COURT FILE AND PARTIES

COURT FILE NO.: 5-275/11
DATE: 20120517

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Jerome Mullings

BEFORE: Justice Spies

COUNSEL:
Danielle Scott , for the Crown

Kas Marynick , for Jerome Mullings

HEARD: May 2, 2012

APPLICATION FOR A REMEDY IN THE NATURE

OF CERTIORARI or MANDAMUS

Introduction

[ 1 ] During the course of the sentencing hearing for the defendant, Jerome Mullings, an issue arose as to whether or not he is statute-barred from receiving enhanced credit for pre-sentence custody. Following his arrest on the charges before this Court, a Justice of the Peace ordered that Mr. Mullings be detained in custody and he endorsed on the record that his detention was primarily because of a previous conviction, pursuant to s. 515(9.1) of the Criminal Code . By the time of his sentencing hearing, Mr. Mullings had been in custody since December 4, 2010; a period of over fifteen months. Mr. Marynick submitted that he should receive enhanced credit for the time that he has served. However, s. 719(3.1) of the Criminal Code states that a defendant cannot receive enhanced credit when the reason for detaining the defendant was stated in the record under s. 515(9.1) of the Criminal Code . On March 29, 2012, I sentenced Mr. Mullings to a period of five years’ imprisonment. [1] I left open the question of pre-sentence credit so that this application could be brought.

[ 2 ] The defendant brings this application in the nature of certiorari to quash the s. 515(9.1) endorsement so that he can seek enhanced credit for pre-sentence custody. Alternatively, the defendant seeks an order of mandamus compelling the Justice of the Peace to remove this endorsement from the record.

[ 3 ] Mr. Marynick raises three arguments in this application:

a. The Justice of the Peace applied the wrong test in making a s. 515(9.1) endorsement.

b. The record does not reflect the proposition that the Justice of the Peace detained the defendant primarily because of a previous conviction.

c. The Justice of the Peace misinterpreted s. 515(9.1) of the Criminal Code by considering the defendant’s entire criminal record in detaining him rather than identifying a single previous conviction as the primary reason for the detention.

[ 4 ] There is a threshold issue that must be passed before these submissions are considered, namely, whether such arguments fall within the scope of a mandamus or certiorari application. The question of this Court’s jurisdiction to review the s. 515(9.1) endorsement was left open in my sentencing reasons. [2]

[ 5 ] I also made comments about Defence counsel’s third argument about the proper interpretation of s. 515(9.1) in my sentencing reasons. [3] I stated that s. 515(9.1) does not require a Justice of the Peace to isolate a single conviction in order to make the endorsement. If this conclusion is correct, then Mr. Marynick’s third argument fails.

[ 6 ] This preliminary conclusion was made after brief submissions by counsel and a review of Justice Tuck-Jackson’s decision in R. v. M.C. [4] . In that case, Justice Tuck-Jackson stated at para. 31 that a Justice of the Peace may make a s. 515(9.1) endorsement if the detention was based primarily on a “lengthy and related criminal record.” However, there is no indication that the issue of whether s. 515(9.1) requires the identification of a single conviction was considered in that case. Nor is there any indication that counsel made any submissions on that point.

[ 7 ] Since the release of my sentencing reasons, I have received additional submissions from Mr. Marynick on the proper interpretation of s. 515(9.1). In my view, these arguments have some merit, and the preliminary conclusion reached in my sentencing reasons should not be taken as a statement of the law. For the purposes of this application, however, it is unnecessary for me to determine this issue. Accordingly, I leave the proper interpretation of s. 515(9.1) for a court to decide in the future.

[ 8 ] Following submissions of counsel on May 2, 2012, I dismissed the application with reasons to follow. These are my reasons.

Jurisdiction

[ 9 ] Superior courts have jurisdiction to issue prerogative writs such as mandamus and certiorari . The issue of this Court’s jurisdiction turns on whether the errors alleged by Defence counsel fall within the scope of such writs.

[ 10 ] To begin, I note that the bulk of the submissions of both parties focused on the writ of certiorari . Very little was said about mandamus , but what little was said is sufficient for me to dismiss the mandamus application.

[ 11 ] Ms. Scott raises the case of R. v. Vasarhelyi [5] to oppose the mandamus application. At para. 51, Watt J.A. said the following about this extraordinary remedy: “An order in lieu of mandamus may be granted to compel a court of limited jurisdiction to exercise a jurisdiction or discharge a duty, but not to compel the court, tribunal or official to exercise the jurisdiction or discharge the duty in a particular way.” In my view, this is dispositive of the mandamus application. Mr. Marynick seeks an order compelling the Justice of the Peace to exercise his jurisdiction in a particular way. This is outside the scope of a mandamus order. Accordingly, the mandamus application is dismissed.

(continued verbatim…)

SPIES J.

DATE: May 17, 2012