COURT FILE AND PARTIES

COURT FILE NO.: M64/14-M88/14
DATE: 20140908
SUPERIOR COURT OF JUSTICE – ONTARIO

RE: her majesty the queen

Respondent

• and –

N.N. and D.N.

Applicants

BEFORE: THEN J.

COUNSEL: Megan Petrie, for the Respondent

Mr. N.N. and Mrs. D.N., Unrepresented Applicants

HEARD: JUNE 23, 2014

E N D O R S E M E N T

A. introduction

[1] The applicants each seek an order of mandamus with certiorari in aid with respect to two pre-enquete proceedings in which they each sought to have a prosecution instituted against two security guards, Wayne Ellison and Michael Barr, who arrested them for shoplifting at a Costco outlet in Toronto on August 22, 2012.

[2] On February 25, 2014, both applicants appeared before a justice of the peace for the purpose of a pre-enquete. Because of time constraints only those informations sworn by Mr. N.N. were dealt with. The informations involving Mrs. D.N. were adjourned.

[3] The justice of the peace issued process with respect to the information alleging an assault of Mr. N.N. on the part of Wayne Ellison. That charge was withdrawn by the Crown on April 11, 2014. The justice of the peace refused to issue process with respect to the information alleging forcible confinement on the part of Wayne Ellison. The justice of the peace also refused to issue process on informations alleging assault, forcible confinement, theft and extortion on the part of Michael Barr.

[4] Mr. N.N. seeks mandamus with certiorari in and with respect to those informations in which process did not issue, costs against the Crown for misleading the justice of the peace and an order compelling the Crown to explain why the assault charge was subsequently withdrawn.

[5] For reasons which I will develop, the application for mandamus with certiorari in aid to issue process with respect to the informations alleging forcible confinement on the part of both Wayne Ellison and Michael Barr is dismissed as is the application for costs against the Crown and also the application for an order compelling the Crown to explain why the assault charge was subsequently withdrawn. However, the application for mandamus with certiorari in aid with respect to the informations alleging assault, forcible confinement, theft and extortion on the part of Michael Barr is granted requiring a different justice of the peace to hold a fresh pre-enquete in order to determine if process should issue with respect to those informations.

[6] On April 2, 2014, Mrs. D.N. appeared before a different justice of the peace for the purpose of a pre-enquete with respect to informations sworn by her alleging public mischief, forcible confinement, theft and extortion on the part of Michael Barr. The justice of the peace refused to issue process on any of the informations. For reasons which I shall develop, the application for mandamus with certiorari in aid with respect to all informations is granted requiring a different justice of the peace to hold a fresh pre-enquete in order to determine whether process should issue with respect to those informations.

B. the factual background

[7] The police report which was referred to by the Crown at Mr. N.N.’s pre-enquete indicates that the applicants were observed by security guards taking pregnancy tests and pain medication, valued at $18.99 and $7.49 respectively, from their packaging and putting the items into Mrs. D.N.’s purse without attempting to pay. These items were recovered unboxed in Mrs. D.N.’s purse. The N.s were arrested outside the store and brought back inside the store to await the arrival of the police. At his pre-enquete in February, Mr. N.N. testified that he was apprehended inside the store by Wayne Ellison while waiting in line to pay for the pregnancy tests. He testified that he was grabbed by the shoulder and forcibly removed to an office in the basement and held for nearly three hours; first, by Wayne Ellison, and then, by Michael Barr until the arrival of the police. Mr. N.N. asserted that Mr. Barr knew that the N.s had paid for the pain medication as their receipt indicated, but that they were charged by the police with theft of that item nevertheless. That evidence was repeated at Mrs. D.N.’s pre-enquete on April 2, 2014. The theft charge laid by the police against Mr. and Mrs. D.N. was subsequently withdrawn by the Crown on April 11, 2014. At her pre-enquete on April 2, 2014, Mrs. D.N. testified that the pregnancy test as well as the pain medication was confiscated from her purse. She also testified that she was extorted by Mr. Barr to sign a prepared confession because of his suggestion that she would not be released until she did so in circumstances where she was anxious to get home to feed her children.

C. the statutory framework

[8] Section 507.1(1) of the Criminal Code, R.S.C., 1985, c. C-46 outlines the procedure to be followed when an information is laid by a private informant or a member of the public, as follows:

Referral when private prosecution

507.1 (1) A justice who receives an information laid under section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information.

