) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 5588

CITATION : R. v. McIlvenna, 2013 ONSC 5588 COURT FILE NO.: 526/13 DATE: 2013-09-11 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – Ryan McIlvenna Applicant ) ) ) ) ) ) ) ) Karen Lische, for the Crown Ryan McIlvenna, self-represented ) ) HEARD: August 30, 2013 DECISION ON APPLICATION FOR MANDAMUS R.D. Gordon J.: Overview [ 1 ] Mr. McIlvenna wishes to pursue a private prosecution. To that end, he submitted a written complaint to a Justice of the Peace, and an information was sworn. The information was remitted to a designated justice to conduct a pre-enquête hearing.

That hearing was conducted over two days before Justice of the Peace Scully. The Justice of the Peace refused to issue process. Mr. McIlvenna has brought an application for mandamus asking this court to direct that process issue. Background [ 2 ] On September 28, 2012 Mr. McIlvenna was attending a court proceeding in which he was an accused. Shortly before court, he had been smoking marijuana about 30 feet from the courthouse building. It is alleged that Constable Victor Leroux approached Mr. McIlvenna and told him that he if he smoked marijuana on the court house property he would be arrested for trespassing.

Mr. McIlvenna produced a licence to possess marijuana and showed it to Constable Leroux. He also advised the constable that the court manager had given him permission to smoke marijuana outside the building. It is alleged that Constable Leroux continued to threaten Mr. McIlvenna with arrest should he smoke marijuana on court house property. Mr. McIlvenna agreed to step off the court house property and did so. [ 3 ] Subsequently, Mr.

McIlvenna submitted a complaint to the Ontario Court of Justice requesting that a private information be sworn charging Constable Leroux with breach of trust by a public officer, contrary to

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

section 423.1 (

b) of the Criminal Code . Initially, the complaint was rejected by the Justice of the Peace. Mr. McIlvenna brought an application for mandamus requiring the Justice of the Peace to accept his complaint and swear an information. I heard that application and granted the requested relief. Mr. McIlvenna had his information sworn and remitted for a pre- enquête hearing. At the hearing Mr. McIlvenna withdrew the charge of breach of trust by a public officer. The justice of the peace presiding at that hearing declined to issue process for the remaining count. [ 4 ] Mr.

McIlvenna has brought this application for mandamus asking that I require process to issue. Analysis [ 5 ] The provisions of the Criminal Code which permit private prosecution are designed to balance the interest of a private informant who looks to prosecute another for an alleged crime with the due administration of justice. [ 6 ] The interest of the private informant is met by assuring him or her that an independent judicial officer will hear the allegations, listen to the evidence of the informant’s witnesses, and decide whether there is evidence of each essential element of the offence(

s) charged in the information. The due administration of justice is protected by ensuring that spurious allegations, vexatious claims, and frivolous complaints, barren of evidentiary support or legal validity, will not carry forward into a prosecution [see McHale v. Ontario (Attorney General) 2010 ONCA 361 ]. [ 7 ] The function of the justice presiding at a pre-enquête hearing is discretionary. If the justice refuses to exercise that

discretion, or makes an order beyond the discretion afforded, mandamus or an order in lieu of mandamus may be available to address that error. [ 8 ] If, however, the justice has exercised discretion and made a decision which is within his or her jurisdiction to make, mandamus is not thereafter available. In such instances, review of the decision of the justice can only be undertaken by way of application for certiorari. Although Mr. McIlvenna’s application is framed as an application for mandamus, it is in essence an application for certiorari and argument proceeded as such. Mr.

McIlvenna is nothing if not tenacious. In the circumstances, rather than dismiss his application because it does not claim the appropriate extraordinary remedy, I propose to deal with it as though it is properly framed as an application for certiorari. [ 9 ] An application for certiorari may be granted if the pre-enquête hearing was not conducted as prescribed by the Criminal Code , if there was a denial of natural justice to the private informant, or if there was jurisdictional error.

Jurisdictional error would include such things as a misunderstanding of the essential elements of an offence, preferring an inference favourable to an accused over an inference available to the informant or failing to consider the whole of the evidence. [ 10 ] Mr. McIlvenna does not suggest the hearing was conducted other than as prescribed by the Criminal Code . He also does not suggest any denial of natural justice. His argument is jurisdictional error as a result of failing to properly consider the evidence which was presented.

In particular he challenges the findings of the Justice of the Peace that there was no evidence in support of two essential elements of the offence. [ 11 ] I am not persuaded the justice of the peace made any such error. She correctly identified the essential elements of the offence in question, she gave the informant ample opportunity to call evidence to establish those elements on a prima facie basis, and she determined that no evidence existed with respect to two essential elements. [ 12 ] In particular, she found there was no evidence that Constable Leroux used violence or the threat of violence. Mr.

McIlvenna argued that when Constable Leroux threatened to make an arrest, knowing that such an arrest would be unlawful, he effectively threatened violence. I am unable to agree with this argument as it would necessitate a finding that every arrest is

an act of violence when such is not the case. Even if the threat to make an arrest could be held to be a threat of violence, I agree with the Justice of the Peace there was no evidence the threat was made to provoke a state of fear in order to impede Mr. McIlvenna in the performance of his duties as a justice participant. In this regard, it is not Mr. McIlvenna’s perception of events, but Constable Leroux’s intention that is in issue. Although Mr.

McIlvenna may have feared for his safety and may have felt that Constable’s Leroux’s actions were somehow designed to prevent his participation in the trial that day, this is simply speculation requiring an inference that cannot be drawn from the evidence adduced. Conclusion [ 13 ] Mr. McIlvenna is not entitled to Mandamus, nor is he entitled to Certiorari. His application is dismissed. The Hon. Mr. Justice R.D. Gordon Released: September 11, 2013 CITATION : R. v. McIlvenna, 2013 ONSC 5588 COURT FILE NO.: 526/13 DATE: 2013-09-11

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Ryan McIlvenna Applicant DECISION ON APPLICATION FOR MANDAMUS R.D. Gordon J. Released: September 11 2013