for the sake of transparency..
...and apologies for the poor formatting.
....but, the incompetence of the respondents aside, and the delays they've created as a consequence of it, i do expect to win this case, once i can finally get it in front of a judge, even if it takes another five years to do it.
as i've stated over and over again, the longer they drag this out for, the worse they'll appear, in the end.
this is not a difficult case, and it shouldn't have had to come to this. but, i will appeal it if i have to, because there's no question at all that i'm legally right.
======
Reply Factum of The Applicant
1. The applicant filed a request for judicial review and general certiorari on nov 18, 2019.
2. On dec 20, the respondent (the iprd) offered to conduct a new review into the question of the
legality of the arrest, on the condition that the other issues be dropped.
3 On Dec 21, the applicant rejected the premise that the issue could be deconstructed in a
reductionist manner, and repeated her insistence on a total review that looked at the situation
holistically. The counter-argument is that determining whether police harassment occurred
requires looking at the entire situation, and analyzing a pattern of behaviour, not breaking
things down into a series of narrow claims that are restrictively true or false. She repeated her
request for a general certiorari.
4. On Jan 30th, the iprd filed a 57 page factum that essentially included the review that had been
rejected on Dec 21st. This factum is not just full of new arguments, but contains a completely
new review.
5. Noting that the request for general certiorari was premised on the claimed incompetence of
the oiprd, as evidenced by the endless delays and non-reports, and also that the factum
acknowledges that the question of the legality of the arrest should have been addressed in the
first place, thereby confirming the validity of those claims, the applicant does not feel it would
be productive to reject the respondent's factum as breaking the rules of judicial review,
although it rather clearly does.
3
6. Rather, the applicant will note that, had she received this report in march then she certainly
would have appealed it, and had she received this review in september then she certainly would
have appealed it to this court, as well.
7. So, while the applicant is willing to accept the review in the factum, where it should not be,
in order to carry the process forwards without further delay, she would request the right to file a
reply to it, essentially in the form of the factum that would have been filed with the appeal to
the review, as it would have existed.
8. The applicant makes no changes to her initial series of requests.
Part II: Facts
9. I take some issue with the characterization of events presented in paragraph 16 of the
respondent's factum:
The rentor of that unit did not wish to rent the unit to the applicant. The
applicant was not satisfied with the decision, and thereafter sent the rentor a
series of emails.
10. This suggests that e-mail correspondence only began after some kind of decision was made,
and was done out of some kind of malice, or outside of the context of the application process.
Rather, the email record (as it exists in multiple filed documents) makes it clear that all
communication between the applicant and the property owner (always under the pseudonym of
ryan myon, the only name the applicant had seen attached to the property owner up to the point
of her arrest) existed over email and in the context of the application process, and that when
communication continued past the point of rejection, it was done in the context of continuing to
apply for housing, under claims of discrimination on prohibited grounds by the property owner,
which would fall under the protected rights of the applicant, and certainly not be harassment
4
under any objective definition of the term, regardless of how the property owner may have
"felt" about the situation. The communication was strictly for rental purposes, and never
frivolous, retaliatory or in any way of a personal nature. All evidence suggests that the
applicant believed she was communicating with a man named ryan, and not a female named
caroline. The applicant has never met this property owner, spoken to her on the phone, been to
her dwelling (or know where it is), or even seen a picture of her on the internet; the applicant
knows absolutely nothing about the property owner, and has demonstrated absolutely no
interest in learning anything about her. She has, however, filed a $100,000 human rights
lawsuit against her for discrimination in housing, a case which is currently in the process of
being deferred until the outcome of this one is clear. So, it should not be thought that a series of
frivolous emails were sent to the property owner by the applicant after her application was
rejected; that would be counter-factual, and misleading, and not an accurate representation of
the facts in the case. Rather, the facts are that the applicant does not dispute that she continued
to apply for housing over email, the only method available to her, even after she had been told
she would not be considered, as she claims is her right under the relevant human rights
legislation, as she intuited being discriminated against under prohibited grounds. Further, any
demand to stop applying under threat of reprisal would itself be prohibited behaviour under the
human rights code; while the applicant had every right to continue to apply for housing in the
face of perceived bias by the property owner, the property owner was in fact breaking the law
in threatening her for standing up for her rights, in continuing to apply.
11. The fact that this was clearly explained to the officer by the applicant has been omitted
from the factum and should not be.
12. Paragraph 17 of the factum states:
5
Finally, the applicant alleged that she had been treated in a discriminatory manner due
to her being openly transgendered.
13. That is not quite correct. Rather, I suggested a suspicion of bias as a consequence of
observed behaviour and mannerisms, as well as the clearly transphobic language used in the
reports, and requested an investigation; I explicitly stopped short of explicit allegations of this
nature, as I did not have any clear evidence upon which to base them. This is a matter of
checking the record.
14. Paragraph 22 of the factum states:
Sergeant Campbell did not investigate the applicant's allegation that her arrest was
unlawful. Rather, his investigation focused on the allegations of misconduct contained
in her OIPRD complaint, which was filed and received prior to her arrest.
15. I would label this a false statement. While I would argue that the investigation into the
legality of the arrest was insufficient and ultimately incorrect in law, which is the basis of the
request for review, there was actually an honest, if allegedly wrong, attempt to justify the arrest
by writing off my concerns about it's warrantless nature via citing R v. Storrey, i claim
completely incorrectly due to the hybrid nature of the charge.
16. The motives and situation underlying the officer's decision to place his foot in the door are
disputed, although his decision to place his foot in the door is not. I have never accepted the
idea that the officer was shielding himself from a door being slammed. It is irresponsible to
present this as a fact in the case; this is disputed and that is clear from the record. However, I
would suggest that few reasonable people would interpret the officer's narrative as much more
than a contrived excuse.
6
17. Likewise, it is worth repeating that the officer does not actually deny refusing to provide his
badge number, but rather blames the applicant for asking him to repeat it when she didn't hear
it, as though he's only obligated to mumble it once, and has then checked it off the list. I seek
only to state that some of the so-called facts presented in the respondent's factum are disputed,
in this reply factum; i do not seek to repeat the argument in my original factum.
Part III - Issues and the Law
18. Vavilov is a case at the federal level, so it needs to take the varying provincial approaches
towards certiorari, as either a legislated rule, or an unwritten constitutional principle, into
consideration, as it rules in full generality. While the police services act may not provide for a
review mechanism, it is nonetheless the case that, in ontario, certiorari is explicitly legislated
into the judicial review procedure act, which gives the divisional court clear reviewing
jurisdiction, by explicit legislative intent. So, the idea that there is no legislative intent around
the power of a general certiorari would be belied by the existence of the judicial review
procedure act, which is exactly that. If the provincial legislature did not wish for this court to
have the power of certiorari over the oiprd, it would repeal or amend the jrpa, accordingly, or
place an appropriate caveat n the police services act.
