Re: T.L.F. Date:, 2014 BCPC 100

Citation: Re: T.L.F. Date: 20140528 2014 BCPC 0100 File Nos: 80321, 80671, 80672, 80673 and 80674 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA T. L. F. Applicant RULING OF THE HONOURABLE JUDGE K. D. SKILNICK The Applicant : T. L. F.

Counsel for the Crown : W. W. Norris Place of Hearing: Abbotsford , B.C. Date of Hearing: May 5, 2014 Date of Judgment: May 28, 2014 Introduction [ 1 ] The Applicant T.L.F. has put five informations before the court in Form 2 of the Criminal Code . These have been placed before a Justice of the Peace pursuant to

section 504 of the Criminal Code, and the Justice of the Peace has in turn placed them before the court for a process hearing as contemplated by

section 507.1 of the Code. [ 2 ] The Applicant has made similar applications on at least three previous informations, all of which were denied the issuance of process on April 14, 2014 because they disclosed no reasonable grounds for belief that the criminal offences alleged had been committed. [ 3 ] The Applicant currently has at least thirteen such applications before this court, including the five that are the subject of this application.

He stated in his submissions that he intends to bring approximately forty-five such applications and is asking for a number of days of court time for process hearings in respect of these applications. Most of these have their genesis in a family court decision in court file F14516, in which the Applicant made an application for guardianship and primary care of the child who was the subject of those proceedings. While the application for guardianship was granted, much of the other relief that the Applicant sought was denied by the order of the Honourable Judge Brown on May 24, 2013.

Many of the informations on which the Applicant wishes process to issue allege offences against persons affiliated with that decision, either as parties, witnesses, lawyers, or social workers. The Applicant candidly admits that he is attempting to use the criminal process as a means of addressing what is, in his opinion, an unjust result in the family court proceedings.

I have reviewed the reasons for judgement in that case in order to assess the reasonableness of the Applicant’s assertion. [ 4 ] The applications for process hearings and the assignment of court time to hear them come at a time when court time is at a premium in this jurisdiction.

According to statistics published on the website of the Office of the Chief Judge of the Provincial Court of British Columbia, Abbotsford is one of the top ten jurisdictions in the province with the longest time to trial in a number of categories, including child protection hearings, trials in family court, criminal trials of two days or more in length, and civil trials. The delay in child protection hearings is especially troubling because children who are the subject of those proceedings often remain in foster care while their fate is decided.

This is not to suggest that delay in other matters is a reason to deny the Applicant a process hearing. However it does illustrate the need to ensure that, before significant court time is scheduled, applications like the ones now before me are properly vetted to ensure that they meet the requirements under the Criminal Code and that they are being brought for a proper purpose and not as part of any abuse of the process of the court. [ 5 ] It is unusual that reasons are given for a decision on an application to issue process under

section 507.1 of the Code. There is some suggestion in some of the jurisprudence that a judge can simply respond with a yes or no answer to the application, without setting out reasons for the decision. In this case because of the number of informations, the number of past informations and the number of potential future informations, I have chosen to set out written reasons for my decision on these applications. They may have some bearing and offer some guidance not only on the files that I am dealing with, but on the remaining applications as well. Applicable Law 1.

Private Prosecutions [ 6 ] In Canada, the prosecution of a Criminal Code offence begins with a charging document known as an information. An information is most often sworn or affirmed by a peace officer, but

section 504 of the Criminal Code allows for an information to be sworn by “any one” provided that the person has “reasonable grounds” to believe that the prospective accused has committed an indictable offence.

Section 504 requires a justice (defined in

section 2 of the Code to include a Justice of the Peace or a Provincial Court Judge) to receive the information if the following pre-requisites are met: (

a) the informant swears an oath or makes a solemn affirmation; (

b) the informant swears or affirms that the prospective accused has committed an indictable offence (defined in

section 34 of the

Interpretation Act to include hybrid offences, but under

section 795 of the Code, the alleged offence may also be a

summary conviction offence); (

c) the informant’s grounds for belief must be reasonable ; (

d) the alleged offence must be one that can be tried in the same province or territory where the justice presides; (

e) the prospective accused must either reside or be present in that same province or territory; (

f) the alleged offence must have taken place in that same province or territory;

(

g) there are other rules which pertain to possession of stolen property that do not apply in the case of the files that are the subject ofthese applications. [7] Under

section 579 of the Code, if process on an information that has been commenced by a private person is allowed to issue,the Crown may intervene and stay those proceedings. As a practical matter, it would be expeditious and less time-consuming for a courtto simply approve every application for process in a public prosecution, and let the Crown sort out which cases have merit and whichdon’t. But this would be unfair to alleged defendants in those cases. Often criminal records checks go beyond whether or not a person hasbeen convicted of an offence and sometimes show criminal charges as well.

