DATE: 20040202

DOCKET: C40595

COURT OF APPEAL FOR ONTARIO

SHARPE, ARMSTRONG and BLAIR JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Michal Fairburn for the respondent

Respondent

• and -

CHRISTOPHER HARRINGTON

John F. Scandiffio for the appellant

Appellant

Heard: January 27, 2004

On appeal from the order of Justice Alfred J. Stong of the Superior Court of Justice dated August 11, 2003 dismissing an application for certiorari.

SHARPE J.A.:

[1] This is an appeal from the order of Stong J. dismissing the appellant’s certiorari application challenging the appellant’s committal for trial on five charges including attempted murder.

[2] At the conclusion of the Crown’s evidence at the preliminary inquiry, the preliminary inquiry judge invited Crown counsel to make submissions with respect to the issue of committal on one count as it related to the appellant’s co-accused. She then added:

That is the only issue on which I wish to hear submissions, period.

[3] Neither defence counsel made any comment in response to this direction nor did defence counsel make any submissions with respect to the committal.

[4] The application judge found that defence counsel had been denied the opportunity to make submissions:

I am satisfied on the basis of [the statement of the preliminary inquiry judge] that counsel could make no other determination than that the learned trial judge did not wish to hear submissions other than on the issue designated by her at the time and that counsel was effectively prohibited from making submissions.

[5] However, the application judge went on to conclude that the appellant had suffered no prejudice as there clearly was evidence sufficient to warrant committal for trial. He therefore dismissed the application for certiorari.

[6] I agree with the appellant and with the application judge that the preliminary inquiry judge refused to entertain submissions from the defence in relation to the committal and that her error constituted a denial of natural justice. The issue is whether that error was curable, and if it was, whether the appellant suffered any prejudice. Section 686(1)(b)(iv) of the Criminal Code provides that an appellate court may dismiss an appeal where

notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby.

[7] By virtue of s. 784(2) of the Criminal Code, s. 686 applies to appeals from a dismissal of an application for extraordinary remedy such as certiorari: see R. v. Olson (1989), 1989 120 (SCC), 47 C.C.C. (3d) 491 (S.C.C.) at 494.

[8] In my view, the error of the preliminary inquiry judge in this case is subject to the curative provision of s. 686(1)(b)(iv).

[9] As explained by Goodman J.A. in R. v. Cloutier (1988), 1988 199 (ON CA), 43 C.C.C. (3d) 35 (Ont. C.A.), s. 686(1)(b)(iv) was introduced in 1985 to overcome the problem created by procedural errors considered to be jurisdictional in nature and not curable by the general proviso which deals with errors of law. Goodman J.A., at 48, rejected the submission that s. 686(1)(b)(iv) cannot cure “irregularities in procedure which are so serious in nature that they are deemed to be matters of substance which result in a loss of jurisdiction”. As he further explained at 48: “Although [this] type of error or irregularity is one that is so serious that it is deemed to be fundamental in nature and results in a loss of jurisdiction, it does nevertheless have its origin as a procedural irregularity at trial.” In making this conclusion, Goodman J.A. adopted the following passage from R. v. Joinson (1986), 1986 1195 (BC CA), 32 C.C.C. (3d) 542 (B.C.C.A.) at 547-48:

The appellant submits that s. 613(1)(b)(iv) ought not to be construed as applying to errors of substance.

It is necessary then to define the difference between matters of substantive law and those involving criminal procedure.

Substantive criminal law is concerned with the creation of offences (including a definition of the elements necessary to constitute an offence in criminal law), the recognition of defences, including exemptions, justifications and excuses.

Criminal procedure is concerned with the conduct of a criminal trial, as well as with pre-trial and post-trial procedures.

Many of the procedural provisions of the Criminal Code are designed to protect the right of an accused to a fair trial. Taking a plea, putting an accused to his election, the presence of an accused at his trial, are all matters which are mandatory but which are procedural, in the natural sense of that word. They all involve a manner of proceeding with the trial of an accused. They all have to do with the conduct or mode of conducting a trial. An accused has the right to have the statutory procedure applied, but it is still procedure which is being applied. … If the error can be remedied without prejudice to the accused then Parliament has said that the case may be determined as if no error had occurred.

[10] In R. v. Khan (2001), 2001 SCC 86, 160 C.C.C. (3d) 1 (S.C.C.) at para. 16, Arbour J. adopted the analysis in Cloutier:

I agree with Goodman J.A. in Cloutier that s. 686(1)(b)(iv) was enacted to cure serious procedural irregularities, otherwise amounting to errors of law, in cases where under the then existing case law, jurisdiction over the person, but not over the offence, had been lost.

[11] Though unquestionably serious in nature, the denial of natural justice in this case originated from a “procedural irregularity” and not from an error of substantive law. Therefore, if the appellant suffered no prejudice by virtue of the error, it is curable under s. 686(1)(b)(iv).

[12] I agree with the application judge that the appellant suffered no prejudice by reason of the procedural irregularity. The appellant focused his attack on the committal on attempted murder. He submitted that the preliminary inquiry judge misconstrued the evidence because the judge proceeded on the basis that there was evidence the appellant’s threat to put a bullet into the victim’s head was made before the shooting whereas the evidence was that this threat was uttered afterwards. The appellant submitted that but for that erroneous assumption, the preliminary inquiry judge would have found an absence of evidence of intent to support the committal for attempted murder. I disagree with that submission and agree with the application judge that quite apart from this apparent misapprehension as to the evidence, committal on the charge of attempted murder was inevitable on the evidence led by the Crown. At the preliminary inquiry, the Crown led evidence to suggest that the appellant held a gun to the head of the victim and then shot him in the side through the rib cage after a struggle between the victim and the co-accused. Given this evidence, there was no error in committing the appellant to trial for attempted murder.

[13] I conclude, accordingly, the while there was an error going to jurisdiction, the application judge properly dismissed the application for certiorari. Accordingly, I would dismiss the appeal.

“Robert J. Sharpe J.A.”

“I agree R.P. Armstrong J.A.”

“I agree R.A. Blair J.A.”

Released: February 2, 2004