dispute, rather than by invocation of the criminal process.
Analysis
[26] As we explain in the following paragraphs, we are not persuaded that the grounds of appeal advanced, whether considered individually or cumulatively, warrant our intervention.
Ground #1: The Refusal to Issue Mandamus and Certiorari
[27] The purpose of a pre-enquete under s. 507.1(2) of the Criminal Code is for the presiding judge or justice to determine whether a case has been made out for the issuance of process to compel the putative accused named in the information to appear or attend in answer to any of the charges contained in the information.
[28] The task of the judge or justice presiding at the pre-enquete is twofold: to determine whether:
i. the information is valid on its face; and
ii. the evidence adduced on the hearing discloses a prima facie case on the offence(s) charged.
See, R. v. Grinshpun, 2004 BCCA 579, 190 C.C.C. (3d) 483, at para. 32, leave to appeal refused, [2004] S.C.C.A No. 579; R. v. Whitmore (1989), 1989 CanLII 7229 (ON CA), 51 C.C.C. (3d) 294 (Ont. C.A.), at p. 296.
[29] To be valid on its face, a count in an information must allege an indictable offence in accordance with s. 504 of the Criminal Code. The count must also comply with s. 581, which requires, among other things, that the count contain, in substance, a statement that the accused committed an indictable offence. This statement may be in language that satisfies any of the requirements in s. 581(2).
[30] The second task of the judge or justice presiding at the pre-enquete is to determine whether the evidence adduced at the hearing discloses a prima facie case of the offence(s) alleged. To satisfy this requirement, there must be some evidence against the putative accused on each essential element of the offence(s) alleged in the information: Grinshpun, at paras. 32-33; Whitmore, at p. 296.
[31] One of the purposes underlying the pre-enquete is to ensure that spurious allegations, vexatious claims, and frivolous complaints bankrupt of evidentiary support will not result in a prosecution. To vindicate this purpose, s. 507.1(3)(a) requires the presiding judge or designated justice to consider not only the allegations of the informant, but also the evidence of witnesses: R. v. McHale, 2010 ONCA 361, 256 C.C.C. (3d) 26, at paras. 65, 74, leave to appeal refused, [2010] S.C.R. vi (note). It would seem reasonable to conclude from the obligation to hear both the allegations of the informant and the evidence of witnesses, that mere allegations are not sufficient: R. v. Vasarhelyi, 2011 ONCA 397, 272 C.C.C. (3d) 193, at paras. 39, 55, leave to appeal refused, [2011] S.C.C.A No. 470. Compare, ss. 507(1)(a)(ii) and 507.1(3)(a).
[32] The nature of the evidence that may be received at the pre-enquete is not described in s. 507.1. No principled reason exists to abandon the requirements of relevance and materiality. Nor could anyone gainsay that evidence that satisfies the rules of admissibility applicable in a criminal trial should be received. While what is received may not be coextensive with what would be relevant, material, and admissible at the trial of the offences alleged, nothing less than evidence that is relevant, material, credible, and trustworthy should be received in view of the consequences of the pre-enquete.
[33] The appellant sought to invoke the extraordinary remedy jurisdiction of the application judge. These remedies, or orders in lieu of them, issue out of the superior court for jurisdictional deficits or excess. Each is discretionary. Neither issues as of right: Vasarhelyi, at para. 50.
[34] An order in lieu of mandamus may issue to compel a court of limited jurisdiction to exercise its jurisdiction or to discharge a duty. However, it does not compel a court, tribunal, or official to do so in a particular way: Vasarhelyi, at para. 51.
[35] Jurisdiction is concerned with the authority to decide an issue or to discharge a duty, not with the correctness or the nature of the decision made. On subjects within its jurisdiction, a court of limited jurisdiction has the right to be wrong about the construction of a statute or the application of a legal principle. The remedy to correct that error is an appeal, if available, from the final disposition. Applications for orders in lieu of extraordinary remedies, such as mandamus and certiorari, are of no assistance: Vasarhelyi, at para. 52.
[36] Errors in the interpretation of statutory provisions (that are not jurisdictional in nature), as well as mistakes in the admission, exclusion, and assessment of evidence are not jurisdictional in nature, are thus beyond the compass of extraordinary remedies: Vasarhelyi, at para. 53.
[37] In this case, the application judge correctly set out the principles applicable to the availability of the remedies she was asked to grant. She was mindful of what was required to engage the discretion of the designated justice at the pre-enquete to issue process. She examined the record to determine whether there was evidence of each essential element of each offence, in which the justice found none. She concluded that the justice had not erred in her conclusions. The appellant notes that when considering the count of criminal harassment and whether the appellant’s partner reasonably feared for her safety, the justice incorrectly considered only physical safety. In fact, safety may also include emotional distress; Re Colburn, 2016 ONCA 536, 131 W.C.B. (2d) 609. However, this error did not amount to a jurisdictional error; it thus fell outside the scope of the application judge’s review authority. In addition, the appellant did not provide evidence that any fear for her safety was reasonably held. Without evidence of an essential element of an offence, the designated justice had no authority to issue process. Similarly, the application judge had no authority to grant the extraordinary remedies the appellant sought. We agree with her conclusion.
Ground #2: Jurisdiction to Conduct the Pre-enquete
[38] The appellant says that the pre-enquete was jurisdictionally flawed by not being conducted, as it should have been, by a provincial court judge. It follows, the appellant contends, that the justice of the peace who presided had no jurisdiction to do so.
