SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-10000131-00MO

DATE: 20140313

RE: Peter Waskowec v. Her Majesty the Queen in Right of Ontario

BEFORE: M.A. Code J.

COUNSEL:
Peter Waskowec, representing himself
Kim Walker, for the Crown Respondent

HEARD: February 3 and 4, 2014

ENDORSEMENT

[1] The Applicant Peter Waskowec [hereinafter, Waskowec] appeared before Justice of the Peace Cremiscio on May 14, 2013 in Toronto. He wished to swear an Information, pursuant to s. 504 of the Criminal Code, alleging that various offences had been committed by Hydro One Networks and its management.

[2] Waskowec filled out a standard form document provided by the Ontario Court of Justice titled “Private Prosecutions Particulars”. It set out a brief summary of his allegations and listed the offences and the officials at Hydro One Networks who Waskowec wished to charge. The written summary of his allegations was as follows:

“Criminal Code s. 37- refusing to provide me with my power usage bills. Phone call to me on December 23, 2009 threatening me with physical assault if I try to pick up my bills in person. Criminal Code s. 423 – intimidation that they would breach my contract with them and they would disconnect my power if I didn’t buy a computer to receive my bills. Charging fraudulent interest as a result of their refusing to provide me with my bills.”

[3] The record of the proceedings before Justice of the Peace Cremiscio is found in a fifteen-page transcript. The Justice of the Peace took sworn evidence from Waskowec, setting out his allegations. In addition, Waskowec had a binder of documents that he brought with him tracing the history of his dispute with Hydro One Networks.

[4] After listening to Waskowec’s allegations, Justice of the Peace Cremiscio advised him as follows:

“Sir, it’s a civil matter, it’s not a criminal matter … I don’t see that this is an offence known to law, to criminal law. This is, in my opinion, is a civil matter between Hydro and yourself. I am not telling you if I agree or if I disagree with the policy of Ontario Hydro not to supply, in the way that you wish, your bill. But that’s something that I have no jurisdiction and it’s something between unfortunately you and Hydro. The only court of that jurisdiction is not a criminal court, it’s a civil court …

… you have of course the right to appeal my decision not to accept your Information … if you wish to appeal my ruling it is your right to appeal my ruling … I found that there are no basis for criminal complaint … I just issue no process … For the record, I marked that his application for private complaint, on the last page, stating I found no basis to issue or accept this treatment on the Information.” [Emphasis added.]

[5] The Justice of the Peace’s signed endorsement, on the last page of the “Private Prosecutions Particulars” document that Waskowec had filled out, reads as follows:

“I found no basis to issue/accept this criminal Information.”

[6] In my view, there is considerable ambiguity in the above record. On the one hand, Justice of the Peace Cremiscio stated “I just issue no process”, suggesting that he made a decision under s. 507.1 not to issue a summons or warrant. On the other hand, he stated that his decision was “not to accept your Information”, suggesting that he made a decision under s. 504 not to receive an Information. Furthermore, his endorsement refers to “this criminal Information”, suggesting that an Information actually existed, but he then refers ambiguously to different acts relating to an Information – either not to “issue” or not to “accept” it. Finally, Justice of the Peace Cremiscio advised Waskowec repeatedly that he had a “right to appeal my decision”, when no appeal lies from either s. 504 or s. 507.1.

[7] Waskowec took Justice of the Peace Cremiscio at his word and proceeded to launch an appeal to this Court, relying on s. 813 of the Criminal Code.

[8] It was unclear to me what Justice of the Peace Cremiscio had actually done at the hearing before him on May 14, 2013, given the ambiguities in the record set out above. In particular, it was unclear whether he had declined to “issue” process, pursuant to s. 507.1, or whether he had declined to “accept” an Information, pursuant to s. 504. It was also unclear whether a sworn Information actually existed.

[9] As noted previously, Waskowec filed a Notice of Appeal in this Court, and did not file an Application seeking prerogative relief. As a result, the Court Services Manager in the Ontario Court of Justice was never served with the specially endorsed Notice of Application, required by Rule 43, that is always served when seeking prerogative relief and that directs the “return forthwith” to this Court of any Information. I asked Ms. Walker to attend in the Ontario Court of Justice and find out whether there was a sworn Information in this case. She advised the next day that she had done so and she had confirmed that no Information was ever received by Justice of the Peace Cremiscio in this matter. In other words, the Justice of the Peace purported to exercise a jurisdiction not to “accept” an Information, pursuant to s. 504.

