CITATION: Zreik v. The Queen, 2017 ONSC 4516

COURT FILE NO.: CRIMMOT (p) 1937/16

DATE: 2017 07 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SUSAN ZREIK

Michael Moon, for the Applicant

Applicant

• and -

HER MAJESTY THE QUEEN (ATTORNEY GENERAL OF ONTARIO), and DIRECTOR OF THE SPECIAL INVESTIGATIONS UNIT

Emtiaz Bala, for the Respondents

Respondents

HEARD: July 5, 2017

REASONS FOR RULING IN REGARDS TO THE COURT’S JURISDICTION TO HEAR AN APPLICATION FOR MANDAMUS

Justice Thomas A. Bielby

Introduction

1In the fall of 2016, the applicant, Susan Zreik, brought this application before the Superior Court of Justice, seeking an order in the nature of mandamus with a certiorari in aid.

2The matter proceeded before me on the preliminary issue of whether this court has the jurisdiction to hear the application or is the jurisdiction that of the Divisional Court by way of judicial review.

3The applicant alleges that on March 20, 2015, three members of the Peel Police, in an effort to arrest Marc Ekamba-Boekwa, discharged their firearms a total of 19 times. One of those bullets struck the applicant in the back and lodged very close to her spine, thereby causing a serious injury.

4The applicant, at the time, was in the kitchen of her own housing unit and was not involved in any way with the altercation.

5The shooting was investigated by the Special Investigations Unit (SIU) for the Province of Ontario and on November 25, 2015, the decision of the Director of the SIU (the Director) was released. In his decision the Director declined to lay criminal charges against the officers.

6The applicant seeks an order mandating the Director to conduct a proper investigation and lay charges against the officers.

7The application was brought before the Superior Court of Justice, pursuant to the Criminal Code of Canada (the Code) and the Criminal Procedure Rules (the Rules).

8The respondents submit that the Superior Court of Justice lacks the jurisdiction to hear the matter and submits that the matter should proceed before the Divisional Court and be heard by way of judicial review, pursuant to the Judicial Review Procedure Act (JRPA).

9The SIU and its Director, is a creation of Police Services Act, R.S.O. 1990, C. P15 (PSA).

10Section 113 (5) of the PSA reads,

“The director may, on his or her own initiative, and shall, at the request of the Solicitor General or Attorney General, cause investigations to be conducted in to the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers.”

11Section 113 (7) reads,

“If there are reasonable grounds to do so in his or her opinion, the director shall cause informations to be laid against police officers in connection with the matters investigated and shall refer them to the Crown Attorney for prosecution.”

Applicant’s Argument

12The applicant submits that a judge of the Superior Court of Justice has jurisdiction to hear this matter pursuant to Part XXVI of the Code. Section 774 therein states,

“This Part applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition.”

13Section 482 of the Code authorizes the court to make rules to govern criminal procedure.

14Rule 43.01, of the Rules of Criminal Practice state,

“This rule applies to applications in criminal matters by way of certiorari, habeas corpus, mandamus, precedendo 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.”

15Rule 43.02 states,

“Applications made under rule 43.01 shall be made to a judge of the court in the region, county or district in which the proceedings to which the application relates have been, are being or are to be taken.”

16It is submitted by counsel for the applicant that the nub of this jurisdictional argument is whether or not the subject matter dealt with by the SIU is a “criminal matter”.

17It is submitted that on its face, the SIU conducts criminal investigations and in doing so cannot be considered an administrative tribunal to which the JRPA would apply. Counsel relies on the authority, Wood v. Schaeffer 2013 SCC 71, [2013] S.C.J. No. 71, where at paragraphs 35-37 the court discusses the creation of the SIU and the need for an investigative team to investigate police shootings.

18It is submitted that the Police Services Board is administrative in nature whereas the SIU and its Director are otherwise. The Director, pursuant to the PSA, is designated as a police officer.

