Court File and Parties

CITATION: Asghar v. Office of the Independent Police Review Director, 2020 ONSC 4686

DIVISIONAL COURT FILE NO.: 432/19

DATE: 20200804

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SAJJAD ASGHAR, Applicant/Moving Party

AND:

OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR, Respondent/Responding Party

BEFORE: D.L. Corbett J.

COUNSEL: Sajjad Asghar, self-represented

Scott Childs, for the OIPRD

Read in Chambers: August 4, 2020

Endorsement

[1] On July 28, 2020, the court directed the Registrar to give Mr Asghar notice that the court is considering quashing his notice of constitutional question as frivolous, vexatious and an abuse of process (2020 ONSC 4549). Mr Asghar provided submissions in response by email on July 31, 2020.

[2] For the reasons that follow, Mr Asghar’s Notice of Constitutional Question is quashed, but with leave to Mr Asghar to serve a fresh Notice of Constitutional Question consistent with the directions set out in this endorsement. The case will proceed to a hearing on the basis of the other materials filed by Mr Asghar and any proper fresh Notice of Constitutional Question that Mr Asgar may serve hereafter.

[3] In its direction to issue a notice pursuant to R.2.1.01, the court identified five issues with Mr Asghar’s Notice of Constitutional Question. I address each in turn.

Issue 1: the Notice is an impermissible collateral attack on my decision of September 27, 2019

[4] Mr Asghar is not permitted to challenge this court’s decision of September 27, 2020 in this proceeding. That decision is authoritative: it has not been appealed or reviewed and it decides the issues it addresses. That said, in that decision I permitted Mr Asghar to bring a fresh motion on notice to both OIPRD and TPS. I indicated that if Mr Asghar brought a fresh motion, he would need to show why the requested materials are admissible and relevant in the proceeding before this court.

[5] If Mr Asghar decides to bring a fresh motion, he must serve his motion materials on OIPRD and TPS no later than August 31, 2020. If he does not do that then he will be deemed to have decided not to bring such a motion and the case will proceed forward on the basis of the record as it stands currently.

[6] Mr Asghar may not use a Notice of Constitutional Question to challenge this court’s prior decision on his motion. That is not because the court believes that it is always right and dislikes hearing people disagree with the court. It is because the judicial process is linear, and once issues have been decided they may not be relitigated. The motion has been decided. It permits Mr Asghar to bring a fresh motion, but aside from that, Mr Asghar may not challenge or disagree with this court’s prior decision in this court.

Issue 2: the Notice does not state any basis for an alleged constitutional violation by the Respondent other than the alleged unreasonable impugned screening decision, which raises no constitutional issues on its face

[7] Mr Asghar makes general allegations of constitutional violations by OIPRD, but nothing approaching a justiciable constitutional claim requiring a Notice of Constitutional Question. The OIPRD is required to conduct itself in a Charter-compliant manner, of course, and Mr Asghar is entitled to argue that OIPRD did not. That does not raise a “constitutional question” within the meaning of the requirement to give Notice of Constitutional Question pursuant to s.109 of the Courts of Justice Act. Such Notices are required when a claimant challenges the constitutional validity or applicability of a law, regulation, by-law made under a law, or a rule of common law (s.109(1)1.) or where a claimant claims a remedy under s.24(1) of the Charter against Canada or against Ontario. A Notice is not required for every action of a state actor that is alleged to contravene protected rights. Specifically, the arguments made about the conduct of OIPRD in this case, as alleged by Mr Asghar, do not require a Notice of Constitutional Question.

Issue 3: the Notice challenges the constitutional validity of the Police Services Act and the Ontario Human Rights Code. There is no particularity in respect to this aspect of the Notice: the provisions of the Act and the Code that are said to be unconstitutional are not identified and no facts are alleged to explain in what respects these provisions are alleged to be unconstitutional

[8] Mr Asghar begins his response on this issue by stating that he “only challenges the practicalities associated with the PSA and the OHRC in their implementation which has become routine even when its against the Constitution Act and the Charter.” I take this to mean that Mr Asghar does not seek a finding that any provision of the Police Services Act or the Human Rights Code are themselves unconstitutional. Rather, he alleges that conduct by OIPRD and/or TPS pursuant to the Police Services Act and the Human Rights Code has been inconsistent with the Charter. For the reasons explained respecting Issue 2, no Notice of Constitutional Question is required to argue that OIPRD and/or TPS acted in such a way as to breach Mr Asghar’s Charter rights.

[9] If Mr Asghar is challenging the constitutionality of any provision in the Police Services Act or the Human Rights Code, then he must specify which provision he is challenging and the basis on which he does so.

Issue 4: Mr Asghar also alleges that the Charter itself is unconstitutional, a claim that suffers from the same apparent defects as the challenges to the Police Services Act and the Human Rights Code, and, additionally, appears to be legally incoherent (since the Charter is part of the Constitution of Canada)

[10] In his response, Mr Asghar states that he was not able to locate where in his Notice he challenges the constitutionality of the Charter itself. It is set out in the first paragraph of the Notice.

[11] There can be no coherent claim to strike out any portion of the Charter itself as unconstitutional.

Issue 5: the Notice is prolix and appears to include much that is “scandalous”, abusive, uncivil and racist. Where such improper pleadings are isolated within an otherwise proper pleading, the usual remedy is to strike out the offensive portions from the pleading; where, as here, they permeate the document, the usual remedy would be to strike the pleading out entirely: respondents should not be required to respond to such abusive improper pleadings.

