Court File and Parties

Court File No.: M34/14
Date: 20140605

ONTARIO
SUPERIOR COURT OF JUSTICE

Re: Her Majesty The Queen v. Nagy Riad

Before: K.L. Campbell J.

Counsel:
Rick Nathanson, for the Crown, respondent

Nagy Riad, in person, the applicant

Heard: May 5, 2014

ENDORSEMENT

A. Overview

[1] This application questions the legal propriety of the common law peace bond that was ordered by the trial judge. Fearing that the applicant would continue to misconduct himself in relation to the two complainants, the trial judge ordered the peace bond notwithstanding the fact that the applicant was acquitted of the alleged offences of criminal harassment. The applicant contends, essentially, that the peace bond was unjustified on the evidence, and was only imposed through procedural unfairness.

B. The Background Facts

[2] The applicant, Nagy Riad, was tried by Mr. Justice F. ODonnell, of the Ontario Court of Justice, on two charges of criminal harassment. The charges arose from the conduct of the applicant in relation to a dispute over the costs associated with the repair of a computer belonging to the applicant. The complainants in relation to these alleged offences were Dr. Sameh Nashid and Mr. Hans Felix. According to the facts as found by the trial judge, during the course of their dispute, the applicant: (1) made dozens of silent, hang-up “crank” phone calls to Mr. Felix from an unknown number; (2) threatened to strike both men on their respective heads if his computer was not returned to him immediately; and (3) engaged in rude, belligerent, aggressive and threatening behavior “with a blatant disregard for the most basic norms of civility.”

[3] In acquitting the applicant of both alleged offences, the trial judge rejected the testimony of the applicant, finding it to be “remarkably evasive, obstinate and non-responsive” and generally incredible. ODonnell J. described the applicant as an “immature” individual who possessed a “self-righteous certainty about almost everything,” and who “concentrated on the same fixed idea,” “insisting on having things go his way” and not wanting to “move an inch.” Conversely, the trial judge accepted the “very impressive” and genuine testimony of the two complainants, finding that the relevant events “played out almost exactly as described by Dr. Nashid and Mr. Felix.” However, ODonnell J. found the applicant not guilty as he was not satisfied beyond a reasonable doubt that the two complainants reasonably feared for their safety as a result of the actions of the applicant. In his final analysis, the trial judge stated:

His behavior came very close to crossing the line of criminal liability. Indeed, the same behavior in relation to a more vulnerable complainant might well have caused a reasonable fear for safety, thereby making out a criminal offence. I am not satisfied, in all of the circumstances of this case, that he has crossed the line here.

[4] At the conclusion of his written reasons for judgment, released on January 10, 2014, ODonnell J. indicated that the evidence suggested that this might be a case in which a common law peace bond would be justified, and he invited counsel to address that issue.

[5] Thereafter, the parties addressed the wisdom of ordering the applicant to enter a peace bond. During the course of the ensuing hearing, the trial judge expressed the view that, given the “tenacious” nature of the applicant, a peace bond that simply prevented him from contacting the two complainants, would at least give them that “peace” for another year. While candidly acknowledging that such an order would appropriately balance the interests of the applicant and the two complainants, defence counsel advanced the applicant’s position that a peace bond was neither necessary nor justified. The trial judge also permitted the applicant to personally express his strident opposition to the proposed peace bond.

[6] In the result, ODonnell J. ordered the applicant to enter into a recognizance in the amount of $500, to keep the peace for a period of 12 months, and to have “no contact or communication, directly or indirectly” with the two named complainants, “except through a third party” to allow the applicant to enforce a civil judgment in relation to Mr. Felix. In so doing, ODonnell J. indicated that the applicant had behaved “scandalously” and “outrageously” toward the two complainants, “came quite close to committing the criminal offence of criminal harassment” and, if the applicant had been charged with “threatening,” there was a 99% chance that he would have been found guilty of that charge. The trial judge also expressed the view that the two complainants were entitled to “be free” of the applicant, and that without the restraint of a peace bond there was a “serious” risk that there would be a breach of the peace by the “unreasonable behavior” of the applicant. ODonnell J. observed that the peace bond would maintain the peace by keeping the applicant “separate” from the complainants, while at the same time permitting him to enforce a civil judgment (through the efforts of a process server) that he had obtained.

