Her Majesty the Queen v. Monique Savin

Court File No.: CR-17-70000016-00MO & CR-16-70000403-00MO Date: 2017-07-28 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Monique Savin

Counsel: D. Carbonneau, for the Respondent, the Crown M. Savin, representing herself

Heard: May 1, 2017

Before: S.A.Q. Akhtar J.

Introduction

[1] The applicant, Monique Savin, applies for an order that the court order a trial of allegations including fraud, extortion, and criminal harassment. The applicant, acting in a private prosecution, alleges that Allyson Fischer, an employment lawyer, committed these offences when acting on behalf of a client with whom the applicant was involved in a financial dispute. Having twice unsuccessfully applied for process to issue using the pre-enquete procedure, the applicant turns to this court to “indict” Ms. Fischer, remand her into custody, and commit her to stand trial. For the following reasons, the application is dismissed.

Factual Background

[2] The applicant initiated a wrongful dismissal claim against her former employer, the Granite Club and, on 6 April 2016, was awarded judgment in default in the amount of $125,385 by my colleague, Goldstein J. Seeking to set aside this judgment, the Granite Club instructed Ms. Fischer, of the law firm of Hicks Morley, to take the appropriate legal steps. On 20 April 2016, Dunphy J. stayed the execution of the default judgment and ordered the applicant to pay costs of $750. On 24 June 2016, Faieta J. set aside the default judgment and invited costs submissions from both parties. Shortly thereafter, the applicant discontinued further civil proceedings against the Granite Club.

[3] On 28 June 2016, Faieta J. communicated a timeline governing the filing of cost submissions and, on 26 July 2016, ordered the applicant to pay costs of $8000 to the Granite Club. Ms. Fischer accordingly sent a letter via email and process server to the applicant requesting compliance with Faieta J.’s order, in addition to payment of the earlier costs order made by Dunphy J. This attempt to serve the applicant proved unsuccessful, as did three further efforts.

[4] On 27 October 2016, however, the applicant took out a private information alleging extortion, criminal harassment, and intimidation against Ms. Fischer and two persons employed by the Granite Club who had been her former employers. She later added the offence of mail fraud.

[5] On 24 November 2016, the applicant testified at a pre-enquete hearing, along with her husband, outlining her claims that she feared for her safety in the aftermath of the civil proceedings commenced against the Granite Club. The repeated attempts to serve her with the costs order made by Faieta J., she claimed, led to feelings of harassment and intimidation. The applicant also alleged that the costs order was the product of fraud because she owed no money to the Granite Club.

[6] Justice of the Peace Buchanan, presiding at the hearing, decided the applicant’s allegations had no basis in law and declined to issue process.

[7] This setback did not prevent the applicant from seeking a second private information, this time alleging Ms. Fischer had committed the offence of fraud. At the pre-enquete hearing before Justice of the Peace Hunt on 12 December 2016, the applicant again testified repeating her previous allegations as the basis for the new charge. Once again, the Justice of the Peace found that there was an insufficient basis to proceed and dismissed the application.

Position of the Parties

[8] The applicant seeks an order from this court indicting Ms. Fischer for a number of offences including fraud, mail fraud, and attempted extortion. She further requests that Ms. Fischer be committed to stand trial on all charges and be remanded into custody.

[9] The Crown, as respondent, submits that this course of action is unavailable and that the applicant’s only remedy is to file an application for mandamus to direct the Justice of the Peace to issue process on the terms that she requests. To obtain this remedy, argues the Crown, the applicant must establish an error of jurisdiction, which does not exist in this case.

Legal Principles

[10] Section 504 of the Criminal Code authorises any person who reasonably believes that another person has committed an indictable offence to lay an information before a justice. In cases of private prosecution, a justice who receives an information under s. 504 may issue a summons after they are satisfied that the information complies with the section and select a date to conduct a pre-enquete hearing.

