WARNING This appeal is subject to a mandatory publication ban under s. 278.95. This section of the Criminal Code provides:

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

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

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

COURT OF APPEAL FOR ONTARIO

DATE: 20220505 DOCKET: C70089

Strathy C.J.O., Coroza and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

M.N. Appellant

Counsel: Manasvin Goswami, for the respondent Sherif M. Foda and Emily Dixon, for the appellant

Heard: March 18, 2022 by video conference

On appeal from the judgment of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated November 4, 2021, dismissing an application for certiorari in relation to the order of Justice Maria Speyer of the Ontario Court of Justice, dated October 7, 2021, with reasons dated October 21, 2021, and refusing to order mandamus.

Coroza J.A.:

A. Overview

1 The appellant, M.N., appeals the dismissal of his application to the Superior Court of Justice for the extraordinary remedies of certiorari and mandamus. The appellant is currently being tried by a judge of the Ontario Court of Justice for the offence of sexual assault. During the trial, the trial judge denied an application for a mistrial and re-election as to his mode of trial. The appellant then brought an application to quash the decision but the application judge summarily dismissed the request and ordered that the trial should continue.

2 Although he was charged in 2019, the appellant’s trial has still not finished. The trial is scheduled to continue in August of 2022 and conclude in September of 2022. The application judge noted that this case has a lengthy history of delay and follows a series of pre-trial motions and applications brought by the appellant, including a prior application for certiorari and mandamus before a different justice of the Superior Court of Justice.

3 On appeal, the appellant argues that the application judge took a restrictive view of the availability of extraordinary remedies in denying his application. He submits that the application judge ignored the natural justice implications of the trial judge’s decision and argues that the general prohibition against interlocutory appeals in criminal cases does not foreclose the availability of extraordinary remedies in this case. The appellant asserts that certiorari was available when reviewing the trial judge’s decision to deny his re-election because that decision has important jurisdictional implications. If certiorari was available, then the remedy of mandamus directing the trial judge to permit the appellant’s re-election to trial by judge and jury should also have been granted.

4 In my view, the application judge was correct to dismiss the appellant’s request for the extraordinary remedies. There was no basis to grant the relief requested because the trial judge did not make a jurisdictional error in denying the application for a mistrial and re-election as to mode of trial. Accordingly, I would dismiss the appeal.

B. Facts

(1) Material Facts

5 On June 12, 2019, the appellant was charged with one count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. In her call to 911, the complainant reported a sexual assault and described waking up in a state of undress after spending the night with the appellant. In a later statement to the police, the complainant referred to the appellant as “an ugly Indian” who was “not [her] type”.

6 The appellant was released on bail, with conditions that he not be near or communicate with the complainant. In the weeks following his release, the Crown provided initial disclosure in relation to the alleged of sexual assault. He did not then raise any concerns about outstanding disclosure from the Crown.

7 On July 1, 2019, the complainant again called 911 and reported that the appellant had breached his bail conditions by approaching her in a local bar and attempting to speak with her. During this call, the complainant used a derogatory racial slur to describe the appellant. The police investigated the complaint, but no additional charges were brought against the appellant.

(2) The Election

8 On November 18, 2019, the appellant elected to be tried in the Ontario Court of Justice by a judge alone. Following a lengthy series of applications brought by the appellant, the Toronto Police Service was ordered to produce all occurrence reports in which the complainant had made any criminal allegations. On July 12, 2021, the Crown was made aware of the occurrence report relating to the July 1, 2019 complaint (the “occurrence report”). The Crown disclosed the occurrence report.

(3) The Application for Mistrial and Re-Election

9 On August 19, 2021, the appellant brought an application seeking a mistrial and an order for re-election to be tried in the Superior Court of Justice with a judge and jury, arguing that his election was uninformed in the absence of the occurrence report. He argued that the Crown’s delayed disclosure of the occurrence report infringed his right to make full answer and defence under s. 7 and his right to a trial by judge and jury under s. 11(f) of the Canadian Charter of Rights and Freedoms. He also maintained that the Crown’s delayed disclosure denied his “natural right” to a trial by jury.

