COURT FILE NO.: CR-21-00001399-00MO
DATE: 2021 12 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Jacob Wilson, for the Crown/ Respondent
Crown/Respondent
- and -
ALI AMIRI
Self-Represented, for the Accused/ Respondent
Accused/Respondent
-and -
SANA NAZER
Complainant/Non-Party Applicant
Jessica Mor, for the Complainant/ Non-Party Applicant
HEARD: November 29, 2021
RULING ON CERTIORARI APPLICATION
[Judicial Review of the judgment of Blacklock J. dated October 15, 2021]
DENNISON J.
Introduction
[1] The respondent, Ali Amiri, is charged with two counts of uttering death threats contrary to s. 264.1(1)(a) of the Criminal Code.
[2] On October 15, 2021, Mr. Amiri obtained an order that he "shall be permitted to attend 2907-220 Burnhamthorpe Road West, Mississauga" ("the Burnhamthrope home") where the complainant resides "to retrieve his personal belongings and take photographs of the unit, hallway, elevator, lobby and parking lot." Mr. Amiri is not represented by counsel. The Crown consented to the order and with that agreement Justice Blacklock signed the order. The complainant was not given notice of the application. Neither the transcript of the proceedings or the order sets what the statutory or common law basis was for Justice Blacklock to grant the order.
[3] The complainant submits that Justice Blacklock did not have jurisdiction to grant the order. The Crown submits that it erred in consenting to the order and supports the complainant's application to quash Justice Blacklock's order.
[4] Mr. Amiri submits the complainant has no standing to bring the application for certiorari. The order was properly made and should therefore stand.
[5] There are several issues to determine on this certiorari application:
- Does the complainant have standing to bring the certiorari application?
- Should the Court consider the certiorari application when the court does not have all of the judicial pre-trial transcripts?
- Should the court exercise its jurisdiction to consider the certiorari application?
- If so, did Justice Blacklock have jurisdiction to grant the order he did?
- If so, should the court exercise its jurisdiction to quash the order?
Background Facts
[6] Mr. Amiri and the complainant were married and have one child together. They lived at the Burnhamthorpe home.
[7] On February 28, 2020, the complainant reported to the police that on February 6, 2020, Mr. Amiri told her to get out of the home or he would kill her. The complainant stated she was fearful for her life and safety. She also advised police that in September 2019, Mr. Amiri told the complainant he was going to throw her off the balcony and kill her. She was fearful for her life and safety as a result of this threat.
[8] Police arrested Mr. Amiri on February 28, 2020. He was held for bail and released on his own recognizance with conditions that prohibit him from attending the Burnhamthorpe home and from communicating directly or indirectly with the complainant. The complainant continues to reside at the Burnhamthorpe home with their son.
[9] On March 20, 2020, Mr. Amiri commenced family court proceedings in the Brampton Superior Court of Justice for division of family property and parenting time with their son.
[10] The trial in this matter is scheduled to proceed on December 20-23, 2021 March 21-23, 2022, and April 21-22, 2022.
[11] On August 16, 2021, Justice Monahan appointed Ms. Mor for the purpose of a third-party records application. The first stage of the application was heard on November 10, 2021. If the second stage is necessary, it is scheduled to proceed on December 10, 2021.
[12] On October 15, 2021, the Crown and Mr. Amiri appeared before Blacklock J. in the Brampton Ontario Court of Justice. Blacklock J. is not the trial judge but has been assisting in case managing the matter. On this date, Blacklock J. addressed several outstanding disclosure issues raised by Mr. Amiri.
[13] During the court appearance, the Crown advised Blacklock J. that Mr. Amiri had provided him with a draft order that permitted Mr. Amiri to enter the complainant's residence and take photographs. The Crown advised that he had made some changes to the draft order and was consenting to the amended order.