[10] I advised Waskowec that no appeal lies to this Court from such a decision, contrary to the misleading advice that was provided to him by the Justice of the Peace. Section 813 of the Criminal Code provides an appeal to a defendant in summary conviction matters. However, Waskowec is not a defendant and the offences he alleges are not summary conviction offences. I advised Waskowec that the only remedy available to him was mandamus, with certiorari in aid, and that I would amend his Notice of Appeal, if he wished. Waskowec sought the amendment suggested, with Ms. Walker’s consent, and the matter proceeded before me as if Waskowec had sought mandamus. See: R. v. Grinshpun (2004), 2004 BCCA 579, 190 C.C.C. (3d) 483 at para. 10 (B.C.C.A.)

[11] Sections 504 and 507 (or 507.1 in this case) enact two distinctly different steps in the criminal process. Under s. 504, a member of the public or a police officer simply swears an Information and thereby makes an allegation of crime. Under s. 507 and s. 507.1, the Court decides whether there is sufficient evidence to justify compelling the accused to appear before the court and to answer the charge. The former power was described by Lamer J., as he then was, in R. v. Dowson (1983), 1983 59 (SCC), 7 C.C.C. (3d) 527 at 536 (S.C.C.) as “the citizen’s fundamental and historical right to inform under oath a justice of the peace of the commission of a crime”. Or as Rothman J. put it in R. v. Jean Talon Fashion Centre Inc. (1975), 1975 1184 (QC CS), 22 C.C.C. (2d) 223 at 229 (Que. Q.B.), “Every citizen has the right to inform the Crown that a crime has been committed”. In other words, the s. 504 power belongs to the citizen and not to the justice of the peace or the Crown. Indeed, the justice is obliged to “receive the Information” under s. 504 as that section is framed in mandatory statutory terms. Rothman J. made this point in Jean Talon Fashion, supra at p. 227:

Under s. 455 [now s. 504], a Justice is obliged by law to receive the information (“shall receive the information”) when the informant, in his information, alleges that an indictable offence has been committed within the territorial jurisdiction of the Justice. The act of receiving the information is a purely ministerial act, rather than a judicial act, and it is difficult to see how the Justice could decide whether to hold a pre-enquête or whether to issue a summons or warrant to the person charged in the information, unless the information was already signed and sworn to by the informant and received by the Justice. Moreover, being a ministerial rather than a judicial act, the act of reception of an information is not subject to judicial review: R. v. Read, Ex p. McDonald (1968), 1968 785 (AB CA), 1 D.L.R. (3d) 118, Alberta Supreme Court, Appellate Division; Casey v. Automobiles Renault Canada Ltd., 1963 601 (NS CA), [1964] 3 C.C.C. 208 (N.S.S.C. in banco), revd 1966 6 (SCC), [1966] 2 C.C.C. 289 (S.C.C.).

[12] The s. 507 (or s. 507.1) power, on the other hand, belongs to the justice. In Dowson, supra at 536-7, Lamer J. referred to it as “an obligation to ‘hear and consider’ the allegation and make a determination”. He held that the justice “plays the same role as the grand jury, as regards the finding of grounds to issue a process”. In Jean Talon Fashion, supra at 227-8, Rothman J. held that “It is only after the information is received that the Justice’s judicial function begins”. He described the s. 507 “judicial function” in the following terms:

On receiving the information, therefore, the Justice must hear and consider the allegations of the informant and, if he considers it desirable or necessary, he may also hear evidence of other witnesses so that he can decide whether or not a case has been made out for the issuance of a summons or a warrant. This being an ex parte hearing, the accused has no right to be present or to cross-examine the informant or any of the witnesses. The purpose of the hearing is not to determine the guilt or innocence of the accused but simply to determine whether or not there are reasonable and probable grounds to indicate that the accused should be required to answer to the charge of an offence.

