



COURT OF APPEAL FOR ONTARIO

CITATION: Zreik v. Ontario (Attorney General), 2019 ONCA 89

DATE: 20190208

DOCKET: C64224

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Susan Zreik

Applicant (Appellant)

and

Her
    Majesty the Queen (Attorney General of Ontario) and

Director of the Special
    Investigations Unit

Respondents (Respondents)

Michael Moon, for the appellant

Emtiaz Bala and Joanna Chan, for the respondents

Heard: January 29, 2019

On appeal from the order of
    Justice Thomas A. Bielby of the Superior Court of Justice, dated July 25, 2017,
    with reasons reported at 2017 ONSC 4516.

Nordheimer J.A.:

[1]

Ms. Zreik appeals from the order of the application judge who dismissed
    her application for an order in the nature of
mandamus
with
certiorari
in aid on the basis that the application ought properly to be heard in the
    Divisional Court pursuant to the provisions of the
Judicial Review
    Procedure Act
, R.S.O. 1990, c. J.1 (
JRPA
).

Background

[2]

The application arises out of a police involved shooting that occurred
    on March 20, 2015 in a residential complex in the City of Mississauga. During
    the course of this shooting, a young man was killed. The appellant, who was an
    innocent bystander standing inside her own home, was hit by one of the bullets
    fired by the police officers involved.

[3]

The Director of the Special Investigations Unit conducted an
    investigation into the police shooting. Among other conclusions, the Director
    concluded that no charges should be laid against any of the police officers
    involved arising out of the fact that the appellant was shot. The Director found
    that the appellant was simply in the wrong place at the wrong time.

[4]

The appellant then brought this application, pursuant to the
Criminal
    Proceedings Rules for the Superior Court of Justice (Ontario)
,
SI/2012-7
    (
Criminal Proceedings Rules
), challenging the decision of the
    Director not to lay charges against any of the three police officers who were
    involved in her being shot.

[5]

The respondents disputed the jurisdiction of the application judge to
    hear the matter. They contended that the application was in the nature of
    judicial review and ought to be heard by the Divisional Court as required by
    the
JRPA
.

[6]

The application judge agreed with the respondents. He dismissed the
    application without prejudice to the appellant commencing an application under
    the
JRPA
. In doing so, the application judge concluded, at para. 79:

I concur with the submissions of
    counsel for the respondents that the proper forum is dictated by the
    legislation under which the decision in issue was rendered. In our case the SIU
    and its mandate flows from a provincial statute. The case law indicates that as
    such the relief sought herein is a matter of judicial review by virtue of the
JRPA
.

[7]

The appellant submits that the application judge erred in his
    conclusion. In particular, the appellant submits that the application is in the
    nature of a criminal proceeding and is thus covered by the
Criminal
    Proceedings Rules
. Rule 43.02 of the
Criminal Proceedings Rules
provides that applications made for extraordinary remedies in criminal matters
    shall be heard by a judge of the Superior Court of Justice in the region in
    which the proceedings to which the application relates have been, are being or
    are to be taken.

[8]

The respondents, on the other hand, say that the application judge
    reached the correct conclusion that the application must proceed by way of
    judicial review in the Divisional Court. The respondents do, however, part
    company with the application judge with respect to the reasoning that the
    application judge employed to reach the decision that he did.

[9]

The respondents concede that the issue is not determined by the fact
    that the statute that creates the Special Investigations Unit is a provincial
    statute. That concession is a fair one given that, if that were the determining
    factor, almost any proceeding involving the police would be captured since
    almost all police services are created by statute. Indeed, Crown counsel who
    prosecute such offences are also a creation of the Province as is the Ontario
    Court of Justice in which the majority of criminal matters are heard.

[10]

The
    respondents submit that what determines whether the particular application is a
    matter of a criminal nature, such that the
Criminal Proceedings Rules
apply, or is a civil proceeding such that the
JRPA
applies, depends on
    whether there is a pre-existing criminal proceeding, i.e., a criminal
    prosecution. If, as in this case, there is no outstanding prosecution, then the
    respondents say that the matter is presumptively an application to which the
JRPA
applies.