[14] The order reads as follows:
UPON APPLICATION made on the 15th day of October 2021 by the applicant Ali Amiri, for an order that Ali Amiri shall be permitted to attend 2907-220 Burnhamthorpe Road West, Mississauga, Ontario, L5B 4N4 to retrieve his personal belongings and take photographs of the unit in presence of a uniformed police officer.
AND UPON BEING SATISFIED that the documentation and material referred to by the applicant above is on consent by the Crown:
IT IS ORDERED THAT:
- Mr. Amiri attend at 2907-220 Burnhamthorpe Road West, Mississauga, Ontario, L5B 4N4 – during a time scheduled by the Peel Regional Police in consultation with the occupants of that property to:
a. Allow Ali Amiri to remove his personal belongings
b. Allow Ali Amiri and his assistant to take photograph of the unit, hallways, elevator, lobby, and parking lot.
[15] The complainant was not aware of the court appearance or the order until October 18, 2021, when she was contacted by Peel Regional Police ("Peel Police").
Position of the Parties
The Complainant's Position
[16] Counsel for the complainant submits that she has standing to bring this certiorari application as a non-party to the proceedings. She submits that she is directly impacted by the order and has an identifiable legal interest in the Burnhamthorpe home. The complainant resides there with their child and is on tittle.
[17] Counsel for the complainant also submits that the court should exercise its discretion to hear the certiorari application. She submits that the terms of the order are extremely vague and constitutes a severe intrusion of the complainant's privacy rights as there are no limits on the photographs that Mr. Amiri is permitted to take. The complainant was not provided any notice of the application and therefore was not provided with an opportunity to raise her concerns. Finally, the complainant s has no right of appeal so if the court does not hear this application, she will be forced to comply with the court order.
[18] Finally, it is the position of the complainant, that Justice Blacklock did not have jurisdiction to grant the order. The order does not comply with the consent bail variation provisions in the Criminal Code. It also appears to require the complainant to comply with the order by permitting Mr. Amiri entry into her home. It is not Stinchombe disclosure, as the Burnhamthorpe home is not in the possession of the Crown or police and is not a search warrant.
[19] It is also not a traditional third-party record's application because Mr. Amiri does not seek records in the traditional sense, but rather he wants to create a visual record. The order also does not comply with the third-party record's application because notice was not given to the complainant.
[20] The complainant also submits that Mr. Amiri has already attended the residence to obtain his personal belongings. Counsel advised that it is the complainant's position that none of Mr. Amiri's property is in the complainant's home.
[21] In all of the circumstances, it is the complainant's position that the court should exercise its discretion and quash the order.
The Crown's Position
[22] While the Crown originally consented to the order, the Crown submits it erred in doing so because the order requires the complainant to comply with the order. The Crown adopts the submissions of the complainant and states that if the complainant does not have standing to bring the application, the Crown would bring the application. It is the position of the Crown that jurisdiction cannot be conferred by the Crown's consent and therefore the order should be quashed because there was no jurisdiction to grant the order.
Mr. Amiri's Position
[23] Mr. Amiri submits that the complainant is not a party to the proceedings and therefore was not entitled to any notice before the order was granted. The complainant did not have standing during the initial bail hearing and she was not a party when he varied his bail conditions. He submits that Peel Police are properly trained to assist in property retrieval. He concedes that he previously had a bail variation that permitted him to attend the home to retrieve his personal belongings. He submits that he was not able to retrieve everything in the one-hour police gave him and he still has possessions at the Burnhamthorpe home.
[24] Mr. Amiri also advised that he has sought to obtain these items from the complainant's family law lawyer, but she has not responded to any of his emails.
[25] Mr. Amiri's primary position is that the court cannot decide this application because the complainant did not order all of the transcripts and it is her onus to demonstrate that the order should be quashed. He submits that this order was discussed before Justice Blacklock on five separate occasions prior to the order being granted. On those occasions, Mr. Amiri explained why he needed the photographs and Justice Blacklock agreed.