[13] The above passages from Dowson and Jean Talon Fashion, describing the s. 504 and s. 507 powers, were adopted and applied by the Ontario Court of Appeal in Re Buchbinder and the Queen (1985), 1985 3490 (ON CA), 20 C.C.C. (3d) 481 at 487-8 (Ont. C.A.). Also see: McHale v. Ontario (2010), 2010 ONCA 361, 256 C.C.C. (3d) 26 at para. 44 (Ont. C.A.).

[14] Given the very different functions and purposes, under s. 504 and s. 507, it has been held that they must be kept “separate and distinct”. Even if process is denied under s. 507 or s. 507.1, an Information sworn under s. 504 remains valid and the informant can return with further and better evidence and seek process on the original Information at a fresh s. 507 or s. 507.1 hearing, provided the six month limitation period in s. 507.1(5) has not expired. As Evans J.A. put it, speaking for the Court in Southwick, Ex parte Gilbert Steel Ltd., 1967 188 (ON CA), [1968] 1 C.C.C. 356 at 358-9 (Ont. C.A.):

The laying of an information which is really the completion of the complaint under s. 439 [now s. 504] is separate and distinct from the inquiry contemplated by s. 440 [now s. 507]. The former deals with jurisdictional requirements while the latter is concerned with the issuance of a judicial process to compel the attendance of the alleged offender.

Section 440 contemplates the next step in the criminal proceedings and requires that a Justice to whom an information is presented conduct an inquiry for the purpose of determining whether a summons or a warrant shall issue. The two steps are separate and distinct. They are related only in the sense that they are successive but they involve the determination of entirely different considerations. In practice usually the same Justice of the Peace carries out both functions and there are obvious practical considerations why this is done but the Code does not proscribe the carrying out of the two distinct functions by different Justices of the Peace. [Emphasis added.]

See also: R. v. Allen (1974), 1974 1451 (ON CA), 20 C.C.C. (2d) 447 (Ont. C.A.).

[15] In my view, Justice of the Peace Cremiscio confused the two separate steps under s. 504 and s. 507 (or s. 507.1 in this case). He never did “receive the information”, pursuant to s. 504, and yet he proceeded to conduct what in substance amounted to a s. 507.1 hearing. He put Waskowec under oath and he “heard and considered the allegations of the informant”, as if it was a hearing pursuant to s. 507 or s. 507.1. Having heard the allegations, and having decided they were not sufficient, he stated “I just issue no process”. In other words, the record is open to the construction that the Justice of the Peace decided not to issue process, after a s. 507.1 hearing, without ever receiving an Information pursuant to s. 504 at the start of the hearing.

[16] The Crown submits that the justice may refuse to receive an Information pursuant to s. 504 if the informant’s grounds do not disclose an offence known to law. She submits that Justice of the Peace Cremiscio, in substance, concluded that Waskowec’s complaint was “a civil matter” and, therefore, stated that Waskowec was not alleging “an offence known … to criminal law”. This is a proper basis for declining to “receive an information” and does not conflate s. 504 with s. 507, in the Crown’s submission.

[17] There is no doubt that a justice has a limited jurisdiction under s. 504, to refuse to “receive the information”. As Evans J.A. put it in Southwick Ex Parte Gilbert Steel, supra at 358:

I am of the view that in s. 439 [now s. 504] the word “receive” means that the Justice shall not reject a complaint which is in writing and which complies with the conditions set out in that section. [Emphasis added.]

More recently, in McHale v. Ontario, supra at paras. 7 and 43, Watt J.A. described the inquiry under s. 504 in the following terms:

The justice reviews the portion of the form that the private informant has completed to determine whether the allegations made satisfy the Criminal Code requirements and oblige the justice to receive the information. Where the justice is satisfied that the Criminal Code requirements have been met, she or he will direct the preparation of an information and have the private informant swear an oath or affirm the truth of its contents. Where the allegations of the private informant do not meet the demands of s. 504, the justice is not entitled to receive the information.

In the usual course, criminal proceedings are commenced or instituted by laying an information before a justice alleging the commission of an offence. Receipt of the information is a ministerial act. Provided the information alleges an offence known to law and is facially compliant with the requirements of the Criminal Code, the justice must receive the information. The justice takes the information under oath and affixes his or her signature to the jurat on the written Form 2. [Emphasis added.]