People may assume “where there’s smoke, there’s fire” andmay draw incorrect conclusions based on the fact that an individual has been called into court to answer a charge. The expeditiousmethod of addressing private prosecutions may be very unfair to persons wrongfully accused of criminal offences where the decision onwhether or not to issue process has not been properly considered. [8] Under

section 507.1(1) of the Code, informations laid under

section 504 of the Code are referred to a Provincial Court Judge toconsider whether or not the appearance of the accused should be compelled on the information. Under subsection (2), process is issuedonly if the judge is satisfied that a case for issuing process has been made out. Under subsection (3) before process is issued, the judge tofirst hear the allegations of the informant and the evidence of witnesses.

This does not automatically require the witnesses to be called.The issuance of process can be refused prior to this stage if the judge finds that the grounds for belief that an offence has been committedare not reasonable. [9] An informant must have both a subjective and an objective basis for the belief that an offence has been committed.

In Nelles v.Ontario (SCC), [1989] 2 S.C.R. 170, the Supreme Court of Canada held that a reasonable belief is a belief which wouldlead an ordinarily prudent and cautious person to conclude that a prospective accused is “probably guilty” of the offence charged. [10] The grounds for belief may be considered to be unreasonable if some essential element of the offence is lacking, some obviousdefence to the charge exists, or if the application for the issuance of process is an abuse of the process of the court. (For example,sometimes inmates at institutions will attempt to have process issue against peace officers who are lawfully acting in the course of theirduty and whose actions are justified under

section 25 of the Code.) In those circumstances it is often apparent on the face of theinformation that no offence is made out, and the information can be rejected summarily for non-compliance with

section 504 of the Codebecause the requisite reasonable grounds are lacking. 2. Abuse of Process [11] The court has the responsibility to prevent an abuse of its process. If an individual attempts to use

section 504 of the CriminalCode, not as a means of addressing legitimate allegations of violations of the criminal law, but for some ulterior motive, for example as ameans of harassment, nuisance, to improperly impugn the reputation of an individual, for debt collection purposes, or to gain some otherpersonal advantage for the informant, the court may terminate proceedings on its own motion to prevent an abuse of process.

In R. v.Light (1993) (BC CA), 78 C.C.C. (3d) 221, the British Columbia Court of Appeal held that the power to terminateproceedings which constitute an abuse of process is part of the inherent jurisdiction that the courts have to control their own process. It isa remedy intended to be used to prevent the court’s process from being used for an improper purpose because permitting the abuse woulddamage to the court’s integrity. 3. Remedy for Refusal to Issue Process [12] If a justice refuses to issue process, the applicant is not without a remedy.

He or she may apply for an order in the superior court(in this province the Supreme Court of British Columbia) for an order that a Writ of Mandamus issue. This is a prerogative writ thatcompels the Provincial Court Judge to issue process or to conduct a new process hearing. In R. v. Blythe (1973) 13 C.C.C. (2d) the courtheld that this remedy is available if the decision not to issue process was based on extraneous considerations or was not exercisedjudicially. The Applications Now Before the Court [13] Before me now are four informations which I will summarize.

I have not identified the proposed accused persons by name.(Similarly, the Applicant will be identified by initial only in any publication of these reasons on the court’s judgement database.) (

a) Information 80321 [14] In this information, the Applicant alleges that a social worker, has committed an offence contrary to section 282(1)(

a) of theCriminal Code. This

section reads as follows:

(1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years,takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order inrelation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has thelawful care or charge of that person, of the possession of that person is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years… [15] The information alleges that at the time of the alleged offence, October 20, 2011, the proposed accused was a Social Workerand “a delegate of the Director under

section 92 of the MCFD Act (sic).” It goes on to allege that the proposed accused had the lawfulcare of the child in question, and that the removal of the child was contrary to a custody order. On the face of it, this would not meet therequirement that there be reasonable grounds to believe that the proposed accused was “probably guilty” of a criminal offence. There is

no such statute as the “MCFD Act” and it is reasonable to believe that what the Applicant meant was the Child Family and Community Services Act, since

section 92 of that Act gives the Director under that Act the power to delegate responsibilities to social workers.