[26] Mr. Amiri explained to this court that the reason he wanted to attend with an assistant to take photographs is that the police unlawfully arrested him. He submits that the officers attended at his front door and told him to identify himself. The police did not have a warrant to enter the home. They marched in and grabbed him and took him out of the home. Mr. Amiri states that the officers' notes indicated that they pulled him out of the residence after he identified himself. Mr. Amiri submits that this was not possible given his weight and the female officer's weight. He submits that he needs to return to the apartment to take pictures of where he was standing to demonstrate to the court that the officers are lying and that he was arrested contrary to s. 9 of the Charter.
[27] Mr. Amiri also submits that Justice Durno told the complainant and the Crown that they needed to order all of the transcripts of the proceedings before Justice Blacklock. He also submits that the Crown filed its factum late. The Crown agreed the factum was filed three days late. The Crown's factum was three pages. The Crown adopted the position taken by the complainant. I asked Mr. Amiri if he needed an adjournment as a result of the late filing and he indicated on the record that he did not.
[28] Ultimately, it is the position of Mr. Amiri, that the certiorari application material is deficient on its face. The previous transcripts set out the reasons for granting the order and therefore the application should be dismissed. There is no valid basis for the court to exercise its discretion to grant certiorari. The complainant seeks to cause mischief to interrupt the proceedings and waste valuable judicial resources when the order was properly granted by the court.
Issue #1: Does the Complainant have Standing to Bring this Application?
[29] I am satisfied the complainant has standing to bring the certiorari application as a non-party for the following reasons.
[30] Standing to bring a certiorari application and the types of errors that can be raised depend on the person's relationship to the litigation. For example, parties to the litigation, i.e., the Crown and accused, have standing to bring a certiorari application to review a jurisdictional error made by a lower court, but not to review questions of law: R. v. Awashish 2018 SCC 45 at para. 20.
[31] Non-parties to litigation in criminal proceedings have standing to bring a certiorari application seeking judicial review of a jurisdiction or a legal error made by a lower court that "on the face of the record relate to a decision of a final and conclusive character vis a vis the third party": Awashish at para. 20.
[32] In Stoughton v. Canada, 2021 BCSC 638, the court held the non-parties had standing to challenge a search warrant of a residence because they "showed some identifiable legal interest in the premise searched or the articles seized".
[33] In Energy Probe v. Canada (Atomic Energy Control Board) 1984 F.C. 227 at paras. 29 to 36, the Federal Court explained that standing is established where the non-party is "aggrieved" by the lower court order.
[34] The reason that non-parties are granted broader standing rights compared to the parties to the litigation is that they otherwise may be subject to a court order that they have no right to appeal. The threshold to grant standing to hear the application is not high.
[35] A person may be "aggrieved" by an order in different ways. For example, in Stoughton, the court permitted the non-parties to challenge a search warrant because their privacy interests were impacted.
[36] In that case, members of the Hell's Angels sought to challenge the search warrant of the Hell Angels' Clubhouse. They were not charged. Gropper J. held that the members had standing, as she explained at para. 33:
The subject of the search must establish standing to challenge a search warrant by way of certiorari. The threshold for standing is lower than the standing required of an accused challenging the admissibility of evidence at his or her criminal trial. The application must show some identifiable legal interest in the premise searched or the articles seized.
[37] In this case, the complainant has demonstrated that the order relates to a decision of a final and conclusive character vis a vis the complainant. If she is unable to challenge this order on the certiorari application she will be compelled to comply with the order. The order is worded that Mr. Amiri "shall be permitted" to enter the premise. This language compels the complainant to permit Mr. Amiri to enter her home or risk being in breach of the court order.
[38] The complainant has also shown some legal interest in the premise and the belongings in it. It is not disputed that the complainant currently resides in the residence. There is a dispute between the parties as to what, if any, possessions belonging to Mr. Amiri still remain in the residence.
[39] In his written submissions, Mr. Amiri seemed to suggest that Ms. Mor was acting outside of the court appointment in these proceedings by bringing the certiorari application. The scope of Ms. Mor's appointment by the court has no bearing on whether the complainant has standing to bring the certiorari application. It is the legal test for standing that governs.
