COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zahran, 2015 ONCA 66

DATE: 20150202

DOCKET: C58824

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ghassan Zahran

Appellant

Matthew B. Day, for the appellant

James Clark, for the respondent

Heard: January 15, 2015

On appeal from the dismissal of an application for certiorari to quash a committal for trial by Justice Douglas J.A. Rutherford of the Superior Court of Justice, with reasons reported at 2014 ONSC 2678.

ENDORSEMENT

[1] The appellant appeals the denial of his application for certiorari to quash his committal for trial. He submits that the preliminary inquiry judge lost jurisdiction when he failed to comply with s. 536(2) of the Criminal Code, R.S.C. 1985, c. C-46, by failing to read the statutory choice of mode of trial provision or by obtaining a valid waiver.

[2] The application judge denied the application for certiorari on two bases: (i) substantial compliance with s. 536(2), and (ii) delay in bringing the application, as it was brought beyond the time limit set out in the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, s. 43.04(1).

[3] The appellant was charged with multiple offences along with two co-accused. The appellant was initially represented by counsel, who appeared for him frequently in pre-hearing matters, including the scheduling of a date for the preliminary inquiry of all three co-accused.

[4] However, at the time of the arraignment and election of mode of trial, the appellant was no longer represented. The preliminary inquiry judge obtained a waiver of compliance with s. 536(2) from each of the two co-accused, who were each represented by counsel. The following exchange took place with the appellant:

The Court: Now, just before you ask Mr. Zahran, you have the choice of electing Superior Court/judge and jury, Superior Court/judge alone, or trial before me in this court.

[Zahran]: Um, judge alone.

The Court: Okay; and, all right, judge alone of which court?

[Zahran]: Superior Court.

The Court: Okay.

[5] The appellant and his co-accused were committed for trial on August 28, 2013. The appellant remained unrepresented and did not seek to re-elect his mode of trial. He had a right to re-elect a jury trial within fifteen days following completion of the preliminary inquiry under s. 561(1)(b). The appellant again had counsel (not fully retained) on November 12, 2013, who then sought the Crown’s consent for the appellant to re-elect trial by judge and jury. The Crown denied the request on December 30, 2013. The certiorari motion was scheduled for April 17, 2014. The application was denied on April 29, 2014. The trial is scheduled for all co-accused to commence before a judge of the Superior Court sitting alone on March 2, 2015.

[6] The application judge found no loss of jurisdiction because, in all the circumstances, the preliminary inquiry judge substantially complied with s. 536(2). The application judge stated at para. 30 of his reasons:

Mr. Zahran had the benefit of legal representation throughout his court appearances following his arrest near the end of 2011, through to September 11, 2012. Many of those appearances focussed on finding suitable dates for a preliminary inquiry and so Mr. Zahran and his counsel must have discussed going to trial in the Superior Court. It would be unrealistic to think that the mode of trial was not a matter on which they had settled. Indeed, with a number of co-accused, it would be unrealistic to think that any one of the lawyers representing the various accused had not discussed election plans with the others in light of s. 567, discussed above at paragraph 28, dealing with the situation in which co-accused elect different modes of trial.

[7] We see no basis to interfere with his conclusion. In any event, there was no loss of jurisdiction because of the operation of s. 536(4.2) which provides:

If two or more persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (4), a preliminary inquiry must be held with respect to all of them.

[8] Although the record does not indicate which of the co-accused requested the preliminary inquiry, it was clear that one or more of them did so request.

[9] Because the preliminary inquiry judge made no error and did not lose jurisdiction, there is no basis to quash the committal or to order that the appellant be allowed to re-elect trial by judge and jury.

[10] The appeal is therefore dismissed.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“S.E. Pepall J.A.”