[7] As the applicant continued to argue about the propriety of the peace bond, the trial judge noted that the applicant was “demonstrating today exactly what [Dr. Nashid] said about [him],” namely, that he has “an immature childish approach to things” and “cannot let things go.” ODonnell J. then advised the applicant: “You need to let this go.”

C. The Application to Quash the Peace Bond Order

[8] The applicant now seeks an order quashing the common law peace bond that prevents him from contacting or communicating with the two complainants. He advances three arguments in this regard. First, he contends that the peace bond was imposed upon him “without proper notice, explanation, and proper legal representation.” Second, the applicant argues that, as a result of his profound hearing impairment, he heard none of the proceedings. Third, the applicant argues that the peace bond was unnecessary, unfair and unjust and restricts his ability to enforce a civil judgment in his favour in relation to Mr. Felix. In my opinion, none of these arguments have any merit.

D. Analysis

1. Fair Procedure – Notice, Representation and Reasons

[9] The applicant’s suggestion that the peace bond was imposed upon him “without proper notice, explanation, and proper legal representation” is simply factually inaccurate.

[10] The applicant was given clear notice that the trial judge was considering the imposition of a common law peace bond, and ODonnell J. invited submissions on that very topic. The applicant was represented at trial by able and experienced criminal defence counsel, who clearly and effectively addressed the issue in his submissions, and advanced the applicant’s position in opposition to the peace bond. Further, notwithstanding the fact that he was represented by counsel, the accused was permitted to personally advance his own arguments in opposition to the idea of a peace bond. After hearing all of these submissions, the trial judge clearly explained why he had concluded that a peace bond was a necessary and sensible result in all of the circumstances of this case. In short, I am satisfied that there was no unfairness to the applicant in the procedure that was adopted by the trial judge in imposing the peace bond. See: R. v. Petre, 2013 ONSC 3048, 299 C.C.C. (3d) 246.

2. Accommodation of the Applicant’s Hearing Disability

[11] The evidence does not support the applicant’s contention that, as a result of his profound hearing impairment, he was unable to follow the proceedings before the trial judge.

[12] In fact, in order to accommodate the applicant’s hearing difficulties, a procedure was adopted to have the court reporter provide a “real-time, live-streaming” transcript of the court proceedings on a monitor in front of the applicant. This permitted him to follow exactly what was being said by everyone in the courtroom. At the very outset of the proceeding on January 10, 2014, the applicant raised an issue with respect to the font size of the type and the speed of the court reporter’s typing, and that was addressed immediately. The font size was increased and everyone agreed to speak more slowly, so that the court reporter could type more slowly, so that the events in court could be more easily followed by the applicant. There were no further complaints from the accused, who appeared thereafter to be able to fully participate in the hearing.[^1]

3. The Evidentiary Justification for the Peace Bond

[13] In my view the trial judge was quite correct in concluding that a common law peace bond was required in the circumstances of the present case.

[14] While the applicant was acquitted of the criminal harassment charges, the evidence strongly supported the conclusion that the applicant, absent the restrictions of a peace bond, would continue to misconduct himself with respect to the two complainants. There was clearly a “reasonably apprehended breach of the peace.” Said another way, there were probable grounds to believe that the applicant was likely to engage in future misconduct in relation to the two complainants. In such circumstances the peace bond was factually necessary and legally justified. See: R. v. Budreo (2000), 2000 5628 (ON CA), 46 O.R. (3d) 481 (C.A.), at para. 31; leave denied: [2001] 1 S.C.R. vii; R. v. Musoni, 2009 12118 (ON SC), [2009] O.J. No. 1161, 243 C.C.C. (3d) 17 (S.C.J.), at paras. 22-23, affirmed: 2009 ONCA 829, 248 C.C.C. (3d) 487, leave denied: [2009] S.C.C.A. No. 534; Beardsley v. Ontario (2001), 2001 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at para. 25; R. v. White, 1968 849 (BC SC), [1969] 1 C.C.C. 19 (B.C.S.C.); MacKenzie v. Martin, 1954 10 (SCC), [1954] S.C.R. 361, at p. 368; R. v. Parks, 1992 78 (SCC), [1992] 2 S.C.R. 871, at p. 911.

