I. The Proceeding in the Provincial Offences Court

[1] On August 19, 2021, two accused appeared in the Provincial Offences Court at Burlington, Ontario, in Halton Region. Those accused, Mr. Gordon Baron and his numbered Ontario corporation carrying on business as Lifestyles by Barons Inc. (collectively, “Baron”), were charged in Informations 219292, 219295, 219290, and 219293, all sworn by Charles Priddle (“Priddle”) of the Halton Region Conservation Authority (“HRCA”).

[2] The charges were that:

A. the accused, between January 1, 2019 and March 26, 2019, (i) did “unlawfully carry on development, or permit another person to carry on development, being the construction of a structure within the valley, beyond the approved description of works of written permission, therefore without the written permission of the Halton Region Conservation Authority”, and (ii) did “unlawfully carry on development, or permit another person to carry on development, being the construction of a structure within the valley, as prohibited without the written permission of the Halton Region Conservation Authority”, contrary to section 28(1) of the Conservation Authorities Act, R.S.O. 1990, as amended; and

B. the accused, between April 4, 2019 and September 2019, did “unlawfully carry on development, or permit another person to carry on development, being the construction of a structure within the valley, as prohibited without the written permission of the Halton Region Conservation Authority”, contrary to the same section of the same statute.

[3] The alleged offences all concern construction work done at a residential property located at 835 Spring Gardens Road in Burlington, Ontario (“Property”). On May 28, 2018, HRCA issued to the Property owners Permit #5927 (“Permit”), authorizing “a proposed 2-storey addition, rear balcony, covered front porch and an on-grade patio within the valley of Grindstone Creek”. The Property owners contracted Baron to do the work.

[4] In January 2019, during the demolition stage of the renovation project, as the roof was being removed, some of the walls of the dwelling partially collapsed - Gordon Baron’s affidavit of September 18, 2020, at paragraph 15. Once that happened, according to HRCA, the Permit was no longer being complied with, eventually leading to the charges being laid in the court below.

[5] To date, there has never been a trial in the Provincial Offences Court. No arraignment. No pleas entered. Rather, Baron brought a flurry of pretrial applications, and HRCA moved to strike those applications, all culminating in the trial justice, His Worship Macphail, recusing himself, at the request of Baron, due to a concern about a reasonable apprehension of bias. The trial justice was concerned that someone named Mr. McHale, who was assisting Baron, was providing legal services without being authorized to do so. In the circumstances, the trial justice felt that it would be better that someone else preside over the trial.

[6] The hearing before His Worship took place on August 21, 2023. No new trial dates are currently scheduled in the court below. The charges return to the Provincial Offences Court on October 23, 2023, to be spoken to at that time.

II. The Application and Motion in the Superior Court of Justice

[7] On August 21, 2023, Baron brought a “Notice of Application for Certiorari”, requesting two things: (i) an order that the ruling of His Worship made on August 21, 2023, barring Mr. McHale from sitting with counsel at counsel’s table, be quashed, and (ii) an order that HRCA does not have standing to prosecute cases in the Provincial Offences Court.

[8] On August 24, 2023, Baron brought an “Amended Notice of Application for Certiorari”. It was not really an amendment, however, but more accurately an entirely new application. It sought a very wide assortment of relief including:

(i) an order that HRCA prove that it has standing to respond to Baron’s application;

(ii) an order that His Worship be subjected to an out-of-court examination by counsel for Baron, primarily aimed at getting more information about alleged institutional bias among the judiciary against Mr. McHale;

(iii) an order that His Worship be compelled to provide documents in his possession that relate to Mr. McHale;

(iv) a declaration that HRCA has no standing to prosecute offences;

(v) alternatively, an order that the issue of HRCA’s standing to prosecute offences and the issue of whether counsel for the HRCA has a conflict of interest shall both be heard at the outset of the new trial in the lower court;

(vi) a declaration that Baron’s Charter rights were violated in the court below;

(vii) an order that all charges against Baron be dismissed;

(viii) alternatively, an order that any new trial be presided over by a judge from outside Ontario or by the Ontario Superior Court of Justice;

(ix) an order prohibiting Mr. Jull or anyone at his law firm from “acting as prosecutor in this matter”;

(x) costs; and

(xi) other relief.

[9] On August 25, 2023, by Notice of Motion, HRCA moved for, among other things, an order striking Baron’s application and amended application (“motion to strike”) for being “moot, void, functus officio, premature and/or improperly before this Honourable Court”.

[10] On August 30, 2023, HRCA’s motion to strike came before this Court. Baron’s counsel requested an adjournment of the motion in order to file responding materials to it. This Court granted the adjournment. The trial office arranged a date with counsel for the motion to return to court on September 29, 2023.

