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Her Majesty the Queen v. Thomson
[Indexed as: R. v. Thomson]
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74 O.R. (3d) 721
[2005] O.J. No. 1124
Docket: C41792
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Court of Appeal for Ontario,
Sharpe, Simmons and LaForme JJ.A.
March 30, 2005
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Criminal law -- Preliminary inquiry -- Review -- Jurisdiction
-- Superior court judge not having jurisdiction to commit
accused for trial after granting Crown's certiorari
application and quashing discharge -- Proper order being to
remit matter to preliminary inquiry judge for further
consideration on whole of evidence.
The accused was charged with conspiracy to commit murder,
attempted murder and aggravated assault. She was discharged on
all counts at her preliminary inquiry. The Crown brought a
certiorari application seeking to have the discharge quashed.
The application judge found that the preliminary inquiry judge
fell into jurisdictional error by going beyond the limited
weighing of evidence permitted in a case involving
circumstantial evidence and resolving issues that should have
been left to trial. The application judge quashed the discharge
and committed the accused for trial on all counts. The accused
appealed.
Held, the appeal should be allowed.
A superior court judge, entertaining a Crown certiorari
application to review an order discharging an accused at a
preliminary inquiry, does not have jurisdiction to order that
the accused be committed for trial after quashing the
discharge. A court hearing a certiorari application, unlike an
appellate court, cannot exercise the jurisdiction of the
tribunal whose proceedings are challenged but may send the
proceedings back to the preliminary hearing judge to be
resolved on proper principles. Moreover, the authority to order
an accused to stand trial following a preliminary inquiry is
reserved to a "justice" under s. 548 of the Criminal Code,
R.S.C. 1985, c. C-46. As defined by s. 2 of the Code, "justice"
does not include a superior court judge. Nothing in Part XXVI
of the Code confers jurisdiction upon a superior court judge
dealing with a certiorari application to order that an accused
stand trial. The Crown has other remedies at its disposal to
avoid unnecessary del ay in cases where committal is inevitable
such as seeking an order of mandamus, requiring the preliminary
inquiry judge to commit or, as a last resort, the Attorney
General could prefer a direct indictment pursuant to s. 577 of
the Code. The appropriate order in this case was to quash the
discharge and remit the matter to the preliminary inquiry judge
for further consideration on the whole of the evidence.
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Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835,
1994 39 (SCC), [1994] S.C.J. No. 104, 20 O.R. (3d) 816n, 120 D.L.R. (4th)
12, 1994 39 (SCC), 175 N.R. 1, 25 C.R.R. (2d) 1, 94 C.C.C. (3d) 289, 34 C.R.
(4th) 269, consd
Other cases referred to
R. v. Campbell, 1999 2372 (ON CA), [1999] O.J. No. 4041, 155 O.A.C. 143, affg
[1999] O.J. No. 1203, 95 O.T.C. 241 (Gen. Div.); R. v.
Clarke, 2002 44997 (ON CA), [2002] O.J. No. 2340, 159 O.A.C. 221, affg [2001] O.J.
No. 4629 (S.C.J.); R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601,
[2004] S.C.J. No. 73, 2004 SCC 76, revg 2003 52134 (ON CA), [2003] O.J. No. 570,
186 O.A.C. 389; R. v. McIlwain, [1988] O.J. No. 2022, 67 C.R.
(3d) 393 (H.C.J.); R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, [2004]
S.C.J. No. 635, 208 C.C.C. (3d) 225, 2004 SCC 77, revg (2003),
2003 20189 (ON CA), 67 O.R. (3d) 481, [2003] O.J. No. 4001, 112 C.R.R. (2d) 46, 179
C.C.C. (3d) 1, 2003 20189 (ON CA), 17 C.R. (6th) 194 (C.A.); R. v. Tobin, [1990]
O.J. No. 82 (H.C.J.); R. v. Whynot, 1994 4130 (NS CA), [1994] N.S.J. No. 678, 129
N.S.R. (2d) 347, 1994 4130 (NS CA), 362 A.P.R. 347 (C.A.) [page722]
Statutes referred to
Canadian Charter of Rights and Freedoms, s. 24(1)
Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [as am.], 548(1)(b)
[as am.], 577 [as am.]
Authorities referred to
De Smith, S.A., Sir H. Woolf and J. Jowell, Judicial Review of
Administrative Action, 5th ed. (London: Sweet & Maxwell,
Gover, B.J., and V.V. Ramraj, The Criminal Lawyers' Guide to
Extraordinary Remedies (Aurora, Ont.: Canada Law Book, Inc.,
Yardley, D.C.M., "The Grounds for Certiorari and Prohibition"
(1959), 37 Can. Bar Rev. 294
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APPEAL by the Crown from the order of Wein J., reported at
[2004] O.J. No. 1584, [2004] O.T.C. 339 (S.C.J.), granting
certiorari to quash the order McLeod J. of the Court of
Justice, dated January 19, 2004, discharging the accused
following a preliminary inquiry.