[18] A number of authorities have clarified the meaning of “facial compliance” with s. 504. In Ellis v. Ontario (2009), 2009 ONCA 483, 244 C.C.C. (3d) 438 (Ont. C.A.), it was held that the Information must allege an offence “within the territorial jurisdiction of the justice”, that is, an offence committed within Ontario. In Buchbinder v. the Queen, supra at 486 and 492, it was held that the Information must either name the accused or provide “a sufficient description of the accused”. Finally, in R. v. Whitmore et al (1987), 1987 6783 (ON SC), 41 C.C.C. (3d) 555 at 562-3 (Ont. H.C.J.), aff’d (1989) 1989 7229 (ON CA), 51 C.C.C. (3d) 294 (Ont. C.A.), Ewaschuk J. set out what is the most comprehensive description of the matters to be addressed under s. 504:

Before a lay justice of the peace can receive or accept the information in the sense of swearing the informant, the justice of the peace has certain matters of a ministerial nature to determine. The justice must determine that the information is in writing and that the information sufficiently describes the accused “person” so as to be identifiable. An information cannot be laid against an unknown person: Re Buchbinder and The Queen (1985), 1985 3490 (ON CA), 20 C.C.C. (3d) 481 (Ont. C.A.).

The information presented to the justice must also allege an indictable offence, i.e., an offence known to law in the sense that the offence alleged in the information must be an indictable offence in force as of the date of its alleged commission. It is not an offence known to law if the offence has been repealed as of the date of its alleged commission or had not yet come into force.

In other words, the justice of the peace must be satisfied that the information is valid on its face. Provided that the information complies with the basic requirement of s. 455 [now s. 504], the justice then has no choice but to permit it to be sworn before him. His function at this stage is merely ministerial and he must receive it: Casey v. Automobiles Renault Canada Ltd., 1963 601 (NS CA), [1964] 3 C.C.C. 208, (N.S.S.C. in banco), per MacDonald J. at p. 222; reversed on other grounds 1966 6 (SCC), [1966] 2 C.C.C. 289 (S.C.C.).

[19] In my view, Justice of the Peace Cremiscio went beyond the ambit of a s. 504 inquiry and, in effect, conducted a s. 507.1 inquiry. The offences that Waskowec was alleging were “known to law in the sense that the offences alleged in the information” were indictable offences “in force as of the date of their alleged commission”, to paraphrase Ewaschuk J. in Wetmore. The fact that the Justice of the Peace concluded that they were “civil matters” was a reflection on the sufficiency of the evidence advanced by Waskowec, in his efforts to make out the offences alleged. In other words, the Justice of the Peace’s conclusion was a proper s. 507.1 consideration but not a proper s. 504 consideration. It is important not to conflate the sufficiency of the evidence, under s. 507 or s. 507.1, with the laying of the Information under s. 504. The citizen has an absolute right to swear an Information, provided he/she alleges an offence known to law committed by an identifiable accused within Ontario. It is only by swearing such an Information that the citizen then becomes entitled to a s. 507.1 hearing where the sufficiency of his/her allegations will be tested. There will be cases where the informant alleges an offence that is unknown to our law and where the justice can decline to “receive the information” under s. 504. However, in this case, Waskowec was clearly alleging offences known to the criminal law, referring to them by name and by section number. He simply lacked sufficient objective grounds to support his subjective belief that the offences had been committed.

[20] In my view, Justice of the Peace Cremiscio committed a jurisdictional error by declining to receive Waskowec’s Information.

[21] It is well known that the prerogative writs, including mandamus, are extraordinary and discretionary remedies. The fact that Waskowec has established that a jurisdictional error occurred at the proceedings before Justice of the Peace Cremiscio does not entitle him to the remedy of mandamus as of right. The bases for declining to grant prerogative relief, as an exercise of discretion, include delay, misconduct, and an available right of appeal. None of these discretionary reasons for denying relief apply in Waskowec’s case. See: R. v. Papadopoulos (2005), 2005 8662 (ON CA), 201 C.C.C. (3d) 363 at para. 20 (Ont. C.A.); McHale v. Ontario, supra at para. 87; Matsqui Indian Band v. Canadian Pacific Ltd., 1995 145 (SCC), [1995] 1 S.C.R. 3 at paras. 30-37.