[40] I am, therefore, satisfied that the complainant has standing to bring the certiorari application.
[41] Even if the complainant did not have standing to bring the certiorari application, the Crown has standing as a party to the litigation. The Crown submitted that if the complainant did not bring the certiorari application, the Crown would have brought the application so regardless there is a basis to hear the certiorari application.
Issue #2: Should the Court consider the Certiorari Application when the court does not have all of the pre-trial transcripts?
[42] Mr. Amiri submits the court should not proceed with the certiorari application because Justice Durno stated that the complainant should order all of the transcripts because the transcripts explain the reasons Justice Blacklock granted the order.
[43] The complainant filed the transcript from the date the order was granted. I do not find that the certiorari should not proceed because neither the complainant nor the Crown provided transcripts of all of the proceedings before Justice Blacklock.
[44] I have reviewed Justice Durno's endorsement dated November 22, 2021. There is no mention that either the Crown or the complainant are required to obtain all of the transcripts. In contrast, Justice Durno stated that if the Crown was going to participate in the certiorari application, they were to file their material by November 24, 2021. Had Justice Durno felt the transcripts were required, I would not have expected him to have set a date for the hearing of the certiorari application.
[45] Moreover, while, the additional transcripts may assist in determining Justice Blacklock reasons for granting the order, the jurisdiction to grant the order is based on statutes or the common law, not the rationale behind granting the order. The additional transcripts are therefore not necessary for the certiorari application.
Issue #3: Is Certiorari Review of the Order in the Interests of Justice?
[46] Criminal appeals are statutory. With limited exceptions, there are no interlocutory appeals: Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 at para. 959.
[47] Certiorari may provide interlocutory relief in limited circumstances. The general rule is that "criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own, without the benefit of the full evidentiary record." Certiorari also creates delay and may promote an inefficient use of judicial resources. The use of certiorari is tightly limited to avoid an "end run" around appeals: Awashish at para 10. See also R. v. Desousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944 at p. 954.
[48] The court must determine if it would be in the overall interests of justice to hear the certiorari application and to interfere in ongoing trial matters taking place in the Ontario Court of Justice.
[49] I am satisfied the court should exercise its extraordinary remedy discretion and consider the certiorari application for the following reasons.
[50] First, the order grants a severe intrusion of the complainant's privacy rights. It permits Mr. Amiri the right to enter her home to take photographs.
[51] Second, the ambit of the order is extremely broad and places no restrictions to prevent any unnecessary intrusions of the complainant's privacy interests. There are no limitations on the number of photographs that can be taken, what Mr. Amiri may take photographs of, or how long he is permitted to be in the home.
[52] There is also a dispute with respect to Mr. Amiri's personal belongings. Mr. Amiri states that he still has personal belongings at the home. The complainant submits that none of Mr. Amiri's possessions are in the home. When asked in court what personal items he was missing, Mr. Amiri mentioned a pillow and prescription sunglasses.
[53] Third, the complainant has no right of appeal but will be forced to comply with a court order, giving that the order gives Mr. Amiri the right to enter her house and take photographs. If the court does not exercise its discretion under certiorari to consider whether there was a basis to grant the order, the complainant will not be able to challenge the order, regardless of what takes place at the trial: Awashish at para. 12.
[54] Fourth, I do not find that this application has been brought for an improper motive such trying to delay the trial. The complainant has raised legitimate concerns about her privacy interests and the broad nature of the order. She did not receive prior notice of the application or the order.
[55] Fifth, this application is different from the certiorari application that Mr. Amiri brought before Harris J. that was dismissed. In that application, Mr. Amiri argued the judge did not have jurisdiction to grant the order because he was not the trial judge. In this case, it is the complainant's position that no judge would have jurisdiction to grant the order that was made given its terms and lack of notice to the complainant.
Issue #4: Did Justice Blacklock make a Jurisdictional Error?
