Court Information

Ontario Court of Justice

Date: 2019-10-07

Court File No.: Bradford 184110

Parties

Between:

Her Majesty the Queen

— AND —

Austin Mehring

Judicial Officer and Counsel

Before: Justice N. Dawson

Heard on: September 23, 2019

Reasons for Judgment released on: October 7, 2019

Counsel:

• Lynne Saunders, counsel for the Crown
• Jaime Mor, counsel for the accused Austin Mehring

Reasons for Judgment

DAWSON J.:

[1] Application to Vacate Preliminary Inquiry

The Crown has brought an Application to vacate the date of October 16, 2019 set for preliminary hearing in this matter and, barring re-election by Mr. Mehring to the Ontario Court of Justice, to remand him to the Superior Court of Justice for trial. This application is based on amendments made to the Criminal Code of Canada which are in effect as of September 19, 2019 with the new section 535 restricting the availability of preliminary inquiries to those offences which carry a maximum sentence of fourteen years or more imprisonment.

[2] Crown's Position on Retrospective Application

The Act contains no transitional provisions for the effect of now section 535 of the Criminal Code. The Crown takes the position that the amendments are purely procedural in nature and are therefore retrospective applying to matters that were in the court system prior to September 19, 2019 even where elections to the Superior Court of Justice with preliminary inquiry had been previously made. While Mr. Mehring did all that was required at the time to be eligible for a preliminary hearing the Crown asserts that his request to have a preliminary inquiry is now a nullity as the Ontario Court of Justice does not have the jurisdiction to hold a preliminary inquiry on his matters. The Crown takes the position that s. 44 of the Interpretation Act is applicable.

[3] Respondent's Position on Prospective Application

The Respondent takes the position that the amendments should be treated as prospective and do not apply to an individual who has been put to his election and elected to have a preliminary inquiry prior to the coming into force date of the legislation. The Respondent takes the position that this amendment affects the jurisdiction of the court and therefore cannot be retrospective. The Respondent also argues that the change in the legislation is substantive as it affects a substantive right to a preliminary inquiry or if it is procedural it has a substantive effect on rights and cannot act retrospectively. The Respondent also takes the position that with the election having been made the court's jurisdiction has vested and the inquiry must be conducted. The Respondent position is that this is a vested right and by virtue of s. 43 of the Interpretation Act cannot act retrospectively. The Respondent argues it is unfair and unfeasible to apply the legislation retrospectively and that the consequences of a retrospective application could not have been intended by Parliament.

[4] Factual Background

Mr. Mehring's charges and election occurred prior to the in-force date of the provisions which was September 19, 2019. Mr. Mehring was charged with a number of offences to which the Crown proceeded by way of Indictment. The sole count that would qualify for a preliminary inquiry under the new provisions was withdrawn on August 9, 2019. Mr. Mehring filed his notice of election for a trial by judge and jury as well as his request for a preliminary inquiry. On December 3, 2018 a preliminary inquiry of one day was set for October 16, 2019.

[5] Prior Judicial Consideration of the Issue

The issue of whether the amendments act prospectively or retrospectively has been considered by a number of jurists in the Ontario Court of Justice. Varying analyses have been conducted with several findings. The amendments have been found to be retrospective. They have been found as prospective for a variety of reasons.

[6] Superior Court Decision in R. v. R.S.

An application for the extraordinary orders of prohibition and certiorari in aid was made by the Crown to quash the decision of Marion J. in R. v. R.S., September 11, 2019, (O.C.J.) who ruled the amendments prospective and to prevent the Ontario Court of Justice from exercising jurisdiction over preliminary inquiries no longer available through the amendments to the Criminal Code. Thomas R.S.J.'s decision in the matter applied to R. v. R.S., supra, and four other matters where elections had been made, preliminary inquiries requested and set, as did the application.

