Wakeel v Moustafa, 2016 ABQB 475

Court of Queen’s Bench of Alberta Citation: Wakeel v Moustafa, 2016 ABQB 475 Date: 20160825 Docket: 1603 02108 Registry: Edmonton Between: Shadi Wakeel Applicant - and - Naef Moustafa Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] Mr. Wakeel applies to extend the restraining order he obtained in February 2016 against Mr. Moustafa. Mr.

Wakeel understands that a restraining order is not effective to prevent anyone from making anonymous posts to a web-site such as “The Dirty”, where negative anonymous posts have in fact been made in relation to him. [ 2 ] Mr. Wakeel swears that, while the previous restraining order was in place, Mr. Moustafa telephoned Mr. Wakeel's roommate and referred to material which had been posted on "The Dirty", as well as to other matters involving Mr. Wakeel such as dealings with CRA. Mr. Wakeel acknowledges that, when his roommate first had contact with the police, the roommate denied any telephone contact with Mr.

Moustafa and only subsequently gave the police a statement which referenced the telephone conversation. Mr. Wakeel also acknowledges that the police have decided not to lay charges against Mr. Moustafa, pursuant to s. 127 of the Criminal Code , of breaching a court order.

Parenthetically, I observe that there may be some understandable confusion on the part of police forces with respect to the treatment under the Criminal Code of Emergency Protection Orders, EPOs, and restraining orders; however, the decision in our Court of Appeal in R. v Nielsen , 2015 ABCA 143 , suggests that police are as able to lay charges under s. 127 of the Code for an alleged breach of a restraining order as they are in relation to an alleged breach of an EPO. Mr. Wakeel did not take civil proceedings against Mr. Moustafa for the telephone call by citing Mr.

Moustafa in civil contempt of the restraining order.

[ 3 ] Mr. Wakeel also swears that his vehicle has been egged and that a stone was found on the sidewalk in front of one of the windows of his business premises and that there was a crack in the window; Mr. Wakeel believes that these incidents are connected to Mr. Moustafa. [ 4 ] Mr. Moustafa’s trial on charges of assaulting Mr. Wakeel will be held in mid-February 2017. Mr. Moustafa’s bail conditions include a one block “no go” perimeter around Mr. Wakeel’s business premises and a two block “no go” perimeter around Mr. Wakeel’s residence. [ 5 ] Mr. Moustafa has not filed any evidence in relation to either Mr.

Wakeel’s first application for a restraining order or the current application. [ 6 ] Mr. Wakeel and Mr. Moustafa are members of the same, relatively small, ethnic community in Edmonton; they are likely to be invited to the same weddings and likely to patronize the same restaurants. [ 7 ] Section 2(2.1) of the Protection against Family Violence Act , while deals with Emergency Protection Orders, contains the following provisions:

(2.1) Without excluding any other circumstance, in determining whether an order under this

section should be granted, by a judge of the Provincial Court or a justice of the peace, the following circumstances should not preclude the granting of an order: (

a) that an emergency protection order, Queen’s Bench protection order, restraining order or order of any Court ordering the respondent not to contact or communicate with the claimant has been granted previously; (

b) that the respondent has previously complied with an emergency protection order, Queen’s Bench protection order, restraining order or order of any Court ordering the respondent not to contact or communicate with the claimant; . . . (

e) that criminal charges have been or may be laid against the respondent; . . . [ 8 ] Mr. Moustafa contends that a restraining order is not necessary: since December 30, 2015, bail provisions in effect, there is no confirmed breach of the first restraining order, and because this is not a domestic situation, there is little likelihood of violence between the parties. Moreover, says Mr. Moustafa, a restraining order – which is designed to be a shield – should not be able to be used as a sword. As a fall-back position, Mr. Moustafa suggests a mutual restraining order. [ 9 ] As to whether Mr.

Wakeel is entitled to obtain a restraining order, for the following two reasons, I conclude that he is. First, although the basis on which EPOs and restraining orders are granted is different, some of the same principles apply. One of those is the fact that the existence of some other mechanism for preventing unwanted contact should not necessarily prevent the granting of the order. Here, even after the trial of Mr. Moustafa, there are likely to continue to be negative feelings between the parties; a restraining order will then be in place after the criminal process is concluded.

Indeed, the trial itself establishes that, unfortunately, violence and the threat of violence are not restricted to the domestic sphere.