Analysis

[11]

I
    agree with the appellant that the application judge erred in the conclusion
    that he reached. In my view, the issue raised is clearly one relating to a
    criminal matter and consequently the
Criminal Proceedings Rules
direct
    that it be heard by a single judge of the Superior Court of Justice. Indeed, I note
    that the application judge found that [t]here is no doubt that the investigations
    undertaken by the Special Investigations Unit are criminal in nature (at para.
    72).

[12]

However,
    contrary to the appellants position, it is not the provisions of the
Criminal
    Proceedings Rules
that confer the jurisdiction on the Superior Court of
    Justice. The
Criminal Proceedings Rules
are procedural rules only. They
    do not, and cannot, confer jurisdiction on a court. Rather, what leads to the
    conclusion that the Superior Court of Justice has jurisdiction over this
    application is the combined effect of ss. 774 and 482 of the
Criminal Code
.

[13]

I
    begin with s. 774, which reads:

This Part applies to proceedings
    in criminal matters by way of
certiorari
,
habeas

corpus
,
mandamus
,
procedendo
and prohibition.

[14]

Thus,
    s. 774 brings within the scope of the
Criminal Code
any application
    for an extraordinary remedy if it involves a criminal matter. Of importance is
    the fact that s. 774 provides that the proceeding is the proceeding by which
    the extraordinary remedy is sought. That is clear from the wording proceedings
     by way of . In this case, therefore, the proceeding with which we are
    concerned in deciding on the proper forum is the application for
mandamus
.

[15]

Section
    482(1) then provides:

Every superior court of criminal jurisdiction and every court
    of appeal may make rules of court not inconsistent with this or any other Act
    of Parliament, and any rules so made apply to any prosecution, proceeding,
    action or appeal, as the case may be, within the jurisdiction of that court,
    instituted in relation to any matter of a criminal nature or arising from or
    incidental to any such prosecution, proceeding, action or appeal.

[16]

It
    is this section of the
Criminal Code
that provides the jurisdiction
    for the Superior Court of Justice to adopt the
Criminal Proceedings Rules
which,
    in turn, provide for the forum where applications for extraordinary remedies in
    criminal matters will be heard and determined. I note, in this regard, that s.
    482 expressly mentions prosecutions as distinct from proceedings as distinct
    from actions as distinct from appeals. In other words, the wording of s. 482 confirms
    that a proceeding is something different than a prosecution. A proceeding does
    not have to include, and does not have to arise out of, a prosecution. This
    conclusion also accords with two definitions in the
Criminal Proceedings
    Rules
, namely, the definitions for application and for proceeding.

[17]

The
    proper analytical approach begins with s. 774 of the
Criminal Code
. Where
    criminal matters are concerned and are the subject of an application for an
    extraordinary remedy, the
Criminal Code
applies to those applications,
    not a provincial statute such as the
JRPA
. The process to then be
    followed flows from the
Criminal Code
. On the other hand, if the
    application is fundamentally concerned with non-criminal matters, then the
    application falls within provincial jurisdiction such that the
JRPA
would
    apply.

[18]

It
    is this fact that distinguishes this case from the decision of this court in
Avon
    v. Ontario (Ministry of Community Safety and Correctional Services)
,
2013 ONCA 249, on which the application judge principally relied. In that case,
    this court expressly stated that the issue involved a provincial law, not a
    colourable attempt to legislate criminal law. It thus was not a criminal
    matter. As the court said, at para. 5:

In our view, the
Criminal
    Proceedings Rules
have no application to the circumstances of this case.
    The remedy sought here is removal of the applicant's name from a provincial sex
    offender registry, maintained by a provincial ministry, under a provincial law
    enacted under provincial legislative authority.

[19]

Here,
    on the other hand, we are dealing with an application by which the appellant
    seeks to compel the Director of the Special Investigations Unit to lay criminal
    charges against one or more police officers. I agree with the application judge
    that it is hard to see how that could be characterized as anything but a matter
    of a criminal nature.