[7] Thomas R.S.J.'s Ruling on Prerogative Writ Application

Thomas R.S.J. in the prohibition and certiorari application, R. v. R.S. 2019 ONSC 5497, [2019] O.J. No. 4872 (S.C.J.) ruled that the amendments did apply to those offences where elections had been made and preliminary inquires requested prior to the in-force date of the amendments. Thomas R.S.J. noted that the determination of whether there is a right comes before a consideration of whether that right has vested. To vest there must be a recognition of a right. Thomas R.S.J. concluded that "the preliminary inquiry is a statutory procedure. It is not a right. As such, there is little to be gained by reflecting on whether that statutory procedure has vested upon these respondents." Thomas R.S.J. also noted that there was no unfairness stating "it is not unfair to remove access to a conditional statutory procedure. There is no vested right in procedure." The finding that the procedural amendment affected the jurisdiction of the court and could not be applied retrospectively was rejected on a functional resolution as was the conclusion that there would be an "unworkable impact on the Ontario Court of Justice."

[8] Further Submissions Following Thomas R.S.J.'s Decision

Following argument by the parties, and prior to my ruling on the merits of the application, the parties requested and were provided the opportunity to provide further submissions in writing as a result of Regional Senior Justice Thomas' decision. Both the Crown Applicant and Respondent have done so addressing the issue of whether it is binding as a decision on a prerogative writ.

Analysis: Binding Nature of Prerogative Writ Decisions

[9] Crown's Position on Binding Effect

The Crown takes the position that I am bound by R.S.J. Thomas' decision in R. v. R.S. supra. The Crown's position is "that prerogative writ decisions are binding if they concern general issues of jurisprudence that transcend the four corners of the case under review". The Crown also takes the position that the principle of stare decisis applies to prerogative writs as they are supervisory in nature. That "Stare Decisis applies to decisions made by higher courts occupying a supervisory or appellate role. A court occupies a supervisory role if it has the power to interfere or overrule a decision made by the lower court".

[10] Crown's Authority on Binding Precedent

The Crown referenced authority that holds that certiorari decisions constitute binding precedent as well as noting other courts that have found that certiorari decisions are not binding. The Crown argues that the line of authority holding that the decisions are not binding relies on two basis: "the first argument is that only appellate decisions are binding, and prerogative writs are not appellate in nature" and secondly, "that prerogative writs only bind the immediate parties and are not meant to have general application."

[11] Crown's First Argument: Review Function

It is the Crown's position on the first point that "Both an appellate court and a court deciding an application for certiorari are courts of review with powers to affirm or vary decisions of the lower court. An appellate court, by virtue of statue, is empowered to correct errors of law committed by lower courts, while a certiorari is a prerogative process by which a Superior Court reviews and corrects jurisdictional errors. The aspect of review in both an appeal and certiorari is what makes the decision binding."

[12] Crown's Second Argument: Scope of Decision

The position of the Crown on the second point is that "This reasoning takes for granted that certiorari decisions will always be fact specific and never engage in a wider jurisprudential analysis. Certiorari decisions can, like an appeal, consider broad issues of statutory interpretation and legal analysis – as is the case in R.S., supra. …. The content of the decision determines the scope of the precedential value."

[13] Respondent's Position on Non-Binding Effect

The Respondent takes the position "that prerogative writs are not appellate decisions with binding effect, nor are Superior Courts sitting in respect of applications for prerogative writs appellate courts capable of producing binding decisions." The Respondent relies on cases that which hold that certiorari decisions are not binding. The Respondent argues that the cases relied on by the Crown holding that these decisions are binding have little or no analysis to underpin such a conclusion. The Respondent argues that while persuasive the authorities are not of great assistance on this issue. In particular, the Respondent takes the position that the decision of R.S.J. Thomas in R. v. R.S., supra "is binding only on the parties in that case" and that I am not bound by and should not follow that decision.