10 The trial judge dismissed the application on October 7, 2021. In doing so, she explained that the Crown was not obligated to produce the occurrence report before the appellant’s election because it was subject to the third-party disclosure regime. Put otherwise, the Crown was not required to disclose the occurrence report at first instance because it was neither “fruits of the investigation” nor “obviously relevant” to the appellant’s case. On this basis, the trial judge concluded that the delayed disclosure did not violate the appellant’s Charter rights nor any rights of natural justice.

11 The trial judge also held that the delayed disclosure of the occurrence report would not have affected the outcome of the trial or the fairness of the trial process. In coming to this conclusion, she rejected the appellant’s argument that he would have elected to proceed by trial by judge and jury if he had the occurrence report at the time of his election. In rejecting this argument, the trial judge explained that the appellant could have requested the occurrence report from the Crown before his election and that nothing in the occurrence report would have undermined his defence strategy at trial.

(4) The Application for Certiorari and Mandamus

12 The appellant then brought an application in the Superior Court of Justice seeking an order of certiorari setting aside the trial judge’s decision and an order of mandamus directing the trial judge to allow him to re-elect to trial by judge and jury in the Superior Court of Justice.

13 The application judge summarily dismissed the application on November 4, 2021. In doing so, he explained that the remedies the appellant sought were not available because the alleged errors that the appellant identified in the trial judge’s reasons were not jurisdictional in nature. The application judge ordered that the trial continue in the Ontario Court of Justice. The appellant then proceeded to bring this appeal.

C. The Issues on Appeal

14 Pursuant to s. 784(1) of the Criminal Code, this court has jurisdiction to hear appeals from decisions granting or refusing the relief sought in proceedings by way of certiorari and mandamus.

15 The appellant raises the following issues on appeal:

1. Did the application judge err in refusing to order certiorari to quash the trial judge’s decision and mandamus compelling the trial judge to allow his re-election?
2. Did the trial judge err in dismissing the appellant’s application for a mistrial and re-election?
3. Was the appellant’s election to be tried in the Ontario Court of Justice with a judge alone informed?

16 I would answer no to the first question, and I would dismiss the appeal on this basis. Consequently, it is unnecessary to deal with the other two questions.

D. Analysis

(1) Did the application judge err in refusing to order certiorari to quash the trial judge’s decision and mandamus compelling the trial judge to allow his re-election?

17 Certiorari is an extraordinary remedy, the use of which is “tightly limited” by the Criminal Code and the common law to ensure that the general prohibition against interlocutory appeals in criminal matters is respected: R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 10. This general prohibition is a well-established principle of our criminal justice system that helps ensure the timely resolution of criminal matters: Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 959; R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1774; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 857.

18 Expanding the availability of extraordinary remedies to effect an “end-run” around this general prohibition would undermine the principles espoused by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, as interlocutory appeals threaten the timely delivery of justice by fragmenting criminal trials: Awashish, at para. 10. As the Supreme Court of Canada explained in Awashish, challenging interlocutory rulings in criminal matters “risks having issues decided without the benefit of a full evidentiary record – a significant source of delay and an inefficient use of judicial resources”: para. 10.

19 It is in part for this reason that certiorari is only available to parties in a criminal matter where a judge of the provincial court makes a jurisdictional error: Awashish, at para. 20. That is, an error where the judge “fails to observe a mandatory provision of a statute” or “acts in breach of the principles of natural justice”: Awashish, at para. 23. As this court explained in York (Regional Municipality) v. McGuigan, 2018 ONCA 1062, 144 O.R. (3d) 81, at para. 64:

Certiorari is an extraordinary remedy, which issues from the superior court to ensure that courts of limited authority, such as the provincial offences court, do not exceed their limited jurisdiction. Provided courts of limited jurisdiction do not exceed the scope of their authority, certiorari is not available to the parties to a proceeding to control the manner in which the authority is exercised.

