) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 242

CITATION : R. v. McIlvenna, 2013 ONSC 242 COURT FILE NO.: 4012/12 DATE: 20130117 CORRECTED DECISION RELEASED: 20130125 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – Ryan McIlvenna Applicant ) ) ) ) ) ) ) ) ) ) ) Susan Stothart, for the Crown Applicant, Self represented ) ) HEARD: January 4, 2013 CORRECTED DECISION ON aPPLICATION FOR mANDAMUS Corrected decision: Paragraph [3] of the original decision dated January 17, 2013, was deleted on January 25, 2013, and in its place this corrected Paragraph [3] was integrated into the original decision R.D.

Gordon J.: Overview [ 1 ] The Applicant seeks an Order of Mandamus requiring Justice of the Peace Bryant to receive an information alleging that a police officer, Constable Victor Leroux, committed certain criminal offences and to send the information on for a pre-enquete hearing. Background [ 2 ] On September 28, 2012 Mr. McIlvenna was attending a court proceeding in which he was an accused. Shortly before court, he was smoking marijuana about 30 feet away from the courthouse building. It is alleged that Constable Victor Leroux approached Mr. McIlvenna and told him that he was arresting him for trespassing.

It is alleged that Mr. McIlvenna told Constable Leroux that he had a license to possess marijuana and had been given permission by the court manager to smoke outside the building. It is alleged that Constable Leroux persisted and advised Mr. McIlvenna to leave, which he did. [ 3 ] On October 1, 2012, Mr. McIlvenna delivered to the Ontario Court of Justice a completed form requesting that a private information be issued. He subsequently met with Justice of the Peace Bryant on November 8, 2012 and, after some initial pleasantries, was told the following: “Mr.

Ilvenna, you are here today to discuss this commencement for a private information that you have filed and you filed it September 30 th , 2012 or you completed a package September 30 th , 2012. I have had an opportunity to review the documents that you have provided and the contents and I have determined that there are no reasonable grounds to believe that an indictable offence or offences has or have been committed by the parties named in that document.” Accordingly, Justice of the Peace Bryant declined to receive the information and did not send the matter along for a pre-enquete hearing. Applicable Law

[4] The Crown argued it was within the discretion of the justice of the peace to refuse the complaint and to refuse to swear theinformation where she determined there were no reasonable grounds to believe an offence had been committed. In support of thatposition, I was referred to the decision of L.L. Gauthier J. made in a previous application by Mr. McIlvenna [see McIlvenna v. Ontario(Attorney General) [2012] O.J. No. 5451]. With respect, I disagree. [5] In the case of R. v.

Southwick, 1967 Carswell Ont 11, the Court of Appeal held that the laying of an information, which isreally the completion of a complaint, is separate and distinct from the inquiry which follows to determine if process should issue. It heldthat the laying of the information deals with jurisdictional requirements, while the decision to issue process involves a consideration ofwhether the allegations and evidence received, make out a case for compelling the accused to attend court and answer to a charge of anoffence. [6] More recently, in R. V.

McHale, 2010 ONCA 361, the Court of Appeal summarized the process as follows: [43] In the usual course, criminal proceedings are commenced or instituted by laying an information before a justice allegingthe commission of an offence. Receipt of the information is a ministerial act. Provided the information alleges an offence known to lawand is facially compliant with the requirements of the Criminal Code, the justice must receive the information. The justice takes theinformation under oath and affixes his or her signature to the jurat on the written Form 2. [44] An information is a sworn allegation of crime.

But it does not compel the person named as the accused to attend court to answerto the charge. Although the person named in the information is “charged with an offence” for the purposes of

section 11 of theCanadian Charter of Rights and Freedoms, we distinguish between the commencement of criminal proceedings and the commencementof criminal prosecution. This distinction coincides with the dual function of the justice. The ministerial act of receiving the informationcoincides with the institution of proceedings, and the judicial act of issuing process signals the commencement of the prosecution: R. v.Dowson, (SCC), [1983] 2 S.C.R. 144, at pp. 150, 155 and 157; Southam Inc. v.

Coulter (1990), (ONCA), 75 O.R. (2d) 1 (C.A.), at pp 6-7. [45] To determine whether process should issue to compel the attendance of the person named in the information to answer to thecharge, thus to determine whether a criminal prosecution will be commenced, the justice conducts a pre-enquete.

Section 507.1 governsthe pre-enquête when the proceedings have been commenced by a private informant. … [73] The Criminal Code permits private prosecutions. A private informant may lay an information in conformity with s. 504. Receipt of the Information commences criminal proceedings. Parliament enacted, more accurately continued, a procedure aimed at thedetermination by a judicial officer of whether the informant has made out a case for prosecution.

This procedure is the pre-enquete, ahearing that provides the private informant the opportunity to present his or her case for prosecution. [7] From this I discern that the first stage of inquiry, when the complaint is made, is very limited. The justice is to determinewhether the complaint, on its face, meets the requirements of

section 504. Those requirements are as follows: 1. The informant states that his belief is based upon reasonable and probable grounds. 2. The information alleges the commission of an indictable offence. 3. The information alleges: (

a) that the offence may be tried in Ontario and that the accused is or is believed to be, or resides or isbelieved to reside, within the territorial jurisdiction of the justice; (

b) that the person, wherever he may be, has committed an indictableoffence within the territorial jurisdiction of the justice; (

c) that the person has, anywhere, unlawfully received property that wasunlawfully obtained within the territorial jurisdiction of the justice or (

d) that the person has in his possession stolen property within theterritorial jurisdiction of the justice. [8] If the complaint meets these basic requirements, the information must be received. Analysis [9] Given my findings of the applicable law, the issue is whether the complaint put before Justice of the Peace Bryant wasfacially compliant with the requirements of

section 504. In this regard, it is apparent that: 1. Mr. McIlvenna stated in his written complaint that there are reasonable and probable grounds to believe that two offences had beencommitted. Although he did not say specifically that the belief was his, it is readily apparent from the complaint that it was. 2. The complaint alleges the commission of two indictable offences, namely, breach of trust by a public officer contrary to

section 122of the Criminal Code, and intimidation of a justice system participant contrary to

section 423.1(1)(

b) of the Criminal Code. 3. The complaint contains information from which it may easily be discerned that the accused is alleged to have committed theoffences within the territorial district, and that the accused is believed to be within the territorial district. [10] As the complaint was facially compliant with the requirements of

section 504, the Justice of the Peace was obliged to receive

and swear the information. Although there may well be good reason to question whether process should issue, that is a decision for the designated justice or provincial court judge charged with conducting the pre-enquete hearing. Conclusion [ 11 ] The application is granted. It is ordered that Mr. McIlvenna’s written complaint be remitted to Justice of the Peace Bryant, that the appropriate information be prepared and sworn before her, and that she refer the sworn information to a provincial court judge or designated justice to consider whether to compel the appearance of the accused on the information. Mr.

Justice R.G. Gordon Released: January 25, 2013 CITATION : R v. McIlvenna, 2013 ONSC 242 COURT FILE NO.: 4012/12 DATE: 20130117 CORRECTED DECISION RELEASED: 20130125 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Ryan McIlvenna CORRECTED DECISION ON aPPLICATION FOR Mandamus R.D. Gordon J. Released: January 25, 2013