Summons or warrant

(2) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information.

[9] It will be seen that once the information charging a person with a criminal offence is accepted by a justice of the peace, it must be referred to an Ontario Court judge or a designated justice of the peace whose task it is to determine whether to issue process to compel the appearance of the person against whom the charge is laid to appear in court to answer to the charge. The designated justice to whom the information is referred is required to conduct a hearing, known as a pre-enquete, to consider the allegations of the informant and any proferred witnesses in order to determine whether a case has been made out for compelling the accused to attend in court to answer to the charge. If a case has been made out, then the designated justice is required to issue either a summons or a warrant for the arrest of the accused to secure his or her attendance in court.

D. the appropriate principles

[10] In a recent case involving the same informants, MacDonnell J. has succinctly outlined the principles which govern the jurisdiction of the designated justice of the peace on the pre-enquete and which in turn inform the scope of judicial review by this Court as follows:

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 b.c.c.a. 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, 2001 S.C.C. 53, at paragraph 19. A failure to consider all of the evidence would be an error going to jurisdiction.

([2014] O.J. No. 3076, S.C.J.)

E. the issues

[11] Although both Mr. N.N. and Mrs. D.N. claim that the justices of the peace who conducted their respective hearings on February 25, 2014 and on April 21, 2014 committed jurisdictional errors in a myriad of ways, the essential submissions of Mr. N.N. and the issue to be determined with respect to Mr. N.N.’s pre-enquete of February 25, 2014 can be formulated as follows:

1. Did the justice of the peace lose jurisdiction by failing to afford Mr. N.N. natural justice by breaching his duty to provide procedural fairness to the applicant and thereby denying the applicant a fair hearing?

[12] The essential submission of Mrs. D.N. and the issue to be determined with respect to her pre-enquete of April 2, 2014 can be formulated as follows:

1. Did the justice of the peace exceed his jurisdiction by refusing to issue process, notwithstanding that e found that the essential elements of the offence had been made out, by taking into account irrelevant factors?

The Pre-enquete of February 25, 2014

[13] In order to assess whether Mr. N.N. was denied a fair hearing it is necessary to examine the manner in which the pre-enquete was conducted in light of the ruling of the justice of the peace refusing to issue process.

[14] In view of how the hearing unfolded it is significant to note at this point that the justice of the peace did not attempt to assist Mr. N.N., who was unrepresented, by briefly outlining the purpose of the pre-enquete as well as the procedure that both he and the Crown were expected to follow in order to achieve that purpose. Had she done so, much of the subsequent difficulties with this pre-enquete may have been avoided.

[15] However, at the outset of his questioning, the Crown Attorney put the following general question to Mr. N.N.:

… I’m going to ask you to tell us briefly what occurred that day with particular attention to obviously to the details that make up these allegations that you’ve sworn and then I will have some questions for you and Her Worship may have questions for you as well. So just as -- as a starting point, let’s begin, what happened on August 22nd, 2012 that brings you here today?

[16] Mr. N.N. responded by outlining the circumstances of his arrest by Wayne Ellison as well as his detention by Mr. Ellison in the downstairs office. The Crown forcefully pointed out to Mr. N.N. that he had only mentioned Mr. Ellison in his evidence notwithstanding several charges laid against Michael Barr. He expressed himself as follows:

Q. Stop talking, sir. Stop talking. Take a look at that. Those are all the charges that you’ve laid or attempting to lay. You’ve just given evidence, sir, that you were taken from the store into the room in the basement, okay, with -- and -- and -- and you were grabbed. You’ve given that evidence but you’ve only -- you’ve only told us about Mr. Ellison. You’ve -- and there’s two people named there, one of them Michael Barr. I mean, you would think he was a terrorist based on all of these charges that you’ve listed here and you haven’t even mentioned him in your evidence. So do you care to explain that? I mean, you’ve -- you’ve charged Michael Barr – you’re attempting to have this man, who we didn’t even meet in your evidence, with assault, forcible confinement, which carries a pretty severe penitentiary sentence, theft under $5,000, you haven’t -- you, by your own evidence, had nothing on you and you’ve said that he stole from you, extortion, you didn’t tell us about that, public mischief, you clearly didn’t tell us how this -- how this impacts the public at large, again theft under $5,000, so he’s stolen two items of under $5,000 from you and another count of extortion. Those are serious charges, sir, for you to not so much as mention in your evidence.

