ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11039
DATE: 2012/02/03
B E T W E E N:
HER MAJESTY THE QUEEN
G. A. Beasley, for the Crown
Respondent
- and -
KYLE SUNNY BROWN
R. C. Sheppard, for the Applicant
Applicant
HEARD: January 26, 2012
HOCKIN, J.
[ 1 ] The applicant Kyle Brown moves for a writ of certiorari to quash the decision of Mr. Justice Rabley to assume jurisdiction for the purpose of the applicant’s sentencing after guilty pleas were received by Mr. Justice Skowronski on September 8, 2011. Mr. Justice Skowronski fell ill in November, 2011. The application turns on the application of s. 669.2 of the Criminal Code and the decision of the Supreme Court of Canada in R. v. MacDougall, 1998 763 (SCC) , [1998] 3 S.C.R. 45 to the facts of this case.
Factual Background
[ 2 ] On December 10, 2011, the applicant was charged with several indictable offences. He was released on bail. There were a number of adjournments to allow time for disclosure and resolution discussions. On July 12, 2011, Mr. Brown appeared with counsel in the Ontario Court of Justice assignment court when his case was adjourned to September 8, 2011 for an indicated guilty plea.
[ 3 ] On September 8, 2011, Mr. Brown appeared before Mr. Justice Skowronski who happened to be the presiding judge in the guilty plea court. After his election and arraignment, guilty pleas were entered to several of the charges. Mr. Justice Skowronski asked of defence counsel whether the constituent elements of the crimes plead to were admitted. Counsel indicated they were. Mr. Justice Skowronski then indicated that he was seized of the matter and for the purpose of securing a pre-sentence report, the matter was adjourned to December 12, 2011 for disposition.
[ 4 ] Unfortunately, in November 2011, Justice Skowronski fell ill and to recuperate, took time off from his work schedule. On December 12, 2011 he was still away. The applicant with defence counsel, Mr. Donald, appeared before Mr. Justice Rabley. Mr. Donald indicated that his wish was to adjourn the sentencing to await Justice Skowronski’s return. Justice Rabley, however, after granting a short adjournment, in the following words, expressed the view that since Justice Skowronski’s return was “tentative”, s. 669 allowed the court to pass jurisdiction to another judge:
I’ll give you a short adjournment if you want, but I think pursuant to the provisions of the Criminal Code , s. 669, I’m going to direct that the matter proceed, you can strike the plea and re-enter it, if you want, before a different justice, or, quite frankly, I think, any one of us can assume jurisdiction at this particular point in time. Justice Skowronski’s tentative return date is simply tentative. We hope he can potentially return. We are of the view that it’s really unfair to accused people to have them wait in limbo for months at a time pending their sentences because they can’t move on with their life. I appreciate that you’re not ready to go today so I’m happy to grant you a short adjournment to another date, if you want to pick one. But at that point in time, the matter should proceed to sentencing.
[ 5 ] The case was then adjourned by Justice Rabley to December 22, 2011.
[ 6 ] On December 22, 2011, the applicant appeared again before Justice Rabley. Defence counsel explained that the applicant’s instruction was to seek an adjournment of the proceeding to February in the hope that Justice Skowronski would be back. In support of the request, the applicant delivered an affidavit to the following effect:
His expectation was always that he would be sentenced by Justice Skowronski before whom he entered his guilty pleas.
He wanted to be sentenced by Justice Skowronski.
Justice Skowronski was expected to return to work in February, 2012.
[ 7 ] Beyond the affidavit, through counsel, the applicant waived any claim to a remedy under sections 11(b) and 24 of the Charter of Rights and Freedoms.
[ 8 ] From the transcript of the proceeding of December 22, 2012, Justice Rabley’s information on Justice Skowronski’s return was as follows:
But having said that, the difficulty we have is, is that we just don’t know if Justice Skowronski is coming back.
And if it is that somebody was saying to me and I had information, which I do not, and I’ve tried to verify that information as of a very short time ago, that there is a realistic expectation that he’s coming back, on a certain day, likely did on the last occasion, I would say, ‘I don’t have a problem. It’s a couple of months. We can wait.’ I wouldn’t have an issue with that. But that’s not the information that I’m getting. And the information that I’m getting is that maybe His Honour might be able to return, in February, at the earliest.