19Counsel for the applicant relies on the decision of C.S. Glithero J. in McHale v. Ontario [2009] O.J. No. 5630 wherein he submits that the court must look at the substance of the issue at hand, or as stated by counsel for the applicant, otherwise form triumphs over substance.

20It is submitted that the Director’s role is to conduct criminal investigations and, as a result, the substance of his work and that of the SIU is in regards to criminal matters. As such, this application is properly before this court pursuant to the provisions of the Code and the Divisional Court further to the JRPA lacks jurisdiction to entertain this application.

21It is submitted by counsel for the applicant that to invoke the procedure under the Code, there is no need for an underlying procedure or proceeding. He relies on the authority of Dykstra v. Greensword, an unreported decision of Durno J., heard March 9, 2016, wherein the court was dealing with an application to quash a subpoena. At paragraph 31, Durno J. wrote,

“Certiorari applications are generally argued on the record in the lower court, almost invariably on a transcript. Where the application is to quash a subpoena, in many cases there is no transcript or any other record of the subpoena’s issuance.”

22Counsel submits that the court ought to take a pragmatic approach and the absence of a collateral record is not fatal.

23Counsel for the applicant also relies on the decision of A.D.K. MacKenzie J. in Peel (Regional Municipality) Police v. Ontario (Director, Special Investigations Unit) 2011 ONSC 1292, [2011] O.J. No. 2004. At paragraph 57 the judge refers to the SIU as a public agency in which is vested criminal investigatory powers relating to alleged police misconduct.

24It is submitted by the applicant that her application for mandamus and certiorari ought to proceed to a single judge of the Ontario Superior Court in accordance with the Code and the Criminal Rules.

Respondent’s Argument

25It is submitted by counsel for the respondents that Section 482(1) of the Code permits a Superior Court of criminal jurisdiction to enact rules to apply to any prosecution, proceeding, action or appeal as the case may be, including Rule 43.01.

26It is submitted that there is no underlying proceeding, action or appeal in a criminal matter, and therefore the Rules do not apply. Accordingly, this application has been improperly brought under the provisions of the Code and the Rules.

27The jurisdiction and the responsibilities of the SIU and the Director are mandated entirely by the PSA and, while the SIU investigates possible criminal behaviour, that does not, for jurisdictional purposes, turn the matter into a criminal matter.

28The PSA is a provincial statute, and accordingly the JRPA governs with respect to the remedies of mandamus and certiorari and the matter ought to proceed by way of judicial review before the Divisional Court (S. 7JRPA).

29It is submitted that to proceed under the Code, there must be an exercise of power under a criminal law statute.

30Counsel for the respondents further submits that with respect to all of the case law presented on this jurisdictional issue, if a provincial statute is involved, jurisdictional questions proceed by way of judicial review, before the Divisional Court. (Respondents’ Chart of cases, revised factum, Tab C.)

Case Law

31The respondents rely on the case, Avon v. Ontario (Ministry of Community Safety and Correctional Services) [2013] O.J. No. 1797, a decision of the Ontario Court of Appeal. In Avon, the applicant was convicted and sentenced for a sexual offence. His term of imprisonment and probation expired in 2000. However as part of his sentence Mr. Avon, pursuant to section 161 of the Code, was prohibited for life from having contact with persons under 14 years of age.

32Christopher’s Law (Sex Offender Registry S.O. 2000, c.1), a provincial statute, came into effect in April, 2001 and at some point thereafter, the applicant was instructed by the police to register with the Ontario Sex Registry under threat of arrest for failing to do so.

33Section 8 of Christopher’s Law states that it applied to every offender who is serving a sentence for a sex offence on the day the Act came into force, or is convicted on a sex offence on or after the date the Act came into force.

34The issue to be determined in the Avon case is whether the lifetime contact prohibition was part of Mr. Avon’s sentence to the extent that he was required to be included in the registry.

35The applicant, pursuant to the Code, sought an order in the nature of a Writ of Certiorari, to compel the Ministry to remove him from the registry.

