Olumide v Her Majesty the Queen in Right of Ontario, 2017 ONSC 1201

Court File and Parties

Court File No.: 16-30541 Date: 2017/03/01 Superior Court of Justice - Ontario

Re: Ade Olumide, Plaintiff And: Her Majesty the Queen in Right of Ontario

Before: C.T. Hackland J.

Counsel: Plaintiff, Not appearing Robert Thomson, for the Crown

Heard: January 13, 2017

Endorsement

[1]

Background

Mr. Olumide filed an Application Record with the Court on the face of which is written “Notice of Application and Constitutional Question”. Also, typed on the face of the Application Record is: “(MANDAMUS re Ontario Court of Justice Files 16-30541, 16-30542, 16-30543, 16-30540 re tax fraud and perjury by CRA, Federal Court, Federal Court of Appeal, Supreme Court)”.

2Mr. Olumide did not appear on the return of this application although the matter was stood down to mid-morning and he was paged several times. He had previously advised the Court by way of email sent to the trial co-ordination office that he was not going to appear unless the Court first issued an order granting an abridgment of time for the constitutional questions he sought to raise.

3Upon review of the Application Record, it can be discerned that Mr. Olumide is seeking to have declared as unconstitutional s. 579(1) of the Criminal Code, R.S.C., 1985, c. C-46 which is the section under which the Crown stayed four informations issued by a Justice of the Peace on Mr. Olumide’s application. The four informations are included in the record. The informations authorize proceedings by way of private prosecution against:

(a) The Supreme Court of Canada and two named Justices of that court for “deceit and falsehood” for allowing fraud by the Federal Court of Appeal (information 30541);

(b) The Queen in Right of Canada, alleging employees made false statements in relation to income tax matters (information 30542);

(c) The Federal Court and a named justice of that court for knowingly making false statements in certain court rulings (information 30543); and

(d) The Federal Court of Appeal and three named justices of that court for knowingly making false statements in a court ruling (information 30540).

4The allegations in these informations relate to tax litigation Mr. Olumide was pursuing in the Federal Court.

5The private prosecutions Mr. Olumide laid against members of the judiciary on November 17, 2016 were subsequently stayed by the Crown on January 9, 2017 as mentioned previously.

[6]

The Statutory Framework for Private Prosecutions

The procedure in reference to private prosecutions is that an individual lays an information before a Justice of the Peace under s. 504 of the Criminal Code. That section provides:

504 Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person

(i) is or is believed to be, or

(ii) resides or is believed to reside,

within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;

(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or

(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

7The Justice of the Peace then sets a date for a pre-enquete (s. 507.1 of the Criminal Code) where the merits of the allegations would be examined to determine whether process should be issued.

8In my opinion, the three informations alleging fraud against the judges in the Federal Court and the Supreme Court for rulings made in the course of their judicial duties constitute a clear and egregious abuse of process. The law is well settled that judges have an absolute immunity for actions taken within the scope of their duties, see Morier v. Rivard, [1985] 2 S.C.R. 716 at paras 85-110 and Baryluk (Wyrd Sisters) v. Campbell.

9The current case law holds that a Justice of the Peace cannot decline to accept an information. Justice Code in Waskowec v. Ontario, 2014 ONSC 1646 held that the powers of a Justice of the Peace under s. 504 of the Criminal Code are purely ministerial with no place for judicial discretion; at para 11:

11 Sections 504 and 507 (or 507.1 in this case) enact two distinctly different steps in the criminal process. Under s. 504, a member of the public or a police officer simply swears an Information and thereby makes an allegation of crime. Under s. 507 and s. 507.1, the Court decides whether there is sufficient evidence to justify compelling the accused to appear before the court and to answer the charge. The former power was described by Lamer J., as he then was, in R. v. Dowson (1983), 7 C.C.C. (3d) 527 at 536 (S.C.C.) as "the citizen's fundamental and historical right to inform under oath a justice of the peace of the commission of a crime". Or as Rothman J. put it in R. v. Jean Talon Fashion Centre Inc. (1975), 22 C.C.C. (2d) 223 at 229 (Que. Q.B.)"Every citizen has the right to inform the Crown that a crime has been committed". In other words, the s. 504 power belongs to the citizen and not to the justice of the peace or the Crown. Indeed, the justice is obliged to "receive the Information" under s. 504 as that section is framed in mandatory statutory terms. Rothman J. made this point in Jean Talon Fashion, supra at p. 227:

Under s. 455 [now s. 504], a Justice is obliged by law to receive the information ("shall receive the information") when the informant, in his information, alleges that an indictable offence has been committed within the territorial jurisdiction of the Justice. The act of receiving the information is a purely ministerial act, rather than a judicial act, and it is difficult to see how the Justice could decide whether to hold a pre-enquête or whether to issue a summons or warrant to the person charged in the information, unless the information was already signed and sworn to by the informant and received by the Justice. Moreover, being a ministerial rather than a judicial act, the act of reception of an information is not subject to judicial review: R. v. Read, Ex p. McDonald (1968), 1 D.L.R. (3d) 118, Alberta Supreme Court, Appellate Division; Casey v. Automobiles Renault Canada Ltd., [1964] 3 C.C.C. 208 (N.S.S.C. in banco), revd, [1966] 2 C.C.C. 289 (S.C.C.).

10An overview of the process for private prosecutions is succinctly set out by Watt J.A. in McHale v. Ontario (Attorney General), 2010 ONCA 361.