19. Further, the rule of law is a broad concept in Canadian jurisprudence that certainly includes
ensuring that the police behave within the frameworks of legislated, constitutional and judicial
law when conducting arrests (see Fleming v. Ontario, 2019 SCC 45 @ para 2, f required), so a
case questioning the legality of a warrantless arrest would certainly fall under the rubric of a
"rule of law" issue, unless we are now redefining the term, and we don't give the supreme court
of canada power over the english language - they would be outside of their own jurisdiction,
with that. i think there is a strong argument that reviewing the legality of arrests is the most
7
fundamental, basic purpose of judicial review, that this kind of review is really an extension of
habeas corpus, and that we'd be taking a dangerous step towards authoritarianism if we were to
abolish it. As stated in my addendum, I must assume that the supreme court had issues such as
this in mind when it spoke of the rule of law as an exception; i suppose this may, in the end, be
the case that tests this.
20. It is also the case that an illegal arrest and detention, if established, would open up a
number of constitutional rights issues, and both of the named respondents have, in fact, been
given notice of the intent to file a constitutional rights challenge by the applicant upon the
conclusion of this review process. The claim that this case has no constitutional rights
ramifications is clearly wrong - there is an imminent challenge pending, and they've been told
as much.
21. Vavilov also clarifies that a decision that does not uphold legislated rules or jurisprudential
norms would be considered unreasonable, thereby making the standard of review a distinction
without a meaningful difference, in context. Reasonableness, as a default standard of review, is
not an excuse for the panel to be shielded from criticism for making errors of law, or a carte
blanche for the reviewing body to do whatever it wants.
22. It is suggested via citing vincent and cozzi that the standard of review ought to be uniformly
applied to the body being reviewed, rather than determined by the nature of the case. It may be
very true that the proper standard of review in those cases was reasonableness, but stare decisis
would not suggest that, therefore, every case with a police review should have the same
standard of review! Rather, the correctness standard would need to apply in cases of overriding
error, and the exceptions listed in vavilov may very well apply to a large number of future cases
where the complaints director is the reviewing authority, even if it may not apply to others. So
8
this is what a logician would call a category error. Further, vavilov is explicit that errors in law
can never be upheld as reasonable. So, this is a disingenuous application of the new precedent
that should be ignored as flawed.
23. The applicant considers it somewhat comical that the iprd could explicitly argue that all
aspects of a case should be explored in a reasonableness review in the context of a scenario
where somebody was charged with harassment, arrested and held overnight for the crime of
repeatedly applying for housing, which would be just about the most unreasonable thing you
could imagine happening.
24. It is not up to a complainant to define the concept of harassment as something she
"perceives", but rather something that must be interpreted via an analysis of objective fact.
Citing perception is never a valid epistemology; we must always use the scientific method. So,
to claim that the applicant should have known that the property owner would "perceive" further
communication as harassing is not a legally meaningful argument in a criminal context
(although it may work in a workplace harassment context), and is exactly the error that the
officer made in making the arrest without seeking a warrant, and which i am seeking to be
labelled as illegal, not an argument in favour of reasonable grounds - the point is that the
property owner was quite obviously wrong in her perceptions, that the facts did not uphold her
perceptions as being correct, and the officer's job was actually to tell her she was wrong and
there was nothing he could do about it, not illegally arrest me to teach me a lesson. See R v,
Burns, 2008 ONCA 6 @ paras [2]-[4] for the need to establish an objective concept of
intentionally instilling fear, an idea that was not only not demonstrated but actually rejected by
both the officer and the crown, and now by the oiprd, and is obviously absurd in the context of
communication for the purposes of applying for housing. Again: this is exactly the point being
contested. But, I will refer you to my original factum to discuss this point further. See R v.
9
Sillip, 1997 ABCA 346 @ para 18 for the five-point criterion in determining what criminal
harassment is in Canada, and which a competent officer should know offhand (or at least know
enough to ask a judge for a warrant, regarding). This exact point is actually made in the cited
case, R v. Kosikar; see paras 27-29 of this document.
25. As stated previously, the power of a general certiorari is granted to this court by the ontario
legislature via the judicial review procedure act. So, to suggest that the unreasonable delays
don't result in a loss of jurisdiction is somewhat of a red herring, as the divisional court has a
statutory power of review, regardless of delays or not; i am citing the unreasonable delay as a
reason for the divisional court to exercise it's own existing jurisdiction due to procedural
unfairness, not an argument for the oiprd to lose a projected jurisdiction that it doesn't actually
have. the divisional court is the higher body, and the oiprd is the lower body, so the jurisdiction
flows upwards, and it's an issue of exercising power, and reasons for it, not of gaining it or
losing it. the new precedent may stress judicial restraint, but it does not change the balance of
power or prevent me from requesting that the court carry out it's statutory authority of
certiorari over any lower body, even if it does caution the court to think carefully about the
justifications for it before it does it. i will leave it to the court to make this decision, in it's
wisdom, and subject to my right to appeal it, if i question that wisdom, because no entity in this
universe has infinite wisdom. i am making a point about where power exists here, even if it
need not always be exercised; vavilov did not declare the jrpa ultra vires, and it is in fact still in
force. Certiorari still exists!
26. Logically, the interpretation act would have to be secondary to s. 495 (2) because 495(2) is
an explicit exception to the general rule in the interpretation act, and exceptions always
overpower rules, when they are stated explicitly. The interpretation act may allow for the police
to treat hybrid offences as indictable ones in certain contexts until the crown elects to make a
10
choice, but it does not negate the explicit instructions of the legislature regarding what officers
may not do regarding hybrid offences; otherwise, 495(2) would be superfluous, and should be
eliminated altogether, which is clearly not the case. The interpretation act itself addressees this
in 34 (2); 495(2) is clearly an example of "except to the extant that the enactment otherwise
provides", in action. Further, Storrey is explicit and newer than Huff (which is also pre-charter
and before the cited 1985 criminal code revisions) in stating how he would have ruled if the
charge was a hybrid one. I also cited a recent case of interest in my addendum (Fleming v.
Ontario). In the face of vavilov, it's important to note what the clear intent of the legislature
was here, which was to stop officers from making frivolous arrests on cases that stood no
chance in court. I spent 20 hours in jail for no discernible reason, and partly because the system
was overcrowded. One cannot cite 495(1) to negate 495(2); 495(2) must be used to limit the
arrest authority of 495(1). The argument presented by the iprd to justify the frivolous nature of
this warrantless and groundless arrest has changed, but it is still wrong, and the limitations in
495(2) are still paramount. I should not have been arrested, clearly, and would like the record to
state as much.
