COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and– DAVID PATERSON (Appellant)
BEFORE: FINLAYSON, DOHERTY and O’CONNOR JJ.A.
COUNSEL: Harvey S. Stone, for the appellant Christine Tier, for the respondent
HEARD: May 26, 2000
On appeal from the order of Stong J. dismissing the application for certiorari dated May 28, 1999.
E N D O R S E M E N T
[1] The appellant is currently being tried in the Ontario Court of Justice by the Honourable Judge Bellefontaine on a plea of not guilty to one count of “driving while impaired” and one count of “over 80” in an information on which the Crown elected to proceed summarily. At the conclusion of the Crown’s case, the defence moved to quash the information on the ground that the informant did not have reasonable and probable grounds to believe that the one offence, “over 80”, had been committed at the time the information was sworn. The trial judge refused to give effect to this motion. Defence counsel elected to treat the trial judge’s reasons as a refusal to exercise jurisdiction and brought an application to quash the information before the Honourable Mr. Justice Stong of the Superior Court of Justice. Stong J. refused to grant certiorari and dismissed the application. The trial is scheduled to resume on June 2nd and 3rd .
[2] This is an appeal from the decision of Stong J. In our opinion the application by the accused for certiorari during the course of his trial on a ruling made by the trial judge with respect to one of the two counts for which he was being tried is misconceived. As this court has stated in R. v. Duvivier (1991), 1991 7174 (ON CA), 64 C.C.C. (3d) 20 (Ont. C.A.) at p. 23:
… The jurisdiction to grant that relief, either by way of prerogative writ or under s. 24(1) of the Charter, is discretionary. It is now firmly established that a court should not routinely exercise that jurisdiction where the application is brought in the course of ongoing criminal proceedings. In such cases, it is incumbent upon the applicant to establish that the circumstances are such that the interests of justice necessitate the immediate granting of the prerogative or Charter remedy by the superior court: [References omitted].
These cases dictate that issues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should routinely be raised and resolved within the confines of the established criminal process which provides for a preliminary inquiry (in some cases), a trial, and a full appeal on the record after that trial.
[3] There is no provision in the Criminal Code or elsewhere for interlocutory appeals in criminal cases. Certiorari in not routinely available as a substitute. Despite repeated requests from the court counsel for the appellant could give no reason why the interests of justice in the case in appeal required an immediate granting of the prerogative relief sought. Stong J. should not have entertained the application for certiorari and the trial should have proceeded to completion.
[4] Accordingly the appeal from Stong J.’s refusal to grant certiorari is dismissed and the matter is remitted to the trial judge for the completion of the trial.
Signed: “G.D. Finlayson J.A.” “Doherty J.A.” “D. O’Connor J.A.”