ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: M327/13

DATE: 20140422

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

LAI PING LEE
Applicant

Stefania Ferecian for the Respondent

Lai Ping Lee appearing in person

HEARD: April 14, 2014

MacDonnell, J

I. The Context

[1] This is an application by Lai Ping Lee for an order compelling Justice of the Peace L.M. Cruz to issue process on an information charging an individual with the offence of fraud over $5000.

[2] The Bank of Nova Scotia (“the Bank”) held a mortgage on the applicant’s residential property. The Bank claimed that the mortgage was in default. The applicant’s position was that the balance due on the mortgage had been paid in full with two “negotiable instruments”, which the bank had accepted. The position of the Bank was that the two negotiable instruments were simply NSF cheques. The Bank commenced an action to obtain possession of the property. On April 29, 2013, default judgment was signed granting possession to the Bank. On August 20, 2013, Master Dash dismissed the applicant’s motion to set the default judgment aside. On October 29, 2013, Wilton-Siegel J. dismissed the applicant’s motion for a stay of enforcement of the judgment pending an appeal from the order of Master Dash.

[3] Throughout the proceedings outlined above, the lawyer acting on behalf of the Bank was B.D. On November 14, 2013, the applicant swore an information charging B.D. with the criminal offence of fraud over $5000. The justice of the peace who received the information directed that a pre-enquette hearing be held to determine whether process should issue to compel B.D. to answer to the charge.

II. The Pre-Enquette Hearing

[4] The pre-enquette hearing was conducted by justice of peace Cruz on November 20, 2013. The applicant attended in person. An Assistant Crown Attorney also attended. The applicant made her allegations under oath. In substance, she alleged that she was never in default under the mortgage because she had paid off the debt with the two negotiable instruments mentioned above, that the Bank knew that she was not in default, but that the Bank nonetheless took steps, dishonestly, to obtain possession of her property. She alleged that B.D. was complicit in the Bank’s dishonesty. She also alleged that B.D. may not have been a real lawyer, that she was perhaps a foreign agent, and that she did not have the Bank’s authority to act on its behalf.

[5] The justice listened carefully to Ms. Lee’s allegations. After hearing to what Ms Lee had to say under oath she invited submissions from both the Assistant Crown Attorney and Ms. Lee with respect to whether process should issue. After hearing those submissions, she held that a prima facie case of fraud had not been made out. In her view, neither the documentary evidence nor Ms. Lee’s testimony showed “deceit or fraudulent means in this process”. She further stated: “In addition to that, the Crown has indicated that even if this Court decided to issue process they would be withdrawing the charge.” Accordingly, she concluded, “process will not be issued”.

III The Applicable Principles

[6] Pursuant to s. 507.1(1) of the Criminal Code, where an information laid by a private informant[^1] has been received by a justice of the peace, the justice must refer it to an Ontario Court judge or a designated justice of the peace to consider whether to issue process to compel the appearance of the person charged in the information. The judge or designated justice to whom the information is referred is required to hear and consider the allegations of the private informant and the evidence of the witnesses. If, at the conclusion of the hearing, the judge or designated justice considers that a case for compelling the accused to attend court to answer to the charge has been made out, the judge or designated justice “shall” issue either a summons or a warrant for the arrest of the accused: s. 507.1(2) of the Code.

[7] It is well established that for the purposes of s. 507.1(2), a case is “made out” where the evidence establishes a prima facie case, that is, where there is evidence of each essential element of the offence charged in the information, and where the judge or designated justice does not conclude that the proceedings are vexatious, frivolous or an abuse of the process of the court: McHale v. Ontario (Attorney General), 2010 ONCA 361, at paragraph 74; R. v. Whitmore (1989), 51 C.C.C. (3d) 29, at 296 (Ont. C.A.); R. v. Grinshpun, 2004 BCCA 579, at paragraphs 32-33; R. v. Halik, 2010 ONSC 125, at paragraph 20.

[8] If a case is made out, in the sense I have described, it is the duty of the judge or designated justice to issue process. Whether the justice believes that the proposed prosecution is unlikely to succeed or that the Attorney General is likely to withdraw the charge if process is issued are not relevant considerations. See, e.g., R. v. Hu, 2014 ONSC 107.

[9] No appeal is available to review the decision of a justice refusing to issue process: Waskowec v. Ontario, 2014 ONSC 1646, at paragraph 10; R. v. Grinshpun, supra, at paragraph 10. It is open to an informant, however, to invoke the supervisory jurisdiction of the Superior Court of Justice by way of an application for mandamus with certiorari in aid. In substance, that is what the applicant has done here. In order for the applicant to succeed, however, she must establish jurisdictional error. That, is, she must show that the justice refused to exercise her statutory jurisdiction, acted in excess of it, lost it, or breached the principles of natural justice: R. v. Russell, 2001 SCC 53, at paragraph 19. The fact that a reviewing court might have come to a different conclusion with respect to the sufficiency of the evidence to establish a prima facie would not entitle the court to intervene: R. v. Deschamplain, 2004 SCC 76, at paragraph 37.[^2] A failure of the justice to consider all of the evidence, however, would permit intervention because a failure to consider all of the evidence would be an error going to jurisdiction: Deschamplain, supra, at paragraph 18. So too would taking into account irrelevant considerations.

IV. Discussion

[10] In my opinion, the justice did not err in concluding that a prima facie case had not been made out. Fraud requires proof of dishonest deprivation. The applicant’s testimony and documents provided evidence of deprivation, in that they showed that the Bank had taken possession of the applicant’s property, but they provided no evidence of dishonesty either on the part of the Bank or, more importantly, on the part of B.D. The applicant asserted dishonesty, but asserting dishonesty is not enough. All that the evidence showed was that B.D. acted for the Bank in a foreclosure action that the applicant believed to have no merit.

[11] The justice’s finding that a prima facie case of fraud had not been made out was dispositive of the question of whether process should issue. The justice went on, however, to take into account the stated intention of the Crown to intervene to withdraw the charge should process issue. That was not a proper consideration. The duty of the justice under s. 507.1(2) is to determine whether a case to compel the accused to attend court to answer to the charge has been made out. The fact that the Crown proposes to withdraw the charge should process issue is irrelevant to that determination, and the justice exceeded her jurisdiction in taking it into account. The error was irrelevant, however. The justice had already made it clear that the applicant had not pointed to any evidence of dishonesty. Her conclusion in that respect is unassailable. To have permitted process to issue against B.D. in the circumstances of this case would have permitted an abuse of the process of the court.

V. Disposition

[12] The justice of the peace properly exercised her jurisdiction to decide whether process should issue. There is no basis upon which the remedy of mandamus could lie. The application is accordingly dismissed.

MacDonnell, J.

Released: April 22, 2014

[^1]: i.e., an informant other than a peace officer, a public officer, the Attorney General or the Attorney General’s agent.

[^2]: Deschamplain was a case dealing with a failure of a justice conducting a preliminary inquiry to commit for trial. However, the jurisdiction given to a judge or designated justice at the conclusion of a hearing to determine if process should issue is analogous to the jurisdiction given to a justice at the conclusion of a preliminary inquiry to determine if an accused should be committed for trial, and thus cases such as Deschamplain are instructive.