[22] However, there is one discretionary basis for denying prerogative relief that may apply in this case, namely, where the Applicant “has suffered no prejudice” because the result “would otherwise have been inevitable”. In other words, if Justice of the Peace Cremiscio had received Waskowec’s Information pursuant to s. 504, as he should have, would the result have necessarily been the same because process would inevitably have been denied pursuant to s. 507.1? See: R. v. Papadopoulos, supra at paras. 19, 21 and 25-8.

[23] In assessing this issue, I have relied on the sworn evidence given by Waskowec before Justice of the Peace Cremiscio and on the very full argument and reference to documents that he made before me, for some two and a half hours, setting out the factual and legal bases for the charges that he wished to prosecute.

[24] The main offence alleged by Waskowec is that Hydro One Networks and its management are violating s. 337 of the Criminal Code. Waskowec has an underlying dispute with Canada Post, which is the root cause of his dispute with Hydro One. Apparently, Canada Post suspended Waskowec’s right to mail delivery in September 2009. As a result, he wished to pick up his hydro bills in person or to have them couriered to his home. Hydro One appears to have allowed this practice for a while, in the hopes that Waskowec would resolve his dispute with Canada Post. Eventually, Hydro One gave Waskowec notice that the only way he could receive his bills was by one of three methods permitted by the Ontario Energy Board, that is, by mail, over the internet, or by email. They also gave him notice under the Trespass to Property Act that he was “hereby prohibited from entering all facilities owned or operated by Hydro One”. Waskowec takes the position that he is unable to receive his hydro bill by any one of the three modes of delivery offered by Hydro One.

[25] Section 337 is a somewhat obscure provision of the Criminal Code, found in Part IX which deals with “Offences Against Rights of Property”. It provides as follows:

Public Servant Refusing to Deliver Property.

337. Every one who, being or having been employed in the service of Her Majesty in right of Canada or a province, or in the service of a municipality, and entrusted by virtue of that employment with the receipt, custody, management or control of anything, refuses or fails to deliver it to a person who is authorized to demand it and does demand it, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Waskowec alleges that Hydro One employees are public servants, that his hydro bill is “anything”, that Hydro One is “failing to deliver it” by the means that he has suggested, and that he is “a person who is authorized to demand it”, all within the meaning of s. 337. Justice of the Peace Cremiscio held that “they [Hydro One] are not refusing to give you the bill according to their policy … They are not refusing to give you the bill … They’re saying we may do one, two, and three … they are prepared to deliver you the bill in compliance with their policy”. In essence, the Justice of the Peace held that Waskowec had not made out “a prima facie case of the offence alleged” in the sense of “some evidence against the accused on all the essential elements of the charges”. See: R. v. Wetmore et al, supra at 569 (Ont. H.C.J.) and supra at 296 (Ont. C.A.); R. v. Grinshpun, supra at paras. 32-3,

[26] I agree with the Justice of the Peace. In related civil litigation styled Waskowec and Hydro One Networks Inc., 2013 ONSC 4567, Waskowec sought to compel Hydro One to deliver his bills by courier. Backhouse J. reviewed the statutory scheme governing Hydro One, including the Ontario Energy Board’s Distribution System Code which provides three methods for delivering a bill: “if sent by mail”; “if made available over the internet”; and “if sent by e-mail”. Backhouse J. dismissed the Application to compel Hydro One to deliver Waskowec’s bill by courier, stating:

Accordingly, Hydro One is required to deliver its billings to each customer by mail or electronically. The latter requires the customer’s consent which he has chosen not to give.

An order in the nature of mandamus requiring Hydro One to fulfill its statutory duty is available by judicial review. However, I agree with Hydro One that “mail” in the Code does not mean courier. In my view, what is intended by “mail” in section 2.6.3 of the Code is the official system used for sending and delivering letters and packages which is how bills are customarily received. It cannot include “courier” because if that was an included method, the utility would be required to pay the cost which would be inordinately expensive compared to the cost of the hydro bill. Although Hydro One and its customer could agree to courier as the form of delivery, judicial review does not lie to compel this mode of delivery which is not provided by the Code. I further agree with Ontario Hydro that the applicant’s dispute with Canada Post does not affect the plain meaning of the Code.