27. In paragraph 46, the iprd states as follows:
Additionally, the offence of criminal harassment requires that an accused person
knows - or is reckless as to whether - his or her repeated communications with
another person causes the other person to be harassed. Harassment is proven if, as a
consequence of the communication, the other person is harassed in the sense of
being tormented, troubled, worried, continually or chronically plagued, bedeviled and
badgered. The officer need not believe that an accused might harm the other person;
the officer need only be satisfied that the communication causes the other person to
feel harassed, and that the feeling of harassment is reasonable in the circumstances.
28. This is a deeply dishonest presentation of the cited case, R. v. Kosikar. I will cite directly
from that case:
18 As Proulx J.A. said in R. c. Lamontagne (1998), 129 C.C.C. (3d) 181 (Que. C.A.),
s. 264(1) sets out the constituent elements of the offence which must be proven whereas
s. 264(2) describes the four types of prohibited conduct to which subsection (1)
refers
11
.
19 I also agree with Proulx J.A.'s adoption, from R. v. Sillipp (1997), 11 C.R. (5th)
71 (Alta. C.A.), of the following description of the five essential elements of the offence:
1) It must be established that the accused has engaged in the conduct set out in
s. 264(2)(a), (b), (c), or (d) of the Criminal Code.
2) It must be established that the complainant was harassed;
3) It must be established that the accused who engaged in such conduct knew
that the complainant was harassed or was reckless or wilfully blind as to
whether the complainant was harassed;
4) It must be established that the conduct caused the complainant to fear for her
safety or the safety of anyone known to her; and
5) It must be established that the complainant's fear was, in all of the
circumstances, reasonable.
29. This is more or less exactly what I wrote in my initial request for review, albeit it in less
flamboyant language, and have repeated in my factum, and more or less the precise negation of
what the iprd tries to present in their own factum in para 46. Given that they included the case
in their book of authorities, this is hard to understand. Why not concede the point? I kind of
don't get it. Further, I don't even think this is a point that requires much further analysis, as it
appears to be so deeply established in the case law.
30. The highlighted section of R. v. Kosikar, para 28, addresses the question of whether a single
event can be enough to justify harassment charges, but this has nothing to do with the case at
hand, and is essentially another red herring. It may be true that a single act is enough to justify
charges, but that single act still has to have the five characteristics, and there were no grounds
for an objective interpretation of any of them in the case at hand.
31. I will include the previously cited para [2]-[4] of R v. Burns to close down, while stressing
the point that, as a transwoman, i am actually a frequent target of street harassment and that all
12
communication with ryan myon (who later identified herself as caroline chevalier) had to do
with renting an apartment:
Criminal Harassment
[2] To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to
establish that the appellant engaged in "threatening conduct". We accept the
definition of threatening conduct given in R. v . George (2002), 2002 YKCA 2 (CanLII),
162 C.C.C. (3d) 337 (Y.T. C.A.) at para. 39 that, in order to meet the objectives of s.
264, the threatening conduct must amount to a "tool of intimidation which is designed
to instil a sense of fear in the recipient". The impugned conduct is to be viewed
objectively, with due consideration for the circumstances in which they took place, and
with regard to the effects those acts had on the recipient.
[3] In brief, the conduct in question is as follows. The appellant and the complainant
knew one another but had virtually no contact in the three years prior to the
incident. The incident took place in broad daylight in downtown North Bay while
the complainant was walking down Main Street with her five-year old daughter, after
having left a bank. The appellant was dressed in full police uniform and also on foot
on Main Street. He wolf-whistled at the complainant, said "nice butt" or "nice ass"
and then, after the complainant sped up to get away from him, called out "are those
pants painted on".
[4] While the appellant's conduct was clearly inappropriate and unwanted, we do not
see the incident as amounting to threatening conduct within the meaning of those
words in s. 264(2)(d). Although the complainant justifiably felt upset and scared by
the appellant's conduct, viewed objectively, we do not see it as rising to the level of a
"tool of intimidation designed to instill a sense of fear".
Part IV
Restated, verbatim, from the initial factum:
I would like the court to order the following:
1) that the arrest was illegal.
2) that the officers responsible for the arrest should be appropriately disciplined for it
13
3) that an independent investigation into the circumstances leading to the arrest should be
launched by a body that is at an arms-length distance from the windsor police, such as,
perhaps, the rcmp,
4) that at the end of this process, the applicant be awarded running costs for transportation
and printing, as best as she can document it at that time, as the expenses associated with this
appeal are an undue hardship on her disability income. these costs should run between $200-
1000.
The applicant will be self-representing herself for the first time and is hesitant to suggest time
frames, but does not think that this is a confusing or challenging case, as the error in law by
the windsor police is blatantly and abundantly clear and truly a consequence of incompetence
underlying the initial report. Discussions surrounding the ambiguities of the case may carry
on, but the central concern of the case should take mere minutes to deal with.
Addition: I suppose I should request one hour.
14
Schedule A
1. R. v. Storrey, [1990] 1 SCR 421
2. Canada. v. Vavilov, [2019] SCC 65
3. Fleming v. Ontario, [2019 ] SCC 45
4. Vincent v. Hamilton Police Service, 2012 ONSC 6177
5. Cozzi v. Office of the Independent Police Review Director, 2016 ONSC 627
6. R v, Burns, 2008 ONCA 6
7. R v. Sillip, 1997 ABCA 346
8. R. v. Kosikar, 1999 124 oac 289 (ca)
9. R. v. Huff, 1979 ABCA 234
Schedule B
1. Ontario Human Rights Code, s.8
2. Police Services Act, s. 71
3. Judicial Review Procedure Act, s. 2
4. Criminal Code of Canada s. 495
5. Criminal Code of Canada s. 264
6. Interpretation Act, s. 34
Book of Authorities
Fleming v. Ontario, [2019 ] SCC 45, para.2
[2] Police officers are tasked with fulfilling many important duties in Canadian society. These
include preserving the peace, preventing crime, and protecting life and property. The execution
of these duties sometimes necessitates interference with the liberty of individuals. However,
a free and democratic society cannot tolerate interference with the rights of law-abiding
people as a measure of first resort. There is a line that cannot be crossed. The rule of law draws
that line. It demands that, when intruding on an individual's freedom, the police can only act
in accordance with the law.
R v, Burns, 2008 ONCA 6. paras [2]-[4]
Criminal Harassment
[2] To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to
establish that the appellant engaged in "threatening conduct". We accept the definition of
threatening conduct given in R. v . George (2002), 2002 YKCA 2 (CanLII), 162 C.C.C. (3d)
337 (Y.T. C.A.) at para. 39 that, in order to meet the objectives of s. 264, the threatening
conduct must amount to a "tool of intimidation which is designed to instil a sense of fear in the
recipient". The impugned conduct is to be viewed objectively, with due consideration for the
circumstances in which they took place, and with regard to the effects those acts had on the
recipient.