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Stacey D. Young, for respondent.
Jonathan Dawe, for appellant.
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The judgment of the court was delivered by
[1] SHARPE J.A.: -- Does a superior court judge, entertaining
a Crown certiorari application to review an order discharging
an accused after a preliminary hearing, have jurisdiction not
only to quash the discharge but also to order that the accused
be committed for trial? That is the issue to be decided on this
appeal.
[2] The appellant and an acquaintance, David Schroeder, were
jointly charged with conspiracy to commit murder, attempted
murder and aggravated assault. The alleged victim was the
appellant's boyfriend, Grant Livingstone. The preliminary
inquiry judge committed Schroeder to trial following a lengthy
hearing but discharged the appellant on all counts. The Crown
brought a certiorari application to the Superior Court seeking
to have the discharge quashed. The Superior Court judge found
jurisdictional error, quashed the appellant's discharge, and
committed her for trial on all counts. The appellant concedes
that there was jurisdictional error justifying an order
quashing her discharge but submits that the Superior Court
judge had no jurisdiction to commit her for trial.
[3] For the following reasons, I conclude that the Superior
Court judge had no jurisdiction to commit the appellant for
trial and that the proper order was to remit the matter to the
preliminary inquiry judge for further consideration on the
whole of the evidence. [page723]
Facts
[4] The evidence before the preliminary inquiry judge was
that on the evening of July 14, 2002, an intruder wielding a
sharp object attacked Livingstone in the basement apartment
that he shared with the appellant. The Crown's theory was that
the appellant and Schroeder conspired to kill Livingstone and
that the appellant had facilitated the attack by restraining
Livingstone on their bed, ostensibly as a prelude to sexual
activity, before calling Schroeder and letting him into the
locked apartment to attack Livingstone.
[5] The Crown essentially built its case against the
appellant on circumstantial evidence. There was evidence that
the appellant and Livingstone routinely engaged in bondage for
sexual purposes, although it was the appellant, not
Livingstone, who was usually bound. The night of the attack,
however, the appellant used Velcro straps to tie Livingstone to
a bed in their apartment. She covered his head and face with a
t-shirt and towel so that he could not see. The Crown led
evidence indicating numerous telephone calls were made from the
appellant's cell phone to Schroeder immediately prior to the
attack. She was alone with Livingstone and had the opportunity
to unlock the apartment door so Schroeder could get in. The
Crown also led evidence of an earlier conversation overheard by
a witness, Jason Pollard, during which the appellant and
Shroeder discussed hurting or killing Livingstone.
[6] In discharging the appellant, the preliminary inquiry
judge found:
-- there was no evidence of motive;
-- bondage was not an unusual feature of the sexual activity
between the appellant and Livingstone;
-- there was no evidence that the appellant left the apartment
after binding Livingstone to the bed;
-- Pollard's evidence indicated that the appellant made
efforts to try to talk Schroeder out of harming
Livingstone;
-- the timing and contents of the cell phone calls were
uncertain;
-- there was no evidence to indicate how Schroeder gained
access to the apartment or whether the appellant had left
the apartment before his arrival; and
-- there was evidence that the appellant was horrified at the
site of the attack on Livingstone. [page724]
[7] The Crown brought a certiorari application to quash the
appellant's discharge. At the time the application was heard,
the application judge was bound by two decisions of this court
that have since been overruled by the Supreme Court of Canada:
R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, [2004] S.C.J. No. 73,
revg 2003 52134 (ON CA), [2003] O.J. No. 570, 186 O.A.C. 389; and R. v. Sazant,
2004 SCC 77, [2004] 3 S.C.R. 635, [2004] S.C.J. No. 635, revg (2003), 67
O.R. (3d) 481, 2003 20189 (ON CA), [2003] O.J. No. 4001 (C.A.). In Deschamplain and
Sazant, this court had held that failure to consider "the whole
of the evidence" constituted an error in assessing the
sufficiency of the evidence, while an error of law, is not a
jurisdictional error susceptible to review on certiorari.
