Court File and Parties

COURT FILE NO.: CRIMJ (P)1604/11 DATE: 2013-11-29

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

P. Scrutton & R. Flumerfelt, for the Respondent

• and -

WILL VANDER WIER

H. Black, for the Applicant

Defendant

HEARD: October 17, 2013

REASONS FOR RULING

Re: Re-Litigating The Abuse of Process Application

COATS J.:

[1] The issue of a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms and the common law for abuse of process was the subject of an application before Justice Hourigan on September 30, 2013. The parties filed an agreed statement of facts, application record, facta and brief of authorities on the application.

[2] The applicant was arraigned and elected to be tried by a court composed of a judge and jury. The jury selection process did not commence.

[3] Justice Hourigan heard cross-examination of the affiants, Mr. Vander Wier and Ms. Joanne Mulcahy. Justice Hourigan did not hear evidence on the merits of the case. It took two days to hear the application.

[4] On October 2, 2013, Justice Hourigan endorsed the indictment that the application was dismissed with reasons to follow. He then informed the parties that he had been elevated to the Court of Appeal and would not preside over the trial. I was appointed as the trial judge.

[5] There is no consent between the parties to be bound by Justice Hourigan’s ruling.

[6] A fresh motion was brought by the applicant to re-litigate the stay application. I dismissed the motion with written reasons to follow. These are the written reasons.

Jurisdiction on Stay Application

[7] The first issue is whether only the trial judge has jurisdiction to hear a stay application.

[8] The applicant submits that remedies for abuse of process are best brought before the trial judge and relies on the following authorities: R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, R. v. Young (1984), 46 O.R. (2d) 52 (C.A.), R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566 and R. v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588.

[9] The Crown submits that a judge, other than the trial judge, has jurisdiction to hear a stay application. The Crown refers me to Rule 27.02 of the Criminal Proceedings Rules for the Superior Court of Justice (Ont.) (SI/2012-7). R. v. Leduc (2003), O.R. (3d) 1 (C.A.) is also applicable.

[10] Turning to a case cited by the applicant, R. v. Rahey is a decision of the Supreme Court of Canada. The case involved a magistrate who heard evidence and then reserved for 11 months on an application for directed verdict. The Crown applied to the Superior Court for mandamus to compel the magistrate to render a decision and the accused then applied to the Superior Court to dismiss the charges on the basis his right to trial within a reasonable time had been infringed. The magistrate then dismissed the application for a directed verdict. A few days later the accused’s application to the Superior Court was heard and granted and the charges dismissed.

[11] The Supreme Court of Canada held that the superior court judge, who was not the trial judge, has jurisdiction to hear the s. 24(1) application. The Court reasoned that although the trial court is a court of competent jurisdiction, the superior court should also have constant, complete and concurrent jurisdiction for a s. 24(1) application.

[12] The other authorities relied on by the applicant deal with the availability of stay proceedings to remedy abuse of process. The cases state that a trial judge has residual discretion, and this power may be exercised only in the clearest of cases. However, none of these cases bestow exclusive jurisdiction on the trial judge to hear a stay application.

[13] The Ontario Court of Appeal decision, R. v. Leduc, relied on by the Crown, involved an appeal from a decision allowing the accused’s stay application. A reasonable apprehension of bias arose on the stay application and the trial judge asked another judge of his court to hear the application. The Court concluded that the stay proceedings can continue before another judge of the same court, relying on s. 24(1) of the Charter and s. 669.2(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[14] This interpretation is consistent with Rule 27 of the Rules which applies to stay of proceedings under s. 24(1) of the Charter. In particular, Rule 27.02 provides that “Applications under this rule shall be made to a judge of the court in the county, district or region where the criminal proceedings to which the application relates are being or are to be heard.” It does not require applications for a stay to be heard by the trial judge.

[15] The applicant concedes that the dismissal of this motion to re-litigate the abuse of process application does not affect his right of appeal from Justice Hourigan’s ruling. A remedy under s. 24(1) can arise at any time of the trial. The applicant is not precluded from bringing another application for stay of proceedings in the course of this trial.

Section 669.2 of the Code

[16] I will set out the relevant provisions of the Code, namely ss. 669.2(1),(3) and (4) which provide:

Continuation of proceedings

669.2 (1) Subject to this section, where an accused or a defendant is being

tried by

(a) a judge or provincial court judge,

(b) a justice or other person who is, or is a member of, a summary conviction court, or

(c) a court composed of a judge and jury,

as the case may be, and the judge, provincial court judge, justice or other person dies or is for any reason unable to continue, the proceedings may be continued before another judge, provincial court judge, justice or other person, as the case may be, who has jurisdiction to try the accused or defendant.

If no adjudication made

(3) Subject to subsections (4) and (5), if the trial was commenced but no adjudication was made or verdict rendered, the judge, provincial court judge, justice or other person before whom the proceedings are continued shall, without further election by an accused, commence the trial again as if no evidence on the merits had been taken.