Section 101 of that Act also protects such persons from liability for performing their duties under the Act.

Section 24 of the Criminal Code provides a defence for persons acting in such circumstances. [ 16 ] The assertion that a social worker acting in such capacity took control of a child, and that this action was in contravention of a custody order does not set out reasonable grounds that a criminal offence under

section 282 has occurred because orders formerly known as custody orders are subordinate to proceedings under the Child Family and Community Services Act. [ 17 ] As stated earlier, the Applicant admits that some of these applications are an attempt to seek redress for a judgement of this court in which the Applicant’s application to be the primary caregiver of a child was denied.

In the reasons for judgement in that decision, reported at 2013 BCPC 205 , the Honourable Judge Brown made this comment about the Applicant’s conduct towards social workers: [40] The only domestic violence concern I have at this juncture in [the child]’s life is the allegation that [the Applicant] is a bully. In the past he has berated social workers, made complaints about doctors, and threatened to report lawyers to the Law Society.

He recently would not accept increased visitation unless [the child’s mother] signed a very one-sided order which he had prepared. [ 18 ] On the face of the information, there are no reasonable grounds that the proposed accused in this count has committed a criminal offence. On the face of the information, the conduct as alleged would not constitute the offence alleged. There is the additional concern, based on the finding of Judge Brown, that this information is being brought with an ulterior motive connected with the family court proceedings and is therefore an abuse of the process of this court.

I have found that the information does not disclose the requisite reasonable grounds under

section 504, and therefore I need not address that concern in respect of this information. [ 19 ] Because information 80321 does not meet the threshold requirement under

section 504 of showing that there are reasonable grounds to believe that the proposed accused is “probably guilty” of a criminal offence, the application for process to issue in respect of this information is denied. (

b) File 80672 [ 20 ] In file 80672, the Applicant seeks to have two persons charged with the offence of public mischief under section 140(1) (

b) of the Criminal Code . The information alleges that each of these persons gave “a statement advancing false allegations of assault” and that the statements were given with the intention of causing the Applicant to “be suspected of having committed an offence which he had not committed.” The alleged offence date is December 9, 2013, which post-dates Judge Brown’s decision. [ 21 ] Section 140(1) (

b) of the Criminal Code reads as follows: 140.

(1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by… (

b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself; [ 22 ] The proposed defendants in this application are lawyers who regularly appear in Abbotsford family court. There is a general practice in this court that when a litigant is an officer of the court, that person’s matter is heard by a judge from another jurisdiction. I believe that principle applies to this situation. Accordingly, this matter should be decided by a Judge who is not based out of Abbotsford.

I will direct that the registry refer this matter to the Regional Administrative Judge for this region, to assign a judge who does not regularly sit in Abbotsford Family Court to hear this application. (

c) File 80673 [ 23 ] File 80673 alleges 8 counts of public mischief under section 140(1) (

b) of the Criminal Code . Counts 1, 2, 7 and 8 name the mother of the child who was the subject of the proceedings before Judge Brown as the proposed accused. Count 1 alleges that proposed accused sent an email a police officer in which she stated that she was told by her lawyer to contact the officer about “certain things” regarding the Applicant.

Count 7 alleges that she met with the officer to give a statement, and count 7 alleges that she sent the officer an email complaining that the Applicant was stalking her. [ 24 ] The circumstances which are the subject matter of these counts were before Judge Brown when he made his ruling on May 24, 2013. Judge Brown declined to make any finding on the issue of whether or not the allegations of criminal behaviour against the Applicant were founded or not. However he did make findings regarding the Applicant’s conduct towards this proposed accused.

In addition to the portion of his judgement which was quoted earlier in these reasons, Judge Brown went on to find as follows: [41]… I have come to the conclusion that it would be virtually impossible for [the Applicant] and [the proposed accused] to cooperate on matters affecting [the child]. First of all, I am concerned that [the Applicant] would intimidate [the proposed accused]. [ 25 ] In his submissions, the Applicant readily admits that private prosecutions that he wishes to commence stem from two sources,

one of which is his dissatisfaction with the outcome of proceedings in the family court matter. (The other relates to a different matter that is not the subject of these four files). A consideration of the timing of these applications, the findings of Judge Brown in the family matter and Applicant’s acknowledgement that his dissatisfaction with the result in the family proceedings are at the center of this application, leads me to conclude that these counts are being preferred for an ulterior motive.

