COURT FILE NO.: CR-19-00000020-00MO

DATE: 2020 February 04

NOTICE OF PUBLICATION BAN IN EFFECT IN THIS CASE

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED OR TRANSMITTED OR PROVIDED TO MEMBERS OF THE PUBLIC OR ANY PERSONS NOT A PARTY TO THE JUDICIAL REVIEW OR POSTED ON SOCIAL MEDIA WITHOUT LEAVE GRANTED BY A FURTHER COURT ORDER, AND WILL ONLY BE USED IN THE JUDICIAL REVIEW APPLICATION in P.C. vs. Ontario (Attorney General), the O.P.P., C.R., G.M. and C.P., Court File No. CR-19-0020-MO BY ORDER OF MADAM JUSTICE H. MACLEOD-BELIVEAU,

SUPERIOR COURT OF JUSTICE ONTARIO,

DATED NOVEMBER 26, 2019

THIS COURT ORDERS THAT A PUBLICATION BAN SHALL ISSUE ON ANY INFORMATION THAT WOULD IDENTIFY G.M., C.R. & C.P., INCLUDING BUT NOT LIMITED TO:

(i) G.M.’s name, rank, badge #, detachment and police service;

(ii) The name of the private complainant P.C. and his wife, K.C.;

(iii) The names of any other parties including C.R. & C.P. alleged by P.C. to have committed criminal conduct against his wife, K.C.

COURT FILE NO.: CR-19-00000020-00MO

DATE: 2020 February 04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

P.C.

Applicant

– and –

Ontario (Attorney General), the O.P.P., C.R., G.M. and C.P.

Respondents

Self-represented

Peter Napier, for the Respondent, Ontario (Attorney General)

Claudia Brabazon, for the Respondent, O.P.P.

Mark Wallace, for the Respondents, C.R. and C.P.

Genevieve McInnes, for the Respondent, G.M.

HEARD at Belleville: November 26, 2019

MACLEOD-BELIVEAU j.

Reasons for decision

(Application for Certiorari with Mandamus in Aid)

[1] This matter relates to a private prosecution by P.C. for alleged offences committed upon P.C.’s wife K.C. and P.C. by K.C.’s employer, the O.P.P. and her superiors, C.R., G.M. and C.P. The applicant, P.C., brings this application for an order of certiorari with mandamus in aid, for the review and quashing of the April 9, 2019 decision of Justice of the Peace L. Dambrowsky made at a pre-enquete hearing refusing to issue process by way of a summons to the named putative accused persons, in a private information sworn by P.C. in relation to Counts #1, 2, 3, 4, 5, and 7, and attacking the stay asked for by the Crown Attorney after the Justice of the Peace issued process in relation to Count #6. The applicant P.C. seeks an order that this court order process to issue on Counts # 1, 2, 3, 4, 5, 6, and 7 as against all named respondents.

The Position of the Parties:

[2] The applicant P.C. seeks, in his words, an order for recommencement of proceedings on Count #6 which was stayed, and for continuance of the pre-enquete hearing to give new evidence and quashing the decision of the Justice of the Peace who refused to issue process on Counts #1, 2, 3, 4, 5, and 7. The grounds stated by P.C. for his application are, in his words, that the Justice of the Peace’s refusal to issue process was based on extraneous conditions, and that the Justice of the Peace’s discretion was not exercised judicially as it was outside the jurisdiction of the summary court and should be remedied. Further, P.C. alleges that the Crown Attorney failed in his duty of care to the administration of justice in that the Crown Attorney had previously worked as a Belleville Crown Attorney prior to working in Ottawa, and that his decision to stay Count #6 was therefore improper and inappropriate.

[3] The respondents, Ontario (Attorney General), the O.P.P., C.R., G.M. and C.P. ask that this matter be dismissed. It is their position that there was no jurisdictional error made by the Justice of the Peace in her decision to refuse to issue process on Counts #1, 2, 3, 4, 5, and 7. Further, it is the respondents’ position that the Crown Attorney has the absolute discretion to request a stay of Count #6 which was then granted by the Justice of the Peace.

The Issue:

[4] The issues are whether or not the orders of the Justice of the Peace refusing to issue process in relation to Counts # 1, 2, 3, 4, 5, and 7 should be quashed by this court for jurisdictional error, and whether or not the stay of Count #6 by the Crown Attorney is proper or subject to review by this court.

