HER MAJESTY THE QUEEN v. PLETNEV AND PLETNEVA, 2017 ONSC 6304

CITATION: HER MAJESTY THE QUEEN v. PLETNEV AND PLETNEVA, 2017 ONSC 6304

COURT FILE NO.: M89/17

DATE: 20171023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

VLADIMIR PLETNEV and ALLA PLETNEVA

Applicants

Neville Golwalla for the Respondent

The applicants appeared in person

HEARD: October 16, 2017

MacDonnell, J.

[1] This is an application by Vladimir Pletnev and Alla Pletneva for an order compelling a justice of the peace to issue process on an information charging three police officers and a paralegal with forcible entry, theft over $5000 and unlawful interception of private communications.

I. The Background

[2] The charges in relation to which process is sought arise in the context of a dispute between the applicants and their adult daughter, Ioulia Pletneva (“Ioulia”), in relation to the applicants’ right to continue living in a condominium apartment owned by Ioulia. The applicants had been living there since 2007. They had not been paying rent but they had on occasion provided babysitting services for Ioulia’s child. Ioulia was living elsewhere.

[3] On August 31, 2014, Ioulia told the applicants that she wanted them to vacate the premises. They declined to do so. Ioulia then retained the services of a paralegal, Everett Russell. On September 22, 2014 Mr. Russell wrote a letter to the applicants on behalf of Ioulia alleging that they were in unlawful possession of the apartment and demanding that they leave by October 14, 2014. The applicants did not move out as requested. After seeking legal advice they offered to pay rent in exchange for a further 60 days of occupancy. On October 17, 2014, Mr. Russell made a counter offer: the applicants would be permitted to remain until December 1 provided that they signed a formal agreement to pay rent and to vacate the premises by that date. The applicants were advised that this offer would remain open until October 21 and that if it was not accepted the locks would be changed, access to the premises would be denied, and their personal belongings would be transported to a temporary location. The applicants did not respond to the counter offer.

[4] On October 24, Ioulia contacted 52 Division of the Toronto Police Service and informed them that the applicants had refused to vacate the premises and that she proposed to change the locks and have the applicants’ belongings moved to an apartment that she had rented for them. Just before noon, Ioulia arrived at the apartment accompanied by two police constables and knocked on the door. Mr. Pletnev, who was home alone, answered the door. The officers told him that they wanted to talk to him, and he invited them to come in.

[5] After entering the apartment, the constables and Mr. Pletnev embarked upon a lengthy discussion about whether Ioulia had the legal right to demand that the applicants leave. In essence, the constables told Mr. Pletnev that the applicants had no right to remain in the apartment if Ioulia did not want them there, that Ioulia was going to have the locks changed, that their belongings were going to be moved out of the premises, and that if Mr. Pletnev did not voluntarily leave he would be arrested as a trespasser. In the course of the discussion, one of the constables was in telephone communication with the paralegal, Mr. Russell. After a while, a sergeant from 52 Division arrived. He told Mr. Pletnev that the constables were correct and that he was going to have to leave.

[6] After the discussion had continued for about 70 minutes, Mr. Pletnev left the apartment in his pajamas with a small suitcase. Mr. Pletnev did not suggest that he was prevented from getting properly dressed or taking anything else with him. The locks were then changed and professional movers arrived to take the applicants’ belongings to the apartment that had been rented for them by Ioulia. It appears that not all of the belongings made it into the apartment and that some were put temporarily in a storage locker. Among the belongings moved were the applicants’ computer and related hardware such as disks and memory sticks.

[7] In September 2016, almost two years after they were locked out of the apartment, the applicants attended at the Ontario Court of Justice seeking to lay charges of forcible entry, theft of property and unlawful interception of communications against the three police officers who had attended at the apartment on October 24, 2014 as well as the paralegal, Mr. Russell. It appears that the court staff prepared an information charging those offences and a date was set for a pre-enquette hearing to determine whether the proposed defendants should be compelled to answer to the charges.

II. The Pre-Enquette Hearing

[8] On October 20, 2016, Justice of the Peace Shoniker conducted the pre-enquette hearing. The applicants appeared in person and gave evidence under oath. The Crown was represented by an assistant Crown Attorney. After hearing the evidence and the submissions of both the Crown and the applicants, Justice of the Peace Shoniker ruled that the applicants had not shown that there was at least some evidence in relation to each essential element of any of the offences set forth in the information and accordingly she declined to issue process. Justice Shoniker delivered detailed reasons for her conclusions.