[27] It is apparent that Backhouse J. arrived at the same conclusion as the Justice of the Peace, namely, that Hydro One was not “refusing or failing” to provide Waskowec with his bill but was simply insisting on delivery pursuant to the Distribution System Code. I agree but, in addition, I have more fundamental concerns about the applicability of s. 337 of the Criminal Code to Waskowec’s dispute with Hydro One. That section applies to a public servant who is “entrusted” with “the receipt, custody, management or control of anything”. The title to the section refers to “refusing to deliver property” and the section is found in Part IX which deals with “offences against rights of property”. This provision has been in the Criminal Code since 1892, when it was found in s. 321 of the original Criminal Code. It was taken from s. 55 of the Larceny Act, R.S.C. 1886, c. 164 which provided as follows:

55. Every one who, being employed in the public service of Her Majesty, or of the Lieutenant Governor or government of any Province of Canada, or of any municipality, and intrusted by virtue of such employment with the keeping, receipt, custody, management or control of any chattel, money, valuable security, book, paper, account or document refuses or fails to deliver up the same to any one authorized to demand it, is guilty of a fraudulent embezzlement thereof, and liable to fourteen years’ imprisonment.

[28] It is apparent that s. 337 enacts an offence involving the misappropriation of something in which the victim enjoys a right of property, such that its return can be demanded when it has been “entrusted” to a public servant. I am not satisfied that Waskowec has made out a prima facie case that his hydro bill is something in which he enjoys property rights, or that he has “entrusted” the bill to Hydro One, or that he is now entitled to demand its return. I am also not satisfied, like Justice of the Peace Cremiscio, that Hydro One is “refusing or failing” to deliver Waskowec’s bill. They are simply refusing to deliver it in the manner that he would prefer. In other words, Waskowec has not made out a prima facie case that Hydro One is committing an offence under s. 337.

[29] The second set of offences alleged by Waskowec were uttering threats to cause bodily harm contrary to s. 264.1(a), inflicting torture contrary to s. 269.1, and intimidation by threats of violence or other injury contrary to s. 423(1)(b). Waskowec raised only the first and third of this group of offences before Justice of the Peace Cremiscio but he argued all three offences before me. They all relate to the same factual allegation which he summarized as follows before the Justice of the Peace: “they’re threatening to breach my contract with them and disconnect my power if I don’t buy a computer … They said they would physically have me thrown out of the building, which is an assault”.

[30] The threats of bodily harm, threats of violence, and inflicting of severe pain or suffering required by the above three offences, all depend on a phone call and two letters received by Waskowec from senior Hydro One officials, in the context of his dispute over delivery of his hydro bill. He memorialized the phone call in a January 7, 2010 letter as follows:

Around midday on Dec. 23, 2009 a woman identifying herself as Deborah Beltrano of Ontario Hydro One phoned with regard to my hydro electricity bills. She informed me Hydro One would not provide me with my electricity use bills unless I bought a computer, got fax service, intimidated a neighbour to accept my mail or adopted a public library as my residence address to receive my hydro bills. When I informed her that I could not legally impose my mail service on others she became enraged and threatened me. She told me that if I showed up at the Hydro One office on Bay Street in Toronto to pick up my bills she would call security people to get rid of me. Implied .. physically. She had previously in the conversation informed me that that she had advice from Hydro One lawyer(s) on her course of action. [Emphasis added]

The offending passages in the two letters from Hydro One, dated November 15, 2012 and February 19, 2013, are as follows:

In the meantime, Hydro One Networks will continue to send your bills to you via Canada Post and your responsibility for the account is in no way changed. We require you to make full payments by the date reflected on your monthly bills. Late payment charges will apply as normal. Your account will also be subject to normal collection activity for any unpaid charges up to and including the point of disconnection.