[11] Then, on September 8, 2023, Baron brought an “Amended Amended Notice of Application for Certiorari and Prohibition”. The relief sought therein is not materially different than that requested in the document dated August 24, 2023.

[12] On September 29, 2023, at the hearing of HRCA’s motion to strike, it was agreed by both sides that this Court shall treat the said motion as a request to strike the amended amended application dated September 8, 2023.

III. The Prerogative Writs of Certiorari and Prohibition

[13] Baron’s amended amended application dated September 8, 2023 is specifically permitted by section 140(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended (“POA”), which provision enables this Court to “grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari”.

[14] The POA stipulates that no application for certiorari shall be made to quash an order or a ruling that is subject to an appeal, whether leave to appeal is required or not – section 141(3). Further, on an application for certiorari, no relief shall be granted unless the Superior Court of Justice finds that a substantial wrong or miscarriage of justice has occurred – section 141(4).

[15] Certiorari is an extraordinary remedy. “The function of the Court on a certiorari application is to examine the jurisdiction of the inferior tribunal and not the justice meted out by that tribunal. The power of the Court is supervisory and not appellate”. Regina v. Botting, 1966 229 (ON CA).

[16] A writ of certiorari is an ancillary remedy; it is discretionary; it is issued for an act already done, for example, to quash a decision of a lower court judge made after a preliminary inquiry to commit an accused person to stand trial on a criminal offence.

[17] Prohibition is also an extraordinary remedy, and it is also discretionary, but it is distinct from certiorari. A writ of prohibition is issued to prevent something from occurring, or to stop something from continuing. It is aimed at restraining a body, including a tribunal or decision-maker, from exceeding its powers or usurping jurisdiction that it does not have.

[18] “The circumstances in which a superior court may intervene in the course of a trial in a lower court are narrowly circumscribed by statute and by the common law”; “[a]t common law, certiorari and prohibition are discretionary remedies and the superior court should generally decline to grant the remedy where there is an adequate appellate remedy”; “[t]he limitation on intervention in ongoing proceedings applies even where the accused or defendant claims that a ruling by the trial court has breached constitutional rights”; and all of these principles apply not only to criminal cases but also to proceedings under the POA. R. v. Arcand, 2004 46648 (ON CA), at paragraphs 12-15.

[19] In my view, the cautionary sentiments expressed by the Court of Appeal for Ontario in Arcand, supra are apposite, even though in our case there is no ongoing trial in the lower court. There was a scheduled trial in the lower court, and there will soon be again, and the fact remains that there is an ongoing proceeding in the Provincial Offences Court.

IV. Decision on HRCA’s Motion to Strike

[20] HRCA’s motion to strike Baron’s amended amended application dated September 8, 2023 is granted.

[21] The hearing scheduled to take place in this Court on October 23, 2023, which hearing was to deal with the merits of the said amended amended application in the event that the said motion to strike was dismissed, is vacated. The next date in the Provincial Offences Court, also scheduled for October 23, 2023, remains in place.

[22] If HRCA is pursuing costs in this Court, it shall serve and file its written submissions on costs within thirty (30) calendar days after the date of these reasons. Baron shall serve and file its responding written submissions on costs within fifteen (15) calendar days after Baron’s counsel’s receipt of HRCA’s submissions. No reply by HRCA is permitted. Each submission shall be strictly limited to two pages in length, excluding attachments.

[23] Why has this Court decided to strike Baron’s amended amended application dated September 8, 2023? There are a few reasons for doing so.

[24] First, regarding the application for certiorari, there is nothing to quash. Put another way, there is no act already done or decision already made that any writ of certiorari issued by this Court could possibly affect.

[25] His Worship Macphail’s decision to recuse himself effectively voided any other ruling that was made by him, including the impugned ruling that Mr. McHale could not sit at counsel table. The decision of the Court of Appeal for Saskatchewan in Patel v. Saskatchewan Health Authority, 2021 SKCA 115, at paragraph 101 and following, is directly on point. There is nothing left to review or appeal.

[26] This only makes common sense. Where, as here, the decision-maker below has found that he ought to recuse himself due to a reasonable apprehension of bias, it logically follows that any other ruling made by that same decision-maker in that same proceeding is tainted by that finding and, therefore, cannot stand.

[27] Second, regarding the application for prohibition, counsel for Baron is correct that this Court certainly has the jurisdiction to make an order that prevents HRCA from prosecuting these charges. The Queen (Registrar, Motor Vehicles Act) v. M. Shaikh and 1571390 Ontario Inc., 2011 ONSC 452.

[28] The question is whether this Court should make such an order, and/or whether it should make an order prohibiting Mr. Jull or anyone at his law firm from being involved in the prosecution. I think not.