[3] In brief, the conduct in question is as follows. The appellant and the complainant knew one
another but had virtually no contact in the three years prior to the incident. The
15
incident took place in broad daylight in downtown North Bay while the complainant was
walking down Main Street with her five-year old daughter, after having left a bank. The
appellant was dressed in full police uniform and also on foot on Main Street. He wolfwhistled
at the complainant, said "nice butt" or "nice ass" and then, after the complainant sped
up to get away from him, called out "are those pants painted on".
[4] While the appellant's conduct was clearly inappropriate and unwanted, we do not see the
incident as amounting to threatening conduct within the meaning of those words in s.
264(2)(d). Although the complainant justifiably felt upset and scared by the appellant's
conduct, viewed objectively, we do not see it as rising to the level of a "tool of intimidation
designed to instill a sense of fear".
R v. Sillip, 1997 ABCA 346, paras [16]-[18]
[16] In the case at bar, Murray, J. told the jury that the term "harass" embraced something more
than a complainant being "vexed, disquieted or annoyed". He spoke of appropriate synonyms
and mentioned some being "tormented, troubled, worried, plagued, bedeviled and badgered".
The charge, taken as a whole, emphasizes to the jury that proof beyond a reasonable doubt that
a complainant has been troubled, worried or badgered, will not suffice; proof beyond a
reasonable doubt that a complainant has been vexed, disquieted or annoyed will not suffice,
The trial judge told me jury that "something substantially more than that" was required.
[17] In fact, s. 264 articulates the additional requirement. It is that, in all of the circumstances,
the conduct of the accused caused the complainant reasonably to fear for her safety or the
safety of anyone known to her.
[18] In the result, a proper charge to a jury in a criminal harassment case must include reference
to the following ingredients of the crime, all of which must be proved beyond a reasonable
doubt:
1) It must be established that the accused has engaged in the conduct set out in s. 264
(2) (a), (b), (c), or (d) of the Criminal Code.
2) It must be established that the complainant was harassed.
3) It must be established that the accused who engaged in such conduct knew that the
complainant was harassed or was reckless or wilfully blind as to whether the
complainant was harassed;
4) It must be established that the conduct caused the complainant to fear for her safety
or the safety of anyone known to her; and
5) It must be established that the complainant's fear was, in all of the circumstances,
reasonable.
R. v. Kosikar, 1999 124 oac 289 (ca), paras [18]-[19]
18 As Proulx J.A. said in R. c. Lamontagne (1998), 129 C.C.C. (3d) 181 (Que. C.A.), s. 264(1)
sets out the constituent elements of the offence which must be proven whereas s. 264(2)
describes the four types of prohibited conduct to which subsection (1) refers.
16
19 I also agree with Proulx J.A.'s adoption, from R. v. Sillipp (1997), 11 C.R. (5th) 71 (Alta.
C.A.), of the following description of the five essential elements of the offence:
1) It must be established that the accused has engaged in the conduct set out in s.
264(2)(a), (b), (c), or (d) of the Criminal Code.
2) It must be established that the complainant was harassed;
3) It must be established that the accused who engaged in such conduct knew that the
complainant was harassed or was reckless or wilfully blind as to whether the
complainant was harassed;
4) It must be established that the conduct caused the complainant to fear for her safety
or the safety of anyone known to her; and
5) It must be established that the complainant's fear was, in all of the circumstances,
reasonable.
Ontario Human Rights Code, s.8
Reprisals
8 Every person has a right to claim and enforce his or her rights under this Act, to institute and
participate in proceedings under this Act and to refuse to infringe a right of another person
under this Act, without reprisal or threat of reprisal for so doing. R.S.O. 1990, c. H.19, s. 8.
Judicial Review Procedure Act, s. 2
Applications for judicial review
2 (1) On an application by way of originating notice, which may be styled "Notice of
Application for Judicial Review", the court may, despite any right of appeal, by order grant any
relief that the applicant would be entitled to in any one or more of the following: 1. Proceedings
by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to
the exercise, refusal to exercise or proposed or purported exercise of a statutory power. R.S.O.
1990, c. J.1, s. 2 (1).
Error of law
(2) The power of the court to set aside a decision for error of law on the face of the record on an
application for an order in the nature of certiorari is extended so as to apply on an application
for judicial review in relation to any decision made in the exercise of any statutory power of
decision to the extent it is not limited or precluded by the Act conferring such power of
decision. R.S.O. 1990, c. J.1,
s. 2 (2).
Lack of evidence
17
(3) Where the findings of fact of a tribunal made in the exercise of a statutory power of
decision are required by any statute or law to be based exclusively on evidence admissible
before it and on facts of which it may take notice and there is no such evidence and there are no
such facts to support findings of fact made by the tribunal in making a decision in the exercise
of such power, the court may set aside the decision on an application for judicial review.
R.S.O. 1990, c. J.1, s. 2 (3).
Power to set aside
(4) Where the applicant on an application for judicial review is entitled to a judgment declaring
that a decision made in the exercise of a statutory power of decision is unauthorized or
otherwise invalid, the court may, in the place of such declaration, set aside the decision. R.S.O.
1990, c. J.1, s. 2 (4).
Power to refuse relief
(5) Where, in any of the proceedings enumerated in subsection (1), the court had before the
17th day of April, 1972 a discretion to refuse to grant relief on any grounds, the court has a like
discretion on like grounds to refuse to grant any relief on an application for judicial review.
R.S.O. 1990, c. J.1, s. 2 (5). Where subs. (5) does not apply
(6) Subsection (5) does not apply to the discretion of the court before the 17th day of April,
1972 to refuse to grant relief in any of the proceedings enumerated in subsection (1) on the
ground that the relief should have been sought in other proceedings enumerated in subsection
(1). R.S.O. 1990, c. J.1, s. 2 (6).
Interpretation Act, s. 34
Offences
Indictable and summary conviction offences
34 (1) Where an enactment creates an offence,
(a) the offence is deemed to be an indictable offence if the enactment provides that the offender
may be prosecuted for the offence by indictment; (b) the offence is deemed to be one for which
the offender is punishable on summary conviction if there is nothing in the context to indicate
that the offence is an indictable offence; and
(c) if the offence is one for which the offender may be prosecuted by indictment or for which
the offender is punishable on summary conviction, no person shall be considered to have been
convicted of an indictable offence by reason only of having been convicted of the offence on
summary conviction.
Criminal Code to apply
(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable
offences created by an enactment, and all the provisions of that Code relating to summary
conviction offences apply to all other offences created by an enactment, except to the extent
that the enactment otherwise provides.
