



COURT OF APPEAL FOR ONTARIO

CITATION: P.C. v. Ontario (Attorney
    General), 2020 ONCA 652

DATE: 20201019

DOCKET: C68091

Watt, Trotter and Zarnett JJ.A.

BETWEEN

P.C.

Applicant

(Appellant)

and

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

Respondents

(
Respondent
)

P.C., acting in person

David Freisen, for the respondent

Heard: in writing

On appeal from the
    judgment of Justice Helen K. MacLeod-Beliveau of the Superior Court of Justice,
    dated February 4, 2020, refusing
certiorari
upholding the order of
    Justice of the Peace Leona M. Dombrowsky of the Ontario Court of Justice, dated
    April 9, 2019, refusing to issue process.

By the Court:

[1]

P.C. (the appellant) is a private informant. He
    laid an information before a justice of the peace. In that information, he
    alleged that a police force and some of its members committed seven indictable offences.

[2]

About a month later, the appellant appeared
    before another justice of the peace who conducted a hearing (the pre-enquete).
    The pre-enquete was to determine whether the justice of the peace would issue
    process to compel the appearance of the police force and its named officers to
    attend and answer to the charges.

[3]

At the conclusion of the pre-enquete, the
    justice of the peace declined to issue process on six of the alleged offences.
    She ordered the issuance of process on one charge. Crown counsel, who was
    present at the hearing, stayed that charge at the conclusion of the pre-enquete.

[4]

The appellant applied to a judge of the Superior
    Court of Justice (the application judge) to invoke the extraordinary remedy
    jurisdiction of that court. He sought orders in lieu of
mandamus
and
certiorari

to compel the issuance of process and to quash the stay entered by the Crown.

[5]

In written reasons, the application judge
    dismissed the application in its entirety.

[6]

The appellant appeals. He asks this court to
    make the orders he sought, but did not obtain, from the application judge. As
    we explain in the reasons that follow, we decline to do so and dismiss the
    appeal.

The Procedural History

[7]

The appellants partner is a police officer. The
    conduct described in the information laid by the appellant is grounded on his
    partners allegations of workplace misconduct by her fellow officers and
    various supervisors.

[8]

The appellant alleged that, over a period of
    about three years, the police force and the named officers committed seven
    indictable offences including:

·

criminal harassment;

·

obstructing justice;

·

intimidation; and

·

threats and retaliation against an employee.

[9]

A justice of the peace received the information
    under s. 504 of the
Criminal Code
.

The Pre-enquete

[10]

The appellant appeared and was the only person
    to testify at the pre-enquete. His partner, the source of the allegations
    contained in the information, was present throughout the hearing. She did not
    testify.

[11]

Apart from some events for which he was
    personally present and about which he could provide a first-hand account, the
    appellant's narrative at the pre-enquete consisted of hearsay, sometimes
    multiple hearsay, tinctured with speculation. For our purposes, its details
    need not be rehearsed.

[12]

From time to time as the hearing progressed, the
    justice of the peace reminded the appellant about the hearsay nature of his
    allegations. The justice underscored the need for
evidence
on each
    essential element of each offence alleged in the information. Crown counsel,
    whose appearance was authorized by s. 507.1(4), also objected to the hearsay
    nature of the appellant's account.

The Decision at the Pre-enquete

[13]

The justice of the peace considered the evidence
    on each count individually. She concluded that no case had been made out for
    the issuance of process except for the count alleging a breach of s. 425.1(1)(a).

[14]

Despite the time periods alleged in the information,
    the appellant gave evidence that the offences began on the day on which his
    partner received a negative performance review from a superior officer. The
    appellant's partner disagreed with the review. She wanted to write a response.
    A senior officer told her that she could not provide a response and that if she
    disagreed with the review, things would only get worse for her. The officer
    suggested that she contact her association representative.

[15]

The justice of the peace refused to issue
    process on the first count alleging an offence under s. 264(2)(d) because there
    was no evidence that the appellant's partner reasonably feared for her safety,
    an essential element of the offence charged.