[29] This case is very different than what confronted the learned justice in the Shaikh, supra matter. In that case, the prosecutor laid a new Information which alleged the very same offence that had previously been dismissed by another justice of the peace. The Superior Court justice held that to permit the new Information to stand would be a “substantial wrong and an abuse of process”, and thus, the order of prohibition sought by the accused in that case ought to be granted – paragraphs 20 and 21.

[30] In our case, the argument is that the prosecutor, HRCA, has no statutory authority to prosecute these offences, or any offences, because the prosecutor is Priddle, and further that Mr. Jull and everyone at his law firm and Priddle are all “hopelessly conflicted-out”, in the words of Mr. D. Marshall, counsel for Baron.

[31] To be frank, I do not see the merit in the argument because there is no dispute that Priddle laid the Informations on behalf of and as an employee of HRCA, just as, for example, a building code inspector would lay a charge on behalf of the municipality that she works for, and there is also no dispute that a prosecutor has the right to retain counsel to present the case in court, and there is also no dispute that Mr. Jull and his law firm have been retained by HRCA for that purpose.

[32] All of the above probably explains why these issues of whether HRCA can prosecute cases in the Provincial Offences Court, and whether Mr. Jull and his law firm could act as counsel for HRCA as the prosecutor, were never raised in the many court appearances that precipitated that before His Worship on August 21, 2023.

[33] In any event, locus standi, or “standing”, which is the moniker that Baron’s counsel attach to these arguments that are the subject of the application for prohibition, is better dealt with not by this Court but by the trial court – the court that has jurisdiction over the alleged offences – the court that is to hear the proceeding involving the parties – the court that deals every day with the POA and its definitional provisions, including that of “prosecutor” in section 1.

[34] Given the extraordinary nature of the prerogative writ of prohibition, and the cautionary sentiments expressed in cases like Arcand, supra, and the fact that any ruling that might be made in the court below may be appealed on the basis of a full record of the evidence adduced, the arguments advanced, and the reasons given, there is no justification for this Court intervening on these issues.

[35] Third, regarding the rest of the relief sought in the amended amended application dated September 8, 2023, it has no merit and cannot be permitted to proceed any further.

[36] The said amended amended application was served on counsel for the HRCA and calls into question whether the HRCA has any right to appear in the proceeding in the court below. Surely, therefore, HRCA had the right to respond to the amended amended application. Its right to respond is not the same thing as its authority to prosecute.

[37] The relief sought as against His Worship Macphail is absurd. It runs contrary to the well-established principle of judicial immunity, which principle is very broad in its scope and applies to justices of the peace. Persaud v. Ministry of the Attorney General of Ontario, et al, 2008 37215 (ON SC).

[38] Justice of the Peace Macphail is not compellable as a witness in this matter, including with regard to anything about Mr. McHale. Her Majesty The Queen v. Parente and Ferreira, 2009 18685 (ON SC). That principle applies equally to an order for examination out-of-court and/or an order for documentary discovery.

[39] Baron’s request for a declaration of Charter-infringement ought to be made to the trial court, not to this Court. The preference for Charter issues, including remedies under sections 24(1) and/or 24(2), to be adjudicated by the trial court has long been the law in Canada. R. v. Smith, 1989 12 (SCC), Mills v. The Queen, 1986 17 (SCC), and R. v. Rahey, 1987 52 (SCC).

[40] Finally, this Court is not about to dismiss all of the charges against Baron. Nor is this Court prepared to make an order that the trial cannot be heard by any justice of the peace anywhere in Ontario.

[41] The former would have to be premised on some finding of a lack of jurisdiction, abuse of process, Charter violation, or something similar, none of which is a finding made by this Court.

[42] The latter would be a truly exceptional order of, to my knowledge, unparalleled character in the realm of criminal or quasi-criminal law in Canada. I have reviewed a few decisions regarding requests for out-of-province judicial officers, as rare as those requests are, such as R. v. Amsel, 2016 MBQB 43, a decision of Chief Justice Joyal, and I see no merit in or any chance of success for Baron’s request.

V. Conclusion

[43] HRCA’s motion to strike is granted. Baron’s amended amended application dated September 8, 2023 is dismissed. No further appearance in this Court is warranted.

Conlan J.

Released: October 4, 2023

COURT FILE NO.: CR-23-78-00MO

DATE: 2023 10 04

ONTARIO

SUPERIOR COURT OF JUSTICE

Gordon Baron and Lifestyles by Barons Inc.

– and –

Halton Region Conservation Authority

– and –

The Attorney General of Ontario

REASONS FOR DECISION

Conlan J.

Released: October 4, 2023

Baron et al v. Halton Region Conservation Authority, 2023 ONSC 5568

Case Summary

I. The Proceeding in the Provincial Offences Court

II. The Application and Motion in the Superior Court of Justice

III. The Prerogative Writs of Certiorari and Prohibition

IV. Decision on HRCA’s Motion to Strike

V. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legislation 2