[14] Principle of Stare Decisis

The principle of stare decisis is relied on by the Crown in arguing that I should follow the decision in R.S. This principle was summarized in Teva Canada Ltd. v. T.D. Canada Trust, 2017 SCC 51, [2017] 2 SCR 317 by the minority judgment in the context of the court departing from its own precedents. Côté and Rowe JJ. speaking for the minority stated at para 138:

The rule of precedent, or stare decisis, is essential to the common law. It "promotes predictability, reduces arbitrariness, and enhances fairness, by treating like cases alike" (Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 18). By safeguarding certainty and consistency, adherence to precedent allows for an orderly administration of justice predicated on the rule of law.

[15] Thomas R.S.J.'s Key Findings

R.S.J. Thomas in R. v. R.S. noted at para 70 to 74 the following:

70 The amendments to s. 535 came into effect September 19, 2019. These amendments are procedural. These amendments do not affect a vested or substantive right. As of September 19, 2019, the Ontario Court of Justice no longer has jurisdiction to conduct preliminary inquiries unless the offence has a potential penalty of 14 years or more.

71 The Ruling of The Honourable Mr. Justice R. Marion dated September 11, 2019 is quashed. There is an order prohibiting the Ontario Court of Justice from conducting preliminary inquiries for these respondents.

72 The respondents should be returned to the Ontario Court of Justice and provided with the election now prescribed by s. 536 (2.1). If the respondent elects to be tried by a Provincial Court judge, the matter should be set for trial consistent with the practices developed in the Ontario Court of Justice. If the respondent elects to be tried in the Superior Court of Justice, the respondent should be remanded to this Court pursuant to s. 536 (4.3) to set a date for trial.

73 As to the other matters set for preliminary inquiry in the Ontario Court of Justice, a similar approach should be considered for those whose offences no longer qualify for a preliminary inquiry. Those accused should have an opportunity to elect/re-elect pursuant to s. 536 (2.1) and the cases should be moved forward as suggested above.

[16] Interpretation of Thomas R.S.J.'s Language

There is wording in the judgment set out above by Thomas R.S.J. from which it is arguable that this decision was not meant to be binding. This wording is contained in the statements that "There is an order prohibiting the Ontario Court of Justice from conducting preliminary inquiries for these respondents" and "a similar approach should be considered for those whose offences no longer qualify for a preliminary inquiry." Despite the use of this wording I find that the decision in R.S. was intended to be binding on the Ontario Court of Justice and provide direction to the Court. Thomas R.S.J. said that the amendments are procedural and did not affect a substantive or vested right and also stated point blank that "the Ontario Court of Justice no longer has jurisdiction to conduct preliminary inquiries unless the offence has a potential penalty of 14 years or more". Thomas R.S.J. did not add the words "in this case", or "for these respondents".

[17] Central Issue

The issue is whether the decision of Thomas R.S.J. is in fact binding on the Ontario Court of Justice.

[18] Principle of Stare Decisis and Hierarchy

I agree with the proposition that the principle of stare decisis requires a court to be bound by decisions of a court that has supervisory, review or appellate jurisdiction over it as opposed to decisions of courts of co-ordinate jurisdiction.

[19] R. v. Vu: Hierarchy and Binding Authority

The British Columbia Court of Appeal considered the aspect of stare decisis in the decision of R. v. Vu, 2004 BCCA 230. In that case the trial judge had indicated that she was bound by an out of province appellate decision and not by a higher court decision of British Columbia. On Appeal, Donald J. in the majority indicated at paras 26 and 27:

26 A most useful treatise on the subject of stare decisis is that published by William F. Ehrcke (now Mr. Justice Ehrcke of the British Columbia Supreme Court) entitled "Stare Decisis" (1995) 53 The Advocate 847. At 850 he wrote:

There can be no doubt that trial judges are bound to accept as binding the law as pronounced by appellate courts above them in their judicial hierarchy. Thus, Chief Justice Rinfret was led to say in Woods Manufacturing Co. Ltd. v. The King, [1951] S.C.R. 504 at p. 515:

It is fundamental to the due administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it is undermined. Nothing is more important than that the law as pronounced, including the interpretation by this Court of the decisions of the Judicial Committee, should be accepted and applied as our tradition requires; and even at the risk of that fallibility to which all judges are liable, we must maintain the complete integrity of the relationship between the courts.

