SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: M311-318/13

DATE: 20140627

RE: HER MAJESTY THE QUEEN, Respondent

AND:

NICKOLAY NENCHEV and DIMA NENCHEVA, Applicants

BEFORE: MacDonnell, J.

COUNSEL: Counsel for the Respondent, Megan Petrie
The Applicants are self-represented

HEARD: June 9, 2014

ENDORSEMENT

[1] On October 15, 2013, both applicants appeared before a justice of the peace and each swore an information charging K.B. with child abduction and perjury. K.B is an intake worker employed by the Children’s Aid Society. The child abduction allegation concerned an incident on September 25, 2013, when K.B., accompanied by two police officers, took the applicants’ seven-year-old son out of school for several hours to be interviewed. It appears that K.B. and the officers took that step in response to a report made by the applicants’ adult son that his young brother was being abused by the applicants. The perjury allegation related to an affidavit that K.B. swore on October 9, 2013 in support of an application for a Temporary Supervision Order.

[2] On October 21, 2013, the applicants returned to court, and each swore three further informations charging C.H., T.S. and N.A. with criminal offences. C.H. is the principal of the school that the applicants’ seven year old son was attending. T.S. is K.B.’s supervisor at the Children’s Aid Society and N.A. is the Director of the Intake Branch of the Children’s Aid Society. The applicants charged C.H. with conspiring to commit child abduction, presumably in concert with K.B. They charged T.S. with being an accessory after the fact to child abduction and perjury. They charged N.A. with being an accessory after the fact to child abduction.

[3] The justice of the peace before whom those eight informations were sworn fixed November 5, 2013 for a pre-enquette hearing to determine whether any or all of the accused should be compelled to answer to the charges. On November 5, justice of the peace Lippingwell conducted the pre-enquette hearing. Both applicants were in attendance. At the end of the hearing, Justice Lippingwell concluded that “this is not a case for criminal charges”, and he declined to issue process.

[4] On December 3, 2013, the applicants filed notices of application for orders of mandamus with certiorari in aid to compel the justice of the peace to issue process. The applications came on for hearing on June 9, 2014. After hearing the submissions of the applicants and the respondent Crown, judgment was reserved.

A. The Applicable Principles

[5] 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]

[6] It is well established that for the purposes of 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. Grinshpun, 2004 BCCA 579, at paragraphs 32-33; R. v. Whitmore (1987), 1987 6783 (ON SC), 41 C.C.C. (3d) 555, at 569 (Ont. H.C.J.), affirmed (1989), 1989 7229 (ON CA), 51 C.C.C. (3d) 294 (Ont. C.A.); R. v. Halik, 2010 ONSC 125, at paragraph 20. 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.

B. Discussion

[7] As I construe their submissions, the applicants advance two arguments. First, they submit that they were denied a fair hearing because the justice of the peace did not hear from Mrs. Nencheva and because he did not permit them to present all of their evidence. Second, they submit that the justice of the peace failed to consider all of the evidence.

(i) was the hearing fair?

[8] At the commencement of the hearing, the justice of the peace invited Mr. Nenchev to provide an overview of what had happened. After hearing from Mr. Nenchev, the justice of the peace inquired as to whether Mrs. Nencheva also wished to speak. He asked: “Is Dima Nencheva’s evidence going to be the same as yours, sir?” Mr. Nenchev responded: “Absolutely the same”. The justice of the peace then had a brief discussion with Mr. Nenchev before concluding that a case for criminal charges had not been made out. After the justice announced his decision, Mrs. Nencheva said that she wanted to say something. The justice permitted her to address him, but he declined to change his mind. He also refused Mr. Nenchev a further five minutes to address him on why process should issue.

[9] It is important to bear in mind that at the time of the swearing of the informations the applicants had filed materials in support of the charges they were seeking to pursue. In those materials, they set forth the basis for their allegations. The material filed by Mrs. Nencheva was identical to the material filed by Mr. Nenchev. The applicants were obviously engaged in a joint effort to charge the same four individuals with precisely the same offences. All of the applicants’ material was before the justice of the peace on the pre-enquette hearing and he made it clear at the outset that he had read it. The oral evidence given by Mr. Nenchev did not add anything of material significance to what was in the written material. When Mr. Nenchev told the justice that Mrs. Nencheva’s evidence would be “absolutely the same” as his, it was understandable that the justice would conclude that it was unnecessary to hear from Mrs. Nencheva. In any event, when Mrs. Nencheva stated, after the justice’s decision was made, that she wanted to say something, the justice permitted her to speak. In all the circumstances, the failure to hear from Mrs. Nencheva did not render the hearing unfair.