Mr. Waskowec, despite Hydro One asking you not to visit our facilities on previous occasions, you arrived at our Peterborough facility on January 3rd. You also indicated that you would attend at our Belleville facility in the near future. Your unexpected visit to our facility gives us cause for concern. This is to advise you that you are hereby prohibited from entering all facilities owned or operated by Hydro One. This specifically includes our facility on Crawford Drive, Peterborough, Ontario, 185 Clegg Road, Markham, Ontario, 483 Bay Street, Toronto, Ontario and any other Hydro One offices, locations and related parking lots. Be advised that if you fail to follow this caution, we will consider taking legal action under the Provincial Trespass to Property Act.

Please indicate which of the three methods of delivering your bill is the method that you would like Hydro One to undertake, and please do so at your earliest convenience and by no later than 15 days following the date of this letter. I confirm that Hydro One will no longer be sending your bills by courier, commencing with your March, 2013 bill. Nevertheless, this shall not change your obligations and our rights under the Conditions of Service (including the fact that non-payment of your bill could lead to collection activity, up to and including disconnection of service), other applicable legislation, and otherwise at law. [Emphasis added.]

[31] Waskowec submits that the threats to physically remove him as a trespasser from Hydro One property and the threats to disconnect his hydro service for non-payment of his bills, are threats of bodily harm, threats of violence, and infliction of severe pain or suffering, as required by ss. 264.1, 269.1, and 423. Justice of the Peace Cremiscio disagreed. He stated:

“They’re writing to you a letter stating that if you don’t pay your bill, they’re going to apply whatever law is applicable, including put you in collection. That’s not an intimidation”.

[32] I agree with the Justice of the Peace. In relation to each one of these three offences, the evidence advanced by Waskowec failed to make out a prima facie case of the actus reus element, namely, a threat of bodily harm or violence or the infliction of severe pain or suffering.

[33] The last group of offences alleged by Waskowec were breach of trust by an official contrary to s. 122, criminal breach of trust contrary to s. 336, and criminal breach of contract contrary to s. 422. Waskowec did not pursue these final allegations before Justice of the Peace Cremiscio, after failing to persuade him to issue process in relation to Hydro One’s alleged refusal to deliver his bills and Hydro One’s alleged threat to terminate his hydro service unless he accepted his bills in one of the three prescribed ways and paid them. During his submissions before me, Waskowec conceded that the breach of trust and breach of contract alleged as criminal offences were the failure to deliver his bills in the way that he wanted them delivered and the threats to terminate his hydro service unless he accepted delivery of the bills in the way Hydro One wanted to deliver them. In other words, this last set of offences depended on the earlier offences and is not an independent allegation of crime.

[34] I am satisfied that all the offences alleged by Waskowec lack evidence on an essential element. As a result, it is inevitable that process cannot issue in relation to any of these offences at a s. 507.1 hearing. The jurisdictional error committed by the Justice of the Peace, in declining to receive Waskowec’s Information pursuant to s. 504, caused no prejudice to Waskowec. Had the Information been received, the result would inevitably have been the same, that is, process would not have issued in relation to any of these charges.

[35] For all these reasons, the extraordinary remedy of mandamus is denied, as a matter of discretion, on the basis that the jurisdictional error in this case caused no prejudice.

[36] I assume that Justice of the Peace Cremiscio thought that he was saving time, by declining to receive an Information pursuant to s. 504 in a case like this one. In fact, he caused a significant expenditure of time and resources. First of all, he effectively held a s. 507.1 hearing and found insufficient evidence to justify a summons or warrant, which is exactly what he should have done after receiving a s. 504 Information, so no time was saved in this regard. Second, he encouraged Waskowec to appeal when there was no right of appeal from either s. 504 or s. 507.1. As a result, and because of the jurisdictional error, this Court ended up holding what was effectively a repeat of the s. 507.1 hearing in order to determine whether the jurisdictional error resulted in “no prejudice”.

[37] I would hope that this case serves as a lesson to maintain the distinction between the functions and purposes of s. 504 and s. 507.1, as the Court of Appeal stressed over forty-five years ago in Southwick Ex parte Gilbert Steel, supra.

[38] The Application is dismissed.

M.A. Code J.

Date: March 13, 2014