27. In a nutshell, the rule of stare decisis is based on hierarchy. Lower courts are bound to follow decisions rendered by the courts that have the power to reverse them. Since an appellate court out of province has no such power, their decisions have no binding force within this province.

[20] Extraordinary Remedy Decisions

The parties have argued whether a court determining a matter of extraordinary remedy such as a writ of prohibition and certiorari has binding effect.

[21] R. v. Matykubov: Prerogative Remedies Not Binding in Same Sense

I do not agree with the parties that the decision in R. v. Matykubov, [2010] O.J. No. 2674 (O.C.J.) stands for the proposition that prerogative remedy court decisions are not binding. Armstrong J. was dealing with an issue that involved two lines of authority on the issue as to whether failure to confirm the form of release on an Information under s. 508(1) (b)(i) of the Criminal Code results in a loss of jurisdiction. The wording of his decision could lead to an interpretation that prerogative writs were not binding at all or it could be not binding to the same extent or degree as appellate decisions. What Armstrong J. said was they were not binding on him in the same sense as appellate decisions as they were not meant to be appellate in nature. In that case there were Court of Appeal authorities relied on for both sides of the issue as well as differing Superior Court judgments on point. Armstrong J. preferred the reasoning in several of the Superior Court of Justice summary conviction appeals over a differing summary conviction appeal decision and two prerogative court decisions. It was in this context that Armstrong J. said at para 14:

I also prefer the reasoning in these cases to the reasoning in the prerogative remedy court decisions in Pavlick and Sullivan and Ross. In any event, the latter are not binding on me in the same sense as the summary appeal decisions because they are not in any way meant to be appellate in nature (see R. v. Sarson, [1992] O.J. No. 1089 (S.C.J.) where Watt J. (as he then was) stated succinctly: "The writs, often called extraordinary remedies, are in no sense appellate in nature. They are not, nor shall they be suffered to become, a substitute for an appeal.")

[22] R. v. Sarson: Nature of Prerogative Writs

Watt J., as he then was, in R. v. Sarson, [1992] O.J. No. 1089 (Gen. Div.) considered an application for an order of habeas corpus, with certiorari in aid, quashing the warrant of committal in respect to Mr. Sarson's conviction on a charge of second degree murder, as well as a request for other orders quashing his conviction and setting aside his guilty plea. Watt J.'s comments must be considered in the context of an individual circumventing the appellate route through the use of a prerogative remedy. It was in this context that Watt J. stated:

A further, in some ways related, principle is worthy of re-statement at present. It is undoubted that the prerogative writs, of which habeas corpus is but one, are jurisdictional in nature. In each case in which their issuance is sought, the inquiry is into the jurisdiction of the court whose order is under review. It is not merely a question whether the court whose order is under review erred in law. Mere error of law will not suffice. Jurisdictional error must be made to appear before the jurisdiction of the superior court to grant the relief sought will become engaged. The writs, often called extraordinary remedies, are in no sense appellate in nature. They are not, nor shall they be suffered to become, a substitute for an appeal. The remedies will be denied if used in circumvention of the Code's appeal provisions.

"It is well-settled that an applicant may not invoke the extraordinary remedies, in this case habeas corpus, to circumvent the ordinary appellate procedures for which provision is made in the Criminal Code"

[23] London (City) v. Young: Prerogative Remedies and Stare Decisis

In London (City) v. Young, [2006] O.J. No. 5526 (S.C.J.) affirmed on other grounds 2008 ONCA 429, an application for mandamus was dismissed by Kennedy J. The application was dismissed as the prerogative remedy was held not to be the appropriate procedure. The Court of Appeal held this was an error in dismissing the application as to the forum but agreed in the result. In determining the appropriate procedure Kennedy J. stated at para 40 and 41:

40 The orders sought by the applicant would require the SCJ to review the facts and reach its own conclusions. The prerogative remedies are not a substitute for an appeal by way of stated case. Thus, in my view, the issue of stare decisis and questions of concurrent jurisdiction do not arise in the application for prerogative remedies. Stare decisis arises upon a review and decision by an appellate authority on the merits of a case: See R. v. Sepiashvili, [2003] O.J. No. 3996 (Ont. C.J.) at para. 12. The principle of stare decisis states that a decision of one court binds courts lower on the judicial hierarchy. Where there are conflicting decisions from courts of concurrent jurisdiction, a judge or JP may follow the decision that is most persuasive. As it relates to POA offences, JPs are bound by decisions of the OCJ and the OCJ is bound by decisions of the C.A.

