DATE: 20011114 DOCKET: C36426
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. SAMUEL SHEPPARD (Appellant)
BEFORE:
DOHERTY, ROSENBERG and BORINS JJ.A.
COUNSEL:
Boris Bytensky
for the appellant
Riun Shandler
for the respondent
HEARD:
November 2, 2001
REALEASED ORALLY:
November 2, 2001
E N D O R S E M E N T
[1] Prerogative writ relief does not lie against a decision of a Superior Court judge, save perhaps in constitutional cases where a limitation on prerogative writ relief would deny an applicant an effective remedy for a constitutional violation. There is no allegation of a constitutional violation here: Kourtessis v. M.N.R. (1993), 1993 CanLII 137 (SCC), 81 C.C.C. (3d) 286 at 309 (S.C.C.); Dagenais v. Canadian Broadcasting Corp. (1994), 1994 CanLII 39 (SCC), 94 C.C.C. (3d) 289 at 308 (S.C.C.); B. Gover, V. Ramraj, The Trial Lawyers Guide to Extraordinary Remedies, Canada Law Book (2000) at pp. 4-5.
[2] The appellant’s application to have the trial judge, who is a Superior Court judge, prohibit himself from proceeding with the sentencing process because he lacked jurisdiction to make the order he had made directing that the appellant undergo a psychiatric assessment is a distortion of the supervisory function of the prerogative writ. It was in reality an attempt to circumvent the well established principle that interlocutory appeals cannot be brought to challenge rulings made in the course of criminal trials: R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] 1 S.C.R. 1764. The value of that principle is demonstrated by the delay occasioned to the sentencing process by this appeal.
[3] The Crown has submitted that the appeal should be quashed. In our view, the argument made by the Crown goes to the merits of the appeal and the proper order is to dismiss the appeal. The matter is remitted to the trial court for disposition. The sentencing should proceed without further delay.
“Doherty J.A.”
“M. Rosenberg J.A.”
“S. Borins J.A.”