[56] The Ontario Court of Justice is a statutory court. There must be a statutory or common law authority to grant an order. As explained by the Supreme Court of Canada in Awashish at para. 23, "a jurisdictional error occurs where the court fails to observe a mandatory provision of a statute or where a court acts in breach of the principles of natural justice."
[57] In determining if the court had jurisdiction to grant the order, it is important to consider what the court order stated and did not state. The court order does not state what the statutory or common law authority is for granting the order.
[58] The preamble to the order uses the mandatory language that Mr. Amiri "shall be permitted" to attend the home in the presence of a uniformed police officer.
[59] Justice Blacklock ordered that Mr. Amiri attend the home during a time selected by the Peel Police in consultation with the occupants of that property to i) remove his personal belongings and ii) to allow Mr. Amiri and his assistant to take photographs of the unit, hallways, elevator, lobby, and parking lot.
[60] It is not uncommon for consent bail variations to be granted without notice to the complainant that includes a clause that the accused not have any contact with the complainant, except to attend with an officer to retrieve their personal belongings. Had the order been worded in this manner, there would have been jurisdiction to grant the order but that is not what this orders states. This order is not a consent bail variation.
[61] This order does not impose conditions on the accused but rather imposes conditions on a third party (the complainant) who was not a party to the proceedings. The order states that the Mr. Amiri "shall be permitted" to enter her home. The use of the word "shall" indicates the order is mandatory and that the complainant has no choice but to permit Mr. Amiri to enter her home. The mandatory nature of the order is further demonstrated in the order that also states, "it is ordered that Mr. Amiri attend the home". The order places a positive obligation on the complainant to comply with the order or risk being found in breach of the court order.
[62] The fact that this was not a consent bail order is further demonstrated by the fact that the provisions of s. 519.1 of the Criminal Code that set out the requirements for consent bail variations were not followed. Section 519.1 requires the written consent of the accused, prosecutor, and sureties. The sureties were not present and provided no written consent.
[63] This order is also not akin to a search warrant. Under the search warrant provisions, only the state has the authority to search a residence. Admittedly, such an order may impact on the third-party rights such as another person who resides in the residence. There are, however, certain legal requirements that must be satisfied for the granting of a search warrant including sworn affidavit evidence setting out the reasonable and probable grounds to grant the search warrant and prior judicial authorization.
[64] Mr. Amiri's attendance at his former residence to take pictures is an effort to obtain evidence to use at his trial to assert that police violated his s. 9 Charter rights when they arrested him. He asserts the police unlawfully entered the home to arrest him and that the officers are lying about pulling Mr. Amiri out into the hallway.
[65] An accused has a right to make an order for disclosure under the common law pursuant to R. v. Stinchcombe 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. Disclosure must be relevant to the investigation and be in the possession of the police or the Crown. The photographs are not in the possession of the police or the Crown, nor is the residence from which Mr. Amiri seeks to obtain the photographs from. Similarly, the items Mr. Amiri seeks to retrieve are not in the possession of the Crown or police. There is no jurisdiction pursuant to Stinchcombe to grant the order.
[66] The order granted by Justice Blacklock is somewhat similar to a common law third-party records application.
[67] As explained by the Supreme Court of Canada in R. v. O'Connor, [1995] 4 S.C.R. where the accused seeks information in the hands of a third party the onus is on the accused to satisfy a judge that the information is likely relevant. This requirement is to prevent accused persons from engaging in "fishing expeditions."
[68] To initiate the procedure, the accused must bring a formal written application supported by an affidavit setting out why the information/records are likely relevant. The court may waive the need for a formal application in appropriate circumstances. However, notice must be given to the third party in possession of the records, as well as those persons who have a privacy interest in the records. The accused must also ensure that the custodian of the records is subpoenaed to ensure their attendance.
