COURT OF APPEAL FOR ONTARIO

DATE: 20000317

DOCKET: C32991

RE: HER MAJESTY THE QUEEN (Respondent)

v. LINDA WAGMAN (Appellant)

BEFORE: OSBORNE A.C.J.O., FINLAYSON and LABROSSE JJ.A.

COUNSEL: Maureen Forestell (amicus curiae), for the appellant

Alex Alvaro, for the respondent

HEARD: March 16, 2000

On appeal from the ruling of Mr. Justice Reilly on a motion heard on October 5, 1999

E N D O R S E M E N T

[1] The appellant is charged with second degree murder. After the preliminary inquiry that is the subject of this appeal, the appellant was committed for trial. She then sought habeas corpus with certiorari in aid on the basis that there had been a denial of natural justice. Her application was dismissed by Reilly J. (the motions judge). The appellant was unrepresented at the preliminary inquiry but she was represented before the motions judge. Counsel has been appointed by this court, as amicus curiae, to assist in presenting argument on this appeal.

[2] Four grounds of appeal are advanced on behalf of the appellant: (1) the preliminary inquiry judge prevented her from cross-examining witnesses; (2) the preliminary inquiry improperly continued after she absented herself from the proceedings; (3) the court ought to have done more to assist the appellant, given that she was unrepresented; and (4) the court lost jurisdiction when the preliminary inquiry judge failed to conduct a fitness hearing during the preliminary inquiry.

[3] The motions judge found that the conduct of the preliminary inquiry judge had been "discourteous and arguably unjudicial on occasion". However, he concluded that there was no denial of natural justice and no loss of jurisdiction.

[4] The motions judge noted that most of the questions that the appellant was not permitted to ask were irrelevant. While other questions may have had some relevance, they involved matters of such slight significance that the interference with cross- examination did not amount to a denial of natural justice.

[5] The preliminary inquiry judge found that the appellant absented herself for the purpose of avoiding or frustrating the process of the court. The motions judge concluded that the preliminary hearing judge did not lose jurisdiction when he proceeded in her absence for a brief period of time. We note that the witnesses heard in her absence were later recalled, that the appellant was provided with a transcript of their evidence and permitted to cross-examine the witnesses.

[6] The appellant twice discharged counsel before the preliminary inquiry. The motions judge noted that the appellant again discharged counsel during the preliminary hearing. However, she was assigned counsel (by Legal Aid) to assist her during the preliminary inquiry. Although she was unrepresented, she had counsel to assist her and was given the opportunity to consult with them.

[7] The appellant was found fit to stand trial at a fitness hearing held prior to the preliminary inquiry. At the instance of the Crown and over the objections of the appellant, a fitness hearing was held following the preliminary inquiry. It was held that there were no reasonable grounds to try this issue at that time. The preliminary hearing judge also considered the issue of fitness but concluded that there were no reasonable grounds to find that the appellant was not fit to stand trial. The making of this ruling was within his jurisdiction. This court was asked to order a fitness hearing under s. 672.23(1) of the Criminal Code. Nothing is to be gained by this request. This matter can be raised at any time before or during trial. This issue was not raised before the applications judge.

[8] In our view, the applications judge did not err in the exercise of his discretion in concluding that there had been no denial of natural justice and no loss of jurisdiction by the preliminary inquiry judge.

[9] Finally, we note that the amicus curiae acknowledges that sufficient evidence was adduced at the preliminary inquiry to justify the appellant's committal on the offence as charged. We see no purpose in granting the request to remit this matter for further cross-examination or inquiry into the fitness of the appellant.

[10] The appeal is dismissed.

(signed) "C. A. Osborne A.C.J.O."

(signed) "G. D. Finlayson J.A."

(signed) "J. M. Labrosse J.A."