36The judge ruled that the lifetime prohibition was part of the sentence and the applicant was obliged to register and dismissed the application for certiorari and the applicant appealed.

37The Court of Appeal (2011 ONSC 5211, [2011] O.J. No. 3950), at paragraph 1, stated,

“The Criminal Proceedings Rules invoked by the appellant were made by the Superior Court of Justice as a superior court of criminal jurisdiction under s. 482(1) of the Criminal Code. Those rules apply to proceedings in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, action or appeal.”

38Notwithstanding that Christopher’s Law related to offenders convicted under the Code, the court, at paragraph 5 and 6, was of the view that the Criminal Proceedings Rules had no application to the circumstances of the case and stated,

“The remedy sought here is the removal of the applicant’s name from a provincial sex offender registry, maintained by a provincial ministry, under a provincial law enacted under provincial legislative authority. The mere fact that the prohibition order under s. 161 of the Criminal Code was imposed in criminal proceedings under Part XXVI of the Criminal Code, where it is not expressly included in the expansive definition of ‘sentence’, does not convert this application to a criminal “proceeding” within s. 482(1) of the Criminal Code or bring it within the purview of the Criminal Proceeding Rules enacted pursuant to that authority.

In our view, this application should have been made to the Divisional Court under the Judicial Procedure Act. It follows that the judge below erred in taking jurisdiction under the Criminal Proceedings Rules. His decision was made without jurisdiction and must be quashed. This appeal is also quashed.”

39Counsel for the respondents submits that the Avon case is analogous to the matter before me. While an investigation by the SIU is to determine whether any of the police are guilty of criminal acts, the SIU and its Director are a creation of provincial statute, enacted under provincial legislative authority. The fact that the investigations undertaken relate to criminal activities does not make it a criminal matter such that it comes under the purview of the Code.

40The question to be asked in the face of the Avon decision is, if Christopher’s Law does not turn the matter into a criminal one for jurisdictional purposes, then how can it be argued that the PSA is to be treated any differently?

41Waskowec v. Ontario [2014] O. J. No. 1468, is a decision of the Ontario Court of Appeal. The applicant, Peter Waskowec, appeared before a Justice of the Peace asking him to swear out informations, pursuant to section 504 of the Code, alleging offences committed by Hydro One. The JP declined to do so, stating that the matter was of a civil nature and endorsed that there was no basis to accept the criminal information.

42The applicant appealed the matter to the Superior Court of Justice and the trial judge, Code J., was of the opinion that there was no appeal procedure available to the applicant and that the only remedy available to him was mandamus with certiorari in aid. The notice of appeal was so amended.

43Code J. held that the JP committed a jurisdictional error by declining to receive the applicant’s information and then went on to discuss the scope of the court’s jurisdiction to make a mandamus order. However, the remedy was ultimately denied because, as a matter of discretion, the error caused no prejudice. Had the JP properly received the information, the process would still not have succeeded.

44The Court of Appeal found no error in the decision of Code J. and dismissed the appeal.

45At no time was a jurisdictional issue raised before Code J. or the Court of Appeal. Nor was any provincial statute in play.

46McHale v. Ontario (Attorney General) [2010] ONCA 361, is a decision of Glithero J. Mr. McHale was a plaintiff in a small claims court action against OPP Commissioner Fantino and acted as representative to another plaintiff in a similar action.

47The Attorney General filed pre-enquette documents in support of its motion to dismiss two small claims court actions. The application sought a mandamus order directing the Attorney General to cease the sharing of these documents without a court order.

48It was ruled by Glithero J. that the application was not properly before the court, as an order of mandamus was deemed to be an application for judicial review returnable before the Divisional Court.

49From paragraph 9 and 10 I quote,

“Firstly, in my opinion, it is not properly before me, while mandamus may be sought in either civil or criminal cases, it is the nature and character of the proceedings in which mandamus is sought which determines whether the application is criminal or civil in nature.