[39] In our view, this argument cannot succeed. It is defeated by the plain language in various subsections of s. 507.1 which make it clear that the pre-enquete may be conducted in this province by “a provincial court judge" or “a designated justice". See, for example, ss. 507.1(1), (2), (3), (5), and (7).
[40] Section 507.1(10) exhaustively defines the term “designated justice" as meaning “a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter". Section 2 defines “justice” as a “justice of the peace". There is no suggestion that the justice in this case was not “designated”.
Ground #3: The Non-Publication Application
[41] At the outset of the proceedings before the application judge, counsel for the police force and officers against whom the appellant sought to have process issue appeared. Based on materials counsel had filed, one officer sought an order banning publication of his name and other identifiers. The remaining officers and the police force did not pursue their applications for the same remedy. Each of the lawyers, including counsel who sought the publication ban, made it clear that they would not be making any submissions in response to the appellant's application.
[42] The appellant and Crown counsel told the application judge that they were taking no position on the application for a publication ban.
[43] Contrary to the position he took before the application judge, the appellant now argues that the application judge erred in permitting the application for a publication ban to proceed. He points to a passage in the reasons of the application judge in which she refers to the submissions of counsel for the police force and named officers arguing that the appellant’s application should be dismissed.
[44] This ground of appeal fails.
[45] The appellant’s application for orders in lieu of mandamus and certiorari was heard in open court, unlike the pre-enquete. The information the appellant laid before the justice of the peace identified the police force and several members of it as accused. No process had issued on six counts. The Crown had stayed the seventh count. Neither the police force nor any of the named officers could be characterized as an accused. That the application judge permitted the application for a publication ban to proceed did not taint the appellant’s application for orders in lieu of mandamus and certiorari.
[46] To the extent that the appellant’s complaint is that the application judge erred in considering submissions from the lawyers for the police force and named officers in dismissing the appellant's application, it also fails.
[47] A review of the record of the proceedings confirms that the lawyers for the police force and named officers made no submissions on the merits.
Ground #4: The Plagiarism Ground
[48] The appellant also seeks reversal of the decision of the application judge because, in her reasons, she “plagiarized" portions of the factum filed by the lawyer who sought the publication ban. In so doing, the appellant submits, the judge misapprehended the evidence.
[49] The focus of the appellant's complaint is several paragraphs in a part of the application judge's written reasons following the heading, Background Facts and Analysis. These paragraphs, the appellant argues, are “plagiarized" from the overview of facts contained in the Notice of Application for the publication ban.
[50] It would not be unfair to say, as the respondent acknowledges, that several paragraphs of the application judge's reasons, in particular, paras. 9-19, may reflect some reliance on the materials filed by counsel in support of the application for the publication ban. However, the contents of those paragraphs, which recount the procedural history of the proceedings, are largely uncontroversial. The impugned passages record the allegations of the appellant based on disclosures by his partner. Allegations that are, for the most part, repeated in the counts contained in the information. The passages also include a summary of the findings made by the pre-enquete justice on each count of the information.
[51] The impugned passages contain no findings of fact, no articulation of any governing legal principle, and no assessment of the merits of the appellant's application. Nothing that appears in the reasons that has any affinity with the filed materials falls foul of the guidelines for judicial copying as explained in Cojocaru (Guardian ad litem of) v. British Columbia Women’s Hospital & Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357.
Ground #5: The Failure to Set Aside the Stay
[52] The appellant also challenges the application judge's failure to quash the stay entered by the Crown on the charge on which the justice decided to issue process.
[53] Section 579(1) of the Criminal Code authorizes the Attorney General or counsel instructed by the Attorney General for that purpose, at any time after any proceedings have been commenced and before judgment, to direct entry of a stay of proceedings. The stay entered in this case after the pre-enquete justice had decided to issue process on one count was timely: McHale, at paras. 85-86.
[54] Entry of a stay of proceedings under s. 579(1) of the Criminal Code is a core element of prosecutorial discretion. Exercise of that discretionary authority is reviewable only in cases of “flagrant impropriety": Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] S.C.R. at paras. 46, 49.
[55] In this case, the Crown gave reasons for directing entry of the stay; an absence of evidence on an essential element of the offence, and no reasonable prospect of conviction. Individually and cumulatively, these are valid reasons for entry of a stay of proceedings on a public or private information. They do not constitute “flagrant impropriety". The application judge was correct in not quashing the stay.
Ground #6: The Propriety of Invoking the Criminal Process
[56] The appellant’s final allegation of error arises out of a comment the application judge made during the hearing and repeated in the final paragraph of her written reasons. In essence, she questioned whether the grievance of the appellant's partner which formed the basis of the offences alleged was not more properly addressed in the labour relations and civil context than by the institution of criminal proceedings.
[57] In our view, this observation on the part of the application judge was well warranted in the circumstances. After all, what set this entire train of events in motion was an unfavourable performance review. There followed a rapid escalation from these job performance beginnings to invocation of the blunt instrument of the criminal law.
[58] The observation of the application judge is also consistent with the purposes of the pre-enquete. Among those purposes are to ensure that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support do not carry forward into a prosecution and to guard against the initiation of criminal proceedings to further claims that belong in another forum: McHale, at paras. 65, 74.
[59] This ground of appeal fails.
Disposition
[60] For these reasons, the appeal is dismissed.
Released: “DW” October 19, 2020
“David Watt J.A.”
“I agree. Gary Trotter J.A.”
“I agree. B. Zarnett J.A.”