[12] Mr Asghar’s response to these concerns is, itself, unacceptable:

Para 5 references the OIPRD counsel’s false claims regarding the NOCQ being prolix, scandalous, abusive, uncivil and racist. The plain and simple answer to those who think like that is “fuck you”. This court must understand the gravity of the situation, the intensity of the attempted murder by two hired and random thoughtfully placed assailants/assassins, the nature and specifics of the attacks, consistent reporting and several other armed attacks conducted by the hired assassins, the importance of video footages, production orders, collecting forensics, interviewing the applicant and the perpetrators properly, discovery of witnesses, arrests of the assassins and final disposition such as permanent conditions and restraining orders, safety of the applicant. TPS constables and its Chief did not even do the very basics such as quick emergency response, police report, collecting forensics and witness statements, video footages and interviewing of the parties, arrests of the assassins etc. and the corrupt Director of the OIPRD screened out the complaint merely on conjectures and hallucinations without even speaking with the police, no records of communication with the police were presented by the OIPRD. On top of that when ill trained and legally incompetent mala fide counsels and Judges call the NOCQ and the voice to protect the Constitutional and Charter rights of this applicant frivolous, vexatious, racist, uncivil and lengthy then you need psychotherapy and must be struck as recipients from the rosters of the public paychecks. Your states of mind are criminal and you are unbecoming of public service. (para. 12, emphasis added)

[13] There are two points to be made here. First, Mr Asghar points to a decision of the Ontario Court of Appeal in a prior case in which he was involved. That Court noted that, even where a litigant is rude and acts badly, it is still the duty of the court to adjudicate the underlying issues dispassionately. A valid claim should not be dismissed just because a litigant is rude or abusive. See Asghar v. Toronto Police Services Board, 2019 ONCA 479.

[14] Mr Asghar seems to take these remarks from the Court of Appeal as license for incivility. It would be a grave error for him to continue on that course.

[15] As a litigant, Mr Asghar is required to treat the court and other justice system participants with respect and decorum even where he disagrees strongly with them and even if he is upset by what they have done.

[16] If Mr Asghar had said in court what he wrote in para. 12, quoted above, I would have cautioned him for contempt of court. I would have given him an opportunity to reflect on his conduct and to apologize, but I would not have permitted him to continue using such language toward the court or toward other participants in the system. This is not because I am a fragile wallflower, diminished by the abuse of a dissatisfied litigant or because I am deeply affronted by strong language. This is because the court is a solemn public institution, where everyone is expected to conduct themselves with civility and courtesy. It is my job, as the presiding judge, to enforce this, so that proceedings do not descend into chaos.

[17] Second, Mr Asghar explains that his strong language must be understood as reflecting the gravity of his situation and his naturally strong reaction to what he believes has happened. I understand that Mr Asghar feels strongly about these matters. But that is no excuse for uncivil, abusive and racist berhaviour towards other justice participants. Abuse and incivility is not a form of punctuation for rational argument to signal passionate commitment. It is juvenile, uncivilized and disorderly behaviour and it will not be tolerated.

[18] Mr Asghar’s Notice of Constitutional Question is replete with racial abuse and gross incivility – to police officers, the Chief of Police, and towards others. This is simply not acceptable and this conduct will not be tolerated. If Mr Asghar persists in it, the court will consider compelling him to attend at court to show cause why he should not be cited for contempt of court. See Lochner v. Ontario Civilian Police Commission, 2019 ONSC 3048. As an adult litigant, Mr Asghar is required to control his emotions, to present his arguments rationally, and not to engage in aggressive abuse of other justice system participants.

[19] If Mr Asghar delivers a fresh Notice of Constitutional Question, he shall observe this direction to express himself with appropriate civility.

[20] In respect to prolixity, a Notice of Constitutional Question is not the place to argue the case in detail. Its goal is to give notice to adverse parties of the legal instruments that the claimant says are unconstitutional, and why, and to give notice of remedies sought against Canada or Ontario under s.24(1) of the Charter, and, briefly, why. I would have thought that this could be done in no more than two or three pages, though I am not imposing a page limit.

Order

[21] It is not clear that there are any issues in this case requiring a Notice of Constitutional Question. However, I would not preclude Mr Asghar from serving a fresh one, if he believes that there are questions for which such a notice is required.

[22] The Notice of Constitutional Question is quashed, but without prejudice to Mr Asghar serving a proper Notice of Constitutional Question consistent with the directions set out in this endorsement. He shall do so by August 21, 2020, failing which the case shall proceed without such a Notice.

Scheduling

[23] Mr Asghar indicates in his response that he is unable to argue this case on the merits on September 30, 2020 as currently scheduled. He states that he understood that the hearing had been cancelled because of COVID-19 and he states that he now has another proceeding in Federal Court on September 29, 2020.

[24] Mr Asghar is in error respecting the cancellation of his hearing. All matters in Divisional Court previously scheduled up to August 31, 2020 were cancelled because of COVID-19, but not matters that had been scheduled after August 31^st^. That said, if Mr Asghar cannot proceed on September 30, 2020, the court sees no reason why the case cannot be rescheduled for a later date. However this is not a direction I will give without first hearing from the other side. Therefore, the court directs the respondent to advise by August 11, 2020 of any objection it has to rescheduling the return date for the underlying application to a later mutually convenient date.

D.L. Corbett J.