18
Documents similarly construed
(3) In a commission, proclamation, warrant or other document relating to criminal law or
procedure in criminal matters,
(a) a reference to an offence for which the offender may be prosecuted by indictment shall be
construed as a reference to an indictable offence; and
(b) a reference to any other offence shall be construed as a reference to an offence for
which the offender is punishable on summary conviction.
19
1. The applicant filed a request for judicial review and general certiorari on nov 18, 2019.
2. On dec 20, the respondent (the iprd) offered to conduct a new review into the question of the
legality of the arrest, on the condition that the other issues be dropped.
3 On Dec 21, the applicant rejected the premise that the issue could be deconstructed in a
reductionist manner, and repeated her insistence on a total review that looked at the situation
holistically. The counter-argument is that determining whether police harassment occurred
requires looking at the entire situation, and analyzing a pattern of behaviour, not breaking
things down into a series of narrow claims that are restrictively true or false. She repeated her
request for a general certiorari.
4. On Jan 30th, the iprd filed a 57 page factum that essentially included the review that had been
rejected on Dec 21st. This factum is not just full of new arguments, but contains a completely
new review.
5. Noting that the request for general certiorari was premised on the claimed incompetence of
the oiprd, as evidenced by the endless delays and non-reports, and also that the factum
acknowledges that the question of the legality of the arrest should have been addressed in the
first place, thereby confirming the validity of those claims, the applicant does not feel it would
be productive to reject the respondent's factum as breaking the rules of judicial review,
although it rather clearly does.
3
6. Rather, the applicant will note that, had she received this report in march then she certainly
would have appealed it, and had she received this review in september then she certainly would
have appealed it to this court, as well.
7. So, while the applicant is willing to accept the review in the factum, where it should not be,
in order to carry the process forwards without further delay, she would request the right to file a
reply to it, essentially in the form of the factum that would have been filed with the appeal to
the review, as it would have existed.
8. The applicant makes no changes to her initial series of requests.
Part II: Facts
9. I take some issue with the characterization of events presented in paragraph 16 of the
respondent's factum:
The rentor of that unit did not wish to rent the unit to the applicant. The
applicant was not satisfied with the decision, and thereafter sent the rentor a
series of emails.
10. This suggests that e-mail correspondence only began after some kind of decision was made,
and was done out of some kind of malice, or outside of the context of the application process.
Rather, the email record (as it exists in multiple filed documents) makes it clear that all
communication between the applicant and the property owner (always under the pseudonym of
ryan myon, the only name the applicant had seen attached to the property owner up to the point
of her arrest) existed over email and in the context of the application process, and that when
communication continued past the point of rejection, it was done in the context of continuing to
apply for housing, under claims of discrimination on prohibited grounds by the property owner,
which would fall under the protected rights of the applicant, and certainly not be harassment
4
under any objective definition of the term, regardless of how the property owner may have
"felt" about the situation. The communication was strictly for rental purposes, and never
frivolous, retaliatory or in any way of a personal nature. All evidence suggests that the
applicant believed she was communicating with a man named ryan, and not a female named
caroline. The applicant has never met this property owner, spoken to her on the phone, been to
her dwelling (or know where it is), or even seen a picture of her on the internet; the applicant
knows absolutely nothing about the property owner, and has demonstrated absolutely no
interest in learning anything about her. She has, however, filed a $100,000 human rights
lawsuit against her for discrimination in housing, a case which is currently in the process of
being deferred until the outcome of this one is clear. So, it should not be thought that a series of
frivolous emails were sent to the property owner by the applicant after her application was
rejected; that would be counter-factual, and misleading, and not an accurate representation of
the facts in the case. Rather, the facts are that the applicant does not dispute that she continued
to apply for housing over email, the only method available to her, even after she had been told
she would not be considered, as she claims is her right under the relevant human rights
legislation, as she intuited being discriminated against under prohibited grounds. Further, any
demand to stop applying under threat of reprisal would itself be prohibited behaviour under the
human rights code; while the applicant had every right to continue to apply for housing in the
face of perceived bias by the property owner, the property owner was in fact breaking the law
in threatening her for standing up for her rights, in continuing to apply.
11. The fact that this was clearly explained to the officer by the applicant has been omitted
from the factum and should not be.
12. Paragraph 17 of the factum states:
5
Finally, the applicant alleged that she had been treated in a discriminatory manner due
to her being openly transgendered.
13. That is not quite correct. Rather, I suggested a suspicion of bias as a consequence of
observed behaviour and mannerisms, as well as the clearly transphobic language used in the
reports, and requested an investigation; I explicitly stopped short of explicit allegations of this
nature, as I did not have any clear evidence upon which to base them. This is a matter of
checking the record.
14. Paragraph 22 of the factum states:
Sergeant Campbell did not investigate the applicant's allegation that her arrest was
unlawful. Rather, his investigation focused on the allegations of misconduct contained
in her OIPRD complaint, which was filed and received prior to her arrest.
15. I would label this a false statement. While I would argue that the investigation into the
legality of the arrest was insufficient and ultimately incorrect in law, which is the basis of the
request for review, there was actually an honest, if allegedly wrong, attempt to justify the arrest
by writing off my concerns about it's warrantless nature via citing R v. Storrey, i claim
completely incorrectly due to the hybrid nature of the charge.
16. The motives and situation underlying the officer's decision to place his foot in the door are
disputed, although his decision to place his foot in the door is not. I have never accepted the
idea that the officer was shielding himself from a door being slammed. It is irresponsible to
present this as a fact in the case; this is disputed and that is clear from the record. However, I
would suggest that few reasonable people would interpret the officer's narrative as much more
than a contrived excuse.
6
17. Likewise, it is worth repeating that the officer does not actually deny refusing to provide his
badge number, but rather blames the applicant for asking him to repeat it when she didn't hear
it, as though he's only obligated to mumble it once, and has then checked it off the list. I seek
only to state that some of the so-called facts presented in the respondent's factum are disputed,
in this reply factum; i do not seek to repeat the argument in my original factum.
Part III - Issues and the Law
18. Vavilov is a case at the federal level, so it needs to take the varying provincial approaches
towards certiorari, as either a legislated rule, or an unwritten constitutional principle, into
consideration, as it rules in full generality. While the police services act may not provide for a
review mechanism, it is nonetheless the case that, in ontario, certiorari is explicitly legislated
into the judicial review procedure act, which gives the divisional court clear reviewing
jurisdiction, by explicit legislative intent. So, the idea that there is no legislative intent around
the power of a general certiorari would be belied by the existence of the judicial review
procedure act, which is exactly that. If the provincial legislature did not wish for this court to
have the power of certiorari over the oiprd, it would repeal or amend the jrpa, accordingly, or
place an appropriate caveat n the police services act.