20 Certiorari is only available when the alleged error goes to the jurisdiction of the provincial court itself. It is not enough to identify an alleged legal error in the provincial court’s interlocutory ruling. Any such error would properly be dealt with at the conclusion of the trial: R. v. Stipo, 2019 ONCA 3, 144 O.R. (3d) 145, at para. 52, and R. v. Amiri, 2021 ONCA 902.

21 Certiorari was not available in this case. The application judge was aware of the principles described above, and he carefully considered and rejected the appellant’s arguments to the contrary. I agree with and adopt the following passages of the application judge’s reasons:

I have reviewed Speyer J.’s reasons for dismissing the mistrial application. It is clear that the rulings complained of by the applicant are decisions that Speyer J. was entitled to make and fell entirely within her jurisdiction.

The applicant’s arguments that they were “unreasonable” reflect the fact that they can only be attacked as legal, and not jurisdictional, errors. Accordingly, the remedies sought by the applicant are unavailable.

22 As I will explain below, the application judge’s conclusion is firmly supported by the jurisprudence.

23 On appeal, the appellant argues that an accused’s election as to mode of trial is so “significant from a jurisdictional perspective” that the dismissal of an application to re-elect should not be deferred until the end of trial. Instead, he argues, these decisions ought to be reviewable on certiorari as the prospect of conducting a trial without jurisdiction is a matter with grave consequences. In support of this argument, the appellant relies on a decision of the Manitoba Court of Appeal in R. v. Ruston (1991), 71 Man. R. (2d) 49 (Man. C.A.), and the recent Supreme Court of Canada decision in R. v. White, 2022 SCC 7.

24 I am not persuaded by this argument for several reasons.

25 First, I agree with the respondent’s submission that the appellant erroneously focuses on the type of remedy he was denied – being a mistrial and re-election – and the merits of the trial judge’s decision, rather than on the authority of the trial judge to deny the remedy. There is a critical difference between a challenge to jurisdiction and a challenge to the merits of a decision. Where the applicant’s complaint is grounded in the dissatisfaction with the merits of a decision, the remedy lies not with what effectively amounts to an interlocutory appeal, but with an appeal brought after the trial has ended: R. v. Moman, 2008 MBQB 311, 234 Man. R. (2d) 149, at para. 25.

26 Furthermore, I note that the trial judge’s refusal to grant a remedy of a mistrial and re-election is anchored to her finding that the disclosure sought by the appellant did not fall within the first party disclosure regime as it was third party disclosure. It is well established that a trial judge’s determination of which disclosure regime governs generally lies beyond the scope of certiorari review, as trial judges have jurisdiction to determine disputes about disclosure: Stipo, at paras. 51-52, 56; McGuigan, at para. 63.

27 Second, if this court were to accept the appellant’s submission, the availability of extraordinary remedies in the criminal context would expand significantly. This raises several practical concerns. I agree with the respondent that to accept the appellant’s proposed approach would effectively provide the parties with an immediate right of review after a failed re-election application in the Ontario Court of Justice. This would lead to more trials in that court being fragmented and delayed, thereby impeding the constitutional right to trial within a reasonable time.

28 Moreover, an accused could as easily argue that late disclosure prevented them from making an informed election in a trial before the Superior Court of Justice. If the trial judge denied them the remedy of a mistrial and re-election, the accused would then have to wait until the trial was over and bring an appeal to this court, as certiorari is not available against a superior court judge: Dagenais, at p. 865. In the circumstances of this case, broadening the use of extraordinary remedies to challenge a decision of a trial judge in the Ontario Court of Justice to refuse a re-election in the middle of a trial, where no such remedy would be available if that same decision were made in the Superior Court of Justice, creates an unprincipled distinction between trial courts that should not be encouraged: Awashish, at para. 10.

