W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 539(3) of the Criminal Code, restricting the publication of evidence taken at a preliminary inquiry, shall continue. Section 539 reads:

539. (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any newspaper or broadcast before such time as, in respect of each of the accused,

(c) he is discharged; or

(d) if he is ordered to stand trial, the trial is ended.

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

(4) In this section, “newspaper” has the same meaning as it has in section 297. R.S., c. C-34, s. 467; R.S.C. 1985, c. 27 (1^st Supp.), s. 97.

DATE: 20050330

DOCKETS: C42009, C42415, C42127,

C42131 and C42406

COURT OF APPEAL FOR ONTARIO

LABROSSE, GOUDGE and BLAIR JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Renee M. Pomerance for the respondent

Respondent

• and -

STEPHEN PAPADOPOULOS, SAM NOP, FADIL MUJKU, EDIN HODZIC, and VUTHY CHAK

John M. Rosen and Heather McArthur for the appellant Stephen Papadopoulos

Appellants

Anthony G. Bryant and Paul K. Burstein for the appellant Edin Hodzic

John M. Whelton for the appellant Fadil Mujku

Michael A. Moon for the appellant Sam Nop

Nadir A.G. Sachak and Faizal R. Mirza for the appellant Vuthy Chak

Heard: January 17 and 18, 2005

On appeal from the order of Regional Senior Justice S. Bruce Durno of the Superior Court of Justice dated June 21, 2004, dismissing the application for an order quashing the order of the preliminary inquiry judge, Justice Frederick L. Forsyth of the Ontario Court of Justice, that the appellants stand trial for first degree murder.

BY THE COURT:

[1] The appellants appeal the dismissal of their application for certiorari to quash their committals to stand trial for first degree murder.

Overview

[2] After a lengthy preliminary inquiry that lasted over 79 days, the appellants were committed to stand trial by Forsyth J. of the Ontario Court of Justice for the first degree murder of Matthew Daly. The appellants then brought an application for certiorari before Durno R.S.J. of the Superior Court of Justice to quash their committals. They sought an order substituting a committal on the lesser, included offence of manslaughter, or alternatively, second degree murder.

[3] The appellants argued before the reviewing judge that the committing judge had committed two types of jurisdictional error: (1) by denying natural justice occasioned by the failure to hear submissions on a legal issue, i.e. the significance of the post-offence conduct evidence; and (2) by committing the appellants to stand trial on the charge of first degree murder in the absence of any evidence to support a committal for any offence beyond manslaughter. The reviewing judge held that with respect to the first jurisdictional issue, the preliminary inquiry judge had committed a jurisdictional error through a denial of natural justice but nonetheless dismissed the application on the basis that the appellants had suffered no prejudice thereby. He upheld the order that each of the appellants stand trial for first degree murder as he found that there was some evidence upon which the preliminary inquiry judge could have reasonably concluded that the sufficiency test had been met.

[4] In these appeals, the appellants seek a substitution order that they stand trial for manslaughter or second degree murder, or alternatively, that the matter be remitted back to the committing judge for reconsideration of the issue of committal after full submissions in respect of the post-offence conduct evidence. [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.] What they contest is their level of culpability and the finding that they suffered no prejudice because of the breach of natural justice. They also seek to have the evidence of Officer Fabe excised from the record or considered as either inadmissible or as “no evidence”.

[5] In response, the Crown’s primary position is that, contrary to the finding of the reviewing judge, there was no denial of natural justice. If there was, it is submitted that the reviewing judge applied the correct remedial approach and properly upheld the committals on the basis that there was no demonstrable prejudice. The Crown further submits that the evidence adduced at the preliminary inquiry should not be altered and amply supports the committals for trial on first and/or second degree murder.

[6] For the reasons that follow, we agree with the result reached by the reviewing judge and would dismiss the appeal.

The Alleged Criminal Conduct

[7] [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.]

[8] [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.]

