COURT FILE NO.: CR-19-0058-00MO
DATE: 2019-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Robert Kamstra
Self-Represented
Respondent
- and -
Jeremy Gardiner
M. Hargadon, for the Applicant
Applicant
HEARD: October 25, 2019, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons on Application
Overview
[1] This is an application for orders quashing the issuance of an information under s. 810 of the Criminal Code against the applicant, Mr. Gardiner, and prohibiting the Ontario Court of Justice from adjudicating any further proceedings, arising on the information against the applicant.
[2] Mr. Gardiner is an officer with the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”). Mr. Kamstra is an owner of animals. As a result of interactions between OSPCA and its officers, including Mr. Gardiner, Mr. Kamstra attended before a Justice of the Peace and sought a recognizance to keep the peace (“Peace Bond”). The first stage of the Peace Bond process is the laying of an information before a Justice of the Peace.
[3] Mr. Gardiner argues that there were no reasonable grounds to believe that he would cause personal injury to Mr. Kamstra, or his family, or that he would damage Mr. Kamstra’s property. He argues that Mr. Kamstra’s fears arise from the lawful consequences of unlawful behaviour and, as such, cannot ground an application for a “Peace Bond”.
Facts
[4] Mr. Kamstra appeared before the Justice of the Peace on April 23, 2019 with four separate applications for Peace Bonds against the Thunder Bay District Humane Society, the OSCPA, Mr. Gardner, and an unnamed OSPCA officer. The Justice of the Peace declined to receive any information with respect to the non-individual entities but did receive information from Mr. Kamstra regarding Mr. Gardiner.
[5] The following summary contextualizes the interactions between Mr. Kamstra and Mr. Gardiner. On March 22, 2019, a Justice of the Peace issued a warrant to Mr. Gardiner to inspect property occupied by Mr. Kamstra, to inspect the premises and all animals found therein for the purpose of ascertaining whether there were animals in distress pursuant to subsection 12(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, Chapter O. 36 (the “Act”).
[6] Together with local police officers, Mr. Gardiner executed the warrant on March 27, 2019. Pursuant to s. 14 of the Act, they removed animals including a caiman, alligator snapping turtles, ferrets, rabbits, and a python. By s. 15 of the Act, the owner or custodian is responsible for expenses incurred in caring for the animals while removed. It was also ordered that Mr. Kamstra have a dog examined by a veterinarian. Other orders were made to make the premises fit for the well-being of various species.
[7] On April 3, 2019, Mr. Gardiner made further orders regarding a monitor lizard and various orders for the cleaning of animal enclosures with the direction that these orders be completed by April 17, 2019. Subsection 13(6) of the Act provides that an agent of the OSPCA may enter a premises without a warrant to determine whether an order has been complied with.
[8] On the “Pre-Enquette” hearing before the Justice of the Peace, Mr. Kamstra said that Mr. Gardiner was “threatening me physically, financially”. On April 18, 2019 when officers from the OSPCA, including Mr. Gardiner, attended to determine whether the orders had been complied with, Mr. Kamstra said the officers made:
physical threats and financial threats and I’m already in financial ruin from this plus there’s another additional bill ….
[9] The Justice of the Peace inquired about the physical threats and Mr. Kamstra said that an officer, who was not identified but was not Mr. Gardiner, said he was going to “take me out.”
[10] The Justice of the Peace inquired of specific threats by Mr. Gardiner. Mr. Kamstra said:
Jeremy Gardiner basically his threats were he’s gonna come take my financially, take my animals… Issue more warrants.
[11] In deciding to proceed with the Peace Bond the Justice of the Peace stated:
… I am satisfied that any information you have given me that because of the behavior, particularly of Jeremy Gardiner that we will begin a piece bond process. So what has to happen sir is that, that even though people have authority that they do not have the right to threaten people in their own homes, take their own personal items, threaten them for financial ruin those sorts of things.
[12] Charges against Mr. Kamstra arising from these investigations are pending in the Ontario Court of Justice.
Positions of the Parties
[13] Counsel for Mr. Gardiner argues that, absent a clear abuse of process, the actions of peace officers, such as Mr. Gardiner, enforcing lawful processes cannot ground an information under s. 810. He argues that agents of the state, acting within the scope of their statutory authority and in furtherance of lawful aims, cannot be said to be doing anything that gives rise to reasonable fear. Further, he argues that there is no information laid before the Justice of the Peace giving rise to reasonable grounds that Mr. Gardiner will harm Mr. Kamstra, or his family, or will damage his property. To issue process in the absence of some evidence of a reasonable fear of personal injury or injury is a jurisdictional error. Finally, he argues that this Peace Bond application is a collateral attack upon matters that are properly to be determined in the Ontario Court of Justice.
[14] Mr. Kamstra did not file any material on this application although given a deadline to do so. His arguments included attacks on the validity of the initial warrant, and reference to Facebook and other information which is not before me. He did not direct me to any other threats made by Mr. Gardiner other than those referenced by me above.
The Law
[15] Section 810 of the Criminal Code provides as follows:
If injury or damage feared
(1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person
(a) will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property; or
(b) will commit an offence under section 162.1.
Duty of justice
(2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division.
Analysis and Disposition
[16] I agree that the Justice of the Peace committed a jurisdictional error by issuing process in circumstances in which there was no evidence of fear on reasonable grounds. The fears expressed by Mr. Kamstra are fears arising from the lawful consequences of unlawful behaviour. The financial penalties, the seizing of animals, and the issuing of warrants are all consequences of unlawful behaviour. Fear of these consequences is not contemplated by s. 810(1)(a) and it was an error to issue process against Mr. Gardiner in the circumstances.
[17] Accordingly, an order will issue quashing the issuance of the information under s. 810 of the Criminal Code against Mr. Gardiner, and an order will issue prohibiting the Ontario Court of Justice from adjudicating any further proceedings, arising on the information against Mr. Gardiner.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: November 5, 2019
COURT FILE NO.: CR-19-0058-00MO
DATE: 2019-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
Robert Kamstra
Respondent
- and -
Jeremy Gardiner
Applicant
REASONS ON APPLICATION
Newton J.
Released: November 5, 2019
/lvp