Now, before you start talking, I’ve got another -- I’ve -- and I have to lay all this out on the table because Her Worship has to evaluate your evidence to determine if charges could be laid. So I’m going to read you, sir, the police report from that day and I have no doubt you’ll let -- you would like to disagree but nonetheless, Her Worship, I need to furnish her with all the information. So the official police report, and correct me if I’m wrong, sir, but you did plead guilty?

A. No.

[Emphasis added.]

[17] Instead of awaiting an explanation by Mr. N.N. of the charges against Michael Barr, what followed was a lengthy discussion with Mr. N.N., initiated by the Crown, as to whether the N.s had pleaded guilty to the theft charge laid by the police. This protracted exchange concluded only when Mr. N.N. demonstrated to the satisfaction of the justice of the peace that the charge had been withdrawn.

[18] At this point, the Crown regrettably did not pursue the explanation he had invited Mr. N.N. to give of the charges laid against Michael Barr, but rather declared that he had no further questions of Mr. N.N..

[19] The justice of the peace then erroneously identified the test for issuing process as follows:

… Now first of all, for the court to issue process at this juncture, the threshold is not beyond a reasonable doubt. It’s on the balance of probabilities. So in other words, on the balance of probabilities, did or could an alleged offence occur?...

[20] The Crown took no issue with the formulation of this test, but did point out that the justice of the peace had heard no evidence with respect to Michael Barr and reiterated he had no further questions, subject to any the justice of the peace might have.

[21] Rather than informing Mr. N.N. that he had the right to briefly articulate his evidence with respect to Michael Barr, the justice of the peace observed that she was aware that they were running out of time. She observed that there was no excuse for unrepresented litigants presenting a private information not to be conversant with procedures so that they should either secure legal representation or educate themselves quickly as it was not up to either the Crown or the Court to do so.

[22] The Crown then proceeded to make submissions with respect to the charges of assault and forcible confinement as it pertained to Wayne Ellison. In response, Mr. N.N. was permitted to make a brief submission with respect to the charge of forcible confinement against Michael Barr.

[23] The Court indicated that the Court had run out of time to deal with M. D.N.'s charges with respect to Michael Barr. Mr. N.N. then requested that with respect to his own charges against Michael Barr, the Court consider not only his verbal testimony, but his sworn written informations as well. The Court made the following observation:

THE COURT: Well once you’re in court, it’s not just what you’ve sworn to, it’s what – we got to test the – what – what you’re saying so that we can determine whether or not process will be issued and it’s the one chance you have to “prove” that there are elements there that the court is justified in issuing process on the balance of probabilities …

[24] In her ruling, the justice of the peace stated the following:

… The Court is going to make a determination. With respect to Wayne Ellison, assault only, not forcible confinement. With respect to Michael Barr, and it is very difficult to make a decision when a process, the typical protocol that is followed in court even with regard to private informations has not been followed. You were asked questions by the Crown. The Crown is in, at this juncture, in the adversarial role. They are asking the questions. They are probing to test what you are saying to see whether the court can make a determination. You have continuously interrupted these proceedings … again, with respect to forcible confinement and Michael Barr. I have not heard anything…to issue process.

[25] The Crown reminded the justice of the peace that no evidence had been given by Mr. N.N. on the charge of theft or extortion on the part of Michael Barr.

[26] The following exchange then took place:

THE COURT: Well if the – maybe it would be – if lawyers advise individuals to come to court to lay private informations, perhaps counsels then should give up their time to come and assist individuals in properly preparing the cases before the court.

MR. CORISTINE: Your Worship, it as the complainant’s evidence that he had the – the advice of a lawyer before coming here today.

THE COURT: Yes. Well, I know. That is why I am indicating what I have indicated.

MR. N.N.: Your Worship, we can’t afford to hire a lawyer. They’re asking for $10,000 minimum retainment [sic] – retainer. I can’t – I can’t afford to hire a lawyer, pay thousands of dollars just to -- to -- … tell the truth and tell the same information.

THE COURT: Well, sir, if you do not tell the Court in a way that the Court can understand, so the Court then has -- when the Court needs to make a determination to issue process, the Court cannot issue the process and right now what the Court is going to do is issue process against Wayne Ellison solely with respect to the offence of assault and with regard to Michael Barr and this particular individual only, the Court is not going to issue process. There has not been enough evidence presented before this Court in a clear manner that the Court can make a determination with respect to any of the four counts or allegations against Mr. Barr.

