DATE: 20051014
DOCKET: C42471
COURT OF APPEAL FOR ONTARIO
DOHERTY, MOLDAVER and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
André Bluteau
for the appellant
Respondent
- and -
K. Katzsch
B.T.
for the respondent
Appellant
Heard: September 21, 2005
On appeal from the order of Justice Albert Roy of the Superior Court of Justice dated September 7, 2004.
DOHERTY J.A.:
I
[1] This is an appeal from an order of Roy J. dismissing motions brought by the appellant. After counsel for both parties had filed their facta, it was agreed that the appeal would be decided on the basis of the written submissions without oral argument.
[2] The Crown submits that Roy J. was sitting as a trial judge hearing pretrial evidentiary motions and that his order is not appealable prior to the completion of the trial. If the Crown’s characterization is correct, there is no appeal from the rulings until a verdict is rendered: see R. v. Druken (1998), 1998 832 (SCC), 126 C.C.C. (3d) 1 per Cameron J.A. in dissent at 6-10 (Nlfd. C.A.), rev’d. on appeal 126 C.C.C. (3d) 11 (S.C.C.); R. v. Morgentaler (1984), 1984 55 (ON CA), 16 C.C.C. (3d) 1 (Ont. C.A.).
[3] The appellant submits that Roy J. was sitting as a Superior Court judge hearing a motion to quash the appellant’s committal for trial and that an appeal lies under s. 784(1) of the Criminal Code to this court from the refusal to quash the committal for trial. If the motion is properly described as a motion to quash the committal for trial, there is an appeal to this court from the order dismissing the motion.
[4] I agree with the Crown’s characterization and would quash the appeal.
II
[5] In September 2002, the appellant was committed for trial on seven charges:
• the rape of K.B. between January 1, 1975 and December 31, 1977;
• sexual intercourse with K.B., his stepdaughter, between January 1, 1975 and December 31, 1977;
• common assault on K.B. between January 1, 1975 and December 31, 1977;
• indecently assaulting K.B. between January 1, 1975 and December 31, 1977;
• assault causing bodily harm against T.M. between September 1, 1974 and December 31, 1977; and
• two counts of indecent assault against T.M. between September 1974 and December 31, 1977.[^1]
[6] Both complainants testified at the preliminary inquiry.
[7] An indictment containing the same seven counts was preferred by the Crown in September 2002. Originally, a jury trial was scheduled for May 2004. That trial date was cancelled to allow the appellant to bring certain motions in September 2004. In September, he brought the motions before Roy J. The trial has been further adjourned pending the outcome of this appeal.
[8] Counsel for the appellant did not give proper notice or file proper documentation in support of the motions in the Superior Court. Roy J. had some difficulty discerning the nature of the motions. His dialogue with counsel for the appellant reveals that the appellant brought two motions. First, the appellant argued that the complainant K.B. was schizophrenic and should not be allowed to testify. This argument had not been made at the preliminary inquiry. Second, counsel for the appellant argued that the law, both substantive and procedural, as it existed when the alleged offences were committed applied to the appellant. He contended that under that law, corroboration was an “ingredient” of the offences charged, or that at least a warning was required of the danger of convicting in the absence of corroboration. This argument was also not made at the preliminary inquiry.
[9] Nothing in the material suggests that the appellant was seeking to quash his committal for trial when he went before Roy J. There was no compliance with the filing requirements of Rule 43 of the Criminal Proceedings Rules governing certiorari applications and no compliance with the time limitations in that rule. My review of the transcript does not reveal any argument directed at the jurisdiction of the committing judge. When discussing the motion to exclude the evidence of one of the complainants because of her mental state, Roy J. said:
So your motion, as I understand it, is that this evidence should be excluded by the judge prior to trial?
[10] Counsel for the appellant replied: “Yes”.
[11] It is also difficult to understand how the argument alleging that one of the complainants is now incompetent to testify could go to the jurisdiction of the judge to commit the appellant for trial. The competence of the witness was not challenged at the preliminary inquiry.
[12] Roy J. eventually held that the question of whether the complainant should be allowed to testify and, if so, the weight to be given to her evidence should be determined at trial by the trial judge.
[13] Insofar as the argument relating to the properly applicable procedural and evidentiary law was concerned, Roy J. held that matters of procedure as opposed to matters of substantive law were governed by the law as of the time of trial. He went on to say:
Now that in no way will preclude counsel from raising that again at the trial so we might look at the whole issue, but it has to do with matters of procedure in the trial. These are arguments that are brought forward once the evidence is all in and especially once I’m satisfied there is no evidence let’s say of corroboration, that there is no evidence of recent complaint. I don’t know, I haven’t heard the evidence and so I can’t deal with the issue now [emphasis added.].
[14] The above passage demonstrates first that Roy J. anticipated that he would be the trial judge, that he would decide the applicable law in that capacity, and that his decision would be made once all of the evidence had been adduced at trial.
[15] The only document that offers any support for the appellant’s claim that he moved to quash the committals for trial before Roy J. is his Notice of Appeal. In that document, the appellant states that the motion before the Superior Court was for an order to have the committal for trial “annulled for want of jurisdiction”. The language used in the appellant’s Notice of Appeal cannot create jurisdiction, nor rewrite the events as they actually occurred. The Notice of Appeal does not accurately describe the motion before Roy J.
[16] Roy J. was sitting as a trial judge of the Superior Court when he considered the motions. He effectively held that neither motion was ripe for ultimate determination on a pretrial basis and that each should be determined as they arose in the course of the trial. His order is an interlocutory order made in an indictable proceeding and is not appealable until the conclusion of the trial.
[17] I wish to add a further observation on the assumption that the appellant had actually moved to quash the committals and this appeal was properly before the court. There is no merit to the contention that the preliminary inquiry judge somehow lost jurisdiction when he allowed the complainant who is now said to be mentally incompetent to testify. No one suggested that she could not testify at the preliminary inquiry. Insofar as the applicable law is concerned, even if there is some merit to the appellant’s argument, and I do not pass on its merits, it could affect only the committal for trial on the charge of sexual intercourse with the appellant’s stepdaughter. While the rape and indecent assault charges did require a corroboration warning under the law as it existed when the offences were allegedly committed, there was no bar to conviction in the absence of corroboration. Consequently, a committal for trial in the absence of corroboration could not constitute jurisdictional error.
[18] This court has no jurisdiction to hear the appellant’s appeal and it should be quashed.
RELEASED: “DD”
“Doherty J.A.”
“I agree M.J. Moldaver J.A.”
“I agree Robert P. Armstrong J.A.”
[^1]: The charges are taken from references in the transcript of the preliminary inquiry. The appellant did not file the information or the committal order as part of the appeal record.