[8] The application judge cited and discussed this court's
decisions in Deschamplain and Sazant. She found that the
preliminary inquiry judge fell into jurisdictional error by
going beyond the limited weighing of evidence permitted in a
case involving circumstantial evidence and resolving issues
that should be left to trial. The application judge found:
-- there was some evidence of discord between the appellant and
Livingstone from which motive could be inferred;
-- while bondage was not an unusual feature of the sexual
relationship between the appellant and Livingstone, the
preliminary inquiry judge had ignored the evidence that it
was almost always the appellant who was bound;
-- the preliminary inquiry judge had ignored evidence to the
effect that the appellant's cell phone only worked outside
her apartment;
-- the numerous calls made from the appellant's cell phone
were capable of supporting the inference that she had
assisted Schroeder plan the attack; and
-- by concluding that the appellant had tried to talk Schroeder
out of a plan to harm Livingstone, the judge was clearly
weighing evidence and ignoring the possible competing
inference that they had in fact conspired to kill or harm
Livingstone.
[9] The application judge concluded that the preliminary
inquiry judge had exceeded her jurisdiction and usurped the
role of the trier of fact by engaging in an impermissible
weighing of the evidence and by choosing from among competing
inferences those favouring the appellant. The application judge
held that [page725] the discharge should therefore be quashed.
Then, without further comment or citation of authority, but
undoubtedly having in mind the practice followed in several
cases to which I refer below, the application judge added:
"This was not a close call. Accordingly, Ms. Thomson is
committed for trial on all charges."
Analysis
[10] The appellant concedes that the reasons of the
preliminary inquiry judge reveal jurisdictional error and does
not contest the application judge's order quashing the
discharge. The appellant submits, however, that on certiorari
the application judge had no jurisdiction to commit the
appellant for trial. The appropriate order, according to the
appellant, was to quash the discharge and remit the matter to
the preliminary inquiry judge for further consideration.
[11] The scope of review on certiorari with respect to a
discharge must now be considered in view of the recent
pronouncements from the Supreme Court of Canada in Deschamplain
and Sazant, supra, overruling the decisions of this court that
governed the application judge. Deschamplain and Sazant
establish that the duty to consider "the whole of the evidence"
imposed by s. 548(1)(b) of the Criminal Code, R.S.C. 1985, c.
C-46 is mandatory and that where the reasons of the preliminary
inquiry judge do not indicate that this mandatory requirement
has been met, the result is a loss of jurisdiction. While the
jurisdictional error of the preliminary inquiry judge in the
present case could perhaps be described in various ways, I
agree with the appellant that in light of Deschamplain and
Sazant, it is best characterized as a failure to consider the
whole of the evidence.
[12] I turn now to the application judge's jurisdiction to
order the appellant to stand trial. In Deschamplain, supra, at
para. 39, the order of the Supreme Court was to "set aside the
discharge order and remit the matter to the preliminary inquiry
judge to consider the whole of the evidence". In Sazant, supra,
at para. 27, it was to "set aside the discharge order and remit
the matter to the preliminary inquiry judge to consider the
sufficiency of the evidence in light of these reasons". In my
view, an order framed in these terms is appropriate in the
present case.
[13] By not only quashing the discharge, but also committing
the appellant for trial, the application judge followed a
practice that has developed in the Superior Court regarding
Crown certiorari applications to quash discharges after
preliminary inquiry: see R. v. McIlwain, [1988] O.J. No. 2022,
1988 9870 (ON SC), 67 C.R. (3d) 393 (H.C.J.); compare, however, R. v. Tobin,
[1990] O.J. No. 82 (H.C.J.), in which White J. held that the
better approach was to [page726] remit the matter to the
preliminary inquiry judge for reconsideration. Orders for
committal made by Superior Court reviewing judges have been
upheld by this court, but never with any consideration of the
propriety of the practice: see, e.g., R. v. Campbell, [1999]
O.J. No. 4041, 1999 2372 (ON CA), 155 O.A.C. 143, affg [1999] O.J. No. 1203, 95
O.T.C. 241 (Gen. Div.); R. v. Clarke, 2002 44997 (ON CA), [2002] O.J. No. 2340, 159
O.A.C. 221, affg [2001] O.J. No. 4629 (S.C.J.).
[14] The only appellate decision to which we were referred
that directly considers the point, R. v. Whynot, [1994] N.S.J.
No. 678, 1994 4130 (NS CA), 129 N.S.R. (2d) 347 (C.A.), holds that a superior
court judge has no power to make a committal order on
certiorari. Chipman J.A. stated, at paras. 16-17:
Proceedings in the nature of certiorari involve bringing up
for review a decision of an inferior tribunal. When a
superior court gives relief on such an application, it can
only undo, quash or set aside the proceedings of the inferior
tribunal. Because certiorari is not a remedy akin to an
appeal, the superior court cannot exercise the jurisdiction
of the tribunal whose proceedings are challenged. At most,
the superior court has but the power to send the proceedings
back to be resolved on proper principles. The remedy that
results is negative in nature. It is not positive. See Nova
Scotia (Attorney General) v. Royal Commission (Marshall
Inquiry) (1998), 1988 7107 (NS CA), 87 N.S.R. (2d) 183 per Nunn, J.A. (ad hoc)
at p. 187; Demont v. Liquor License Board (1985), 70 N.S.R.