[16]

The second count pleaded an offence under s. 139(1)
    of the
Criminal Code
. The informant swore that superior officers
    interfered with an investigation into workplace incidents by another branch of
    the same force. The justice of the peace concluded that there was no evidence
    of the essential elements of the offence. In addition, the conduct described
    had been charged under the wrong section of the
Criminal Code
.

[17]

The third count asserted a breach of s. 423(1)(c)
    of the
Criminal Code.
The claim was that a police vehicle had followed
    a vehicle occupied by the appellant, his partner, and their son. The appellant
    could not identify the driver of the vehicle on the one occasion on which this
    occurred. The justice of the peace refused to issue process because there was
    no evidence of persistent conduct as required for the offence charged.

[18]

For similar reasons, a count charging a breach
    of s. 423(1) arising out of a single incident, when the appellant was stopped
    and issued a ticket for a seatbelt infraction, did not warrant issuance of
    process. Once again, the requirement that the conduct be persistent was
    lacking. Further, there was no evidence that the officer who issued the ticket
    lacked the authority to do so or was acting beyond the scope of that authority.

[19]

A further count under s. 423(1) claimed
    persistent conduct because a police vehicle drove slowly by the appellants home
    one day. So did a vehicle with a commissionaires' insignia, which the appellant
    said had something to do with the law". This count also failed. The
    police force had the authority to patrol roads within its jurisdiction and one
    occurrence did not amount to persistent conduct.

[20]

The appellant also pleaded that a breach of s.
    425.1(1)(a) occurred when his partner wanted to provide a statement about her
    unfavourable performance review but was prevented from doing so by senior
    officers until she was interviewed by officers from another unit responding to
    her claim of harassment. The justice issued process on this count.

[21]

The Crown stayed the information on this count
    on two grounds:

i.

absence of evidence of an essential element of
    the offence, specifically, that the police force that employed the appellants partner
    took disciplinary proceedings against her with intent to compel her to refrain
    from providing information; and

ii.

lack of any reasonable prospect of conviction.

[22]

The justice of the peace declined to issue
    process on a count charging a breach of s. 425.1(1)(b). The allegation was that
    the police force and two named officers transferred the appellants partner to
    another location in retaliation for her providing information about harassment.
    The justice of the peace found no evidence of retaliation, thus refused to
    issue process on this count.

The Decision of the Application
    Judge

[23]

The application judge was satisfied that the
    justice of the peace had made no jurisdictional error in concluding that she
    would not issue process on six of the seven counts contained in the appellants
    information. The essence of the application judge's reasons appears in four
    paragraphs of her written reasons:

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.

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.).

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 Peaces 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
).

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 [police force] 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.

[24]

In connection with the stay entered by the Crown
    on the count on which the justice of the peace decided to issue process, the
    application judge was satisfied that no jurisdictional error had occurred. The Crown
    had the absolute right to direct entry of the stay and did so in accordance
    with the governing principles.

The Grounds of Appeal

[25]

The appellant advances six grounds of appeal. As
    we understand his submissions, he contends that:

i.

the application judge erred in exercising her
    discretion to dismiss the application for orders in lieu of
mandamus
and
certiorari
, specifically because the justice of the peace did not know
    the required elements of the offences alleged;

ii.

the justice of the peace had no jurisdiction to
    conduct the pre-enquete, only a provincial court judge has authority to do so;

iii.

the application judge erred in granting standing
    to lawyers for the putative accused to seek a publication ban;

iv.

the application judge erred in plagiarizing part
    of the submissions by a lawyer for a putative accused seeking a publication ban
    as part of her reasons for judgment;

v.

the application judge erred in failing to set
    aside the stay of proceedings entered on the count on which process was issued;
    and

vi.

the application judge erred in questioning
    whether the employment grievance of the appellants partner was best addressed
    in civil proceedings as a labour dispute, rather than by invocation of the
    criminal process.

Analysis

[26]

As we explain in the following paragraphs, we
    are not persuaded that the grounds of appeal advanced, whether considered
    individually or cumulatively, warrant our intervention.