They are, in effect, an indirect appeal of Judge Brown’s decision, a means of attacking the result in the family court file and a means of escalating the conflict between two parents of a small child. The proper remedy to address those concerns is an appeal of Judge Brown’s decision. I am also concerned about these proceedings should not be used in furtherance of any intimidation of the proposed accused by the Applicant as intimated by Judge Brown in his findings.

On a consideration of all of these factors, I find that the proceedings against the proposed accused in counts 1, 2, 7 and 8 constitute an abuse of process. Accordingly, the application to issue process on these counts is denied. [ 26 ] Counts 3, 4, 5 and 6 allege offences of public mischief committed by lawyers who regularly appear in Abbotsford family court. As with the previous information, I am also of the view that the application to issue process on those counts should be heard by a Judge who does not regularly sit in Abbotsford Family Court.

I will direct that the registry refer the matter of a process hearing on those counts to the Regional Administrative Judge to assign a judge who does not regularly sit in Abbotsford Family Court to hear that application. (

d) Information 80674 [ 27 ] This information also alleges the offence of public mischief contrary to section 140(1) (

b) of the Criminal Code . Count 1 alleges an offence committed by the mother of the child who was the subject of the proceedings before Judge Brown, and also by a local family lawyer. Counts 2 and 3 allege offences committed by a social worker who reported allegations to the police. [ 28 ] This application will be dealt with in the same manner as the previous court files that have been addressed in these reasons. The reporting of allegations of possible harm to a child by a social worker to a police officer does constitute public mischief, and the social worker is entitled to the statutory protections that I have previously referred to. Counts 2 and 3 fail to meet the test under

section 504 that requires reasonable grounds to believe that the social worker is “probably guilty” of a criminal offence. Accordingly, the application for the issuance of process on counts 2 and 3 is denied. [ 29 ] Count 1 of this information alleges that the mother of the child who was the subject of the proceedings before Judge Brown made false allegations to the Ministry of Children and Families regarding the Applicant. These facts were also before Judge Brown, who made findings that were not to the Applicant’s liking.

I reiterate my earlier comments regarding the timing of this application, the findings of Judge Brown, Judge Brown’s concerns about the Applicant intimidating this proposed accused and the use of criminal proceedings as a means of escalating conflict between parents of a small child. The best interests of children call for minimization of such conflict, and where the court has reasonable grounds to suspect that the promotion of such conflict is motivating the institution of a private prosecution, such can reasonably be considered to be an abuse of process.

I find the application for process against this proposed accused in count 1 to be based on such ulterior motives and to constitute such an abuse of process. Accordingly, the application to issue process on this count against the child’s mother is denied. [ 30 ] Count 1 also alleges an offence committed by a local family lawyer. While I have the same concerns about this being an abuse of the process of this court, I am once again of the view that the application to issue process on this count against the lawyer should be heard by a Judge who does not regularly sit in Abbotsford Family Court.

I will direct that the registry refer the matter of a process hearing on that count to the Regional Administrative Judge to assign such a judge to hear that application. (

e) File 80671 [ 31 ] This file is another allegation of two counts of public mischief. One count is against the mother of the child who was the subject of the proceedings before Judge Brown. The other is a witness who testified at that trial. This person was also a proposed defendant in another application for process which was dismissed on April 14, 2014. Unlike the other informations before me involving the child’s mother, this alleged offence date concerns an incident which occurred after the hearing before Judge Brown.

The alleged offence date for this file is December 9, 2013, the same as the incident alleged in court file 80672. [ 32 ] Since the facts on which this application for process is based will be before the same judge who hears the application in court file 80672, I am directing that this matter be heard by the same judge that hears the application for process on court file 80672, being a judge who is not an Abbotsford judge, and one who does not sit regularly in Abbotsford Family Court. In making this direction, I am not discarding concerns about potential abuse of process.

However as these alleged incidents occurred after the hearing before Judge Brown, I will leave that assessment to the judge who hears this process hearing. Ancillary Applications [ 33 ] The Applicant has applied for the issuance of a subpoena for the officer to whom the statements in the alleged public mischief counts were made. On some of those counts, the issuance of process has already been refused, while others have been directed to be heard by a judge who does not sit in Abbotsford family court.