19. Further, the rule of law is a broad concept in Canadian jurisprudence that certainly includes
ensuring that the police behave within the frameworks of legislated, constitutional and judicial
law when conducting arrests (see Fleming v. Ontario, 2019 SCC 45 @ para 2, f required), so a
case questioning the legality of a warrantless arrest would certainly fall under the rubric of a
"rule of law" issue, unless we are now redefining the term, and we don't give the supreme court
of canada power over the english language - they would be outside of their own jurisdiction,
with that. i think there is a strong argument that reviewing the legality of arrests is the most
7
fundamental, basic purpose of judicial review, that this kind of review is really an extension of
habeas corpus, and that we'd be taking a dangerous step towards authoritarianism if we were to
abolish it. As stated in my addendum, I must assume that the supreme court had issues such as
this in mind when it spoke of the rule of law as an exception; i suppose this may, in the end, be
the case that tests this.
20. It is also the case that an illegal arrest and detention, if established, would open up a
number of constitutional rights issues, and both of the named respondents have, in fact, been
given notice of the intent to file a constitutional rights challenge by the applicant upon the
conclusion of this review process. The claim that this case has no constitutional rights
ramifications is clearly wrong - there is an imminent challenge pending, and they've been told
as much.
21. Vavilov also clarifies that a decision that does not uphold legislated rules or jurisprudential
norms would be considered unreasonable, thereby making the standard of review a distinction
without a meaningful difference, in context. Reasonableness, as a default standard of review, is
not an excuse for the panel to be shielded from criticism for making errors of law, or a carte
blanche for the reviewing body to do whatever it wants.
22. It is suggested via citing vincent and cozzi that the standard of review ought to be uniformly
applied to the body being reviewed, rather than determined by the nature of the case. It may be
very true that the proper standard of review in those cases was reasonableness, but stare decisis
would not suggest that, therefore, every case with a police review should have the same
standard of review! Rather, the correctness standard would need to apply in cases of overriding
error, and the exceptions listed in vavilov may very well apply to a large number of future cases
where the complaints director is the reviewing authority, even if it may not apply to others. So
8
this is what a logician would call a category error. Further, vavilov is explicit that errors in law
can never be upheld as reasonable. So, this is a disingenuous application of the new precedent
that should be ignored as flawed.
23. The applicant considers it somewhat comical that the iprd could explicitly argue that all
aspects of a case should be explored in a reasonableness review in the context of a scenario
where somebody was charged with harassment, arrested and held overnight for the crime of
repeatedly applying for housing, which would be just about the most unreasonable thing you
could imagine happening.
24. It is not up to a complainant to define the concept of harassment as something she
"perceives", but rather something that must be interpreted via an analysis of objective fact.
Citing perception is never a valid epistemology; we must always use the scientific method. So,
to claim that the applicant should have known that the property owner would "perceive" further
communication as harassing is not a legally meaningful argument in a criminal context
(although it may work in a workplace harassment context), and is exactly the error that the
officer made in making the arrest without seeking a warrant, and which i am seeking to be
labelled as illegal, not an argument in favour of reasonable grounds - the point is that the
property owner was quite obviously wrong in her perceptions, that the facts did not uphold her
perceptions as being correct, and the officer's job was actually to tell her she was wrong and
there was nothing he could do about it, not illegally arrest me to teach me a lesson. See R v,
Burns, 2008 ONCA 6 @ paras [2]-[4] for the need to establish an objective concept of
intentionally instilling fear, an idea that was not only not demonstrated but actually rejected by
both the officer and the crown, and now by the oiprd, and is obviously absurd in the context of
communication for the purposes of applying for housing. Again: this is exactly the point being
contested. But, I will refer you to my original factum to discuss this point further. See R v.
9
Sillip, 1997 ABCA 346 @ para 18 for the five-point criterion in determining what criminal
harassment is in Canada, and which a competent officer should know offhand (or at least know
enough to ask a judge for a warrant, regarding). This exact point is actually made in the cited
case, R v. Kosikar; see paras 27-29 of this document.
25. As stated previously, the power of a general certiorari is granted to this court by the ontario
legislature via the judicial review procedure act. So, to suggest that the unreasonable delays
don't result in a loss of jurisdiction is somewhat of a red herring, as the divisional court has a
statutory power of review, regardless of delays or not; i am citing the unreasonable delay as a
reason for the divisional court to exercise it's own existing jurisdiction due to procedural
unfairness, not an argument for the oiprd to lose a projected jurisdiction that it doesn't actually
have. the divisional court is the higher body, and the oiprd is the lower body, so the jurisdiction
flows upwards, and it's an issue of exercising power, and reasons for it, not of gaining it or
losing it. the new precedent may stress judicial restraint, but it does not change the balance of
power or prevent me from requesting that the court carry out it's statutory authority of
certiorari over any lower body, even if it does caution the court to think carefully about the
justifications for it before it does it. i will leave it to the court to make this decision, in it's
wisdom, and subject to my right to appeal it, if i question that wisdom, because no entity in this
universe has infinite wisdom. i am making a point about where power exists here, even if it
need not always be exercised; vavilov did not declare the jrpa ultra vires, and it is in fact still in
force. Certiorari still exists!
26. Logically, the interpretation act would have to be secondary to s. 495 (2) because 495(2) is
an explicit exception to the general rule in the interpretation act, and exceptions always
overpower rules, when they are stated explicitly. The interpretation act may allow for the police
to treat hybrid offences as indictable ones in certain contexts until the crown elects to make a
10
choice, but it does not negate the explicit instructions of the legislature regarding what officers
may not do regarding hybrid offences; otherwise, 495(2) would be superfluous, and should be
eliminated altogether, which is clearly not the case. The interpretation act itself addressees this
in 34 (2); 495(2) is clearly an example of "except to the extant that the enactment otherwise
provides", in action. Further, Storrey is explicit and newer than Huff (which is also pre-charter
and before the cited 1985 criminal code revisions) in stating how he would have ruled if the
charge was a hybrid one. I also cited a recent case of interest in my addendum (Fleming v.
Ontario). In the face of vavilov, it's important to note what the clear intent of the legislature
was here, which was to stop officers from making frivolous arrests on cases that stood no
chance in court. I spent 20 hours in jail for no discernible reason, and partly because the system
was overcrowded. One cannot cite 495(1) to negate 495(2); 495(2) must be used to limit the
arrest authority of 495(1). The argument presented by the iprd to justify the frivolous nature of
this warrantless and groundless arrest has changed, but it is still wrong, and the limitations in
495(2) are still paramount. I should not have been arrested, clearly, and would like the record to
state as much.
27. In paragraph 46, the iprd states as follows:
Additionally, the offence of criminal harassment requires that an accused person
knows - or is reckless as to whether - his or her repeated communications with
another person causes the other person to be harassed. Harassment is proven if, as a
consequence of the communication, the other person is harassed in the sense of
being tormented, troubled, worried, continually or chronically plagued, bedeviled and
badgered. The officer need not believe that an accused might harm the other person;
the officer need only be satisfied that the communication causes the other person to
feel harassed, and that the feeling of harassment is reasonable in the circumstances.