[11] This hearing, governed by s. 507.1 of the Code, is held to decide whether a summons or warrant should issue to compel the persons named in the information to attend before the courts to answer the offence alleged in the private information.

Section 507.1(3) provides the conditions of issuance as follows:

(3) The judge or designated justice may issue a summons or warrant only if he or she

(a) has heard and considered the allegations of the informant and the evidence of witnesses;

(b) is satisfied that the Attorney General has received a copy of the information;

(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and

(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.

[12] The pre-enquete procedure mandates that the justice must hear the allegations of the informant as well as any evidence called in support. A representative of the Attorney General is entitled to attend the hearing and cross-examine the informant’s witnesses as well as call its own evidence.

[13] The justice decides whether the information is valid on its face, and whether the evidence presented discloses a prima facie case of the allegations. This analysis involves an evaluation of the essential elements of the alleged offences: R. v. Whitmore (1989), 51 C.C.C. (3d) 294 (Ont. C.A.); R. v. Grinshpun, 2004 BCCA 579, at paras. 32-33.

[14] At the conclusion of the hearing, the justice must decide whether a case for issuing a summons or warrant has been made out. If they find that there is an insufficient basis to do so, process cannot issue and the information is deemed never to have been laid: s. 507.1(5) of the Code.

[15] There is no right of appeal from the justice’s decision. The only remedy available to the applicant in this case is to seek prerogative relief in the form of mandamus to compel the respective justices to issue a summons or warrant as originally sought. In seeking this remedy, the applicant must establish a jurisdictional error made by the justices at the pre-enquete level. It is clear that review on the grounds of prerogative relief “does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached:” R. v. Russell (2001), 2001 SCC 53, at para. 19; see also R. v. Skogman (1984), 13 C.C.C. (3d) 161, at 167 (S.C.C.).

The Hearing Before Justice of the Peace Buchanan

[16] The applicant essentially seeks a rehearing of the matter that proceeded before Justice of the Peace Buchanan. Her argument is that the Justice of the Peace was wrong to refuse the issue of a summons or warrant because the elements of her allegations had been correctly made out. This is further evidenced by the applicant’s subpoenaing of the original witnesses from the pre-enquete hearing.

[17] This argument misunderstands the power of this court and the remedy available to the applicant.

[18] A review of the Justice of the Peace’s reasons clearly indicate that he took the view that the allegations of harassment and intimidation had not been established: there was no basis for the applicant’s fears for her safety simply because Ms. Fischer sought to enforce a legitimate costs order. I agree with this conclusion.

[19] However, my concurrence is immaterial. As noted previously, the extraordinary remedy of certiorari can only be granted once the applicant has established jurisdictional error. I find that she has failed to do so: the application is simply a vigorous complaint that the Justice of the Peace came to the wrong conclusion. However, that was his call to make and his decision is not subject to review. As there is no evidence of any jurisdictional error, the application with respect to Justice of the Peace Buchanan’s order is dismissed.

The Hearing Before Justice of the Peace Hunt

[20] Section 507.1(7) of the Criminal Code provides that:

If a hearing in respect of an offence has been held under paragraph (3)(a) and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held.

[21] The application brought before Justice of the Peace Hunt fell foul of this section as it simply rehashed the same complaints made before Justice of the Peace Buchanan but dressed up in a different set of offences. In effect, the applicant sought to reverse the previous decision through a second pre-enquete hearing. I agree with the Crown that it would have been open to Justice of the Peace Hunt to summarily dismiss this second application as a violation of s. 507.1(7) of the Code.

[22] Having chosen to continue with the hearing, the Justice of the Peace concluded, like his predecessor, that the applicant had failed to make out the requisite allegations and declined to issue process. I repeat my earlier comments that his decision to do so was a matter within his jurisdiction and not subject to review. As with the hearing before Justice of the Peace Buchanan, the applicant has failed to establish jurisdictional error and the application is dismissed.

S.A.Q. Akhtar J. Released: 28 July 2017