41 Moreover, the prerogative remedies are granted in exceptional circumstances. They are intended to remedy situations where there has been a breach of procedural fairness or where there has been jurisdictional error. It is not within the ambit of mandamus, a procedural remedy, for the SCJ to make binding appellate decisions on inferior courts. Rather, mandamus compels the inferior court to perform its duty. They have done so here. In my opinion, an order for mandamus should not be granted.

[24] R. v. Mansour: Persuasive Authority from Certiorari

There is a comment by Dorval J. in R. v. Mansour, [2018] O.J. No. 6421 (O.C.J.), reasons for judgment on an 11(b) application, where she considered the delay including that occasioned by the certiorari application brought in that case. Dorval J. noted when speaking of the obvious delay it would entail that "One Certiorari had already been filed on a local case, thereby creating persuasive authority, at least in this jurisdiction." I do not view this as a broad proposition that a ruling on Certiorari cannot in certain circumstances be binding on the Ontario Court of Justice.

[25] R. v. Matchett: Not Bound by Certiorari Decision

In R. v. Matchett, [2014] O.J. No. 6680 (O.C.J.), Legault J., an application was made for an order for disclosure of certain items. Legault J. did hold that he is not bound by a decision made on certiorari. There was an issue as to the proper procedure to be applied, either first party under Stinchcombe or third party disclosure procedure under O'Connor. Legault J. declined to be bound on the issue by a decision made on certiorari that the material was governed by the Stinchcombe regime stating at para 10:

10 I have found no authority indicating that I am bound by a decision or a ruling of the Superior Court by way of certiorari. While the decision is quite persuasive, I am not bound by that decision. The issue has yet to be decided by an appellate court, a decision binding upon me.

[26] R. v. Kovacs: Courts of Concurrent Jurisdiction

In R. v. Kovacs, [2006] O.J. No. 3018 (O.C.J.) Wolski J. was sitting as a POA appeal court on a provincial offence. There was a decision from the Superior Court of Justice on a certiorari matter under the same act. The next level of appeal for both courts was to the Ontario Court of Appeal. Wolski J. held that the two courts were courts of concurrent jurisdiction and disagreed he was bound. He did say "there is, as I understand the principles of stare decisis there must be a proper review by an appellate tribunal of the previous jurisprudence." I do not view that statement as holding that a decision of certiorari by a supervising court cannot be binding on those supervised courts.

[27] R. v. Dubois: Supervisory Power of Superior Courts

In R. v. Dubois, [1982] M.J. No. 30 (Man. C.A.), appeal dismissed other grounds , [1986] S.C.J. No. 21, the court granted an application of certiorari to quash a discharge based on differing considerations. O'Sullivan J. of the Manitoba Court of Appeal in dissent (who found an error in law but no loss of jurisdiction) considered the nature of certiorari. O'Sullivan J. stated at para 68:

"Certiorari is a prerogative process by which the Queen, acting through a superior court, exercises a supervisory power to keep inferior courts and others within the limits of their jurisdiction.."

[28] Supreme Court on Supervisory Authority

Estey J. speaking for the Supreme Court in R. v. Dubois, supra, who upheld the result but on different grounds noted at para 12:

"Superior courts, from the earliest days in our law, have exercised their inherent authority to enforce compliance with the law by lower tribunals which must exercise fully without exceeding their statutory jurisdiction. Such is the position of a preliminary hearing tribunal."