Ground #1: The Refusal to Issue
Mandamus
and
Certiorari

[27]

The purpose of a pre-enquete under s. 507.1(2)
    of the
Criminal Code
is for the presiding judge or justice to
    determine whether a case has been made out for the issuance of process to
    compel the putative accused named in the information to appear or attend in
    answer to any of the charges contained in the information.

[28]

The task of the judge or justice presiding at
    the pre-enquete is twofold: to determine whether:

i.

the information is valid on its face; and

ii.

the
evidence
adduced on the hearing
    discloses a
prima facie
case on the offence(s) charged.

See,
R.
    v. Grinshpun
, 2004 BCCA 579, 190 C.C.C. (3d) 483, at para. 32, leave to
    appeal refused, [2004] S.C.C.A No. 579;
R. v. Whitmore
(1989), 51 C.C.C.
    (3d) 294 (Ont. C.A.), at p. 296.

[29]

To be valid on its face, a count in an
    information must allege an indictable offence in accordance with s. 504 of the
Criminal
    Code
. The count must also comply with s. 581, which requires, among other
    things, that the count contain, in substance, a statement that the accused
    committed an indictable offence. This statement may be in language that
    satisfies any of the requirements in s. 581(2).

[30]

The second task of the judge or justice
    presiding at the pre-enquete is to determine whether the
evidence
adduced at the hearing discloses a
prima facie
case of the offence(s)
    alleged. To satisfy this requirement, there must be some evidence against the
    putative accused on each essential element of the offence(s) alleged in the
    information:
Grinshpun
, at paras. 32-33;
Whitmore
, at p. 296.

[31]

One of the purposes underlying the pre-enquete
    is to ensure that spurious allegations, vexatious claims, and frivolous
    complaints bankrupt of evidentiary support will not result in a prosecution. To
    vindicate this purpose, s. 507.1(3)(a) requires the presiding judge or
    designated justice to consider not only the allegations of the informant, but
    also the
evidence
of witnesses:
R. v. McHale
, 2010 ONCA 361,
    256 C.C.C. (3d) 26, at paras. 65, 74, leave to appeal refused, [2010] S.C.R. vi
    (note). It would seem reasonable to conclude from the obligation to hear both
    the allegations of the informant and the evidence of witnesses, that mere
    allegations are not sufficient:
R. v. Vasarhelyi
, 2011 ONCA 397, 272 C.C.C.
    (3d) 193, at paras. 39, 55, leave to appeal refused, [2011] S.C.C.A No. 470.
    Compare, ss. 507(1)(a)(ii) and 507.1(3)(a).

[32]

The nature of the evidence that may be received
    at the pre-enquete is not described in s. 507.1. No principled reason exists to
    abandon the requirements of relevance and materiality. Nor could anyone gainsay
    that evidence that satisfies the rules of admissibility applicable in a
    criminal trial should be received. While what is received may not be
    coextensive with what would be relevant, material, and admissible at the trial
    of the offences alleged, nothing less than evidence that is relevant, material,
    credible, and trustworthy should be received in view of the consequences of the
    pre-enquete.

[33]

The appellant sought to invoke the extraordinary
    remedy jurisdiction of the application judge. These remedies, or orders in lieu
    of them, issue out of the superior court for jurisdictional deficits or excess.
    Each is discretionary. Neither issues as of right:
Vasarhelyi
, at para.
    50.

[34]

An order in lieu of
mandamus
may issue
    to compel a court of limited jurisdiction to exercise its jurisdiction or to
    discharge a duty. However, it does not compel a court, tribunal, or official to
    do so in a particular way:
Vasarhelyi
, at para. 51.

[35]

Jurisdiction is concerned with the authority to
    decide an issue or to discharge a duty, not with the correctness or the nature
    of the decision made. On subjects within its jurisdiction, a court of limited
    jurisdiction has the right to be wrong about the construction of a statute or
    the application of a legal principle. The remedy to correct that error is an
    appeal, if available, from the final disposition. Applications for orders in
    lieu of extraordinary remedies, such as
mandamus
and
certiorari
,
    are of no assistance:
Vasarhelyi
, at para. 52.