Result:

[5] The application is dismissed. I find no jurisdictional error made by the Justice of the Peace in relation to counts #1, 2, 3, 4, 5, and 7. I further find that the Crown Attorney was entitled to stay Count #6 as being within his sole discretion at the hearing, based upon the Crown Attorney’s reasonable position that there was no reasonable prospect of conviction.

Background Facts and Analysis:

[6] All identifying information has been removed in accordance with the publication ban order dated November 26, 2019. Places, streets and other individuals who are not parties are identified by letter only. The individual parties are identified by initials only.

[7] The reference to the “O.P.P.” stands for the Ontario Provincial Police. P.C. is a private citizen living in the City of X, Province of Ontario. K.C. is the wife of P.C. and she is a police officer employed by the O.P.P.

[8] P.C. and K.C. have a disabled child in their care. J.P. is K.C.’s superior and is not named as a respondent. G.M., C.R. and C.P. are higher ranking officials and K.C.’s superiors within the O.P.P. organization.

[9] In the spring of 2018, K.C. received a negative performance review from J.P. K.C. disagreed with her negative performance review which led to a series of events resulting in K.C. being charged under the Police Services Act for insubordination and misconduct. These charges are still outstanding. Approximately four months after K.C. was charged, P.C. swore an information on March 25, 2019 in relation to seven charges that made allegations against G.M., C.R. and C.P. and the O.P.P.

[10] On April 9, 2019, P.C. attended before the Justice of the Peace for a pre-enquete hearing in his effort to establish a prima facie case for a summons to be issued by the Justice of the Peace as against the respondents.

[11] The allegations by P.C., largely on K.C.’s behalf, in general and summary form from the transcript of the pre-enquete hearing, are that on May 16, 2018, K.C. was called into G.M.’s office, along with J.P., and was advised that a negative work performance document was being placed in K.C.’s employment file. K.C. disagreed with this evaluation. K.C. asked the following day, May 17, 2018, how long the document would remain in her file, that she disagreed with it, and wanted to file a response to the negative assessment in her file alleging wrongdoing by J.P. It is alleged that G.M. told her if she did that, “things would get worse and hurt you”. Several other conversations took place that day between K.C. and her superiors which K.C. wanted to audio record which was not allowed by her superiors. It is alleged that K.C. felt unsafe in G.M.’s office and felt a loss of dignity and security. She felt vulnerable and insecure. K.C. was concerned for her emotional and psychological security.

[12] It is alleged that K.C. disagreed with G.M.’s direction to her that she needed to advise J.P. when leaving the area when on duty. Both G.M. and J.P. denied that K.C. would be subject to a suspension or any other penalty. K.C. admits to raising her voice in these discussions with her superiors and left the meeting feeling physically ill.

[13] The next day at work, May 18, 2018, K.C. felt uncomfortable, physically ill, hopeless, fearful, and vulnerable and threw up in the bathroom at work. K.C. sought that day to report what she thought was criminal harassment in her workplace to other superiors in the O.P.P., including its affect on her emotional and psychological security, as a result of the threatening conduct from G.M. and J.P.

[14] P.C. on K.C.’s behalf further alleges various discussions between other superiors, C.R. and C.P. regarding K.C.’s complaint against G.M. and J.P., suggesting that the higher-ranking superiors were supporting J.P. and not K.C.

[15] P.C. alleges that K.C.’s charge of criminal harassment by her superiors was not properly pursued by the O.P.P. and that the O.P.P. instead pursued a course of charges through the Police Services Board culminating in K.C. being charged with offences under the Police Services Act on December 18, 2018.

[16] P.C. alleges that it was unfair to assign K.C. to another detachment on June 6, 2018, due to her significant child care obligations as a result of their child being disabled. P.C. further alleges that on July 6, 2018, an unmarked O.P.P. vehicle followed K.C. in her personal vehicle very closely for a period of time, and further that P.C. was pulled over by the same officer driving an unmarked O.P.P. vehicle on July 10, 2018 and was issued a ticket for not wearing a seatbelt. On two later occasions, K.C. and P.C. allege that an O.P.P. vehicle slowly drove by their personal residence.

[17] P.C. alleges that K.C.’s long term disability paperwork was improperly filed by someone in C.R.’s office, and as a result, K.C. has improperly not been on paid leave through her workplace benefits.