It is the filing of the pre-enquette materials in support of the motion to dismiss the civil actions, still to be argued, which gives rise to this mandamus application. Accordingly, in my view, it makes this mandamus application civil in nature.”

50Glithero J.’s comments in paragraph 9, supports the proposition that we must look at the substance of the circumstances to determine if they are, “criminal matters”.

51Mr. McHale was a party in another matter, McHale v. Ontario (Attorney-General) 2010 ONCA 361, in which the Crown appealed from an order directing that a pre-enquete be held with respect to an information sworn by Mr. McHale, private citizen, against three named individuals. The Justice of the Peace was satisfied of the facial sufficiency of the information however the Crown withdrew on the basis of an abuse of process.

52Mr. McHale successfully applied for an order of mandamus and the judge ruled that case should return to a justice of the peace for a pre-enquete to determine whether process should issue to compel the named individuals to appear on the charges. The Crown appealed.

53The circumstances of the McHale decision surrounded the procedure for laying private informations under the Code. There was no jurisdictional issue as there was no provincial stature in play. Accordingly, the matter could proceed before a judge of the Superior Court of Justice.

54Ultimately, the appeal to the Court of Appeal was dismissed as it was determined that the judge was correct in finding that the withdrawal of the information prior to the pre-enquette was premature.

55Re Beke and The Queen [1977] O. J. No. 2199, is a decision of the Divisional Court in which Mr. Beke moved for an order prohibiting a provincial judge from hearing a charge under a provincial statute. Mr. Beke was charged with an unlawful use of a property pursuant to the zoning by-law.

56At the trial level the Justice of the Peace declined to dismiss the charges and the matter was set down for trial. It was at that point that the applicant sought judicial review.

57The issue for the Divisional Court to decide was whether it had jurisdiction to hear the matter or did jurisdiction lie with a single judge of the Superior Court of Justice.

58The court considered the decision, Re Regina and Nimbus News Dealers & Distributors Ltd. (1972) 1972 CanLII 696 (ON SCDC), 7 C.C.C. (2d) 382, and at paragraph 11, stated,

“That was an application to quash a search warrant issued by a Justice of the Peace. It appears to have been assumed in that case that the charge underlying the issue of the search warrant was in respect of a “federal” offence, i.e., an offence against a statute of the Government of Canada.”

59In Nimbus the Divisional Court took the view that the matter should go before a single judge of the then Ontario Supreme Court.

60In the Beke case, reference is also made to Re Union Felt Products (Ontario) Ltd. and the Queen (1975) 1975 CanLII 509 (ON SC), 8 O.R. (2d) 438, a decision of Goodman J., sitting in Weekly Court, in which he had to consider an application for an order prohibiting a Provincial Court Judge from proceeding with a prosecution under the provincial Environmental Protection Act. There was an issue as to whether the Criminal Appeal Rules governed or whether the application was covered by the JRPA.

61Goodman J. concluded that because the case before him involved the breach of a provincial statute the Criminal Rules did not apply. The procedure for enforcing the provincial legislation was provided by the Summary Convictions Act, an Ontario statute (para. 19).

62At paragraph 23, of the Beke decision, the court stated,

“It is apparent that the Union Felt case, supra, is materially the same as the application now before us. The common elements are that both proceedings were motions to prohibit proceedings before a provincial Court that arose out of the alleged provincial offences and were dealt with under the Summary Convictions Act.”

63In Beke the court was of the view that the reasoning in Union Felt was applicable and the matter, from a jurisdictional point of view, was properly before the Divisional Court.

64Ontario v. O’Neil [2015] O. J. No. 140 is a decision of D.M. Korpan J. of the Ontario Superior Court of Justice. Mr. O’Neil brought, in essence, a mandamus application for an order that the SIU conduct a proper investigation and provide a report prior to trial. The applicant was charged with obstructing a police officer and assaulting a police officer, but alleged the police had used excessive force and thereby assaulted the applicant.