[69] I do not find the order issued by Justice Blacklock was made pursuant to the common law for information/records in possession of a third party. First, it is not clear to me that the term "information" or "records" contemplated in O'Connor includes granting Mr. Amiri the right to attend at a location belonging to a third party to take photographs and create a record. In third party records application, subpoenas are issued, and the third party is required to bring the records to the court, i.e. the photographs. Moreover, the order appears to side-step the second stage in the third-party records application, which requires the court to determine whether the records should be disclosed to the accused. This order permits Mr. Amiri to take the photographs and there is no vetting by the court to determine whether they should be disclosed.
[70] Even if records or information included the taking of photographs by Mr. Amiri at the property of a third party, the fact remains that the complainant was not given notice of the application as required by the common law and therefore there is no jurisdiction to grant the third-party records application. The reason notice is provided to the third party, or the witness, is so they may make submissions about how the order impacts their privacy interests. In this case, the photographs sought are of the complainant's residence where she has a privacy interest. Similarly, while Mr. Amiri submits that he still has "personal property" in the residence, the complainant disputes this. The property is in her residence and she therefore has established a prima facie privacy interest.
[71] I can find no statutory or common law authority to provide jurisdiction to grant the order made by Justice Blacklock. That being said, I certainly do not find fault in Justice Blacklock granting the order. This was an order on the consent of the Crown. In busy courts, judges often make quick decisions based on the representations of the parties. However, the Crown's consent to the order cannot, as a matter of principle, provide jurisdiction to grant the order: See R. v. Dudley, 2009 SCC 58 at para. 34.
Issue #5: Should the Court Quash Justice Blacklock Order?
[72] Even if a jurisdictional error is shown, certiorari and the other prerogative writs are discretionary remedies: Awashish at para. 11; see also R. v. Amiri, 2021 ONSC 7478 at para. 4.
[73] I am satisfied that it is appropriate to exercise my discretion and to quash Justice Blacklock's order for the following reasons.
[74] First, if the court does not consider the validity of the order at this time, the complainant will not have any other opportunity to appeal. She will be forced to comply with the order without any recourse.
[75] Second, this order significantly impacts the privacy interests of the complainant. The order requires that Mr. Amiri be permitted to enter her home where there is a high expectation of privacy. The order is worded very broadly and does not place any limits on what photographs Mr. Amiri may take within the complainant's unit.
[76] Third, the error made by Justice Blacklock was a jurisdictional error, not a legal error. No judge had the jurisdiction to make the order in the manner it was made. There was not a technical failure to comply with statutory or common law provisions.
[77] Fourth, I do not find that Mr. Amiri's right to a fair trial will be irrevocably impacted by the quashing of the order. Mr. Amiri could have made a third-party records application to obtain a layout of the condominium from the building. He could have also brought a third-party records application that the complainant provides any photographs she has of the residence. I am also advised that the complainant is not opposed in principle to taking photographs of certain areas of the condominium.
[78] Mr. Amiri advised the court that he needs to be physically present to show where he was standing when the police arrested him and that is why the order was granted with those terms. While I am not deciding if an order should ultimately be granted that he be present to take photographs, I note that it is not uncommon in the course of criminal trials for persons to place marks on photographs to demonstrate where they were located.
[79] With respect to Mr. Amiri's personal belongs, I do not find that he is prejudiced by quashing the order. Mr. Amiri may request the return of the property he says has not been returned to him through the family law proceedings or bring a proper bail variation application.
[80] While I understand the intent of the order, there was no jurisdiction to grant the order given the procedure that was followed and the terms that were ordered. For all of these reasons, I am satisfied that it is appropriate to grant the extraordinary remedy of certiorari and to quash the order granted by Justice Blacklock.
Dennison J.
Released: December 2, 2021
COURT FILE NO.: CR-21-00001399-00MO
DATE: 2021 12 02
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Crown/Respondent
- and –
ALI AMIRI
Accused/Respondent
-and-
SANA NAZER
Complainant/Non-Party Applicant
RULING ON CERTIORARI APPLICATION
Dennison J.
Released: December 02, 2021