[18] These events were distilled into seven separate allegations by the informant P.C., which later became the seven counts (modified to eliminate identifying details) of the information as follows:

1. The informant says that he believes on reasonable grounds that the O.P.P., its employee and namely G.M. between the 1st day of January 2016 and the 26th day of March 2019 at the City of X in the Province of Ontario in the said region being reckless as to whether K.C. is harassed did without lawful authority engage in threatening conduct directed at K.C. thereby causing K.C. to reasonably, in all circumstances, fear for her safety contrary to section 264(2)(d) of the Criminal Code. (Criminal Harassment)

2. And further that the O.P.P., its employees and namely G.M., C.R. and C.P. between the 1st day of January 2016 and the 26th day of March 2019 at the City of X in the Province of Ontario in the said region did willfully obstruct the course of justice in a judicial proceeding by interfering with witnesses and evidence, making false and misleading statements contrary to section 139(1) of the Criminal Code. (Obstruction of Justice)

3. And further that the O.P.P., its employees namely C.R. between the 1st day of January 2016 and the 26th day of March 2019 at the City of X in the Province of Ontario in the same region did cause wrongfully and without lawful authority for the purpose of compelling K.C. from working at the O.P.P. X Detachment which K.C. had a lawful right to do did cause persistent following of K.C. and her husband and child in an unmarked grey O.P.P. X Detachment SUV motor vehicle in a disorderly manner on a highway to Hwy W to X Street to County Road Y to Z Road to R Road to S Road in a very close proximity in the City of X in the Province of Ontario contrary to section 423(1)(c) of Criminal Code. (Persistent following of K.C. in a disorderly manner)

4. And further that the O.P.P., its employees and namely C.R. between the 1st day of January 2016 and the 26th day of March 2019 at the City of X in the Province of Ontario in the same region did wrongfully and without lawful authority for the purpose of compelling K.C. from work at the O.P.P. X Detachment did cause the persistent following of K.C.’s husband in an unmarked grey O.P.P. X Detachment SUV motor vehicle, stop and issue a seatbelt ticket to K.C.’s husband on F Street in the City of X in the Province of Ontario contrary to section 423(1) of the Criminal Code. (Persistent following of P.C. – seatbelt ticket)

5. And further that the O.P.P., its employees and namely C.R. between the 1st day of January 2016 and the 26th day of March 2019 at the City of X in the Province of Ontario in the said region did cause wrongfully and without lawful authority for the purpose of compelling K.C. from work at the O.P.P. X Detachment did cause the persistent drive by of K.C.’s residence in slow and deliberate manner contrary to section 423(1) of the Criminal Code. (Persistent driving by of K.C.’s residence)

6. And further that the O.P.P., its employees and namely C.R. and C.P. between the 1st day of January 2016 and the 26th day of March 2019 in the City of X in the Province of Ontario in the said region did with intent to compel K.C. the employee of the O.P.P. from providing a statement to a person whose duties include the enforcement of federal and provincial law, believing an offence has been committed contrary to the criminal code by superior officers G.M. and J.P. the employees of the employer the O.P.P. contrary to section 425.1(1)(a) of the Criminal Code. (C.R. and C.P. with intent compelled K.C. from providing a statement relating to an offence committed by G.M. and J.P.)

7. And further that the O.P.P., its employees and namely C.R. and C.P. between the 1st day of January and the 26th day of March 2019 in the City of X in the Province of Ontario in the said region did with intent to retaliate against K.C. the employee of the O.P.P. who has provided information to named persons A, B, C, D, E, F whose duties include the enforcement of federal and provincial law contrary to section 425.1(1)(b) of the Criminal Code. (Disciplinary measures taken against K.C. with intent to retaliate)

[19] The Justice of the Peace made the following findings and determinations based upon the evidence at the pre-enquete hearing in relation to each the seven counts put forward by P.C. in his sworn information summarized as follows:

1. Count 1 (Criminal Harassment, s.264(2)(d) of the Criminal Code): Dismissed. Reason - no articulation of the basis of K.C.’s stated fear for her physical safety.

2. Count 2 (Obstruction of Justice, s.139(1) of the Criminal Code): Dismissed. Reason - improper articulation of the charge.

3. Count 3 (Intimidation - Persistent following of K.C. in a disorderly manner, s.423(1)(c) of the Criminal Code): Dismissed. Reason - insufficient evidence of “persistent” following.

4. Count 4 (Intimidation - Persistent following of P.C. – seatbelt ticket, s.423(1) of the Criminal Code): Dismissed. Reason - insufficient evidence on the elements of the offence.

5. Count 5 (Intimidation - Persistent driving by of K.C. residence, s.423(1) of the Criminal Code): Dismissed. Reason - insufficient evidence of “persistent” and “unlawful actions” by police allegedly driving by the residence.