That judge will have the responsibility of deciding if a process hearing should be held, or if the applications constitute an abuse of the process of the court, and accordingly it is that judge who should hear that application for a subpoena. [ 34 ] The Applicant has also asked for an order under

section 70 of the BC Evidence Act. Under this

section a Provincial Court Judge may “inquire into and submit to a court” (defined to be the BC Supreme Court) “a report and recommendations concerning a family matter even though a proceeding concerning a family matter is not commenced in a court at the time of the judge's inquiry.” This is a procedure used in civil proceedings, not criminal ones, and it is unclear what benefit the preparation of such a report would have to these proceedings. [ 35 ] The issue of the best interests of the Applicant’s child has been the subject of at least two hearings before this court, once by Judge Brown, and later in a subsequent proceeding before Judge Macdonald. A report under

section 30 would not be a substitute for, or

an appeal of those decisions. It would be a rehearing of evidence already heard on issues already decided. [ 36 ] Proceedings under the Criminal Code are governed by the Canada Evidence Act, which does not appear to have a corresponding provision to

section 70 of the BC Evidence Act. The British Columbia act has limited application to these proceedings, as set out in

section 40 of the Canada Evidence Act. From the jurisprudence on that section, it is unlikely that this court has jurisdiction to order a report under

section 70 of the BC Evidence Act in a Criminal proceeding. [ 37 ] Accordingly the application for a report under

section 30 is denied. [ 38 ] There is one further issue that needs to be addressed, that being the time estimates for future process hearings. Normally process hearings are very brief matters. They are confined to evidence on which the justice or judge can objectively assess whether or not there are reasonable grounds to believe that the offence has been committed. When police officers swear informations before a justice of the peace, the process generally takes a matter of minutes. The Applicant has asked for days of court time for his process hearings.

He has candidly admitted that he has a tendency to talk at length about extraneous matters, prolonging the length of time for the hearing.

In a perfect world, it would be nice to be able to extend that courtesy, but with the current time-to-trial delays which exist, It is unfair to those waiting in the cue for court time that such a large block of time should be set aside for something that should be a brief process. [ 39 ] The process hearings might best be run by having the assigned judge set out the elements of the proposed offence, and directly questioning the informant of what facts he believes supports that element and what his grounds for belief are which support those facts.

In this way, the judge can get to the heart of the matter, which is deciding whether those grounds are reasonable and making an assessment of whether or not the proposed accused is probably guilty. This will also out filter out extraneous information. The procedure used will be up to the assigned judge. [ 40 ] I am directing that all future process hearings be set for a maximum of one hour. This is of course subject to the right of the assigned judge to fix more time if he or she deems it necessary.

Summary [ 41 ] For the foregoing reasons, it is ordered as follows: (

a) The applications for the issuance of process are denied on court file 80231, on counts 1, 2, 7 and 8 on file 80673, on counts 2 and 3 on court file 80674, and on count 1 as against the first named proposed accused (the mother of the child who was the subject of the proceedings in Abbotsford Family Court file F14516) on file 80674.` (

b) The applications for issuance of process on court file 80671 and 80672, on counts 3, 4, 5 and 6 on court file 80673 and count 1 on information 80674 (concerning the second named proposed accused) are to be set before a Provincial Court Judge, assigned by the Regional Administrative Judge of the Fraser Region, being a judge who does not regularly sit in Abbotsford Family Court. (In making this direction, I am mindful that I cannot bind the Regional Administrative Judge. I am trusting that he will concur with this reasoning.) (

c) The judge referred to in paragraph (

b) shall decide the Applicant’s application for a subpoena of the police officer requested in the application. (

d) The application for an order pursuant to

section 30 of the British Columbia Evidence Act is denied. (

e) Future process hearings shall be fixed for a maximum of one hour of court time unless the judge assigned to the matter directs that more time be fixed. [ 42 ] It has constantly been held, as a proposition in law, that the criminal process should not be used for purposes designed to benefit one individual, as opposed to the public interest. One example of this is the disallowance of criminal proceedings that are really private debt collection in disguise. A private interest is not the same as the public interest.

This principle also applies, with greater vigour, to ensure that it is not used for the escalation of conflict among family litigants. Allowing this to occur is not in the public interest and it cannot be in the best interests of children who are the subject of those proceedings and who have to spend their childhood in that sort of combat zone. Courts should act to prevent such an abuse of process when there are reasonable grounds to believe that it is occurring.

It is all the more important, in these situations where emotion often erases reason, that any decisions about whether or not criminal process should issue, are best left in the hands of Crown Counsel, who are removed from and independent of the conflict, and who are capable of assessing matters dispassionately and objectively. Dated at the City of Abbotsford, in the Province of British Columbia, this 28 th day of May, 2014. ______________________________________________ (The Honourable Judge K. D. Skilnick)