Position of the Crown

[9] [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.] It was the Crown’s position that the evidence reasonably supports the inference, that, at the time of the killing, each appellant had the subjective intention to cause serious bodily harm to the deceased, which they knew was likely to result in death. This would ground liability for second degree murder under s. 229(1)(ii) of the Criminal Code. The Crown also alleged that the evidence also reasonably supports the inference that this intention was the product of planning and deliberation. This would ground liability for first degree murder under s. 235(2) of the Criminal Code, whether or not a particular accused is proved to have physically participated in the beating that caused the death.

Scope of Certiorari Review

[10] It is well settled that the scope of review of a committal flowing from a preliminary inquiry is extremely narrow. In this context, review is strictly limited to errors of a jurisdictional nature. The reviewing court may only interfere where there has been a loss or excess of jurisdiction. Jurisdictional error typically arises where a preliminary judge commits an accused to stand trial in the absence of any evidence on an essential element of the offence. An error as to the sufficiency of the evidence is not reviewable on certiorari except where it results in a committal to stand trial in the absence of any evidence capable of supporting a conviction: see for example, R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601. It may also arise where there has been a denial of natural justice: R. v. Forsythe (1980), 53 C.C.C. (3d) 225 (S.C.C.) at p. 229.

The Alleged Denial of Natural Justice

[11] The reviewing judge concluded that the conduct of the preliminary inquiry resulted in a denial of natural justice because the appellants were deprived of the right to be heard in relation to the post-offence conduct, on which the committing judge relied in arriving at his decision. [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.]

[12] [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.] … the appellants had the right of full written submissions which they all exercised. Some of those submissions expressly addressed the use to be made of post-offence conduct evidence. In these circumstances, because the appellants were accorded the right to make written submissions on the issue, we think it doubtful that there was a violation of natural justice. Because of our view of the discretion available to the reviewing judge, we need not finally decide this issue.

[13] The reviewing judge concluded that even though there had been a jurisdictional error in the form of a denial of natural justice, certiorari should not issue to quash the committal because the applicants had suffered no prejudice. In doing so, he relied upon the decision of this court in R. v. Harrington, [2004] O.J. No. 259.

[14] In Harrington, the preliminary inquiry judge refused to allow counsel to make submissions on all issues except one. This procedural error amounted to a denial of natural justice. The reviewing justice agreed there had been a denial of natural justice, but refused to quash the committal because in his view there was no prejudice to the applicant since committal for trial had been inevitable. This court upheld that decision, relying upon the power contained in paragraph 686(1)(b)(iv) of the Criminal Code (“the proviso”), which states that an appellate court may dismiss an appeal where,

notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby.

[15] Section 784(2) of the Criminal Code makes s. 686 applicable to appeals from a dismissal of an application for an extraordinary remedy such as certiorari.

[16] The appellant Hodzic submitted that Harrington is wrongly decided and that once a preliminary inquiry judge has committed an error going to jurisdiction as a result of a denial of natural justice, the reviewing court does not have the power to refuse to quash the committal on the grounds of lack of prejudice. We do not agree.

[17] It makes no sense that a reviewing justice, at the superior court level, should have no choice but to quash a committal in the event of a jurisdictional error resulting from a denial of natural justice, whereas the court of appeal reviewing that same decision may deny to quash on the basis of the proviso – in spite of the jurisdictional error – because there has been no prejudice. The fate of a committal for trial should not depend on whether a party must take a further appeal.

[18] The answer to this apparent anomaly lies in the nature and scope of the authority of the superior court as a court of general jurisdiction and the inherent jurisdiction that is a component of the broad powers accompanying the general jurisdiction authority. In an article entitled, “The Inherent Jurisdiction of the Court”, (1970) 23 Current Legal Problems 23, I.H. Jacob describes the inherent jurisdiction of a superior court in the following terms (at pp. 51-52):

In this light, the inherent jurisdiction of the court may be defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.

It may be objected that this view of the nature of the inherent jurisdiction of the court postulates the existence of an amplitude of amorphous powers, which may be arbitrary in operation and which are without limit in extent. The answer is that a jurisdiction of this kind and character is a necessary part of the armoury of the courts to enable them to administer justice according to law. The inherent jurisdiction of the court is a virile and viable doctrine which in the very nature of things is bound to be claimed by the superior courts of law as an indispensable adjunct to all their other powers, and . . . it operates as a valuable weapon in the hands of the court to prevent any clogging or obstruction of the stream of justice.

