R. v. Kouam, 2013 ONSC 3155

CITATION: R. v. Kouam, 2013 ONSC 3155

COURT FILES NO.: M64/13 & M65/13

DATE: 20130529

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Carlos Kouam

BEFORE: Mr. Justice Marrocco

COUNSEL: Lori Hamilton, for the Crown

Mr. Kouam, in person

HEARD: May 27, 2013

ENDORSEMENT

[1] Mr. Kouam wishes to institute criminal proceedings against a peace officer, Mr. Jason Ngo. Officer Ngo had arrested Mr. Kouam on April 3, 2010, on charges of prowling by night, assaulting a peace officer and aggravated assault. These charges came to trial before a judge of the provincial court. Mr. Kouam was convicted. A judge of this court allowed his appeal and remitted the matter back to the Ontario Court of Justice.

[2] Mr. Kouam charged Officer Ngo with obstruction of justice, perjury and public mischief. Justice of the Peace Wong, in a decision given on February 28, 2013, declined to issue process. Mr. Kouam moves to quash that decision and, as well, moves for an order compelling the Justice of the Peace to issue process and, finally, moves for an order prohibiting his trial from proceeding in 2014.

[3] Mr. Kouam outlined his version of what happened in the proceedings which occurred on February 28, 2013. Mr. Kouam emphasized the fact that the arresting officer had testified at trial he was going southbound when his notes indicated that he was going northbound. Mr. Kouam also indicated that the charge of perjury was grounded in the fact that there was no trespassing on the premises at 500 Huron St. Mr. Kouam indicated that he lived at 485 Huron St., Apt. 705 and that that is why he was present at the address where the officer arrested him. Mr. Kouam made reference to a charge of trespass, but there is no such charge outstanding against him. Finally, Mr. Kouam indicated that the officer had told a witness to his arrest that “everything was under control”, but reported to his superior that things were not under control at the scene of Mr. Kouam’s arrest. Mr. Kouam indicated that there was confusion on the part of the Justice of the Peace concerning the nature of the charges that he was pursuing and that this confusion was caused by court staff at the North York courthouse. Mr. Kouam indicated that the offences which he intends to pursue are continuing offences.

[4] Mr. Kouam indicated that he did not have the co-operation of the court staff at the North York courthouse. Mr. Kouam had to attend at the courthouse four times in an effort to swear an information and that court staff, at first, refused to receive his documents and only agreed to do so when he threatened to commence proceedings in the Superior Court.

[5] I received into evidence from Mr. Kouam a 911 call in both audio and transcript form, as well as other video evidence involving an interaction between Mr. Kouam and the police. Despite the fact that these are reviewed proceedings, I have considered both the 911 call and the transcript.

[6] There is no basis for prohibiting the trial of Mr. Kouam in February 2014. A judge of this court remanded the matter back to the Ontario Court of Justice and the Crown Attorney in that court is entitled to proceed. The decision to proceed does not reflect a loss of jurisdiction.

[7] The applicant also seeks writs of certiorari and mandamus.

[8] The decision to quash a ruling of this type and compel a Justice of the Peace to issue process is a discretionary one. The extraordinary remedies of certiorari and mandamus are available if the decision to refuse to issue process resulted in a loss of jurisdiction, an absence of jurisdiction, a refusal to exercise jurisdiction or an action in excess of jurisdiction (see: Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268). Jurisdiction has to do with the authority to decide an issue or perform a duty, not the correctness of the decision.

[9] Section 507.1 of the Criminal Code, R.S.C., 1985, c. C-46 governs pre-inquiry hearings in the cases of private prosecutions. It places the onus on the informant to establish that a summons or warrant should issue to compel an accused to attend before the court to answer a criminal charge. The information must establish a prima facie case, requiring some evidence on all of the essential elements of the offence (see: R. v. Grinshpun, [2004] B.C.J. No. 2371 (C.A.), at paras. 32-33, leave to appeal refused, [2004] S.C.C.A. No. 579 & Parkinson, at para. 19).

[10] The Justice of the Peace whose decision is under review considered Mr. Kouam’s version of events. Her Worship gave Mr. Kouam the opportunity to explain what happened as he understood it. Her Worship decided, based on Mr. Kouam’s version of events, that no rational inference of a criminal intent was possible and declined to issue process.

[11] The actions of Justice of the Peace Wong do not lend themselves to a conclusion that jurisdiction has been lost. A transcript of the pre-enquete hearing reveals that the Justice of the Peace appreciated the position being taken by Mr. Kouam, followed the procedure set out in the Criminal Code and then gave reasons for the decision which are capable of appellate review.

[12] If I am wrong and there has been jurisdictional error, I would decline to order that the writs of certiorari and mandamus issue. The decision to issue process and compel a citizen, resident or visitor to respond to a criminal charge is a serious one. Criminal proceedings tend to remain before the courts for a considerable period of time. Based on Mr. Kouam’s version of events, there is no reasonable prospect of conviction and, in my view, it would not be in the public interest for scarce judicial resources to be wasted in a futile and utterly unwarranted prosecution. I recognize that the Crown Attorney could come to the same conclusion and stay the proceedings. That possibility does not prevent this court from taking a similar view on this application.

[13] Mr. Kouam’s applications to quash the decision of Justice of the Peace Wong refusing to issue process against Jason Ngo and for an order compelling the issuance of process against Jason Ngo are dismissed. As indicated earlier, Mr. Kouam’s application to prohibit the Ontario Court of Justice from conducting a re-trial is also dismissed.

[14] Mr. Kouam does not have access to a fax machine so these reasons will be mailed to him at the address which he provided to the court. On the day after these reasons have been mailed to Mr. Kouam, they will be forwarded to the Crown Attorney’s office in the usual course.

MARROCCO J.

Date: 20130529