Court of Appeal for Ontario

Date: 2024-12-17 Docket: COA-24-CR-1135

Before: Fairburn A.C.J.O., Trotter and Zarnett JJ.A.

Parties

BETWEEN: His Majesty the King Respondent

and

Adrian Murray Appellant

Counsel

Marianne Salih, for the appellant Evan Akriotis, for the respondent

Hearing

Heard and released orally: December 12, 2024

Procedural History

On appeal from the order of Justice Sean F. Dunphy of the Superior Court of Justice, dated November 6, 2024, granting an application for certiorari with mandamus in aid, from the order of Justice of the Peace Kenneth Bhattacharjee of the Ontario Court of Justice, dated October 11, 2024.

Reasons for Decision

[1] The Justice of the Peace struck the appellant’s bail hearing after an incident in which a proposed surety, during a break in her evidence, directed a profane remark at the Assistant Crown Attorney. Then, in the absence of the accused and his counsel, the proposed surety falsely denied making this remark.

[2] The Justice of the Peace found that the appellant shared no blame in what transpired and that the incident that he observed compromised the fairness of the bail hearing. As the learned Justice of the Peace said in his reasons:

The bigger issue is that she then denied that she had said it and then that immediately created a problem in terms of assessing her suitability as a surety.

As noted, the denial was in the absence of the appellant and defence counsel.

[3] The motion judge granted the Crown’s application for prerogative relief and made an order for mandamus, compelling the Justice of the Peace to complete the bail hearing that he had commenced. The motion judge held:

While there is an unquestionable jurisdiction vested in the Learned Justice to strike proceedings – the equivalent of a mistrial in pre-trial motions and applications – that jurisdiction is not an all purpose discretionary remedy to allow a “do-over” where a witness proves unsatisfactory or some other element of the evidence failed to materialize as hoped. [Emphasis added.]

[4] In our view, the motion judge erred in granting prerogative relief in the absence of jurisdictional error. In striking or aborting the bail hearing in the unusual circumstances of this case, the Justice of the Peace merely exercised a discretionary jurisdiction that the motion judge found undoubtedly existed. We agree that this jurisdiction does exist. However, it is apparent from his reasons that the motion judge disagreed with the manner in which the Justice of the Peace exercised his jurisdiction, which was based on his assessment of the fairness of continuing with the bail hearing. In our view, this does not amount to jurisdictional error.

[5] The appeal is allowed. The order of the motion judge is set aside. If the appellant still wishes to pursue bail, he is entitled to a hearing, immediately, before a different justice of the peace or judge of the Ontario Court of Justice.

“Fairburn A.C.J.O.”

“Gary Trotter J.A.”

“B. Zarnett J.A.”