6. Count 6 (Offences by Employers - C.R. and C.P. with intent compelled K.C. from providing a statement relating to an offence committed by G.M. and J.P., s.425(1)(a) of the Criminal Code): Allowed and process issued. Reason - on the basis that K.C., while she wanted to provide a statement, asked to provide a statement more than once, and did not provide that statement in the time she wanted to provide it.…only when the employer deigned to receive it.

7. Count 7 (Threats and Retaliation against Employees - Disciplinary measures taken against K.C., with intent to retaliate, s.425.1(1)(b) of the Criminal Code): Dismissed. Reason - no evidence of “retaliatory” intention on the part of the named parties.

Counts #1, 2, 3, 4, 5, and 7:

[20] The pre-enquete hearing proceeded before the Justice of the Peace in camera. P.C. was the only witness who gave evidence. The transcript of the proceedings confirms that his wife K.C. was present but did not testify. P.C. advised the Justice of the Peace that he had a witness there, his wife K.C., and that he was not sure if the Justice of the Peace wanted to hear it. P.C. advised that K.C. had a will say – a 100 page will say statement. P.C. advised that he had two binders full of evidence and that he could read to the Justice of the Peace what was in them, but that he believed he had touched on most of them. There was no further discussion or efforts made by P.C. to call K.C. as a witness.

[21] The transcript confirms that a consistent issue throughout the pre-enquete proceedings was P.C.’s lack of knowledge and understanding of what “evidence” was. As the husband of K.C., the majority of what P.C. called his evidence was hearsay evidence or speculation based upon what his wife K.C. had told him about the nature of the allegations. The Crown Attorney eventually objected to the nature of this hearsay evidence on the record.

[22] The Justice of the Peace did attempt to explain the evidentiary issues to P.C. to allow P.C. to lead his evidence and to make out a prima facie case on the elements of the offences as alleged. P.C. disagreed with the Justice of the Peace saying his evidence was not hearsay. The Justice of the Peace stated that if these events were reported to P.C. by someone else, then it was hearsay which, while oversimplified, is technically correct. P.C. then continued to testify in the same manner before the Justice of the Peace and continued to state particulars of events about which P.C. was told about by his wife K.C. and for which he was not personally present or had no actual personal knowledge. The exceptions to this were some aspects of Counts # 3, 4, and 5 in relation to the alleged driving offences when P.C. was personally present and could make his own personal factual observations. The allegations in Counts # 3, 4 and 5 failed for lack of evidence as determined by the Justice of the Peace in her reasons.

[23] A Justice of the Peace conducts a pre-enquete to determine whether process should issue to compel the attendance of the persons named in the information to answer to the charges, to determine whether a criminal prosecution will be commenced. These provisions of the Criminal Code were designed to provide a judicial screening process to avoid burdening the justice system with vexatious litigation, misuse of the criminal process in order to advance a civil dispute, and to protect innocent persons from the stigma of having to appear in court on such matters.

[24] The pre-enquete or process hearing under s. 507.1 of the Criminal Code places the onus on the private informant to establish that a summons or warrant should issue to compel an accused to attend before the court to answer a criminal charge. The information must establish a prima facie case, requiring some evidence on all of the essential elements of the offences alleged. The evidence relied upon must be admissible at law.

[25] I find in this case that the Justice of the Peace carefully considered the evidence in relation to each charge and came to a reasonable conclusion within the jurisdiction of the Justice of the Peace in refusing to issue process on Counts # 1, 2, 3, 4, 5, and 7 as the applicant P.C. had failed to establish a prima facie case on the required elements of the offences alleged. In refusing to issue process, the Justice of the Peace found that there was insufficient prima facie direct, reliable or trustworthy evidence given by P.C. in support of his allegations which is evident from the record of the proceedings.

[26] An error about the nature of the evidence relied upon amounting to a jurisdictional error by the Justice of the Peace remediable by mandamus has been held to be doubtful. An order in the nature of mandamus cannot compel a court of limited jurisdiction to exercise a jurisdiction or duty in a particular way. Errors in the admission or exclusion of evidence are not generally in the nature of jurisdictional errors. Jurisdiction has to do with the authority to decide an issue or perform a duty, not the nature or correctness of the decision made. (See R. v. Vasarhelyi, [2011] ONCA 397 Watt, J.A.).

[27] An order for mandamus is a discretionary order and is not as of right. The test or standard of review on a mandamus application in response to a Justice of the Peace’s refusal to issue process following a pre-enquete hearing is the applicant must demonstrate that there has been jurisdictional error or that the Justice of the Peace did not exercise his or her discretion judicially, according to law. (See McHale v. Ontario (Attorney General) 2011 ONSC 4535).