29 Third, I agree with the application judge that Ruston is not binding authority in Ontario. In Ruston, the Crown advised the accused of its intention to call similar fact evidence after the time frame for re-election as of right by the defence had expired. The Crown refused to consent to a re-election. The accused argued that his right to re-elect to be tried by judge and jury in the face of a substantial change in the case against him should be permitted, and that the Crown’s refusal to consent amounted to a breach of his right to a trial by jury, as enshrined in s. 11(f) of the Charter. The application was dismissed by a judge of the superior court. The accused then appealed the dismissal.

30 The Manitoba Court of Appeal allowed the appeal and gave effect to the accused’s re-election to be tried by judge and jury. In doing so, the court adopted the view of Lamer J. in Mills, and held that there was an exception to the general prohibition against interlocutory appeals in criminal proceedings that applied in this case. The court explained that the issue before them affected jurisdiction because if the accused had a right to re-election in the circumstances of the case, his trial before a judge alone would be a nullity.

31 But as the application judge aptly noted, the approach taken in Ruston has been explicitly rejected in Ontario. In R. v. Kerzner (1991), 3 O.R. (3d) 272 (Ont. C.A.), (sub nom R. v. Adamson), this court rejected the core holding in Ruston that there exists a right of immediate interlocutory appeal from any decision implicating an accused’s Charter rights where a jurisdictional error is alleged: at pp. 274-75. In that case, the accused and two of his former counsel appealed from “a pretrial order” removing the lawyers as counsel of record, arguing that the order violated the accused’s right to the assistance of counsel under s. 10(b) of the Charter. The appellants maintained that they had a right to bring this interlocutory appeal because the order was jurisdictional in nature.

32 This court quashed the appeal. In doing so, Arbour J.A. referred to this court’s earlier decision in R. v. Morgentaler (1984), 48 O.R. (2d) 519 (Ont. C.A.). In that case, the accused appealed the dismissal of their application to quash the indictment or stay the proceedings against them prior to the completion of trial, arguing that the legislation under which they were to be tried was not Charter compliant. The court dismissed the appeal in Morgentaler on the basis that it lacked jurisdiction to hear interlocutory appeals for which it does not have statutory authority, explaining that it is not a court of competent jurisdiction within the meaning of s. 24(1) of the Charter.

33 As Arbour J.A. pointed out in Adamson, granting the application in Morgentaler would have effectively amounted to an acquittal as the applicants alleged that the legislation under which they were to be tried was of no force or effect. She explained at para. 6:

To the extent that this could be said to involve a jurisdictional issue, and it appears that it does as it goes to the trial court's jurisdiction over the offence, it is in apparent conflict with R. v. Ruston and Morgentaler is binding on us. Furthermore, even if a distinction could be made between jurisdictional and non-jurisdictional interlocutory orders, and we do not believe that such a distinction assists in distinguishing R. v. Meltzer, the order removing counsel from the record, even if wrong or made without jurisdiction, would not, in any event, affect the jurisdiction of the trial court to proceed with the trial.

34 As the issue before the court in Adamson was not jurisdictional in nature, Arbour J.A. dismissed the appeal.

35 In my view, the application judge was correct to conclude that the approach taken in Ruston had been rejected by this court in Adamson. Accordingly, the application judge properly rejected the appellant’s submission that Ruston was a complete answer to the application before him.

36 Fourth, I am not persuaded by the appellant’s submission that the recent Supreme Court of Canada decision in White supports his position on appeal. In that case, the accused was charged with several offences following an incident on a fishing vessel, including a charge of aggravated assault for which he had a right to elect his mode of trial. His trial counsel told the court that the accused was electing trial by judge alone in the provincial court. He was later convicted of the offences. The accused then appealed his convictions, seeking a new trial based on ineffective assistance of counsel. On appeal, he argued that his trial counsel had failed to advise him of his choices as to mode of election and had entered an election to be tried in the provincial court on his behalf without discussion or his instruction. His evidence was not contradicted.