III. The Applicable Principles

[9] Where an information laid by a private informant[^1] has been received by a justice of the peace, the justice must refer it to an Ontario Court judge or a designated justice of the peace to consider whether to issue process to compel the appearance of the person charged.[^2] The judge or designated justice to whom the information is referred is required to hear and consider the allegations of the private informant and the evidence of the witnesses. If, at the conclusion of the hearing, the judge or designated justice considers that a case for compelling the accused to attend court to answer to the charge has been made out, the judge or designated justice "shall" issue either a summons or a warrant for the arrest of the accused.[^3]

[10] 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. Whitmore (1989), 1989 CanLII 7229 (ON CA), 51 C.C.C. (3d) 294, at 296 (Ont. C.A.); R. v. Grinshpun, 2004 BCCA 579, at paragraphs 32-33; R. v. Halik, 2010 ONSC 125, at paragraph 20.

[11] 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, at paragraph 19. A failure to consider all of the evidence would be an error going to jurisdiction, but the mere fact that a reviewing court might have come to a different conclusion with respect to the sufficiency of the evidence to establish a prima facie would not entitle the reviewing court to intervene: R. v. Deschamplain, 2004 SCC 76, at paragraph 37.

IV. Discussion

[12] The applicants have failed to show that the Justice of the Peace made a jurisdictional error in coming to the conclusion that there was an absence of evidence in relation to at least one essential element of each of the charges that the applicants wished to pursue and in dismissing the application on that basis. On the evidence presented to her, she could have come to no other conclusion.

(i) the charge of forcible entry

[13] Section 72 of the Criminal Code provides:

A person commits forcible entry when that person enters real property that is in the actual and peaceable possession of another in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace. [emphasis added]

[14] In their written materials in support of this application, the applicants assert that there was evidence before the justice of the peace that the three police officers entered upon real property, that the property was in the applicant’s peaceable possession, and that a breach of the peace in fact occurred subsequent to the entry.

[15] I agree that the applicants were in actual possession of the apartment. I am prepared to assume that the possession was peaceable and that the dispute that arose with respect to whether Mr. Pletnev was required to leave descended into a breach of the peace. However, there is no evidence that it was the manner in which the officers entered that led to the breach of the peace. Nor is there any evidence from which in inference could be drawn that the manner in which the officers entered was likely to cause reasonable apprehension of a breach of the peace. In R. v. J.D., 2002 CanLII 16805 (ON CA), [2002] O.J. No. 4916 (C.A.), Doherty J.A. stated at paragraph 22:

In addition to the requirement of a taking of possession as I have described it, s. 72(1) also requires that the taking of possession be done "in a manner" likely to cause a breach of the peace or a reasonable apprehension of a breach of the peace. The section does not address breaches of the peace which may have some causal connection to the taking of possession of the property, but are not associated with the manner in which possession was taken. The breach or the apprehended breach must flow from the manner in which possession of the real property is taken and not from subsequent events. [emphasis added]

[16] Mr. Pletnev agreed that when the officers arrived with Ioulia he invited them to come inside to discuss why they were there. Whatever happened after that was not caused by the manner in which they entered. Accordingly, a prima facie case of forcible entry was not made out.

(ii) the charge of theft

[17] In relation to the charge of theft, I will assume without deciding that the officers did something that amounted to aiding and/or abetting the moving of the applicants’ belongings from one apartment to another. To constitute theft, however, there must be evidence from which an inference could be drawn that the moving of the applicants’ belongings was done fraudulently and without colour of right. On the facts alleged by the applicants, there is no reasonable basis upon which such an inference could be drawn. Once again, therefore a prima facie case was not made out.

(iii) the charge of unlawful interception of private communications

[18] s. 184 of the Criminal Code provides, in part that “every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence…” The applicants assert that by moving their computer, memory devices and papers from one apartment to another the movers intercepted private communications and that the police officers and the paralegal were parties to that interception. In support of their position, the applicants rely on the definition of “interception” set forth in s. 183 of the Code, which states that an interception “includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof”.

[19] The applicants have misconceived the offence created by s. 184. There is no evidence that anyone at any point intercepted or attempted to intercept any of the applicant’s private communications. At least in its primary sense, “the word intercept suggests that there must be an interference between the place of origination and the place of destination of the communication”: R. v. McQueen, 1975 CanLII 1373 (AB CA), [1975] A.J. 342 (S.C.), at paragraph 7. Nothing of the sort was involved in moving the applicants’ computer hardware and associated paraphernalia from one apartment to another. Further, assuming that there were communications of the applicants that were recorded on the computer, computer disks, or memory sticks, there is no evidence that anyone listened to or acquired the substance of them, and in any event there is no evidence of the use of any electro-magnetic, acoustic, mechanical or other device

V. Disposition

[20] For the forgoing reasons, the application for an order of mandamus is dismissed.

MacDonnell, J.

Released: October 23, 2017

[^1]: i.e., an informant other than a peace officer, a public officer, the Attorney General, or the Attorney General’s agent. [^2]: S. 507.1(1) of the Criminal Code [^3]: S. 507.1(2)