[19] This jurisdiction, in our view, empowers the reviewing judge to exercise a “proviso-like” discretion to refuse to quash a committal where the accused has suffered no prejudice because the committal would otherwise have been inevitable, even where there has been a denial of natural justice. In this case, the reviewing judge declined to grant the extraordinary relief of certiorari because the alleged error ultimately made no difference.

[20] The decision whether to grant or not to grant a prerogative remedy is ultimately a matter of discretion, exercised by the superior court as part of its general and inherent jurisdiction: R. v. Nat Bell Liquors Ltd. (1922), 37 C.C.C. 129 (S.C.C.); R. v. Workmen’s Compensation Board Ex parte Kuzyk, [1968] 2 O.R. 337, (C.A.); and Re Krawkowski and the Queen (1983), 4 C.C.C. (3d) 188 (S.C.C.). While this authority must be exercised in accordance with established principles, there are cases where the court has exercised its jurisdiction not to award the remedy whether or not there was jurisdictional error – e.g., where there has been unnecessary delay in applying for the writ, or where the applicant has not acted in good faith in seeking the order: see for example, Young v. Attorney-General of Manitoba, Boxall and Fryer (1960), 129 C.C.C. 110 (Man. C.A.) and Krawkowski, supra. In general, where the legal grounds for quashing a committal are made out, the writ will issue. This is so, “unless”, as Sir Wilfred Greene M.R. noted in R. v. Stafford Justices Ex parte Stafford Corp., [1940] 2 K.B. 33 at 44, “there is something in the circumstances of the case which make it right to refuse the relief sought.”

[21] We see no reason in principle why, if the discretion may be exercised to refuse a prerogative remedy in the face of jurisdictional error in some circumstances – such as those referred to above – it may not be exercised likewise in appropriate circumstances where there has been no prejudice to the applicant whether or not there was a denial of natural justice leading to jurisdictional error because the committal would otherwise have been inevitable. In our opinion, Harrington is an example of one such case, and the reviewing judge was justified in following it in the circumstances of this case.

[22] The appellants rely upon the following statement by LeDain J. in Cardinal and Oswald v. Director of Kent Institution (1985), 23 C.C.C. (3d) 118 (S.C.C.), at p. 132:

I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing [emphasis added].

[23] Cardinal was an administrative law case in which the director of a penal institution had declined to follow the recommendations of a classification board that the claimants be returned from isolation to the general prison population, and who had refused to allow the claimants to make representations regarding their version of events. It has been cited in many authorities for the proposition that the denial of a right to a fair hearing cannot be cured and must always render the decision invalid: see for example, Gale v. Canada (Treasury Board), 2004 FCA 13; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at para. 40; and Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.

[24] In Mobil Oil, however, Iacobucci J. softened the uncompromising approach in Cardinal by accepting that there are rare circumstances in which the court may exercise its discretion and not grant a remedy for a breach of procedural fairness where the result is otherwise inevitable (see paras. 52-54). This approach was acknowledged by Rothstein J.A. in Gale at para. 13, although in the circumstances of that case the matter was remitted back to the adjudicator on the basis that there had been a breach of procedural fairness; the court concluded that any finding by it that the impugned evidence would not have affected the result of the adjudication would be a finding based on speculation.

[25] The notion of “speculation” is important in this context. I note that in Cardinal LeDain J. observed at p. 132 that it is not for the court “to deny that right and sense of justice on the basis of speculation as to what the result might have been” [emphasis added]. In Mobil Oil, the rare exception of which Iacobucci J. spoke, that permits the court to refuse the remedy in the face of procedural unfairness, is a case where the result would otherwise have been inevitable. It is not enough for the reviewing court to say that a fair hearing would not likely have resulted in a different decision.

[26] In Harrington, the reviewing justice and this court both concluded that a committal for trial was inevitable, notwithstanding the denial of natural justice. We therefore agree with the reviewing judge that he had a discretion not to grant a remedy despite finding a breach of natural justice. However, we disagree that in exercising that discretion, the appropriate yardstick is the Tuske test: see R. v. Tuske, [1978] O.J. No. 1253 (C.A.). Rather, the appropriate test must be whether the result would have necessarily been the same, notwithstanding the denial of natural justice.

