ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: M19/14

DATE: 20140424

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

HARDEV KUMAR
Applicant

Megan Petrie for the Respondent

Hardev Kumar appearing in person

HEARD: April 14, 2014

MacDonnell, J.

[1] This is an application by Hardev Kumar for an order compelling a justice of the peace to issue process on an information charging Mr. Kumar’s nephew, V.K., with defamatory libel.

I. The Background

[2] The applicant is 71 years of age. He immigrated to Canada from India in 1966. His older brother, Jagdish Kukreja (“Jagdish”), who is now 75, lives in India. It appears that he and Jagdish had another sibling, who was V.K.’s parent. V.K. lives a short distance from the applicant in Toronto.

[3] The charge of defamatory libel arises in the context of a dispute concerning the ownership of a piece of property in India that had belonged to the applicant’s father (i.e., to V.K.’s grandfather). When the applicant’s father died, Jagdish claimed that title in the property passed solely to him. The applicant agreed with Jagdish in that regard but V.K. did not. In early August 2013, V.K. made a number of statements on his Facebook page about the dispute.

[4] On January 10, 2014, the applicant attended at the Ontario Court of Justice seeking to lay a charge of defamatory libel against V.K. in relation to the statements that V.K. had made on his Facebook page. He alleged that those statements were false and that they “[exposed] me to hatred, ridicule and contempt among friends and relations”. The court staff prepared an information, which the applicant then swore, charging V.K. with defamatory libel. A justice of the peace set a date for a pre-enquette hearing to determine whether V.K. should be compelled to answer to the charge.

II. The Pre-Enquette Hearing

[5] On January 22, 2014, justice of the peace Bobby Hundal conducted the pre-enquette hearing. The applicant appeared in person and gave evidence under oath. The Crown was represented by a student-at-law.

[6] The applicant’s allegation of defamatory libel had initially referred only to himself as the victim and only to allegedly false statements made by V.K. on his Facebook page. In the course of the pre-enquette hearing, however, the applicant claimed that V.K. had libeled not only him but also his brother Jagdish. He also complained that V.K. had made a false accusation about him to the police, and he made further allegations of threatening conduct and harassment on the part of V.K. that were beyond the scope of the defamatory libel charge.

[7] At the conclusion of the hearing, the justice of the peace declined to issue process. He stated:

I agree with Mr. Crown that the evidence presented does not meet the threshold. In other words, I do not find this evidence as presented has presented a prima facie case under the section. I do understand there seems to be a family dispute. It is mostly a civil matter, and it is not even happening in this country. Yes, if Mr. Kumar is fearful for his safety and security from this gentleman he can apply for a peace bond under s. 810 of the Criminal Code…but there is no prima facie case before me. I am not going to issue process. Thank you.

III. The Applicable Principles

[8] 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.[^2] 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.[^3]

[9] It is well established that for the purposes this procedure, 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. The essential elements of the offence of defamatory libel include proof that the impugned statements were false and proof that the accused knew that they were false: R. v. Lucas, 1998 815 (SCC), [1998] 1 S.C.R. 439, at paragraph 1. Accordingly, in order to make out a case for issuing process against V.K., the applicant was required to point to evidence capable of establishing both of those essential elements.

[10] No appeal is available to review the refusal of a justice 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 order to succeed on such an application, the applicant must establish jurisdictional error. That, is, the applicant must show that the justice refused to exercise his or 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. A failure to consider all of the evidence would be an error going to jurisdiction, but the mere 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 reviewing court to intervene: R. v. Deschamplain, 2004 SCC 76, at paragraph 37.

IV. Discussion

[11] In essence, the applicant’s allegation that V.K. had libeled him and his brother Jagdish rested on four alleged statements:

(i) a statement on Facebook that Jagdish had committed homicide in relation to the death of his wife;

(ii) a statement on Facebook that Jagdish had acted dishonestly in pursuing his claim to the disputed land in India;

(iii) a statement on Facebook that the applicant was impoverished and that his family had disowned him; and

(iv) a complaint V.K. made to the police about the applicant.

(i) the statement that Jagdish had committed a homicide

[12] The applicant provided the text of the Facebook postings in which V.K. made statements linking Jagdish to the death of his wife. In those postings, V.K. did suggest that Jagdish should be charged with manslaughter or perhaps even murder. Read as a whole, however, it would be clear to any reasonable person that what V.K. was alleging was that the abusive relationship between Jagdish and his wife played a role in her death from natural causes at the age of 62, not that Jagdish had caused her death by means of an unlawful act. An objective observer, reading the post would not understand that V.K. was alleging what would amount to a culpable homicide under Canadian law.

[13] In any event, and leaving aside the question of jurisdiction, there was no evidence pointed to at the pre-enquette hearing that what V.K. said in this respect was untrue or that V.K. knew that it was untrue. At the most, there was evidence that the applicant believed V.K.’s statements about Jagdish’s treatment of his wife to be untrue.

(ii) the statement that Jagdish acted dishonestly re the disputed land in India

[14] The testimony of the applicant at the pre-enquette hearing provided evidence that he believed that V.K.’s statements that Jagdish had acted dishonestly were untrue. Once again, however, there was no evidence presented or pointed to that might establish that those statements were untrue and that V.K. knew that they were untrue.

(iii) the statement that the applicant was impoverished and that his family had disowned him

[15] The applicant made it clear that the statements that he was impoverished and that his family had disowned him were hurtful. However, not every hurtful or derogatory statement about another person, even if false to the knowledge of the speaker, falls within the scope of s. 298 of the Criminal Code. Looked at objectively and in the circumstances described by the applicant, the statements complained of were not capable of being characterized as “likely to injure the reputation of [the applicant] by exposing him to hatred, contempt or ridicule”.

(iv) V.K.’s complaint to the police

[16] There was no evidence as to what it was that V.K. said to the police when he made a complaint about the applicant. Accordingly, there was no evidence that V.K had made a false statement, let alone one that he knew to be false.

V. Conclusion

[17] There is no basis in the record for a finding that the justice of the peace made any error, jurisdictional or otherwise, in concluding that a prima facie case of defamatory libel had not been made out. There is also no basis to doubt that he considered all of the evidence before him.

[18] For these reasons, the application is dismissed.

MacDonnell, J.

Released: April 24, 2014

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

[^2]: s. 507.1(1) of the Criminal Code

[^3]: s. 507.1(2)