65The mandamus application was before the court in the context of the criminal proceedings.

66The issue to be determined was whether the application for mandamus was properly before Korpan J., a judge of the Superior Court of Justice. After a short review of the JRPA, the court dismissed the application without prejudice to the applicant bringing the appropriate proceeding under the JRPA to the Divisional Court (para. 19).

67J.N. v. Durham (Regional Municipality) Police Service 2011 ONSC 2892, [2011] O.J. No. 2280, is a decision of J.P.L. McDermot J. of the Ontario Superior Court of Justice. The applicant sought an order removing the withdrawn charge of assault from her Criminal Information Request Vulnerable Persons Search (CIR). Because of the failure to remove the reference the applicant was unable to work in her field of social work.

68The applicant sought a mandatory order pursuant to section 96(3) of the Courts of Justice Act, R.S.O. 1990, c. 43, on the grounds that the relief sought was equitable in nature, something within the inherent jurisdiction of the court (para. 1).

69The trial judge ruled that the decision of the Durham Regional Police Service in refusing to remove the withdrawn charges was unreasonable and the decision was ordered quashed.

70The ruling was appealed to the Ontario Court of Appeal whose decision can be found at 2012 ONCA 428, [2012] O.J. No. 2809. The Appeal Court quashed the decision of the trial judge on the grounds that he lacked jurisdiction to quash decisions of the Police Service. The proper way to challenge such decisions is an application to the Divisional Court pursuant to the JRPA.

71From paragraph 23 I quote,

“Neither s. 96(30 nor inherent jurisdiction can trump the clear statutory scheme set out for judicial review in the Judicial Review Procedure Act, however. An application for judicial review must be heard by the Divisional Court.”

Analysis

72There is no doubt that, pursuant to the PSA, the investigations to be conducted by the Director and the SIU are criminal in nature. However, that does not mean Part XXVI of the Code governs.

73The authorities set out above and the others provided by counsel clearly follow a pattern. If the body or person against whom mandamus is sought are a creation of a provincial statute, the procedure to follow is that of judicial review under the JRPA. If the enabling statute is the Code, the procedure to follow is set out therein. For example, if the issue is the correct procedure for the laying of private information pursuant to the Code, Part XXVI of the Code would apply.

74In the authorities presented to me in which matters proceeded before a judge of the Superior Court of Justice deal with orders made pursuant to the Code, no provincial statutes were in play.

75However, the SUI is a creation of the PSA, a provincial statute and based on the authority presented to me I find that I, sitting as a judge of the Superior Court of Justice, lack the jurisdiction to hear this mandamus application. The jurisdiction is that of the Divisional Court on an application for judicial review.

76In reaching this decision I have relied particularly on the Ontario Court of Appeal’s decision in Avon v. Ontario, supra.

77The subject matter under consideration in the Avon case, was, to an extent, criminal in nature. That is to say it arose out of criminal activity.

78The Court of Appeal ruled that these circumstances did not convert the application for certiorari to a criminal proceeding for the purposes of s. 482(1) of the Code or bring it within the purview of the Criminal Rules (para. 5-6).

79I concur with the submissions of counsel for the respondents that the proper forum is dictated by the legislation under which the decision in issue was rendered. In our case the SIU and its mandate flows from a provincial statute. The case law indicates that as such the relief sought herein is a matter of judicial review by virtue of the JRPA.

80This logic, it would appear, prevailed in Ontario v. O’Neil, a case in which the applicant sought an order requiring the SIU to conduct a criminal investigation.

Ruling

81The application herein is dismissed without prejudice to the applicant commencing an application under s. 6 (1) the JRPA.

Bielby J.

Released: July 25, 2017

CITATION: Zreik v. The Queen, 2017 ONSC 4516

COURT FILE NO.: CRIMMOT (p) 1937/16

DATE: 2017 07 25

ONTARIO

SUPERIOR COURT OF JUSTICE