[29] R. v. Smith: Stare Decisis and Hierarchy

Watt J. as he then was, considered the issue of stare decisis in R. v. Smith, [1988] O.J. No 1750 (Ont. H.C.). The issue of stare decisis applying was resolved in the affirmative. Watt J. set out the issue on page 72:

The sole issue of stare decisis to be here determined is whether a summary conviction court in one territorial division of this province is bound by a decision, on a coincident point of law necessary to the determination of a judge of a District Court of Ontario sitting as an appeal court under para. 747(e) in another territorial division of the province.

[30] Binding Nature of Appeal Court Decisions

Watt J. noted the binding nature of the determination of an equivalent issue at page 74:

In the first place, it would seem to me that, prima facie, the decision of an "appeal court" binds the determination of an equivalent issue by a "summary conviction court", a trial court, under Part XXIV. In general terms, that is the manner in which the doctrine of precedent is applied within the judicial hierarchy of a province. It is, indeed, the very bedrock upon which the doctrine is constituted. It would require a clear and unequivocal statutory statement to the contrary to displace such a rule.

[31] Superior Court's Supervisory Power

I note if a trial court is bound by courts with the power to overrule their decisions then the Superior Court of Justice on a certiorari or mandamus ruling is a court so empowered according to the logic set out in R. v. Vu, supra. This is not a situation where the Superior Court of Justice through R.S.J. Thomas was sitting as a trial court (or court of coordinate jurisdiction) nor is it other provincial appellate authority as that would not have binding authority since that court cannot overturn or review an Ontario court decision.

[32] Distinction Between Jurisdictional Findings

I agree with the Crown/Applicant's position that, "In applications for certiorari, the court sits in review of the lower court on questions of jurisdiction. It is the function of that court to determine whether an error of jurisdiction has occurred in the lower court, and if so, to provide the appropriate remedy." I appreciate that in some cases the decisions are not binding but this is because they address only the factual issues between the parties themselves in the area of the court's exercise of its jurisdiction not overarching principles of law or general statements as to the court's jurisdiction. In those cases where the decision is not limited to the particulars of the case before it, I find that given the reviewing and supervisory function of the court it does provide binding precedent. There is a distinction between a finding that a particular court has exceeded its jurisdiction in the purported exercise of such and a finding that the court as an entity does not have jurisdiction in a particular situation.

[33] Provincial Court Authorities on Binding Precedent

The Applicant has provided three provincial court authorities asserting they stand for the proposition that certiorari decisions constitute binding precedent. I did not find these of much assistance albeit I do not find they are of no assistance. I do not accept that R. v. Brown, [1988] O.J. No 2435 (Prov. Ct.) stands for any proposition save that the court found itself bound by an Ontario Court of Appeal decision. A decision that the Court of Appeal itself may find to be in error based on later Supreme Court jurisprudence. The court held such and held that absent such determination the decision is still an authoritative statement of law.

[34] R. v. Letourneau: Extraordinary Remedy Decisions Binding

In R. v. Letourneau, 2008 ABPC 192, [2008] A.J. No. 752 (Alta. Prov. Ct.) Allen J. considered the principle of stare decisis in considering "the precedential value of the trial decisions of the Court of Queen's Bench" in their exercise of coordinate jurisdiction. Allen J. recognized the binding authority of the Supreme Court of Canada, and the authority of courts of appeal over the trial judges in their province. Allen J. also considered that the Court of Queens Bench is a summary conviction appellate court, can review decisions of the provincial court through extraordinary remedies, and can exercise coordinate jurisdiction at trial on offences both courts can try. It was in that context that the statement was made at para 29 that:

There can be no question that the decision of a Queen's Bench Justice relating to a summary conviction appeal is binding upon the Judges of the Provincial Court. Similarly, there can be no question that a decision of a Justice related to an extraordinary remedy is binding.

[35] Allen J.'s Summary on Stare Decisis

Allen J. in R. v. Letourneau, supra at para 40 and 52 made the following statements:

40. A review of the jurisprudence convinces me that I am bound to follow the decision of a Queen's Bench Justice on a point of law when that Justice is acting as an appellate court, or renders a decision concerning an extraordinary remedy.