[28] P.C.’s evidence given in his testimony at the pre-enquete hearing was almost entirely hearsay, or double hearsay or speculation about his wife K.C.’s personal employment situation and her ordeal with the respondents while at work, in the community and at home. There was no evidence against the O.P.P. per se. The evidence of the essential elements of the offences alleged, were not addressed by P.C. at the pre-enquete hearing. The evidence at the pre-enquete hearing, I find, could not reasonably justify the issuance of any process by the Justice of the Peace on any evidentiary standard within the criminal context.

[29] Unlike civil matters, criminal allegations at the pre-enquete stage require some sort of prima facie evidence of actus reus and of some form of prima facie evidence of mens rea to be valid. There is no duty on the Crown Attorney at the pre-enquete hearing to assist the applicant P.C. with his case or help P.C. in relation to the calling of evidence and witnesses. The Crown Attorney may, but is not required to, assist the court by cross-examining the witnesses called at the pre-enquete hearing, to assist in a just determination of the issues by the Justice of the Peace as to whether or not process should issue. In this case, the only witness who testified was P.C. who was cross-examined by the Crown Attorney in a proper manner.

[30] In relation to Counts # 1, 2, 3, 4, 5, and 7, I find there was no jurisdictional error made by the Justice of the Peace and that the Justice of the Peace exercised her discretion judicially, according to law. The conclusion reached by the Justice of the Peace in refusing to issue process represented a fair and lawful exercise of her judicial discretion.

Count #6:

[31] The transcript confirms that the reason given by the Crown Attorney for requesting a stay on Count #6 was based on his evidentiary analysis made at the time of the hearing. As a result of the evidence given at the hearing, it was the Crown Attorney’s view that there was no evidence to support the actual charge alleged given that disciplinary measures were taken with an intent to compel K.C. from giving a statement which is an essential element of the offence alleged. Here, K.C. wanted to provide a statement after disciplinary measures had begun and were imposed. In the Crown Attorney’s opinion, the offence alleged under s.425.1(1)(b) of the Criminal Code as in Count #6, simply put, did not apply, and there was therefore no reasonable prospect of conviction. The Crown Attorney requested a stay of Count #6 and it was granted by the Justice of the Peace.

[32] I find no impropriety whatsoever on the part of the Crown Attorney in requesting a stay of Count #6 as alleged by P.C. The only persons entitled to invoke the authority to direct the entry of a stay are the Attorney General and counsel duly instructed to do so by the Attorney General. The reasons given by the Crown Attorney for requesting the Justice of the Peace to stay Count #6 were clearly stated on the record; were based on the evidence given at the hearing; and were solely within the Crown Attorney’s legal authority. The evidence before the Justice of the Peace and the Crown Attorney’s legal knowledge of what is required to prove the offence charged in a court of law, I find, were valid reasons for the Crown Attorney to request a stay of the charge.

[33] The Crown Attorney has the absolute right to request a stay of a charge as of the moment a summons or warrant is issued, or once a determination to issue a process is made. This is exactly what happened here. The stay was properly requested by the Crown Attorney and was granted by the Justice of the Peace as required and is not subject to review by this court. The Attorney General has the core prosecutorial discretion to withdraw or stay charges. (See R. v. McHale, 2010 ONCA 361 at paras. 84-86).

[34] As a result, I find that there was no error made in the granting of the stay of Count #6 by the Justice of the Peace, and there was no impropriety by the Crown Attorney. The application attacking the granting of a stay in relation to Count #6 is therefore dismissed.

Conclusion:

[35] For these reasons, the application for an order of certiorari with mandamus in aid is dismissed in its entirety.

[36] Nothing in these reasons should be taken as any determination about the very serious nature of the allegations made by P.C. and K.C. in relation to the respondents in the civil context for potential claims that may be pursued in a civil action arising out of the employment relationship between the parties. My findings on this application are solely in relation to the decisions made at the pre-enquete hearing conducted by the Justice of the Peace within the criminal context of the certiorari with mandamus in aid relief sought in this application and nothing more.

Honourable Madam Justice Helen MacLeod-Beliveau

Released: February 04, 2020

COURT FILE NO.: CR-19-00000020-00MO

DATE: 2020 February 04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

P.C.

Applicant

– and –

Ontario (Attorney General), the O.P.P., C.R., G.M. and C.P.

Respondents

RULING ON APPLICATION

(Application for Certiorari with Mandamus in Aid)

MacLeod-Beliveau J.

Released: February 04, 2020