[27] It appears clear that the justice of the peace refused to issue process with respect to any of the charges involving Michael Barr because sufficient evidence had not been presented to the Court in a clear manner and that the responsibility for this deficiency rested on Mr. N.N., the unrepresented complainant, who interrupted the proceedings and who was unacquainted with the appropriate procedures.

[28] With respect, the responsibility to provide a fair hearing to any litigant and in particular to an unrepresented litigant, resides with the court. While I recognize that there is a tension arising from the responsibility of the court to provide speedy and efficient proceedings on the one hand and to provide assistance to unrepresented litigants on the other hand, this case serves to illustrate that if Mr. N.N. had been provided with a minimum of assistance, the goals of speedy and efficient proceedings would have been much better served.

[29] The obligation of judges to provide assistance to unrepresented litigants has been articulated by the Court of Appeal in several decisions. In R. v. McGibbon (1988), 1988 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.) at p. 347, the Court stated:

Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him through the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must be of necessity a matter of discretion.

[See also: R. v. Tran (2001), 2001 5555 (ON CA), 55 O.R. (3rd) 161 (C.A.) at para. 33.]

[30] In this case, the Crown quite properly asked Mr. N.N. to provide the details of his allegations. When Mr. N.N. focused on his allegations against Wayne Ellison, with whom he had initial contact, the Crown again quite properly asked Mr. N.N. to explain the allegations against Michael Barr. Unfortunately, instead of allowing Mr. N.N. to do so, the Crown engaged in a very long discussion with Mr. N.N. as to whether the theft charge against himself and his wife had been withdrawn. Thereafter, the Crown did not pursue any further questions with respect to the charges against Michael Barr, nor did he invite Mr. N.N. to do so. When it became clear that time was running short, the Crown observed that the allegations of Mrs. D.N. had not yet been heard and that Mr. N.N. had not given any evidence with respect to his allegations against Michael Barr. The Crown stated he had no further questions of Mr. N.N., subject to any questions by the justice of the peace. In my view, in the circumstances of this case, it would have been not only appropriate, but incumbent on the justice of the peace to assist Mr. N.N. by instructing him to briefly testify with respect to his allegations, if any, against Michael Barr in order to afford Mr. N.N. a minimum measure of procedural fairness. Instead, the justice of the peace held that it was Mr. N.N.’s responsibility to follow the appropriate procedure and since he had not testified as to his allegations against Michael Barr, there was no evidence upon which the justice of the peace could issue process.

[31] I conclude that Mr. N.N. did not obtain a fair hearing or indeed any hearing with respect to the charges of assault, theft and extortion against Michael Barr as he was not given a fair opportunity to present his evidence on those charges. Accordingly, I would grant the application for mandamus with certiorari and order that a fresh pre-enquete be conducted by a different justice of the peace with respect to those charges.

[32] I would dismiss the application for mandamus with certiorari in aid in respect to the charge of forcible confinement as I am satisfied that there was insufficient evidence with respect to the essential elements of that offence notwithstanding that the justice of the peace applied the wrong test and gave no reasons for his decision (see: R. v. Papodopoulos (2005), 2005 8662 (ON CA), 201 C.C.C. (3d) 363 (C.A.) at paras. 16-28). In my view, there was a valid basis for the charge against Mr. N.N. with respect to the alleged theft of the pregnancy test as there was a legitimate issue as to the credibility of his assertion that he intended to pay and accordingly, it was lawful for the security guards to hold Mr. N.N. pending the arrival of the police.

[33] I would also not give effect to Mr. N.N.’s submission that the Crown deliberately attempted to mislead the justice of the peace by maintaining that he and his wife plead guilty to the theft charge laid by the police. I am satisfied from my examination of the record that the Crown was honestly mistaken.

[34] Nor would I give effect to the suggestion that the assault charge against Wayne Ellison was improperly withdrawn by the Crown. The Supreme Court of Canada has held that the decision to withdraw a charge is entitled to considerable deference and in the absence of evidence of bad faith or improper motives, no explanation of the reasons for withdrawal is required. (See: R. v. Anderson, 2014 SCC 41, [2014] S.C.J. No. 41 at paras. 48-51; 55.)