[36]

Errors in the interpretation of statutory
    provisions (that are not jurisdictional in nature), as well as mistakes in the
    admission, exclusion, and assessment of evidence are not jurisdictional in
    nature, are thus beyond the compass of extraordinary remedies:
Vasarhelyi
,
    at para. 53.

[37]

In this case, the application judge correctly
    set out the principles applicable to the availability of the remedies she was
    asked to grant. She was mindful of what was required to engage the discretion
    of the designated justice at the pre-enquete to issue process. She examined the
    record to determine whether there was evidence of each essential element of
    each offence, in which the justice found none. She concluded that the justice
    had not erred in her conclusions. The appellant notes that when considering the
    count of criminal harassment and whether the appellants partner reasonably
    feared for her safety, the justice incorrectly considered only physical safety.
    In fact, safety may also include emotional distress;
Re Colburn,
2016
    ONCA 536, 131 W.C.B. (2d) 609. However, this error did not amount to a
    jurisdictional error; it thus fell outside the scope of the application judges
    review authority. In addition, the appellant did not provide evidence that any
    fear for her safety was
reasonably
held. Without evidence of an
    essential element of an offence, the designated justice had no authority to
    issue process. Similarly, the application judge had no authority to grant the
    extraordinary remedies the appellant sought. We agree with her conclusion.

Ground #2: Jurisdiction to Conduct the Pre-enquete

[38]

The appellant says that the pre-enquete was
    jurisdictionally flawed by not being conducted, as it should have been, by a
    provincial court judge. It follows, the appellant contends, that the justice of
    the peace who presided had no jurisdiction to do so.

[39]

In our view, this argument cannot succeed. It is
    defeated by the plain language in various subsections of s. 507.1 which make it
    clear that the pre-enquete may be conducted in this province by a provincial
    court judge" or a designated justice". See, for example, ss. 507.1(1),
    (2), (3), (5), and (7).

[40]

Section 507.1(10) exhaustively defines the term designated
    justice" as meaning a justice designated for the purpose by the chief
    judge of the provincial court having jurisdiction in the matter". Section
    2 defines justice as a justice of the peace". There is no suggestion
    that the justice in this case was not designated.

Ground #3: The Non-Publication Application

[41]

At the outset of the proceedings before the
    application judge, counsel for the police force and officers against whom the
    appellant sought to have process issue appeared. Based on materials counsel had
    filed, one officer sought an order banning publication of his name and other
    identifiers. The remaining officers and the police force did not pursue their
    applications for the same remedy. Each of the lawyers, including counsel who
    sought the publication ban, made it clear that they would not be making any
    submissions in response to the appellant's application.

[42]

The appellant and Crown counsel told the
    application judge that they were taking no position on the application for a
    publication ban.

[43]

Contrary to the position he took before the
    application judge, the appellant now argues that the application judge erred in
    permitting the application for a publication ban to proceed. He points to a
    passage in the reasons of the application judge in which she refers to the
    submissions of counsel for the police force and named officers arguing that the
    appellants application should be dismissed.

[44]

This ground of appeal fails.

[45]

The appellants application for orders in lieu
    of
mandamus
and
certiorari
was heard in open court, unlike
    the pre-enquete. The information the appellant laid before the justice of the
    peace identified the police force and several members of it as accused. No
    process had issued on six counts. The Crown had stayed the seventh count.
    Neither the police force nor any of the named officers could be characterized
    as an accused. That the application judge permitted the application for a
    publication ban to proceed did not taint the appellants application for orders
    in lieu of
mandamus
and
certiorari
.

[46]

To the extent that the appellants complaint is
    that the application judge erred in considering submissions from the lawyers
    for the police force and named officers in dismissing the appellant's
    application, it also fails.

[47]

A review of the record of the proceedings
    confirms that the lawyers for the police force and named officers made no
    submissions on the merits.