52 Let me summarize my view related to the Court of Queen's Bench decisions. When a Queen's Bench Justice has issued a decision either as a Summary Conviction Appeal Justice or a reviewing Justice in an application for an extraordinary remedy, the Justice is fulfilling an appellate function. In such circumstances, the principle of stare decisis makes the decision of the Queen's Bench Justice binding upon a Provincial Court Judge. However, when the Queen's Bench Justice is sitting as a trial Judge, the Justice is a court of concurrent jurisdiction and the rule of stare decisis does not apply to such decisions. However, as with any judgment issued by a court of coordinate jurisdiction, a Provincial Court Judge must consider the comity principle based upon the principles set out in Hansard. In criminal cases, the Provincial Court Judge can refuse to follow the decision if that Judge believes the reasoning is wrong.

[36] Limited Analysis in Letourneau

I agree with the Respondent that there was no analysis of this determination or authority supplied on this point. This is not surprising as this was not the issue before the court but rather that of the precedential value of the trial decisions of a court of coordinate authority. The court did consider a number of decisions relating to the binding nature of appellate courts however did not indicate any relating to that of courts providing extraordinary remedies. This having been said the court did accept the principle that an extraordinary remedy is binding and has some weight.

[37] R. v. Lewis: Certiorari Binding on Jurisdiction

In R. v. Lewis, [1995] Y.J. No. 116 (Terr. Ct.) rev'd [1996] Y.J. No. 119 (S.C.) Lilles J. indicated that the "decision of the Supreme Court of the Yukon Territory pursuant to an application for certiorari ..[was binding].. at least in relation to the issue of jurisdiction. That certiorari decision determined that "it was within the jurisdiction of the Justice presiding at a Preliminary inquiry to order that the Attorney General of Canada pay for counsel appointed by the court to represent the accused". The court in Lewis concluded the court had jurisdiction as a preliminary hearing court to ensure that proceedings are being conducted fairly and could allow an application for state funded counsel and to provide a conditional stay of proceedings until such occurred (although Lilles J. made the determination before election of mode of trial). I note that the Yukon Territory Supreme Court on application for certiorari or judicial review held that the justice at the preliminary inquiry could not order the stay or make other orders as there was no inherent or 'ancillary' power to remedy the perceived unfairness. The court specifically declined to follow the authority relied on as binding by Lilles J. based on other YT Supreme Court decisions both before and following it. The court did not say that Lilles J. was incorrect in finding that the decision was binding on the court, although this would be implicit if there were concurrent authorities to the contrary. The court did not indicate that it was an error to hold that a ruling on a certiorari decision is binding on the Yukon Territorial Court.

[38] Scope of Appellate Decisions

The scope of an appellate decision can have an impact on whether it is authority for a proposition. In R. v. Timminco Ltd., [2001] O.J. No. 1443 (Ont. C.A.) the limited endorsement by the Court of Appeal in R. v. Grant Paving and Materials Limited was held to not be authority for the proposition the Crown must prove knowledge of a hazard for the actus reus in prosecutions under the Occupational Health and Safety Act and its Regulations. Osborne ACJO at para 36 stated:

36 Reasons of this Court given by "endorsement" are mainly directed to the immediate parties. Endorsements, like all judgments of this Court, have precedential value but they should not be construed to support broad overarching principles which are not specifically addressed in them. Thus, this Court's judgment in Grant Paving should be taken as authority only for the proposition that the Appeal Judge erred in not deferring to the Trial Judge's finding of fact that there was no evidence that Grant Paving's employee was exposed to a hazard. Grant Paving has no further precedential value.

