Court File and Parties

Court File No.: CRIMMOT (P) 1937/16 Date: 2017 03 07

Superior Court of Justice - Ontario

Re: SUSAN ZREIK – and – HER MAJESTY THE QUEEN (ATTORNEY GENERAL OF ONTARIO) – and – DIRECTOR OF THE SPECIAL INVESTIGATIONS UNIT

Before: Hill J.

Counsel: M. Moon, for the Applicant E. Bala, for SIU Director H. Thompson, for Attorney General of Canada

Heard: March 7, 2017

Endorsement

[1] Ms. Zreik has two Notices of Application before the Court – an application dated November 16, 2016 (Application #1) seeking three Orders and six declarations, and, an application (Notice of Application and Constitutional Issue) dated November 21, 2016 seeking two Orders and four declarations (Application #2).

[2] Turning to Application #1, Ms. Zreik claims to have launched “an application in the nature of mandamus with certiorari in aid” to have this Court provide declaratory relief, an order setting aside a November 25, 2015 “decision” of the Director of the SIU, and two mandamus orders directed to the SIU Director.

[3] On November 25, 2016, Durno J. adjourned the application to today’s date for argument restricted to the jurisdiction of the Superior Court of Justice sitting in its capacity as a superior court of criminal jurisdiction to hear Application #1. AG Ontario and the SIU Director consider the Divisional Court to be the appropriate forum to hear the application.

[4] Certiorari and mandamus applications may arise in civil/administrative contexts (i.e. ss. 2, 5 - 7 of the Ontario Judicial Review Procedure Act) or in a criminal context (Criminal Code, Part XXVI (“Extraordinary Remedies”); Rule 43 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario)). Applications for declaratory relief may arise in a criminal context by way of an originating notice of application, in some administrative law cases, or pursuant to Rule 14.05(3)(g) of the Ontario Rules of Civil Procedure.

[5] The November 16, 2016 Notice of Application does not, on its face, expressly found jurisdiction in Part XXVI of the Criminal Code and Rule 43. Rule 43.01 reads:

This rule applies to applications in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition, including applications to quash a subpoena, warrant, conviction, inquisition or other order or determination and applications for discharge of a person in custody.

[6] Rule 43.04(1) requires notice of application within 30 days “after the day on which the order which is the subject of the application was made or given”. In practice, the reference to “order”, other than in habeas corpus cases, has been interpreted as a short form to include the other matters described in Rule 43.01, i.e. a subpoena or determination. Rules 2 and 3 permit an extension of time based upon a court’s review of appropriate materials.

[7] Rule 43.05(1)(a) requires a copy of the relevant order or determination. In the absence of an agreed statement of facts, a Rule 43 application requires an affidavit as described in Rule 43.05(2).

[8] In a case where jurisdiction is an issue, and an applicant purports to rely on Rule 43, compliance with the criminal rules is essential.

[9] Before embarking upon the jurisdictional argument, Mr. Moon should have the opportunity to file such supplementary material as advised addressing the Rule 43 issues discussed above.

[10] Insofar as Application #2, in which AG Canada has been named as a party, in part raising constitutional validity and ultra vires arguments relating to provincial legislation, the Court was informed today that there may also be some controversy between the parties as to whether the application should remain in this court or be transferred to the Divisional Court. AG Canada disputes that, pursuant to s. 109(1) of the Ontario Courts of Justice Act and (Criminal) Rule 27 (“Constitutional Issues”), it can be named as a party in this application.

[11] The jurisdictional argument scheduled for today is adjourned to a date or dates to be fixed by Durno J. at a case management meeting scheduled for May 9, 2017 at 9:00 a.m.

[12] In the interim, counsel for Ms. Zreik shall serve and file any supplementary material relating to Application #1 on or before March 31, 2017, and Mr. Bala shall serve and file any necessary supplementary responding material by April 27, 2017. Should the Constitutional Law Division of the Ontario Ministry of the Attorney General wish to challenge the jurisdiction of this Court to hear Application #2 constituted other than as the Divisional Court, it shall serve and file its jurisdictional argument materials on or before April 27, 2017. If such materials are filed, Mr. Moon may file responding materials on or before May 5, 2017.

[13] In addition, Mr. Moon is to serve and file, on or before April 6, 2017, his argument responding to AG Canada’s filed argument relating to its status as a named party in Application #2.

[14] Mr. Moon has today advised that he is no longer relying on Part B of his factum, filed January 30, 2017, relating to an alternative submission respecting SCJ (Ont.) leave based on urgency.

[15] At the May 9 case management conference, without limiting the scope of that appearance as may be determined by Durno J., the parties should nevertheless be prepared to address the following subjects:

(1) whether jurisdictional disputes exist respecting one or both of the applications (2) whether cross-examination is necessary on any filed affidavit material (3) the anticipated court time required for a hearing respecting the jurisdictional arguments, the order of argument, and how that time should be apportioned (4) whether the issues raised by AG Canada in its factum filed February 17, and responded to by Ms. Zreik, need to be the subject of oral argument (5) the available date(s) for argument of the jurisdictional issues.

Hill J. Date: March 7, 2017