COURT OF APPEAL FOR ONTARIO

DATE: 20000531

DOCKET: C33535

RE: HER MAJESTY THE QUEEN (Respondent) –and– DAVID
PATERSON (Appellant)

BEFORE: FINLAYSON, DOHERTY and O’CONNOR JJ.A.

COUNSEL: Harvey S. Stone, for the appellant
Christine Tier, for the respondent

HEARD: May 26, 2000

On appeal from the order of Stong J. dismissing the application
for certiorari dated May 28, 1999.

E N D O R S E M E N T

[1] The appellant is currently being tried in the Ontario Court
of Justice by the Honourable Judge Bellefontaine on a plea of not
guilty to one count of “driving while impaired” and one count of
“over 80” in an information on which the Crown elected to proceed
summarily. At the conclusion of the Crown’s case, the defence
moved to quash the information on the ground that the informant
did not have reasonable and probable grounds to believe that the
one offence, “over 80”, had been committed at the time the
information was sworn. The trial judge refused to give effect to
this motion. Defence counsel elected to treat the trial judge’s
reasons as a refusal to exercise jurisdiction and brought an
application to quash the information before the Honourable Mr.
Justice Stong of the Superior Court of Justice. Stong J. refused
to grant certiorari and dismissed the application. The trial is
scheduled to resume on June 2nd and 3rd .

[2] This is an appeal from the decision of Stong J. In our
opinion the application by the accused for certiorari during the
course of his trial on a ruling made by the trial judge with
respect to one of the two counts for which he was being tried is
misconceived. As this court has stated in R. v. Duvivier (1991),
1991 7174 (ON CA), 64 C.C.C. (3d) 20 (Ont. C.A.) at p. 23:

… The jurisdiction to grant that relief,
either by way of prerogative writ or under s.
24(1) of the Charter, is discretionary. It
is now firmly established that a court should
not routinely exercise that jurisdiction
where the application is brought in the
course of ongoing criminal proceedings. In
such cases, it is 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: [References omitted].

These cases dictate that issues, including
those with a constitutional dimension, which
arise in the context of a criminal
prosecution should routinely be raised and
resolved within the confines of the
established criminal process which provides
for a preliminary inquiry (in some cases), a
trial, and a full appeal on the record after
that trial.

[3] There is no provision in the Criminal Code or elsewhere for
interlocutory appeals in criminal cases. Certiorari in not
routinely available as a substitute. Despite repeated requests
from the court counsel for the appellant could give no reason why
the interests of justice in the case in appeal required an
immediate granting of the prerogative relief sought. Stong J.
should not have entertained the application for certiorari and
the trial should have proceeded to completion.

[4] Accordingly the appeal from Stong J.’s refusal to grant
certiorari is dismissed and the matter is remitted to the trial
judge for the completion of the trial.

Signed: “G.D. Finlayson J.A.”
“Doherty J.A.”
“D. O’Connor J.A.”