Ground #4: The Plagiarism Ground

[48]

The appellant also seeks reversal of the
    decision of the application judge because, in her reasons, she plagiarized"
    portions of the factum filed by the lawyer who sought the publication ban. In
    so doing, the appellant submits, the judge misapprehended the evidence.

[49]

The focus of the appellant's complaint is
    several paragraphs in a part of the application judge's written reasons
    following the heading,
Background Facts

and

Analysis
.
    These paragraphs, the appellant argues, are plagiarized" from the
    overview of facts contained in the Notice of Application for the publication
    ban.

[50]

It would not be unfair to say, as the respondent
    acknowledges, that several paragraphs of the application judge's reasons, in
    particular, paras. 9-19, may reflect some reliance on the materials filed by
    counsel in support of the application for the publication ban. However, the
    contents of those paragraphs, which recount the procedural history of the
    proceedings, are largely uncontroversial. The impugned passages record the
    allegations of the appellant based on disclosures by his partner. Allegations
    that are, for the most part, repeated in the counts contained in the
    information. The passages also include a summary of the findings made by the pre-enquete
    justice on each count of the information.

[51]

The impugned passages contain no findings of
    fact, no articulation of any governing legal principle, and no assessment of
    the merits of the appellant's application. Nothing that appears in the reasons
    that has any affinity with the filed materials falls foul of the guidelines for
    judicial copying as explained in
Cojocaru (Guardian ad litem of) v. British
    Columbia Womens Hospital & Health Centre
, 2013 SCC 30, [2013] 2
    S.C.R. 357.

Ground #5: The Failure to Set Aside the Stay

[52]

The appellant also challenges the application
    judge's failure to quash the stay entered by the Crown on the charge on which
    the justice decided to issue process.

[53]

Section 579(1) of the
Criminal Code
authorizes
    the Attorney General or counsel instructed by the Attorney General for that
    purpose, at any time after any proceedings have been commenced and before
    judgment, to direct entry of a stay of proceedings. The stay entered in this
    case after the pre-enquete justice had decided to issue process on one count
    was timely:
McHale
, at paras. 85-86.

[54]

Entry of a stay of proceedings under s. 579(1) of
    the
Criminal Code
is a core element of prosecutorial discretion.
    Exercise of that discretionary authority is reviewable only in cases of flagrant
    impropriety":
Krieger v. Law Society of Alberta
, 2002 SCC 65,
    [2002] S.C.R. at paras. 46, 49.

[55]

In this case, the Crown gave reasons for
    directing entry of the stay; an absence of evidence on an essential element of
    the offence, and no reasonable prospect of conviction. Individually and
    cumulatively, these are valid reasons for entry of a stay of proceedings on a
    public or private information. They do not constitute flagrant
    impropriety". The application judge was correct in not quashing the stay.

Ground #6: The Propriety of Invoking the Criminal Process

[56]

The appellants final allegation of error arises
    out of a comment the application judge made during the hearing and repeated in
    the final paragraph of her written reasons. In essence, she questioned whether
    the grievance of the appellant's partner which formed the basis of the offences
    alleged was not more properly addressed in the labour relations and civil
    context than by the institution of criminal proceedings.

[57]

In our view, this observation on the part of the
    application judge was well warranted in the circumstances. After all, what set
    this entire train of events in motion was an unfavourable performance review.
    There followed a rapid escalation from these job performance beginnings to
    invocation of the blunt instrument of the criminal law.

[58]

The observation of the application judge is also
    consistent with the purposes of the pre-enquete. Among those purposes are to
    ensure that spurious allegations, vexatious claims, and frivolous complaints
    barren of evidentiary support do not carry forward into a prosecution and to
    guard against the initiation of criminal proceedings to further claims that
    belong in another forum:
McHale
, at paras. 65, 74.

[59]

This ground of appeal fails.

Disposition

[60]

For these reasons, the appeal is dismissed.

Released: DW October 19, 2020

David Watt J.A.

I agree. Gary Trotter
    J.A.

I agree. B. Zarnett
    J.A.