[11]

Analysis

In any event, the fact remains that Mr. Olumide’s application before the Court for constitutional relief is in aid of his attempt to pursue private prosecutions against judges who have ruled against him in the course of their reasons for decision or in court orders. This is vexatious conduct and an abuse of process and should not be permitted.

12The Crown submits that because Mr. Olumide’s intended private prosecutions are authorized by the Criminal Code, they are not barred by a vexatious litigant order under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C-43. Mr. Olumide was declared a vexatious litigant and prohibited from commencing or continuing any proceeding in Ontario, by order of Dunphy J. of this Court, dated October 17, 2016. It was brought to the Court’s attention that Mr. Olumide has also been declared a vexatious litigant in the Federal Court by order of Martineau J. dated October 4, 2016, reported at 2016 FC 1106. He has also been required by the Ontario Court of Appeal to first seek leave before bringing motions against the Crown in that court, see Olumide v. Ontario (Attorney General), 2016 ONCA 941.

13I agree that vexatious proceedings orders do not bar litigants from taking steps to defend themselves in a criminal prosecution, including by seeking prerogative relief. Initiating private prosecutions is quite another matter but, on balance, an entitlement granted by the Criminal Code cannot be constrained by a court order granted under provincial legislation.

[14]

Injunctive Relief

Having said that, this Court has the power and indeed the obligation to protect its own process from abuse by Mr. Olumide and other persons who would use the courts process to harass public officials. I accept the Crown’s submission that an injunction is the appropriate form of remedy in regard to vexatious private prosecutions.

15Injunctive relief would, in my view, require a strong prima facie case of repeated vexatious private prosecutions or related vexatious conduct. That conduct certainly exists here. The balance of convenience, irreparable harm and public policy must also be considered.

16Mr. Olumide is well known to judges in this jurisdiction and the Ontario Courts database contains a remarkable list of cases which it can be seen are unsuccessful private prosecutions and civil actions or applications brought by Mr. Olumide against public officials and organizations. The rulings, always adverse to Mr. Olumide, are appealed always unsuccessfully to the Court of Appeal and in instances leave to appeal to the Supreme Court of Canada, has been sought, see e.g., Olumide v. Her Majesty the Queen in Right of Ontario, 2015 ONCA 651, leave to appeal to S.C.C. refused, 36879 (19 May 2016).

17Mr. Olumide’s vexatious conduct was characterized in the following way by Martineau J. in Olumide v. Her Majesty the Queen in Right of Canada, 2016 FC 1106 at para 6 & 7:

6. I need not repeat in these reasons the nature and scope of the ostensibly unsubstantiated and speculative allegations made over time by Mr. Olumide in its numerous proceedings. Since 2013, Mr. Olumide has filed 14 applications and actions before the Federal Court and the Tax Court of Canada, 15 proceedings before the Federal Court of Appeal, 5 applications for leave to appeal before the Supreme Court of Canada and at least 10 proceedings before the Ontario courts. Except for the few proceedings he discontinued, he has been unsuccessful in all his proceedings, a great number of which have been found to be abusive, scandalous, frivolous and vexatious.

7. Indeed, as outlined in the affidavits of Ms. Chamberland and Ms. Suys, and in a number of decisions of this Court and other courts, Mr. Olumide has been admonished for introducing frivolous proceedings characterized as scandalous, vexatious and abuses of process. He relitigates issues and consistently appeals unfavourable decisions as a matter of course. He makes submissions that are confusing and difficult to decipher, and makes scandalous and unsupported allegations against the courts, opposing parties, and federal public servants. He ignores court orders, timelines and court rules, and refuses to pay outstanding costs awards against him. The fact that Mr. Olumide has been ordered to pay security for costs has not prevented him from continuing to file proceedings without any due consideration for the public resources needed to respond to his meritless proceedings.

18Mr. Olumide of course should have the right to pursue a private prosecution if there is a proper basis for doing so. The Crown submits this entitlement can best be protected by requiring that he obtain leave from a judge of this Court before doing so, in the same manner as he is required to do in civil matters under the various vexatious proceedings orders currently in place against him. This would balance the public policy interests in allowing Mr. Olumide to initiate a private prosecution where warranted with the public interest in preventing use of the court process for vexatious proceedings aimed at harassing public officials and judges.

19In the Court’s view, the injunctive relief requested is beyond the Court’s jurisdiction in that it would restrict the right of a private citizen to lay an information under section 504 of the Criminal Code and thus is arguably not permissible. Moreover, this relief is not necessary because as explained by Watt J.A. in McHale, the “pre-enquete” hearing (s. 507.1) is held after the information is laid and it is at the conclusion of this hearing that the judicial officer determines whether there is any case for issuing a summons or warrant to compel the appearance of the accused to answer to the charge. This is an adequate safeguard against vexatious claims, particularly when the Crown also has the power to stay the proceedings at any time, as occurred in the present case.

[20]

Conclusion

In summary, the Court will not issue an injunction preventing Mr. Olumide from attempting to launch private presentations without leave of the Court. On the other hand, his present application for mandamus and a declaration that s. 579(1) of the Criminal Code is unconstitutional is not a criminal matter per se and is therefore subject to the Vexatious Proceedings order previously issued by this Court and is clearly, vexatious and an abuse of process. Mr. Olumide’s application is therefore dismissed.