[35] Finally, an award of costs against the Crown requires a showing of oppressive or improper conduct on the part of the Crown (see: R. v. Ciarniello, 2006 29633 (ON CA), 2006 O.J. No. 3444 (C.A.) at paras. 31-36; R. v. Tiffen (2008), 40 O.R. (3d) 575 (C.A.) at paras. 91-101). The applicant has not advanced any basis for his request for costs against the Crown, but to the extent that it is based upon the alleged misconduct outlined above, that conduct does not constitute “a marked and unacceptable departure from the reasonable standards expected of the prosecutor” and accordingly, the application for costs is dismissed.

The Pre-enquete of April 2, 2014

[36] After hearing the evidence of Mr. and Mrs. D.N. with respect to the charges of mischief, forcible confinement, theft and extortion laid by Mrs. D.N. against Michael Barr, as well as the submissions of the Crown and Mrs. D.N., the justice of the peace delivered the following brief decision:

Yes. The allegations happened on August 22, 2012 and this information was sworn on November 23, 2013, which is about fourteen months after and I agree with the Crown’s submissions that the limitation period has expired.

Also, what I find whatever happened, it happened during the course of action the security guard had to take. In other words, he was doing his job. It is unfortunate the way things have happened and I am told the charges were withdrawn against this person, but after the limitation period expired, this issue should have not come before this Court.

Having said that, I also find there is a [prima facie] case, but I do not consider the case an appropriate one for the issues of process. It is not in the public interest and I am also told they have taken other actions which they have a right to and there are civil remedies available and they should pursue those, so I am not going to issue the process.

Thank you.

[37] The applicant, Mrs. D.N., submits that the justice of the peace exceeded his jurisdiction in that once he found that there was a prima facie case, it was incumbent on him to issue process unless he specifically found that it was not in the public interest to do so on the basis that the charges were frivolous, vexatious or abusive. It is submitted that the justice of the peace did not exercise his discretion on the basis noted above, but rather on the basis of extraneous factors; i.e. the perceived expiration of the limitation period and the institution of civil proceedings.

[38] The Crown submits that the justice of the peace erred in finding that a prima facie case had been established save for the charge of extortion with respect to which the Crown concedes process could have been issued. The Crown further concedes that the justice of the peace erred in law in taking into account a perceived limitation period as well as the institution of legal proceedings. The Crown submits that the justice of the peace correctly exercised his discretion not to issue process on the basis of public interest concerns in that the record, when viewed as a whole, supports the Crown’s position that the justice of the peace implicitly, although not explicitly, viewed the allegations as frivolous and vexatious. The Crown relies on R. v. Halik, supra, where at para. 31, the Court stated:

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.

[39] In my view, it is not at all clear from the record and the reasons of the justice of the peace that the justice of the peace exercised his discretion correctly in refusing to issue process on the basis that the complaint was frivolous, vexatious or abusive.

[40] In his submissions to the justice of the peace, the Crown did not take the position that the complaints were frivolous, but rather that there was no evidence to support a prima facie case with respect to any of the complaints and in particular, that Michael Barr was doing his job with respect to the allegation of forcible confinement. However, unlike the situation with Mr. N.N., who could be said to be confined pursuant to lawful authority with respect to the theft of the pregnancy test, the allegation of Mrs. D.N. is that she was confined in order to extract a confession. Secondly, the Crown in this Court concedes that process should have been issued with respect to the charge of extortion. Thirdly, given the Crown’s concessions that the justice of the peace, in refusing to issue process, erred in law in taking into account a limitation period as well as the issuance of a civil action, in my opinion it is unsafe, in the absence of a specific statement by the justice of the peace, to infer that he correctly exercised his discretion to refuse to issue process on the basis that the charges brought by Mrs. D.N. were frivolous, vexatious or abusive.

[41] My examination of the reasons of the justice of the peace leads me to conclude that it is difficult if not impossible to discern the basis upon which process was not to issue. The applicant was entitled to a proper consideration of her complaints.

[42] For the same reasons as outlined above with respect to the application for costs by Mr. N.N. at paragraph 35, I would dismiss the application of Mrs. D.N. for costs.

F. conclusion

[43] In the result, I would grant the application for mandamus with certiorari in aid of Mrs. D.N.. I would remit all of the charges sworn by Mrs. D.N. against Michael Barr as well as the charges of assault, theft and extortion sworn by Mr. N.N. against Michael Barr to the Ontario Court of Justice for a fresh pre-enquete before a different justice of the peace.

[44] The application with respect to all other matters is dismissed.

THEN J.

Date: September 8, 2014