[10] It may be that the justice should have permitted Mr. Nenchev a further five minutes to address the question of whether process should issue. Assuming that to be so, and assuming that the justice’s failure to hear additional submissions constituted jurisdictional error, I would not order a new hearing on that basis. On this application, both applicants were afforded the opportunity to make full submissions in relation to the issues that were before the justice of the peace. In the circumstances, it is unnecessary to direct a further hearing to vindicate the applicants’ right to be fully heard with respect to whether process should issue: see R. v. Papadopoulos (2005), 2005 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont. C.A.), at paragraphs 16-28. As I will explain below, after considering the materials relied upon by the applicants and the submissions that they made on this application, I am of the opinion that a case for the issuance of process has not been made out.

(ii) did the justice consider all of the evidence?

[11] The essence of the balance of the applicants’ submissions is that the justice of the peace’s conclusion that a case for the issuance of process had not been made out constituted a failure to consider all of the evidence.

[12] I respectfully disagree. There was nothing pointed to in the applicants’ written materials, in the submissions at the pre-enquette hearing, or in the submissions on this application that could constitute evidence that C.H. conspired with anyone to abduct the applicant’s child, that T.S. did anything that could make him an accessory after the fact to such an abduction or to the perjury of K.B., if such perjury occurred, or that N.A. did anything that could make her an accessory after the fact to abduction. With respect to those three persons, all that the applicants have pointed to is their belief that the offences occurred. Plainly, a belief unsupported by evidence is insufficient to make out a case for the issuance of process.

[13] It may be that the applicants’ materials point to some evidence that, if believed, could constitute evidence that K.B. made a false statement under oath and thus committed perjury. It may also be that the materials point to some evidence that, if believed, could supply the corroboration required by s. 133 of the Criminal Code. That is not the end of the matter, however. An assessment of the credibility of that evidence cannot be divorced from an assessment of the credibility of the sweeping allegations that the witnesses who would support the evidence of perjury have made.

[14] As Mr. Nenchev indicated to the justice of the peace at the pre-enquette hearing, and as he repeated in his submissions on this application, the applicants believe that the Children’s Aid Society manufactures allegations of child abuse in order to obtain funding from the government. They believe that the four individuals whom they want charged were engaged in “a premeditated conspiracy” to pursue false claims against them for that purpose. They believe this so strongly that on October 23, 2013, after learning that the Children`s Aid Society was seeking a Temporary Supervision Order, they executed what they termed “an emergency evacuation” of their children to Bulgaria, where they remain in an undisclosed location.

[15] I accept that it is not the function of a justice of the peace conducting a pre-enquette hearing to try the case. However, that is not to say that the justice of the peace has no role to play in the assessment of the nature of the proposed prosecution. In R. v. Whitmore, supra, Justice Ewaschuk stated, at p. 569, that in considering whether a case for issuing process has been made out “the justice has a discretion to refuse process where he forms the opinion that the informant or his witnesses are not credible in the sense that they are mentally disordered or vexatious litigants”. In Paul v. Kurdyak, [2007] O.J. No. 4146 (Ont. Sup. Ct.), Justice Benotto stated, at paragraph 14, that “the justice of the peace has discretion not to issue process where the charge is found to be frivolous, vexatious or abusive.” Similarly, in R. v. Halik, supra, Justice Garton stated, at paragraph 31:

Even if a prima facie case had been made out on the essential elements of the charges, the Justice of the Peace was entitled in the circumstances to exercise her discretion and refuse to issue process on the basis that the complaint was frivolous, vexatious and abusive. Although the Justice of the Peace did not explicitly state that she was refusing to issue process on this basis, that such was the case may be inferred from her reasons and the entirety of the evidentiary record.

[16] While the applicants may sincerely believe in the conspiracies that they allege are being spun within the Children’s Aid Society, it is clear on any reasonable view of the record that those beliefs are detached from reality. On any objective view, the proposed prosecution of K.B. and the other three persons charged is frivolous and vexatious and would constitute an abuse of the process of the criminal courts. As in Halik, the justice of the peace did not explicitly state that he was declining to issue process on that basis, but I am satisfied, based on my reading of what occurred at the pre-enquette hearing, that this was the message that he was gently attempting to communicate to the applicants when he told them that “this is not a case for criminal charges”.

[17] Accordingly, I am satisfied that the justice of the peace did not fall into jurisdictional error in refusing to issue process against the four proposed accused persons. The applications for mandamus are dismissed.

MacDonnell, J.

Date: June 27, 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)