[27] Here, we are satisfied that whether or not there was a denial of natural justice, the appellants would inevitably have been committed for trial, even if there had been full argument on the question of the after-the-fact conduct.

[28] The appellants therefore suffered no prejudice, and the reviewing judge properly exercised his discretion to refuse to quash the committal.

The Evidence of Officer Fabe

[29] [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.] The appellants argue that the evidence of Officer Fabe should effectively be excised from the record or considered “as either inadmissible or as ‘no evidence’ in the application of the Arcuri test”: see R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.). In advancing this argument the appellants rely on the Crown’s confirmation that it will not be calling Officer Fabe to testify at trial. [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.]

[30] Clearly, it is not correct to alter the record for review purposes as proposed by the appellants. The recent decisions of the Supreme Court of Canada in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 and Deschamplain are dispositive of this issue. In these cases, the Supreme Court held that, given the language of s. 548(1)(b) of the Code, a preliminary judge who fails to consider all of the admitted evidence before discharging the accused commits a jurisdictional error. The same principle must logically apply to a reviewing or appellate court. Save for evidence that is jurisdictionally tainted, “a failure to consider all of the admitted evidence” will amount to error. Having been admitted at the preliminary inquiry, the evidence of Officer Fabe must form part of the evidentiary record that is considered when reviewing the committals. The fact that certain evidence will not be called at trial has no bearing on jurisdiction.

The Evidence

[31] The lengthy evidence given at the preliminary inquiry was minutely reviewed by both the committing and reviewing judges in their extensive reasons. The evidence capable of supporting an inference of intent to murder can be derived from several factors … [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.]

[32] While there may be other inferences from the evidence, those noted above are reasonable inferences open to a properly instructed jury. They are capable of supporting an inference that all of the assailants were engaged in a joint enterprise with a common intention in inflict bodily harm of such a grave and serious nature that they all knew that death was likely to occur. It is unnecessary to determine the exact nature of their participation, provided they had the requisite intent. It is not necessary that there be evidence a particular participant inflicted the fatal blows. See R. v. Portillo (2003), 176 C.C.C. (3d) 467, and R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1.

[33] We reject, as the committing and reviewing judges did, what was referred to in both courts below, as the “bifurcated attack theory”, whereby the appellants argued in their facta, but did not argue during oral argument, that the only reasonable inference was that the blows that caused death were those inflicted by … [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.]

[34] The nature of the assault itself is a compelling item of evidence from which the intent required for murder under s. 229(a)(ii) could be inferred. The forensic evidence in relation to the nature of the attack remains open to the inference that all appellants possessed the requisite intention for murder.

Planning and Deliberation

[35] As is correctly pointed out by both courts below, although there may be competing inferences available from the evidence, one of the reasonable inferences open to a properly instructed jury is that the murder was planned and deliberate. [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.] As noted by the reviewing judge, there is a substantial body of evidence from which it could reasonably be concluded that there was planning and deliberation.

Disposition

[36] Both comprehensive reasons of the committing and reviewing judges contained detailed analyses of the evidence implicating each individual appellant in the planned and deliberate murder of Matthew Daly. [A portion of the decision that is subject to an order made at the preliminary inquiry prohibiting publication of information has been edited for the purposes of publication of the judgment, pending the conclusion of the trial proceedings. The full text of the reasons is available at the Registry of the Court of Appeal.] The combined effect of the evidence summarized above, with the concessions, leads to one conclusion: there is a solid basis upon which to conclude that the appellants should be tried for first and/or second degree murder. The committals must be sustained and the resolution of competing inferences left for a jury to determine.

[37] The appellants have failed to demonstrate any basis for appellate intervention. The application for certiorari was properly dismissed.

[38] Accordingly, the appeal is dismissed.

Released: MAR 30 2005 Signed: “J.M. Labrosse J.A.”

JML “S.T. Goudge J.A.”

“R.A. Blair J.A.”