Court Information

Ontario Court of Justice

Date: 2020-01-29

Location: Newmarket

Parties and Counsel

Between:

In the Matter of an Application by Robert Lepp for Release of a Pre-Enquete Transcript

Application Heard: 29 January, 2020

Ruling Delivered: 29 January, 2020

Counsel:

• Mr. Frank Giordano – counsel for the Crown
• Mr. Robert Lepp – on his own behalf

Ruling

KENKEL J.:

Introduction

[1] Mr. Lepp applies for an order permitting him to obtain a transcript of proceedings in a pre-enquete hearing. The Crown submits that jurisdiction to review pre-enquete proceedings rests solely with the Superior Court of Justice. A request for a transcript of an in-camera hearing should be made to that court.

[2] For the reasons set out below, I find that this court retains jurisdiction to hear this application in this case. The purpose of this transcript request is not for judicial review via mandamus, nor can it be as Mr. Lepp's application was not dismissed by the Justice of the Peace. He withdrew the application during the hearing. I find that the application should be brought as originally requested by Mr. Lepp, before the Justice of the Peace who presided in that hearing. Her Worship has a right to control of her court's process and is best situated to determine the merits of the application.

Pre-Enquete Hearings

[3] Private citizens may institute prosecutions for alleged breaches of the law including alleged criminal offences. Where a private person as informant brings an allegation of an offence before the court, section 507.1 of the Criminal Code directs that a hearing be held to determine whether process should issue to compel the person accused to appear in court to answer to the charges. The s 507.1 hearing is known as a "pre-enquete" (la pré-enquête), literally a pre-hearing to determine if the criminal process should proceed.

[4] The justice of the peace who presides at a pre-enquete decides whether a case has been made out for the issuance of process on the basis of "the allegations of the informant and the evidence of witnesses". The language used in s 507.1(3), which defines the conditions to be satisfied before process may issue, is discretionary: "may issue a summons or warrant". The standard or test the judge or justice is to apply emerges from s. 507.1(2): "that a case for doing so is made out". Sections 507.1(5)-(7) describe the effect of a finding that no case has been made out for the issuance of process. See: R v Vasarhelyi, 2011 ONCA 397 at para 38.

Evidence at a Pre-Enquete

[5] In Vasarhelyi, Justice Watt noted that s 507.1(3) distinguishes between "the allegations of the informant" and the "evidence of witnesses". Unlike s 507 which applies to informations laid by police officers, s 507.1(3)(a) makes the introduction of the evidence of witnesses essential in private prosecutions. "Such a requirement serves as an important control over the invocation of the criminal process to further the fevered imaginings of a private informant" – R v Vasarhelyi at para 39. The 2002 507.1 amendment requires more from a private informant if they wish the criminal process to be engaged.

[6] The "evidence of witnesses" requirement is alleviated by the provisions of s 507.1(8) which incorporate ss 507(2)-(8) including the provision which includes hearing evidence in accordance with s 540, which applies otherwise to preliminary hearings. The combination of those provisions seems to result in the admission of hearsay evidence deemed credible and trustworthy – R v Vasarhelyi at para 48.

Transcripts of Pre-Enquete Proceedings

[7] In R v Cohen, [1976] QJ no 189 (CA) reversed on other grounds, [1979] SCJ No 50, a defendant was permitted access to a transcript of pre-enquete proceedings by a private informant for the purpose of cross-examination at trial. Transcripts are not routinely provided on request because a pre-enquete hearing is ex-parte, held in-camera in the absence of the other party and the public. There is a possibility that confidential information may be disclosed or that baseless assertions may be published where the other party was not able to respond. The record of the proceeding is available for judicial review by a Superior Court, but is not typically released otherwise.

[8] Mr. Lepp applies for a transcript of the hearing in which he abandoned his complaints. His application states that the purpose of the transcript is to "verify what mistakes I made so I will not repeat them in future." In court he put forward a different explanation – that he wants to show two judges the transcripts in relation to an ongoing trial. It's not plain whether the transcript would have any relevance to such a proceeding. There is no evidence though of any improper purpose for the transcript request.

Conclusion

[9] The transcripts are not being requested for the purpose of judicial review. While there is no express provision in the Criminal Code regarding the release of transcripts of these in-camera proceedings, I find that this court retains control over that process for purposes not related to mandamus or review. The judicial officer best placed to assess the merit of this application is Her Worship Justice of the Peace Walker who presided at the hearing in question. If release is ordered, she would also be in the best position to determine what restrictions on the use of that transcript may be necessary. It's important that she be able to exercise control over her own process and proceedings.

[10] I adjourn this application to Friday February 7th, 2020 in courtroom 201 for a hearing before Her Worship Walker.

29 January, 2020

Justice Joseph F. Kenkel