37 A majority of the Court of Appeal of Newfoundland and Labrador allowed his appeal and ordered a new trial. In doing so, the majority held that an election is one of the most important rights of an accused, and that his counsel’s failure to advise his client, or to seek his instructions on his choice of election, undermined trial fairness and resulted in a miscarriage of justice. The majority held that the accused was not required to demonstrate that he had suffered further prejudice.

38 The dissenting judge held that the appeal based on ineffective assistance of counsel should be dismissed because the accused had failed to establish that he had suffered prejudice. Put otherwise, the dissenting judge was of the view that the accused needed to demonstrate that he would have chosen his mode of trial differently had counsel informed him of his right to elect his mode of trial.

39 The Supreme Court of Canada allowed the appeal. In oral reasons, Karakatsanis J. explained that an accused must suffer subjective prejudice to satisfy the test for ineffective assistance of counsel. That is, an accused must demonstrate there was a reasonable possibility that they would have acted differently when electing the mode of trial. Karakatsanis J. found there was no evidence that the accused in White would have chosen differently had counsel informed him of his right to elect his mode of trial.

40 I see nothing in White that is of assistance to the appellant in this appeal. The Supreme Court of Canada simply affirmed that the right to elect the mode of trial is an important right that should be exercised by the accused. No one disputes that premise. The appellant elected his mode of trial in this appeal. The application judge then concluded that the trial judge did not exceed her jurisdiction by denying the appellant’s request for a mistrial and re-election. There is nothing in White that suggests the application judge erred.

41 Finally, it must be remembered that certiorari has always been understood to be a discretionary remedy of last resort. Accordingly, it would have been “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”: R. v. Duvivier (1991), 3 O.R. (3d) 49 (Ont. C.A.), at pp. 53-54, per Doherty J.A.; and see McGuigan, at para. 48.

42 Although the application judge did not dismiss the application on this basis, the discretionary nature of the remedy is still relevant. Putting aside the practical problems of granting extraordinary relief that I have outlined above, the lengthy history of this case affords an excellent example of why courts should generally restrict the use of extraordinary remedies to circumstances where no other remedy is available. [1] This trial has been fragmented. The appellant was charged in June of 2019 and he elected to be tried by judge alone in the Ontario Court of Justice on November 19, 2019. The trial is not yet complete and the appellant has brought two certiorari applications that have effectively suspended the jurisdiction of the trial court pending their determination. His trial will not continue until August of 2022 and will not conclude until the beginning of September of 2022.

43 The effective and efficient operation of our criminal justice system is not served by interlocutory challenges such as the one brought by the appellant in the instant appeal. As Watt J.A. observed in R. v. Davis, 2018 ONCA 946, at para. 15:

Accessing extraordinary remedies for every perceived legal error violates [the general prohibition against interlocutory appeals in criminal cases] 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.

44 In sum, the application judge did not err in dismissing the appellant’s application. He was correct in holding that the remedy of certiorari was unavailable to review the alleged errors that the appellant identified as they were not jurisdictional in nature. Furthermore, even when presented with an alleged jurisdictional error, the application judge still retained a discretion to deny the extraordinary remedies. To use the words of the application judge, “the correct course of action is for the trial to complete at the Ontario Court of Justice and the [appellant’s] remedy, if necessary, is an appeal after trial”.

E. Disposition

45 For these reasons, I would dismiss the appeal.

Released: May 5, 2022 “G.R.S.”

“S. Coroza J.A.”

“I agree. G.R. Strathy C.J.O.”

“I agree. J. George J.A.”

[1] The history of this proceeding has been summarized by the trial judge in her ruling. I will not repeat that detailed chronology here.