If no adjudication made — jury trials

(4) If a trial that is before a court composed of a judge and a jury was commenced but no adjudication was made or verdict rendered, the judge before whom the proceedings are continued may, without further election by an accused, continue the trial or commence the trial again as if no evidence on the merits had been taken.

[17] Courts have applied this section in circumstances where a trial judge has been appointed to a higher court: see R. v. Le, 2011 MBCA 83, [2011] 270 Man.R. (2d) 82 (C.A.), R. v. Shrubsall (2000), 2000 2852 (NS SC), 186 N.S.R. (2d) 348 (N.S.S.C.) and R. v. Zola, (2006) 70 W.C.B. (2d) 547 (Ont. Sup. Ct.).

[18] In this case, subsections 669.2(3) and 669.2(4) do not apply.

[19] This is not a judge alone trial and I find that subsection 669.2(3) is not applicable. Even if this is a judge alone trial in that a jury selection process had not begun in front of Justice Hourigan, he did not hear evidence on the merits of the trial proper.

[20] In 2011, Parliament made a number of amendments to the Code through Bill C-53: Fair and Efficient Criminal Trials Act. In particular, Parliament added evidence “on the merits” to subsection 669.2(3) and (4), signalling the importance of this distinction.

[21] The cases relied on by the applicant are distinguishable, namely, the trial judges heard evidence on the merits and/or made evidentiary rulings.

[22] In R. v. Baltovich, Watt J. made several rulings on evidentiary matters before his appointment to the Court of Appeal, and counsel agreed to be bound by them. There were other evidentiary matters that he did not rule on and those issues were reargued before the new trial judge.

[23] The trial judge in R. v. Curtis conducted an evidentiary hearing under s. 645(5) of the Criminal Code. The Court reasoned that the trial judge should be seized with the trial because of the principle that rulings by one judge do not bind another judge who may later deal with the same matter.

[24] In R. v. Pasini (1991), 63 C.C.C. (3d) 156 (Que. C.A.) the trial judge was unable to continue the trial after hearing 111 witnesses and reviewing 2,000 documents filed. Another judge was appointed to continue the proceedings and the Court held that it was necessary to recommence the trial.

[25] The trial judge in R. v. Poloni ruled on the validity of wiretap authorization and ruled that some of the Crown’s evidence was inadmissible. She then became too ill to continue presiding over the trial and the trial was reassigned to a new judge. The Court held that a trial was to be commenced again.

[26] In R. v. Hatton (1978), 1978 2398 (ON CA), 39 C.C.C. (2d) 281 (Ont. C.A.) there was a substitution of judges in the course of the trial. Justice Sprague disqualified himself after the accused was arraigned and the jury was empanelled. There had been no evidence called or rulings made by trial judge. The Court held that the integrity of the trial was not impaired by what occurred.

[27] In our case, Justice Hourigan did not make evidentiary rulings that would affect the trial. He did not hear evidence on the merits of the case. A dismissal of a stay application for abuse of process is different from evidentiary rulings. The stay application for ruling is a stand-alone application, separate and apart from the trial. This distinction is supported by Rule 27 and the Court of Appeal in R. v. Leduc.

[28] Subsection 669.2(4) is also not applicable in this case because a trial by a judge and jury did not commence. The case law is consistent in that such trial commences when the accused is placed in the charge of the jury: see R. v. Basarabas, 1982 216 (SCC), [1982] 2 S.C.R. 730, R. v. Curtis, (1991), 1991 11732 (ON SC), 66 C.C.C. (3d) 156 and R. v. Soulie, 1992 2227 (B.C.S.C.). In the case at bar, the applicant was not placed in charge of the jury.

[29] I find that I have jurisdiction to continue the proceedings pursuant subsection 669.2(1). The appointment of Justice Hourigan to the Court of Appeal renders him unable to continue the proceedings. This interpretation is supported by a number of cases which uphold the continuation of the trial pursuant to 669.2(1): see R. v. Leduc, R. v. Le and R. v. Shrubsall.

[30] This interpretation is consistent with s. 653.1 of the Code which deals with mistrials. It binds rulings, relating to the Charter, made during the trial to any new trial if the rulings are made before evidence on the merits is presented. If it is in the interest of justice, there is discretion not to be bound by such rulings.

[31] I find that Justice Hourigan, in effect, declared a mistrial. He continued to have jurisdiction but chose not to continue: see s. 669.3 of the Code. The applicant concedes that the trial commenced and Justice Hourigan heard evidence on the stay application.

[32] Furthermore, I find that it is not in the interests of justice to hear the identical application on the same record that was ruled on by a court of competent jurisdiction a few weeks prior. Justice Hourigan will provide reasons for his ruling and the applicant is not precluded from bringing another stay application during the trial before me should a different record arise. The defence has not satisfied me on a balance of probabilities that it would not be in the interests of justice to permit Justice Hourigan’s ruling to stand.

[33] This conclusion is also supported by the case management rules under Code, particularly section 551.3.

[34] For the above reasons, I dismiss the motion to re-litigate the stay of proceedings application.

Coats J.

Released: November 29, 2013