[ 9 ] Defence counsel then advised the court that it was the information of the local defence bar that Justice Skowronski would make a return to work in February or two months hence.
[ 10 ] At this point in the proceeding Mr. Donald for the applicant indicated to the court that it was not his request for an indefinite adjournment and that on the basis of the reasons in MacDougall , where the expectation is that the judge seized of the case will recover and return, one must take into account that “the removal of a judge from an unconcluded case has the potential to interfere with the independence of the judiciary and the right of an accused to a fair trial.” (para. 51, MacDougall ). Therefore, the request was that the case remain with Justice Skowronski.
[ 11 ] Justice Rabley’s answer to this submission and the reason he assumed jurisdiction over the case, are set out at pp. 26, 27 of the transcript of the December 22, 2011 proceeding as follows:
THE COURT: Yes, but Mr. Donald, this is a 1998 decision that you’re relying upon. Since that point in time, there’s been tremendous growth within the criminal justice system, including case management, and a much more active role of the judiciary and the management of cases. We no longer – at least to my experience, in the 25 years that I’ve been doing this – have cases where Crown counsel is making applications to have cases brought before different judges.
What’s happening now, is that the judiciary are taking an active role in ensuring that case management and the management of cases is being done in an efficient way. And so, we’re in a completely different time, than back in MacDougall . I’ve never heard of a Crown bringing an application, such as the one that’s being referred to here. 669.2 has been brought in, for that very reason, to deal with these kinds of issues. So that when judges are ill, that the accused doesn’t languish, and so that the justice system, including all the parties, including the victim, and including the accused, can be dealt with in an expeditious way, and that’s exactly what’s being done. And here we have a, we have no certainty, as to a return of a judge, and so the matter needs to proceed. And so what I’m saying to you is, that the matter ought to proceed; simple as that.
If it is that the facts that you and the Crown work out, are such that it’s problematic, well that’s a whole different issue. But, I don’t know if Mr. Rollings has instructions from the Crown who was apparently on this matter, as to some discussions that have been had regarding the facts or not. If I’m a guessing man, I’d be guessing probably nothing’s taken place. But I don’t know. But that’s an issue. Otherwise, the case should proceed. And that’s the direction that I’m ordering, is that it does proceed.
MR. DONALD: Well, if that’s your order, sir, then I have no further submissions.
Analysis
[ 12 ] In this case, my conclusion is that the court below proceeded on the wrong principle that jurisdiction could be assumed on the basis that the proper management of cases required it. I repeat Justice Rabley’s words:
What is happening now is that the judiciary are taking an active role in ensuring that case management and the management of cases is being done in an efficient way. And so, we’re in a completely different time, than back in MacDougall … 669.2 has been brought in, for that very reason, to deal with these kinds of issues.
[ 13 ] As I say, with respect, this is the wrong approach. Section 669.2 was not enacted as a tool for case management. It was in the Code and had been for some time when the Supreme Court of Canada decided MacDougall .
[ 14 ] Under s. 669.2(1), the judge seized of the case retains jurisdiction over it to its conclusion unless the delay after the onset of the illness is unreasonable in the circumstances of the case. MacDougall , at para. 50 . In this case, there was nothing unreasonable in the length of the delay. The expectation when Justice Rabley assumed jurisdiction on December 22, 2011 was that Justice Skowronski was to return two months later. There was therefore no basis to conclude that he was “unable to continue”. I agree with the applicant’s submission that this predicate requirement of s. 669.2(1) was not established. In the result, jurisdiction ought to have remained with Justice Skowronski.
[ 15 ] For these reasons, the December 22, 2011 order of Justice Rabley is quashed. Jurisdiction over the accused for the purpose of disposition continues in Justice Skowronski. As noted in my endorsement, this matter to him February 3, 2012 at 10:00 am.
“ Justice Peter B. Hockin”
Justice Peter B. Hockin
Released: February 03, 2012