(2d) 78 per Clarke, J. (now C.J.N.S.) at p. 81.
There has been no statutory enlargement of the court's
jurisdiction in granting an order in the nature of
certiorari. Very often where additional relief is sought,
another remedy such as habeas corpus, mandamus or prohibition
may be invoked in aid of certiorari.
[15] Chipman J.A.'s assessment of the powers available to a
reviewing court on certiorari corresponds with the orthodox
view of text writers and academic commentators. As de Smith,
Woolf, and Jowell state in Judicial Review of Administrative
Action, 5th ed. (London: Sweet & Maxwell, 1995), at 16-008:
The scope of the prerogative orders reflects the general
principle that it is not the role of the High Court in
judicial review proceedings to substitute its decision for
that of the original decision-maker . . . Where an order of
certiorari is issued to quash a decision that has been made,
the High Court may at the same time remit the matter back to
the court, tribunal or authority concerned with a direction
to reconsider it and reach a decision in accordance with the
judgment of the court.
The following authors express similar views: D.C.M. Yardley,
"The Grounds for Certiorari and Prohibition" (1959), 37 Can.
Bar Rev. 294 at 295; B.J. Gover and V.V. Ramraj, The Criminal
Lawyers' Guide to Extraordinary Remedies (Aurora, Ont.: Canada
Law Book, Inc., 2000), at p. 39.
[16] The authority to order an accused to stand trial
following a preliminary inquiry is reserved to a "justice"
under s. 548 of the Criminal Code. As defined by s. 2
of the Criminal Code, "justice" does not include a superior
court judge. There is nothing in Part XXVI of the Criminal Code
conferring jurisdiction upon a superior court judge dealing
with a certiorari application to order that an accused stand
trial.
[17] The respondent submits that remitting the matter to the
preliminary inquiry judge would amount to a mere formality and
cause unnecessary delay. The respondent invites us to expand
the remedial powers available on certiorari, citing Dagenais v.
Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J.
No. 104, 1994 39 (SCC), 94 C.C.C. (3d) 289, at p. 866 S.C.R., p. 308 C.C.C.,
where Lamer C.J.C. stated:
Traditionally, certiorari has been limited remedially. That
is it could only be used to quash an order. Thus, if the
media were seeking an additional or alternative remedy, the
desired remedy would appear to be unavailable through
certiorari.
However, it is open to this Court to enlarge the remedial
powers of certiorari and I do so now for limited
circumstances. Given that the common law rule authorizing
publication bans must be consistent with Charter principles,
I am of the view that the remedies available where a judge
errs in applying this rule should be consistent with the
remedial powers under the Charter. Therefore, the remedial
powers of certiorari should be expanded to include the
remedies that are available through s. 24(1) of the Charter.
(Emphasis in the original)
[18] In my view, Dagenais does not support the expansion of
remedial powers sought in the present case. As can be seen from
the quoted passage, Lamer C.J.C. explicitly limited the
enlargement of remedial powers to the situation before him.
Moreover, the expansion of remedial powers in Dagenais was
supported by invocation of s. 24(1) of the Canadian Charter of
Rights and Freedoms to fill a legislative and remedial gap in
relation to publication bans and the review of such orders.
[19] In the case at bar, no Charter right is engaged and
there is no legislative or remedial gap. Parliament has clearly
assigned jurisdiction to the preliminary inquiry judge in s.
548(1) of the Criminal Code to commit or discharge an accused.
[20] Convenience does not permit us to ignore the scheme
established by Parliament. Parliament has not provided for
appeals or for appeal-like remedial powers in relation to the
decisions of preliminary inquiry judges, nor has Parliament
conferred any authority on superior court judges to commit an
accused for trial following a preliminary inquiry. The superior
court's inherent remedial powers exercisable on certiorari
must surely respect that statutory scheme. [page728]
[21] Finally, I would point out that the Crown does have
other remedies at its disposal in cases where committal is
inevitable. Where the Crown wishes to assert that no result
other than committal is legally possible, the traditional
panoply of prerogative remedies provides an answer. An order of
mandamus, requiring the preliminary inquiry judge to commit, is
available to minimize unnecessary procedural wrangling or
delay. In addition, as a last resort, the Attorney General has
at his or her disposal the right to override a discharge by
preferring a direct indictment pursuant to s. 577 of the
Conclusion
[22] In my view, the appropriate order in this case was to
quash the discharge and remit the matter to the preliminary
inquiry judge for further consideration on the whole of the
evidence. I would allow the appeal and vary the order
accordingly.
Appeal allowed.
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