ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 379/13
DATE: 20130920
ONTARIO
SUPERIOR COURT OF JUSTICE
CERTIORARI APPLICATION
BETWEEN:
HER MAJESTY THE QUEEN (ONTARIO SECURITIES COMMISSION)
Respondent
– and –
CARLOS DA SILVA and DAVID CAMPBELL Applicants
C. Watson and J. Feasby, for the Respondent
N. Rozier, for the Applicant Carlos Da Silva
M. Moon, for the Applicant David Campbell
HEARD: September 20, 2013
[Certiorari Application from the judgment of Duncan, J.
dated June 19, 2013]
MILLER, J.
[1] Carlos Da Silva and David Campbell are charged with contravening s.122 (1) (c) of the Securities Act. In the subject information # 105B-7-14 sworn June 22, 2012 Mr. Da Silva is charged on Counts # 1, 4 and 5 and Mr. Campbell is charged on all five counts. All five counts allege contraventions of s.122(1)( c ) of the Securities Act; and all five count cover the timeframe between December 10, 2008 and March 31, 2010. The Applicants apply for certiorari to quash the information on the basis that the Ontario Court Justice exceeded his jurisdiction in dismissing their application to quash the information before him.
[2] The Respondent takes the position that Duncan, J. acted within his jurisdiction pursuant to s. 34 of the Provincial Offences Act and was correct in his decision to dismiss the application. The Respondents posit that the Applicants have not shown that there has been a substantial wrong or miscarriage of justice as is required before the Superior Court of Justice may grant relief pursuant to s. 141(4) of the Provincial Offences Act. The Respondent further submits that if there was an error it was an error of law, not a jurisdictional error and relief should be sought by way of an appeal; relief by way of certiorari is not available to the Applicants pursuant to s. 141(3) of the Provincial Offences Act.
[3] The Applicants were initially charged on a four count information sworn February 24, 2011. Mr. Da Silva was charged on Counts # 1 and 4 and Mr. Campbell is charged on all four counts. Consent to commence the proceedings dated February 23, 2011 was obtained from the Commission as required by s.122(7) of the Securities Act.
[4] On the subject information, sworn June 22, 2012, the offence initially alleged in Count # 4 against both Applicants was split into two counts, # 4 and # 5. The two new counts together encompass the same timeframe as set out in the original Count # 4.
[5] Duncan, J. found, at paragraph 10 of his Reasons for Judgment, that “The prosecution split count 4 to reflect statutory amendments that came into effect September 28, 2009, midway through the period covered by the original count 4”.
[6] The parties agree that Duncan, J. correctly summarized the factual background. The Applicants submit that Duncan, J. should have stopped once he found as he did at paragraph four of his reasons for Judgment “On June 22, 2012 a second information was sworn. It was intended to replace the first information. No new consent was obtained. Rather the original consent…was presented to the Justice and appended to the information.” The Applicants submit that that finding was a finding that the information sworn June 22, 2012 was not valid and Duncan, J. had no further jurisdiction on that information.
[7] The Applicants submit Duncan, J. acted outside of his jurisdiction by going on to indicate, at paragraph 7, “the question becomes whether the offences charged in information 2 are the same offences charged in information 1” and to find, at paragraph 16 of his Reasons for Judgment, “I conclude there is nothing new in the new information and that the consent given to proceedings for offences listed in the first information is valid to cover the offences in the second information.”
S. 141(3)
[8] Section 141(3) of the Provincial Offences Act provides that “No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act, whether subject to leave or otherwise.”
[9] The Applicants submit that in accordance with the Ontario Court of Appeal decision in R. v. 1353837 Ontario Inc. 2005 4189 (ON CA), [2005] O.J. No. 656 at paragraph 17:
“Under s. 116(1) of the Provincial Offences Act no appeal lies from a pre-trial order such as the one made by the justice of the peace”.
[10] The Respondent takes the position that the Ontario Court of Appeal decision in R. v. Jarman [1972] O.J. No. 1024 at paragraph 4 is dispositive of the issue:
An error by the trial Judge as to the validity of an information does not deprive him of jurisdiction - the sole basis on which an extraordinary remedy can be granted on an application of this nature. Nor, except on an appeal from a final disposition, is it arguable that the trial Judge lacked jurisdiction on account of the invalidity of the information.
[11] I find that R. v. 1353837 Ontario Inc. is distinguishable on the basis that the pre-trial ruling in that case was a refusal to permit cross-examination of witness on a motion for disclosure. Here, as in R. v. Jarman, the issue decided by Duncan, J. had to do with the validity of the information.
[12] I find that pursuant to Section 141(3) of the Provincial Offences Act, no application for certiorari may be brought in respect of Duncan, J.’s finding that the information sworn June 22, 2012 was valid.
S. 141(4)
[13] If I am incorrect in that conclusion, I am not prepared to find that the Applicants have shown that that a substantial wrong or miscarriage of justice has occurred, as required by s. 141(4) of the Provincial Offences Act.
[14] I keep in mind the pronouncement of the Supreme Court of Canada in Quebec (Attorney General) v. Cohen 1979 223 (SCC), [1979] S.C.J. No. 50:
In dealing with certiorari one must never forget that it is a discretionary remedy. In the exercise of this discretion with reference to proceedings at a preliminary inquiry, it is essential to bear in mind that, in the interest of the effective administration of criminal justice, it is of paramount importance to avoid unnecessary delays, especially delays in bringing the case to trial.
[15] As quoted with approval by the Nova Scotia Court of Appeal in R. v. Atkinson, Goreham, Ross and Swimm [1982] N.S.J. No. 505 at paragraph 11:
In Canadian Criminal Evidence (2nd Ed.), by A.E. Popple the author says at p. 174:
". . . A consent need not necessarily contain all the elements essential to the validity of an indictment. The object of requiring a written consent to prosecution is to prevent the taking of proceedings for an offence entirely different from that brought to the notice of the official who gave the consent. . . ."
[16] Considering the approach taken by Duncan, J. I find not only was he within his jurisdiction to undertake the analysis he did but was correct in the finding he made that there was nothing new in the new information and that the consent given to proceedings for offences listed in the first information was valid to cover the offences in the second information.
[17] Duncan, J.’s approach was also consistent with the power pursuant to s.34 of the Provincial Offences Act to amend an information at any stage of the proceedings.
[18] The application for certiorari is dismissed.
MILLER, J.
Released: September 20, 2013
R. v. Da Silva and Campbell, 2013 ONSC 5970
COURT FILE NO.: 379/13
DATE: 20130920
ONTARIO
SUPERIOR COURT OF JUSTICE
CERTIORARI APPLICATION
HER MAJESTY THE QUEEN (ONTARIO SECURITIES COMMISSION)
– and –
CARLOS DA SILVA and DAVID CAMPBELL
REASONS FOR JUDGMENT
MILLER, J.
Released: September 20, 2013