Court of Appeal for Ontario
Before: Weiler, Sharpe and Blair JJ.A.
Between:
The Attorney General of Ontario
Respondent
and
Maxine Collins
Appellant [Moving party]
Counsel:
Maxine Collins in person
Greg Skerkowski, for the respondent
Heard and released orally: January 31, 2012
ENDORSEMENT
1The appellant’s private prosecution was stayed by the Attorney General pursuant to s. 579(1) of the Criminal Code before her case had been considered by a justice of the peace on a pre-enquete hearing pursuant to s. 507.1.
2The appellant applied for mandamus to require the justice of the peace to proceed with the pre-enquete. The application judge held that the recent decision of this court in R. v. McHale, 2010 ONCA 361, 256 C.C.C. (3d) 26, leave to appeal refused [2010] S.C.C.A. No. 290, stood as binding authority that the Attorney General was entitled to stay the proceedings and therefore dismissed the mandamus application.
3The appellant wishes to challenge the authority of R. v. McHale and asked the Chief Justice to strike a five-judge panel to hear her appeal.
4On August 24, 2011, Mr. Kromkamp, the Court’s senior legal officer, wrote to the appellant advising her that O'Connor A.C.J.O. had reviewed both her correspondence requesting a five-judge panel and her appellant’s factum but that he had declined to grant her request.
5The appellant moved for an order to review and to set aside that decision before Goudge J.A. In his endorsement, dated November 18, 2011, Goudge J.A. stated:
In my view the order of O'Connor A.C.J.O. is correct. I see no reason for a five-judge panel. Motion dismissed.
6The appellant now moves to review and set aside the order of Goudge J.A.
7In our view, the motion must be dismissed on the ground that there is no authority to review or appeal a decision of the Chief Justice of Ontario or the Associate Chief Justice of Ontario to assign, or to refuse to assign, five judges to hear an appeal.
8The Chief Justice of Ontario and, in his or her absence, the Associate Chief Justice of Ontario, has, by virtue of the Courts of Justice Act, s. 5(1) and (2) "general supervision and direction over the sittings of the Court of Appeal and the assignment of judicial duties of the court." It is pursuant to that authority, and to the court's practice, that those judicial officers determine when it is appropriate to assign five judges to hear a case. Neither the Courts of Justice Act nor the Rules of Civil Procedure provide for any appeal or review from decisions of the Chief Justice or Associate Chief Justice with respect to the assignment of judicial duties.
9We would add, however, that it is still open to a panel of three judges assigned to hear a particular case, to ask the Chief Justice to consider assigning the case to a panel of five judges if that panel of three is persuaded that an arguable case can be made for reviewing or overruling one of this court's past decisions.
10For these reasons, this motion is dismissed.
“K.M. Weiler J.A.”
“Robert J. Sharpe J.A.”
“R.A. Blair J.A.”