[39] Scope of R. v. R.S. Decision

When examining the scope of R. v. R.S. supra, (S.C.J.), R.S.J. Thomas addressed all four arguments raised by the Respondent on the Crown's initial application in the case before me. He addressed the operation of the legislation finding it procedural in nature, he addressed the vesting issue finding that since it is not a right it does not vest, and he addressed the jurisdictional issue finding in essence that it is not the label but the operation of the legislation that must be looked to according to R. v. Dineley and was not prospective given it was a procedural change. His Honour noted he was "under no illusion that this decision will end the litigation, but it is important to move the argument forward to an appeal-ready position." His Honour was aware of the five decisions released by the Ontario Court of Justice prior to the date of his decision. This judgment was made in full awareness of the issues involved. This was not a brief endorsement and the issues considered were not peculiar to the two parties. He was considering the aspect of the jurisdiction of the provincial court and addressed all the basis of argument of the parties' arguments before me. I find that he did not intend and did not in fact confine himself to the specific facts of the case(s) before him.

[40] McHugh J.'s Analysis in R. v. Dabrowski

The issue of whether the decision in R.S. is binding on the Ontario Court of Justice has been judicially considered by judges of this court. McHugh J. in R. v. Dabrowski, 2019 ONCJ 677 at paras 10-17 considered the principles of stare decisis, the application of such to decisions of the Superior Court of Justice sitting as a summary conviction appeal court, and the exceptions to or inapplicability of the principle where the courts are ones of "co-ordinate or concurrent capacity, as opposed to appellate or reviewing capacity" or are of concurrent appellate or review jurisdiction. I accept McHugh J.'s review of the principles and law as accurate and adopt them.

[41] McHugh J.'s Conclusion on Binding Authority

McHugh J. in R. v. Dabrowski, supra, also considered at paras 18 through 33 extraordinary remedy applications, the nature of such, and determined that he was bound by the decision in R.S. I accept McHugh J.'s review of the principles and law in relation to prerogative relief and accept and agree with his conclusion that this is binding authority. I adopt his reasons. Of particular interest is the reference to Regional Municipality of York v. Martinez, [2014] O.J. No. 5277 where Justice McIsaac conducting a hearing on an application for mandamus stated that the Justice of the Peace was bound by an endorsement on a certiorari application for judicial review, and indicated that "once the Superior Court has spoken on an issue, the lower courts are bound to follow those dictates whether they like them or not".

[42] Guidance and Direction Across the Province

I agree with McHugh J. that the court in Martinez intended to bind not just the particular Justice of the Peace in the matter before him but to "impose guidance and direction across the Province." I agree that it is not distinguished by virtue of it dealing with provincial prosecutions and it supports a finding that R.S. is binding.

[43] Finding on Binding Authority

I find that R.S.J. Thomas intended his decision to have binding authority, he intended the Ontario Court of Justice to follow his direction that there was no jurisdiction to hold preliminary inquiries unless the offence has a potential penalty of fourteen years or more and that there was a considered analysis of the reasons for such determination. This was not a situation where he was considering the court exceeded its jurisdiction through a jurisdictional error exercised in the process of conducting a hearing but rather the jurisdiction of the court itself to hold the hearing. There have been a number of decisions alluded to previously in this judgment that have concluded that a supervising and reviewing court's decisions, such as a court exercising prerogative remedies, is binding on those courts so supervised. McHugh J. provided an analysis and reasons to conclude that he was bound to follow the decision of Justice Thomas in R.S. I agree and adopt that analysis and reasons and having considered his reasons and other caselaw I have reviewed, find that I too am bound by the decision in R.S.

[44] Judicial Comity

Aside from agreeing and adopting McHugh J.'s analysis and conclusions there is no reason to depart from the principle of judicial comity on this issue. Not only can I not find that he is clearly wrong I am of the view he is correct in his analysis of the law and application of such.

Decision

[45] Crown's Application Allowed

The Crown's application is allowed. There will be no preliminary inquiry on this matter as this court lacks jurisdiction to hold such. The preliminary inquiry date of October 16, 2019 is vacated. Mr. Mehring will have an opportunity to re-elect pursuant to s. 536(2.1) of the Criminal Code failing which he will be remanded to the Superior Court of Justice for his trial.

Released: October 7, 2019

Signed: Justice N. Dawson