Court of Appeal for Ontario

Date: 2018-11-23 Docket: C65772

Judges: Watt, van Rensburg and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Neil Davis Appellant

Counsel

Michael A. Moon, for the appellant

Jennifer Conroy, for the respondent

Heard and released orally: November 9, 2018

On appeal from: the decision of Justice Joseph Di Luca of the Superior Court of Justice, dated July 31, 2018, dismissing applications for orders in lieu of prohibition, procedendo, with certiorari in aid, from the ruling of Justice David S. Rose of the Ontario Court of Justice, dated April 9, 2018.

Reasons for Decision

The Background Facts

[1] The appellant appeals from a decision of a judge of the Superior Court of Justice refusing to issue orders in lieu of prohibition and procedendo with certiorari in aid.

[2] During an unrelated investigation which caused them to be in the Regional Municipality of Peel, officers of York Regional Police Services arrested the appellant in Mississauga on charges of trafficking in cocaine and possession of cocaine for the purpose of trafficking. The offences are alleged to have occurred in Mississauga.

[3] In the usual course of events, offences alleged to have occurred in the Regional Municipality of Peel, are tried in that jurisdiction. But here, arresting officers transported the appellant back to the Regional Municipality of York where the information, alleging offences in Mississauga, was laid; a bail hearing held; and the appellant subsequently required to appear for trial.

[4] Over the next ten months, the appellant appeared before judges of the Ontario Court of Justice in Newmarket, the judicial seat of the Regional Municipality of York and the Central East Region. His counsel also appeared and participated in a judicial pre-trial. About sixteen months ago the appellant elected to be tried in the Ontario Court of Justice. A trial date was fixed for what was anticipated to be a three-day trial.

The Pre-Trial Motion

[5] On the first day of trial, the appellant objected to the territorial jurisdiction of the court. He asked the trial judge not to hear the case because the court in that judicial Region (Central East) had no jurisdiction to hear a case in which the offences charged were alleged to have been committed entirely in another Region (Central West).

[6] The presiding judge dismissed the application. The appellant pleaded not guilty. Before trial proceedings could get underway, counsel for the appellant filed a Notice of Application for an order in lieu of prohibition with certiorari in aid in the Superior Court of Justice. The relief sought was an order prohibiting the trial judge from proceeding with the appellant's trial.

The Decision of the Application Judge

[7] The application judge dismissed the application and directed that proceedings be returned to the trial judge to continue the trial.

The Notice of Appeal

[8] The appellant filed a Notice of Appeal in this court challenging the decision of the application judge. He sought, among other things, an order from a single judge of this court staying the continuation of the trial proceedings pending the determination of the appeal. The single judge declined to make the order but directed that the appeal be expedited.

Analysis

[9] In our view this appeal fails for two reasons.

[10] First, it fails on its merits for the reasons given by the application judge in the Superior Court of Justice.

[11] Second, it fails for the reasons expressed in the decision of the Supreme Court of Canada in R. v. Awashish, 2018 SCC 45, a judgment not available to counsel or to the courts below.

[12] The challenge to the territorial jurisdiction of the trial court was based on a submission that the effect of s. 470 of the Criminal Code and various provisions of the Courts of Justice Act, in particular s. 36, was that territorial jurisdiction resided in the place where the offence was alleged to have occurred, that is to say, the Regional Municipality of Peel. The appellant invoked the jurisdiction of the trial court to decide this issue. The trial court decided the issue. The appellant disagreed with the decision. According to him, the trial court erred. The appellant then sought relief from the Superior Court of Justice, invoking that court's supervisory authority under Part XXVI of the Criminal Code.

[13] It is well established and confirmed by the decision in Awashish that extraordinary remedies, among them prohibition, procedendo, and certiorari, are available to parties in criminal proceedings only for a jurisdictional error by a provincial court judge. They are not available as a means to review or correct what are said to be errors of law in the exercise of jurisdiction. To permit recourse to them to review what are said to be errors of law gives rise to de facto interlocutory appeals and violates the general principle against interlocutory appeals in criminal cases: Awashish, at paras. 2; 10-11; 17 and 20.

[14] In this case, the appellant, having already attorned to the jurisdiction of the trial court by several appearances; the conduct of a pre-trial; an election of mode of trial; and setting of a trial date advanced an argument about what is termed "territorial jurisdiction". It necessarily follows that the appellant acknowledges the trial court's authority, said otherwise jurisdiction, to decide this issue. The appellant and respondent advanced arguments about the effect of several statutory provisions on the authority of the court to try the case. The trial judge decided the issue by interpreting the effect of those provisions. His authority to make that decision, said otherwise his jurisdiction to do so, was not dependent on the correctness of that decision. Right or wrong he had the authority to make that call. He did not have jurisdiction only if he were correct and lose it if he were wrong. He did not contravene any mandatory provision of the Criminal Code nor act in breach of the principles of natural justice. The extraordinary remedies are not available to review that decision.

[15] It would appear that the appellant has several other pre-trial applications in mind for the trial judge. No doubt experienced counsel will proceed with these motions in a timely way on the basis of proper material. That said, counsel should also bear in mind the teachings of Awashish that lack of success is not the equivalent, or even a reasonable facsimile, for jurisdictional error. There is a general prohibition against interlocutory appeals in criminal cases. Accessing extraordinary remedies for every perceived legal error violates this principle and is in direct tension with the approach set out in R. v. Jordan, 2016 SCC 27, which exhorts all principals in the criminal justice process to assist in the timely and informed resolution of allegations of crime.

[16] The appeal is dismissed.

"David Watt J.A."

"K. van Rensburg J.A."

"David Brown J.A."