W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

(4) [Repealed, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

R. v. Rutigliano, 2011 ONCA 796

CITATION: R. v. Rutigliano, 2011 ONCA 796

DATE: 20111215

DOCKET: C54092

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Rutigliano and Barry Pierson

Appellants

Counsel:

Scott C. Hutchison and Fredrick Schumann, for the appellant Rutigliano

Joseph Wilkinson, for the appellant Pierson

Richard Peck, Q.C., Scott K. Fenton, Jeff Campbell and Lynda Morgan, for the respondent

Heard and released orally: December 13, 2011

On appeal from the order made by Justice Joseph M. Fragomeni of the Superior Court of Justice dated July 6, 2011 dismissing the application for an order in the nature of a writ of certiorari quashing the order made by Justice I. André on November 15, 2010, which committed the appellants to stand his trial on certain counts in the Information.

ENDORSEMENT

[1] This is an appeal from the decision of Justice Fragomeni of the Superior Court of Justice refusing to quash the appellants’ committal for trial on certain counts. The appellants argue that the preliminary inquiry justice lost jurisdiction when he refused to permit them to call three witnesses who had provided information relevant to judicial pre-authorizations that had been granted. The appellants hoped to elicit evidence that would be relevant to potential Charter breaches that they intend to raise at trial. At the appeal, they restricted their argument to two witnesses who were employees of a bank.

[2] Both the preliminary inquiry justice and the appeal judge regarded the proposed witnesses as sub affiants who could only be cross-examined with leave of the court. From that perspective, the appeal judge explained in his careful and detailed reasons, that in refusing to grant leave, the preliminary inquiry justice made an evidentiary ruling that was within his jurisdiction to make. The preliminary inquiry justice had found, and had a basis for finding, that his refusal to allow the cross examinations at the preliminary inquiry would not impair the appellant’s right to make full answer and defence.

[3] The appellants argue that the two proposed witnesses were not sub affiants and that the preliminary inquiry justice and the appeal judge should have treated their request to call the witnesses as part of their statutory right under s. 541(1) of the Criminal Code.

[4] Without deciding whether the issue of the preliminary justice’s jurisdiction remained open after the appellants “consented” to committal orders, we are of the view that the appeal is without merit.

[5] The witnesses had provided information relevant to the judicial pre-authorizations and the appellants wanted to examine them for that reason. The witnesses had no relevance to the preliminary inquiry on any other basis. The fact that the witnesses were not police officers is no basis for not characterizing them as sub affiants.

[6] The appeal is dismissed.

“J.C. MacPherson J.A.”

“R.G. Juriansz J.A.”

“G.J. Epstein J.A.”