[15] Moreover, in light of its terms, there is no risk that the restriction of the peace bond might prevent the applicant from taking any appropriate steps, through a third party, to enforce his civil judgment.

[16] Indeed, during the hearing of the application the applicant effectively conceded that the peace bond had no practical effect upon him. The applicant explained that he had not contacted or communicated with either complainant for many months, and had no plans to contact or communicate with them at any time in the future. When asked why he continued to pursue this apparently academic application to quash the peace bond ordered, the applicant replied only that unknown circumstances might arise in the future which might require him to contact or communicate with the complainants. He was reminded that he was legally prevented from contacting or communicating with either complainant until the expiration of the peace bond.

4. Challenges to Peace Bonds – By Appeal Not Prerogative Writ

[17] I have dealt with this application broadly on its merits, have addressed all of the issues raised by the applicant, and have concluded that there is no basis upon which to interfere with the common law peace bond ordered by the trial judge. I have, in effect, dealt with this matter as if it were a summary conviction appeal against the decision of ODonnell J. I appreciate, however, that the applicant did not, in fact, appeal against the decision of the trial judge. Rather, he brought this application which, properly and accurately understood, is an application pursuant to Part XXVI of the Criminal Code, R.S.C. 1985, chap. C-46, and rules 6.01 and 43.01 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), (SI/2012-7), for the prerogative remedy of certiorari to quash the peace bond order made by the trial judge. That is another reason why this application cannot succeed – it is the wrong procedural mechanism, at least in the circumstances of this case, by which to attack the peace bond ordered by the trial judge.

[18] The applicant could have, and should have, sought to challenge the legal propriety of the peace bond by way of an appeal. At trial, the Crown proceeded by way of summary conviction, and the peace bond order made by ODonnell J. was an “order made against” the applicant, which could properly have been the subject of an appeal pursuant to s. 813 (a)(i) of the Criminal Code. Of course, the availability of a statutory right of appeal typically sounds the death knell for any prerogative remedy application. As Spence J. indicated, in delivering the unanimous judgment of the Supreme Court of Canada in Cheyenne Realty Ltd. v. Thompson, 1974 4 (SCC), [1975] 1 S.C.R. 87, at p. 90, extraordinary remedies are discretionary and “will not ordinarily issue when there is another remedy available.” See also: Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561, at pp. 567, 592-594; R. v. Dubois, 1986 60 (SCC), [1986] 1 S.C.R. 366, at pp. 380-382; R. v. Innocente, 2004 NSCA 18, 183 C.C.C. (3d) 215, at paras. 24-28; R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, at paras. 69-72.

[19] On this application the Crown, in fairness to the unrepresented applicant, did not raise this principle as another reason why the application should not succeed. Rather, he simply argued the case as if it were an appeal on the record. Given that the appeal, had the applicant launched one, would have been to this court in any event, the interests of expedient justice also suggested that the matter be fully addressed on its merits as if it were an appeal, as opposed to the more narrow jurisdictional focus of prerogative remedy applications. Nevertheless, it is important to appreciate that, as a matter of principle, such attacks on peace bond orders ought to proceed by way of an appeal where one is legally available as a potential remedy.

E. Conclusion

[20] In the result, for these reasons, the application by Mr. Riad is dismissed.

Kenneth L. Campbell J.

Released: June 5, 2014

[^1]: This same procedure was employed on the hearing of the application to quash the peace bond order, and it permitted the applicant to fully participate in the hearing. There were only a few occasions on which any clarification was requested, and reminders were issued to speak slowly so that the applicant could fully follow and understand exactly what was happening. The procedure was fundamentally fair, and permitted the applicant to participate in the proceedings as fully as an applicant without any hearing impairment.