28. This is a deeply dishonest presentation of the cited case, R. v. Kosikar. I will cite directly
from that case:
18 As Proulx J.A. said in R. c. Lamontagne (1998), 129 C.C.C. (3d) 181 (Que. C.A.),
s. 264(1) sets out the constituent elements of the offence which must be proven whereas
s. 264(2) describes the four types of prohibited conduct to which subsection (1)
refers
11
.
19 I also agree with Proulx J.A.'s adoption, from R. v. Sillipp (1997), 11 C.R. (5th)
71 (Alta. C.A.), of the following description of the five essential elements of the offence:
1) It must be established that the accused has engaged in the conduct set out in
s. 264(2)(a), (b), (c), or (d) of the Criminal Code.
2) It must be established that the complainant was harassed;
3) It must be established that the accused who engaged in such conduct knew
that the complainant was harassed or was reckless or wilfully blind as to
whether the complainant was harassed;
4) It must be established that the conduct caused the complainant to fear for her
safety or the safety of anyone known to her; and
5) It must be established that the complainant's fear was, in all of the
circumstances, reasonable.
29. This is more or less exactly what I wrote in my initial request for review, albeit it in less
flamboyant language, and have repeated in my factum, and more or less the precise negation of
what the iprd tries to present in their own factum in para 46. Given that they included the case
in their book of authorities, this is hard to understand. Why not concede the point? I kind of
don't get it. Further, I don't even think this is a point that requires much further analysis, as it
appears to be so deeply established in the case law.
30. The highlighted section of R. v. Kosikar, para 28, addresses the question of whether a single
event can be enough to justify harassment charges, but this has nothing to do with the case at
hand, and is essentially another red herring. It may be true that a single act is enough to justify
charges, but that single act still has to have the five characteristics, and there were no grounds
for an objective interpretation of any of them in the case at hand.
31. I will include the previously cited para [2]-[4] of R v. Burns to close down, while stressing
the point that, as a transwoman, i am actually a frequent target of street harassment and that all
12
communication with ryan myon (who later identified herself as caroline chevalier) had to do
with renting an apartment:
Criminal Harassment
[2] To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to
establish that the appellant engaged in "threatening conduct". We accept the
definition of threatening conduct given in R. v . George (2002), 2002 YKCA 2 (CanLII),
162 C.C.C. (3d) 337 (Y.T. C.A.) at para. 39 that, in order to meet the objectives of s.
264, the threatening conduct must amount to a "tool of intimidation which is designed
to instil a sense of fear in the recipient". The impugned conduct is to be viewed
objectively, with due consideration for the circumstances in which they took place, and
with regard to the effects those acts had on the recipient.
[3] In brief, the conduct in question is as follows. The appellant and the complainant
knew one another but had virtually no contact in the three years prior to the
incident. The incident took place in broad daylight in downtown North Bay while
the complainant was walking down Main Street with her five-year old daughter, after
having left a bank. The appellant was dressed in full police uniform and also on foot
on Main Street. He wolf-whistled at the complainant, said "nice butt" or "nice ass"
and then, after the complainant sped up to get away from him, called out "are those
pants painted on".
[4] While the appellant's conduct was clearly inappropriate and unwanted, we do not
see the incident as amounting to threatening conduct within the meaning of those
words in s. 264(2)(d). Although the complainant justifiably felt upset and scared by
the appellant's conduct, viewed objectively, we do not see it as rising to the level of a
"tool of intimidation designed to instill a sense of fear".
Part IV
Restated, verbatim, from the initial factum:
I would like the court to order the following:
1) that the arrest was illegal.
2) that the officers responsible for the arrest should be appropriately disciplined for it
13
3) that an independent investigation into the circumstances leading to the arrest should be
launched by a body that is at an arms-length distance from the windsor police, such as,
perhaps, the rcmp,
4) that at the end of this process, the applicant be awarded running costs for transportation
and printing, as best as she can document it at that time, as the expenses associated with this
appeal are an undue hardship on her disability income. these costs should run between $200-
1000.
The applicant will be self-representing herself for the first time and is hesitant to suggest time
frames, but does not think that this is a confusing or challenging case, as the error in law by
the windsor police is blatantly and abundantly clear and truly a consequence of incompetence
underlying the initial report. Discussions surrounding the ambiguities of the case may carry
on, but the central concern of the case should take mere minutes to deal with.
Addition: I suppose I should request one hour.
14
Schedule A
1. R. v. Storrey, [1990] 1 SCR 421
2. Canada. v. Vavilov, [2019] SCC 65
3. Fleming v. Ontario, [2019 ] SCC 45
4. Vincent v. Hamilton Police Service, 2012 ONSC 6177
5. Cozzi v. Office of the Independent Police Review Director, 2016 ONSC 627
6. R v, Burns, 2008 ONCA 6
7. R v. Sillip, 1997 ABCA 346
8. R. v. Kosikar, 1999 124 oac 289 (ca)
9. R. v. Huff, 1979 ABCA 234
Schedule B
1. Ontario Human Rights Code, s.8
2. Police Services Act, s. 71
3. Judicial Review Procedure Act, s. 2
4. Criminal Code of Canada s. 495
5. Criminal Code of Canada s. 264
6. Interpretation Act, s. 34
Book of Authorities
Fleming v. Ontario, [2019 ] SCC 45, para.2
[2] Police officers are tasked with fulfilling many important duties in Canadian society. These
include preserving the peace, preventing crime, and protecting life and property. The execution
of these duties sometimes necessitates interference with the liberty of individuals. However,
a free and democratic society cannot tolerate interference with the rights of law-abiding
people as a measure of first resort. There is a line that cannot be crossed. The rule of law draws
that line. It demands that, when intruding on an individual's freedom, the police can only act
in accordance with the law.
R v, Burns, 2008 ONCA 6. paras [2]-[4]
Criminal Harassment
[2] To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to
establish that the appellant engaged in "threatening conduct". We accept the definition of
threatening conduct given in R. v . George (2002), 2002 YKCA 2 (CanLII), 162 C.C.C. (3d)
337 (Y.T. C.A.) at para. 39 that, in order to meet the objectives of s. 264, the threatening
conduct must amount to a "tool of intimidation which is designed to instil a sense of fear in the
recipient". The impugned conduct is to be viewed objectively, with due consideration for the
circumstances in which they took place, and with regard to the effects those acts had on the
recipient.
