Court of Appeal for Ontario

Citation: R. v. Jamieson, 2014 ONCA 766

Date: 2014-10-31

Docket: C58296

Before: Doherty, Tulloch and Benotto JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Steven Jamieson

Appellant

Counsel:

Ilan Neuman, for the appellant

Nick Devlin, for the respondent

Heard: October 27, 2014

On appeal from the judgment of Justice J R. MacKinnon of the Superior Court of Justice, dated January 17, 2014, granting the application for certiorari to quash the subpoena issued January 9, 2014.

APPEAL BOOK ENDORSEMENT

[1] The progress of this proceeding shows the wisdom of the policy underlying R. v. Johnson (1991), 1991 CanLII 7174 (ON CA), 64 C.C.C. (3d) 20. No doubt had the issue been raised before the motion judge he would have adjourned the motion to quash the subpoena to the trial judge. Unfortunately he was not asked to do so. Consequently the trial has been delayed several months while this appeal was outstanding. We repeat absent “special circumstances” motions like this one which raise trial related matters should be heard by the trial court.

[2] On the merits we agree with the motion judge. Nothing before him demonstrated that the proposed witness, Crown counsel in the proceedings involving the former co-accused, was likely to give material evidence: R. v. Harris (1996), 1994 CanLII 2986 (ON CA), 93 C.C.C. (3d) 478 (C.A.). The appeal is dismissed.

[3] In dismissing the appeal we do not intend to preclude the appellant from raising the issue at trial. If the issue is raised at trial, the trial judge based on the record before him or her and having due regard to the reasons on the certiorari motion will determine whether the witness should be compelled to testify: see R. v. Johnson.

[4] The appeal is dismissed.