SUPERIOR COURT OF JUSTICE – ONTARIO

Toronto Region

COURT FILE NO.: M 108/13
DATE: 20140107

RE: CHANG GEN HU and HER MAJESTY THE QUEEN

BEFORE: NORDHEIMER J.

COUNSEL: R. Nathanson, for the Crown/respondent
Chang Gen Hu in person

HEARD: January 6, 2014

E N D O R S E M E N T

[1] Mr. Hu seeks to review the decision of a Justice of the Peace at a pre-inquiry or “pre-enquete” hearing not to permit the issuance of process regarding a privately laid information charging Mr. Hu’s former landlord with forcible entry under the Criminal Code. Mr. Hu had also sought to institute an offence under the Trespass to Property Act, R.S.O. 1990, c. T.21 but this application deals only with the Criminal Code offence.

[2] Briefly stated, the allegation is that the landlord forced her way into Mr. Hu’s apartment as part of an ongoing dispute between her and Mr. Hu regarding his rental of the property. The police were called and Mr. Hu was arrested on allegations that he had assaulted the landlord. A short time later, Mr. Hu was released by the police without any charges. Mr. Hu sought to have the police charge the landlord arising out of her improper entry into his apartment but the police declined. Mr. Hu then sought to bring his own charges against the landlord.

[3] Mr. Hu originally sought to have a charge of break and enter laid against the landlord but that effort was dismissed at a separate pre-enquete hearing. Mr. Hu then sought to have a charge of forcible entry laid and that is the charge that is the subject of this application.

[4] The Crown concedes that the Justice of the Peace exceeded his jurisdiction by refusing to allow process to issue. There was evidence placed before the Justice of the Peace that provided prima facie proof of each of the elements of the offence of forcible entry. The Crown conceded that fact before the Justice of the Peace. Despite that concession, however, the Justice of the Peace declined to allow the information to proceed. In doing so, the Justice of the Peace said:

The court has to decide whether you presented some evidence of all the essential elements of the offence, a prima facie case. And if the court decides you have, the second test is whether or not this court considers the case an appropriate one for the issue of process.

[5] Given the mandatory language of s. 507.1(2) of the Criminal Code, the Crown says that, once there was some evidence on each of the elements of the offence, the Justice of the Peace was required to issue process and that he exceeded his jurisdiction by failing to do so. However, the Crown submits that this excess of jurisdiction does not lead inescapably to this court having to grant extraordinary relief. To the contrary, the Crown submits that this court maintains a discretion whether to grant such relief notwithstanding the jurisdictional error. In support of that submission, the Crown relies not only on the inherent discretionary nature of extraordinary relief but also on existing authority, notably R. v. Kouam, [2013] O.J. No. 2657 (S.C.J.).

[6] In Kouam, on this point, Marrocco J. said, at para. 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.

[7] It is of some importance to note that in Kouam there was a finding that there was no reasonable prospect of conviction and that the prosecution would be “futile and utterly unwarranted”. It may be implicit in those findings that the proposed prosecution amounted to a frivolous or vexatious proceeding. If so, then there is, in those circumstances, a narrow exception that would permit the Justice of the Peace to refuse to issue process – see R. v. Halik, [2010] O.J. No. 304 (S.C.J.) at para. 34. There is no comparable suggestion regarding the allegations of Mr. Hu. Rather, the Crown conceded at the pre-inquiry hearing that there was evidence to support the essential elements of the offence. While the Crown suggested that there were other avenues of redress that Mr. Hu could pursue, it was not suggested that this was a frivolous or vexatious case. That is a significant distinction between this case and Kouam.

[8] There is authority for a Justice of the Peace in conducting a pre-inquiry hearing to refuse to issue process where he or she forms the opinion that the charge is frivolous, vexatious or an abuse of process. This is an essential part of the pre-inquiry process. As Watt J.A. said in McHale v. Ontario (Attorney General), [2010] O.J. No. 2030 (C.A.) at para. 74:

The pre-enquete also ensures that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution.

[9] There was, however, no finding made by the Justice of the Peace that Mr. Hu’s allegations fell within that category of cases. What does not exist is a residual authority with the Justice of the Peace to decide whether the proposed prosecution is “appropriate”. It was not therefore open to the Justice of the Peace to decline to issue process because he felt that there was some alternative or preferable way for Mr. Hu to pursue his complaint. Yet that is what the Justice of the Peace concluded.

[10] The Crown submits that that conclusion does not end the inquiry and, in particular, does not automatically mean that a remedy must be granted. This court’s exercise of its authority to grant an extraordinary remedy is a discretionary one. This point was also made in McHale where Watt J.A. said, at para. 87:

In doing so, the Attorney General summoned the well-known principle that the extraordinary remedies, like mandamus, do not issue as of right, rather are discretionary in their grant and may be refused where another adequate remedy exists: [citation omitted].

[11] There is at least one other remedy that Mr. Hu could have availed himself of with respect to this situation and that would be a civil claim for damages arising from the actions of his landlord. Mr. Hu could have sued his landlord for damages arising from her alleged trespass on his property in the Small Claims Court – a relatively expeditious and inexpensive process. In response, Mr. Hu says that a civil claim does not address the need to try and stop the landlord from engaging in such conduct in the future. He asserts that criminal proceedings are necessary to achieve the objective of deterrence.

[12] In attempting to invoke the discretionary nature of the remedy sought, the Crown asserts that this court should refuse to grant extraordinary relief to Mr. Hu for the following reason:

Given the nature of this allegation, which involves no injuries and no property damage and has its roots in a landlord/tenant dispute, the respondent submits that it is not in the public interest for further judicial resources to be devoted to this matter.

[13] In my view, the fact that Mr. Hu could have taken a different path to achieve some vindication of his complaint regarding his landlord’s actions, does not disentitle him to a properly conducted and properly concluded pre-inquiry hearing. Further, based on the principles set out in McHale, it is also my view that it is not appropriate for this court to apply a broader test for when a refusal may be made for the issuance of process than was available to the Justice of the Peace. I do not believe that that is what Watt J.A. was referring to when he said extraordinary relief could be refused “where another adequate remedy exists”. There are many criminal offences that will also found a civil claim but it cannot be suggested that that fact alone makes a criminal prosecution inappropriate.

[14] Adoption of the Crown’s position in this case would result in just that situation: a reviewing judge could uphold the refusal to issue process on a basis that was not available to the Justice of the Peace. It would lead, in essence, to the reviewing court deciding what cases are or are not appropriate ones for private prosecutions. It would involve the reviewing court in deciding what cases are or are not meritorious. And it would involve the reviewing court doing all of this without a satisfactory evidentiary basis.

[15] All of that said, there remains the completely separate discretion in the Crown to withdraw or stay a charge once the information has been issued – one that involves the exercise of prosecutorial powers that is not generally reviewable – see Ahmadoun v. Ontario (Attorney General), 2012 ONSC 955, [2012] O.J. No. 639 (S.C.J.). If the Crown believes that it is not in the public interest for this private prosecution to proceed, then the Crown has the authority to terminate the prosecution.

[16] In the end result, the application is allowed and the matter is remitted back to the Ontario Court of Justice for process to issue on the offence of forcible entry in accordance with these reasons.

NORDHEIMER J.

DATE: January 7, 2014