In that same context, a restraining order does not, of course, necessarily involve threats of violence or apprehension of violence: it is sufficient if the applicant indicates that, despite having informed the respondent that the applicant does not want to have anything more to do with the respondent, the respondent continues to make unwanted approaches to the applicant and the applicant wishes to prevent those contacts. [ 10 ] Second, as I indicated during the course of the hearing, there are problems around police enforcement of restraining orders.

While there are some similarities in the potential for enforcement by the police of EPOs and restraining orders, there is – and should be – some difference in the actual enforcement between these two types of civil process. Even supposing that a court found that Mr. Moustafa had telephoned Mr. Wakeel’s roommate as a method of indirect contact with Mr. Wakeel, since the point of the contact was to make scurrilous comments about Mr. Wakeel rather than a threat, this is a matter which should properly be at the lowest end of importance and urgency of police enforcement.

This type of breach of a court order which does not involve violence or the threat of violence is presumably the kind of alleged breach of a court order which should be dealt with by the party who obtained the court order by way of contempt proceedings. There is no difference in principle between this type of alleged breach and, for example, an alleged breach of an injunction; In times of fiscal restraint, presumably everyone recognizes that police forces should, legitimately, be re-assessing the level of their involvement with civil process.

We would not expect the police to be enforcing the restraining order in those circumstances whereas we would expect the police to be enforcing the “no go” provisions of the bail order. However, this should not prevent Mr. Wakeel from taking his own civil process to enforce the order. [ 11 ] Reference to civil process for enforcement also deals with Mr. Moustafa’s concern that a restraining order could be used as a sword: in civil process, the losing party pays costs to the winning party. If Mr. Wakeel brought enforcement process unsuccessfully, he would be subject to having to pay Mr.

Moustafa costs; as in all civil areas, liability for costs is intended to be an incentive to using reason and common sense as the preferred method of resolving disputes. [ 12 ] As to the potential for a mutual restraining order, Mr. Moustafa has never filed any evidence; there is therefore no basis on which the court could impose a restraining order on Mr. Wakeel. [ 13 ] As to the scope of the restraining order, with a view to making the restraining order easier to enforce by either Mr.

Wakeel or the police, I will change the conditions of the restraining order to make them as similar as possible to the bail conditions. Parenthetically, I say that the style of “no go” provisions contained in typical bail conditions is, in my respectful view, clearer, and therefore better, than the typical “no go” provisions in the court’s standard restraining order. Where it is possible to do so, for example in most urban situations, a “no go” zone expressed in city blocks or by delineation on a map which is attached to the order, is easier to identify and prove than a “no go” zone expressed in meters.

In addition, I observe that, in the first, without notice, restraining order granted by Justice

Little on January 11, 2016, Justice Little had expressly removed the standard clause preventing the respondent from being within 100 metres of the applicant anywhere in Alberta. However, when that without notice order was confirmed on February 1, 2016, the 100 metre provision was re-instituted. Without listening to the FTR recording of proceedings on that date, I am unable to discern whether the re-institution of the 100 metre personal perimeter was done deliberately or not.

In any event, in the circumstances here, I will reduce the personal “no go” zone from 100 metres to 5 metres: I assume that, in any restaurant or at any event such as a wedding, if the parties are both in attendance, it will be possible to maintain a 5 metre distance from one another. That will obviate any need to be concerned about who arrived first at any event. [ 14 ] In the result, Mr. Wakeel is entitled to a restraining order which prevents Mr. Moustafa from being within 2 city blocks of Mr. Wakeel’s residence, and from being within 1 city block of Mr. Wakeel’s business premises, and within 5 metres of Mr.

Wakeel anywhere in the Province of Alberta. The remainder of the order shall essentially be the same as the February 1, 2016 order, i.e. paras. 2, 3, 4, 5, 6 of the previous order will be repeated in this order. Paragraph 7 will be amended by stating that the current restraining order will be in effect up to and including August 24, 2017 unless any further court order changes that date.

Because this order is given on notice, para. 8 is no longer required. [ 15 ] In the circumstances, specifically the raising of issues which may not have previously been the subject of written direction by a court, each party will bear their own costs of this proceeding. [ 16 ] Mr. Wakheel shall prepare and file the form of order granted herein; he can obtain assistance from the services available in the library on the second floor of the courthouse. Heard on the 08 th day of August, 2016. Dated at the City of Edmonton, Alberta this 25 th day of August, 2016. J.B. Veit J.C.Q.B.A.

Appearances: Shadi Wakeel, on his own behalf David A. Ibrahim, Chadi & Company for the Respondent