[3] In brief, the conduct in question is as follows. The appellant and the complainant knew one
another but had virtually no contact in the three years prior to the incident. The
15
incident took place in broad daylight in downtown North Bay while the complainant was
walking down Main Street with her five-year old daughter, after having left a bank. The
appellant was dressed in full police uniform and also on foot on Main Street. He wolfwhistled
at the complainant, said "nice butt" or "nice ass" and then, after the complainant sped
up to get away from him, called out "are those pants painted on".
[4] While the appellant's conduct was clearly inappropriate and unwanted, we do not see the
incident as amounting to threatening conduct within the meaning of those words in s.
264(2)(d). Although the complainant justifiably felt upset and scared by the appellant's
conduct, viewed objectively, we do not see it as rising to the level of a "tool of intimidation
designed to instill a sense of fear".
R v. Sillip, 1997 ABCA 346, paras [16]-[18]
[16] In the case at bar, Murray, J. told the jury that the term "harass" embraced something more
than a complainant being "vexed, disquieted or annoyed". He spoke of appropriate synonyms
and mentioned some being "tormented, troubled, worried, plagued, bedeviled and badgered".
The charge, taken as a whole, emphasizes to the jury that proof beyond a reasonable doubt that
a complainant has been troubled, worried or badgered, will not suffice; proof beyond a
reasonable doubt that a complainant has been vexed, disquieted or annoyed will not suffice,
The trial judge told me jury that "something substantially more than that" was required.
[17] In fact, s. 264 articulates the additional requirement. It is that, in all of the circumstances,
the conduct of the accused caused the complainant reasonably to fear for her safety or the
safety of anyone known to her.
[18] In the result, a proper charge to a jury in a criminal harassment case must include reference
to the following ingredients of the crime, all of which must be proved beyond a reasonable
doubt:
1) It must be established that the accused has engaged in the conduct set out in s. 264
(2) (a), (b), (c), or (d) of the Criminal Code.
2) It must be established that the complainant was harassed.
3) It must be established that the accused who engaged in such conduct knew that the
complainant was harassed or was reckless or wilfully blind as to whether the
complainant was harassed;
4) It must be established that the conduct caused the complainant to fear for her safety
or the safety of anyone known to her; and
5) It must be established that the complainant's fear was, in all of the circumstances,
reasonable.
R. v. Kosikar, 1999 124 oac 289 (ca), paras [18]-[19]
18 As Proulx J.A. said in R. c. Lamontagne (1998), 129 C.C.C. (3d) 181 (Que. C.A.), s. 264(1)
sets out the constituent elements of the offence which must be proven whereas s. 264(2)
describes the four types of prohibited conduct to which subsection (1) refers.
16
19 I also agree with Proulx J.A.'s adoption, from R. v. Sillipp (1997), 11 C.R. (5th) 71 (Alta.
C.A.), of the following description of the five essential elements of the offence:
1) It must be established that the accused has engaged in the conduct set out in s.
264(2)(a), (b), (c), or (d) of the Criminal Code.
2) It must be established that the complainant was harassed;
3) It must be established that the accused who engaged in such conduct knew that the
complainant was harassed or was reckless or wilfully blind as to whether the
complainant was harassed;
4) It must be established that the conduct caused the complainant to fear for her safety
or the safety of anyone known to her; and
5) It must be established that the complainant's fear was, in all of the circumstances,
reasonable.
Ontario Human Rights Code, s.8
Reprisals
8 Every person has a right to claim and enforce his or her rights under this Act, to institute and
participate in proceedings under this Act and to refuse to infringe a right of another person
under this Act, without reprisal or threat of reprisal for so doing. R.S.O. 1990, c. H.19, s. 8.
Judicial Review Procedure Act, s. 2
Applications for judicial review
2 (1) On an application by way of originating notice, which may be styled "Notice of
Application for Judicial Review", the court may, despite any right of appeal, by order grant any
relief that the applicant would be entitled to in any one or more of the following: 1. Proceedings
by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to
the exercise, refusal to exercise or proposed or purported exercise of a statutory power. R.S.O.
1990, c. J.1, s. 2 (1).
Error of law
(2) The power of the court to set aside a decision for error of law on the face of the record on an
application for an order in the nature of certiorari is extended so as to apply on an application
for judicial review in relation to any decision made in the exercise of any statutory power of
decision to the extent it is not limited or precluded by the Act conferring such power of
decision. R.S.O. 1990, c. J.1,
s. 2 (2).
Lack of evidence
17
(3) Where the findings of fact of a tribunal made in the exercise of a statutory power of
decision are required by any statute or law to be based exclusively on evidence admissible
before it and on facts of which it may take notice and there is no such evidence and there are no
such facts to support findings of fact made by the tribunal in making a decision in the exercise
of such power, the court may set aside the decision on an application for judicial review.
R.S.O. 1990, c. J.1, s. 2 (3).
Power to set aside
(4) Where the applicant on an application for judicial review is entitled to a judgment declaring
that a decision made in the exercise of a statutory power of decision is unauthorized or
otherwise invalid, the court may, in the place of such declaration, set aside the decision. R.S.O.
1990, c. J.1, s. 2 (4).
Power to refuse relief
(5) Where, in any of the proceedings enumerated in subsection (1), the court had before the
17th day of April, 1972 a discretion to refuse to grant relief on any grounds, the court has a like
discretion on like grounds to refuse to grant any relief on an application for judicial review.
R.S.O. 1990, c. J.1, s. 2 (5). Where subs. (5) does not apply
(6) Subsection (5) does not apply to the discretion of the court before the 17th day of April,
1972 to refuse to grant relief in any of the proceedings enumerated in subsection (1) on the
ground that the relief should have been sought in other proceedings enumerated in subsection
(1). R.S.O. 1990, c. J.1, s. 2 (6).
Interpretation Act, s. 34
Offences
Indictable and summary conviction offences
34 (1) Where an enactment creates an offence,
(a) the offence is deemed to be an indictable offence if the enactment provides that the offender
may be prosecuted for the offence by indictment; (b) the offence is deemed to be one for which
the offender is punishable on summary conviction if there is nothing in the context to indicate
that the offence is an indictable offence; and
(c) if the offence is one for which the offender may be prosecuted by indictment or for which
the offender is punishable on summary conviction, no person shall be considered to have been
convicted of an indictable offence by reason only of having been convicted of the offence on
summary conviction.
Criminal Code to apply
(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable
offences created by an enactment, and all the provisions of that Code relating to summary
conviction offences apply to all other offences created by an enactment, except to the extent
that the enactment otherwise provides.
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Documents similarly construed
(3) In a commission, proclamation, warrant or other document relating to criminal law or
procedure in criminal matters,
(a) a reference to an offence for which the offender may be prosecuted by indictment shall be
construed as a reference to an indictable offence; and
(b) a reference to any other offence shall be construed as a reference to an offence for
which the offender is punishable on summary conviction.
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