[20]

While
    not determinative, I find some support for my conclusion in the fact that, if
    the conclusion reached by the application judge, and urged by the respondent, were
    correct, the following would be the result. If criminal charges were laid, and
    an application was brought to quash the laying of those charges, the respondents
    accept that that would be a criminal proceeding that would be properly heard by
    a Superior Court judge under the
Criminal Proceedings Rules
. However,
    if the charges were not laid, and an application is brought to compel the
    laying of those charges, the respondents say that the application would be
    heard through the civil process before the Divisional Court. Generally
    speaking, courts strive to interpret legislation to avoid such a result.

[21]

I
    am also reinforced in my conclusion by another example, where no charges have
    yet been laid. If the police obtain a search warrant under the
Criminal
    Code
, and a person brings an application to quash that warrant, there can
    be no doubt that that application would be properly brought before a Superior
    Court judge under s. 774 of the
Criminal Code
. That would be the
    result even though, at that stage, there likely will have been no charges yet
    laid in relation to the matter. This conclusion is consistent with the
    conclusion that was reached in
R. v. Canadian Broadcasting Corporation
,
2006 NLCA 21, 207 C.C.C. (3d) 309.

[22]

I
    am further reinforced in my conclusion by the decision in
R. v. Ross
,
    2000 SKQB 134, affd, 2000 SKCA 69. In that case, an individual who had been
    convicted of sexual assault and was serving his term of imprisonment, sought to
    have charges laid against certain individuals who had participated in his
    prosecution. The Supervisor of the Justices of the Peace refused to send a justice
    of the peace to the institution to consider the individuals request. When the
    individual sought an order for
mandamus
to compel a justice of the
    peace to attend, that application was dismissed as frivolous by Milliken J. of
    the Saskatchewan Court of Queens Bench. The individual then brought an
    application seeking to compel Milliken J. to receive the information. In
    dismissing this second application, Gunn J. relied upon s. 774 as providing
    jurisdiction to consider the matter. This appears to be the only case where
    this same issue, a
mandamus
application to compel the laying of
    charges, has been considered.

[23]

Two
    other decisions touch on this question. The first is
Holmes v. White
,
    2013 ONSC 4225, 309 O.A.C. 341, which involved an application for
mandamus
brought in Divisional Court. The applicant sought an order to compel three
    police forces to investigate and lay criminal charges against members of the CN
    Railway police. The respondents brought a motion to quash the application for
    delay, abuse of process and as disclosing no cause of action. Ramsay J. quashed
    the application on all three grounds. In my view, the case is of no assistance
    on the question of jurisdiction, which was neither argued nor considered by the
    application judge.

[24]

The
    second is
Ontario v. O'Neil
, 2015 ONSC 241, which involved an
    application for
mandamus
brought in Superior Court. The applicant
    sought an order to compel the Special Investigations Unit to criminally
    investigate officers who were involved in his arrest. In dismissing the
    application, Korpan J. appears to have concluded that the application was one
    to which the
JRPA
applied and thus could not be heard by her as a
    single judge, but rather had to be heard by a panel of the Divisional Court
    absent urgency, which was not demonstrated. In reaching her decision, the
    application judge neither mentioned, nor addressed, the question that is raised
    here. While I conclude that her decision is in error, it also does not directly
    address the issue or analysis that is before us.

Conclusion

[25]

In
    the end result, I find that the application judge erred in concluding that this
    application should be heard by the Divisional Court. I would allow the appeal,
    set aside the order below, and remit the matter back to the Superior Court of
    Justice to be heard on its merits.  We were asked to deal only with the narrow
    issue of jurisdiction. Nothing in these reasons should be taken as any
    commentary on the availability of the relief sought or the merits of the application.

Released: February 8, 2019 K.F.

I.V.B.
    Nordheimer J.A.

I
    agree. K. Feldman J.A.

I
    agree. P. Lauwers J.A.


