Her Majesty the Queen v. G.B.

[Indexed as: R. v. B. (G.)]

Ontario Reports

Ontario Superior Court of Justice,

Leitch J.

March 17, 2014

119 O.R. (3d) 360 | 2014 ONSC 1112

Case Summary

Criminal law — Mental disorder — Unfit to stand trial — Prima facie case — Annual hearing required at which Crown having to prove that prima facie case still existing following finding that young person unfit to stand trial — Applicant found unfit to stand trial as young offender in 2003 but prima facie hearing held between 2007 and 2013 — Crown proceeding ex parte before Youth Court judge in 2013 without applying for extension of time — Crown relying solely on affidavit of police officer stating that he was satisfied that reasonable and probable grounds existed that applicant had committed offences — Affidavit not meeting requirements of s. 672.33(4) — Youth Court judge initially having jurisdiction under s. 672.33 of Code but losing jurisdiction because he proceeded ex parte and in absence of application for extension of time — Applicant asking reviewing court to order acquittal or to remand matter to youth court with direction that an acquittal be entered — Reviewing court not having jurisdiction to order acquittal of applicant as hearing must be held in Youth Court — Order of Youth Court judge quashed and matter remitted to Youth Court — In Youth Court Crown required to seek extension of time to hold prima facie hearing and to seek leave to adduce additional evidence satisfying requirements of s. 672.33(4) — Application granted — Criminal Code, R.S.C. 1985, c. C-46, s. 672.33 — Youth Criminal Justice Act, S.C. 2002, c. 1, s. 141(10).

The applicant was charged as a young offender with sexual assault and assault and was found unfit to stand trial in 2003. The combined effect of s. 141(10) of the Youth Criminal Justice Act and s. 672.33 of the Criminal Code is that following a finding that a young offender is unfit to stand trial, an annual hearing must be held at which the Crown is required to prove that a prima facie case still exists. No prima facie case hearing was held between 2007 and 2013. In 2013, without seeking an extension of time and proceeding ex parte, the Crown proceeded with a prima facie hearing at which it tendered an affidavit of a police officer who deposed that he had spoken with the alleged victim and his mother and he was satisfied that there were reasonable grounds to believe that the applicant committed the offences. The Youth Court judge held that the Crown had established a prima facie case. The applicant brought an application for an order in the nature of certiorari quashing that order.

Held, the application should be allowed.

The applicant argued that the order was void ab initio because the Youth Court had lost its jurisdiction to hold a s. 672.33 hearing given the failure to do so between 2007 and 2013. The Youth Court judge initially had jurisdiction under s. 672.33 of the Code, but lost jurisdiction because he proceeded ex parte, and he failed to require the Crown to file an extension of time. The evidence relied on by the Crown at the hearing did not comply with s. 672.33(4), as the police officer's affidavit did not contain evidence that would be admissible if offered viva voce. [page361]

The applicant asked the reviewing court to order that the applicant be acquitted under s. 672.33(6). The reviewing court did not have the jurisdiction to do so as the prima facie hearing had to be held in the Youth Court. The order holding that the Crown had established a prima facie case was quashed, and the matter was remitted to the Youth Court judge for consideration. The Crown was required to apply to extend the period of time for holding a prima facie case hearing and to establish that the extension was necessary for the proper administration of justice, and the Crown was required to seek leave to introduce further evidence on the application.

R. v. Thomson (2005), 2005 8664 (ON CA), 74 O.R. (3d) 721, [2005] O.J. No. 1124, 196 O.A.C. 39, 64 W.C.B. (2d) 505 (C.A.), consd

Other cases referred to

Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, 51 A.C.W.S. (3d) 1045, 25 W.C.B. (2d) 304; R. v. Talbot, [1996] O.J. No. 5323 (C.J. (Prov. Div.)); R. v. Whynot, 1994 4130 (NS CA), [1994] N.S.J. No. 678, 129 N.S.R. (2d) 347, 22 W.C.B. (2d) 586 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 24(1)

Criminal Code, R.S.C. 1985, c. C-46, ss. 672, 672.33 (1), (1.1), (4), (6)

Youth Criminal Justice Act, S.C. 2002, c. 1, s. 141(10)

APPLICATION to quash an order that the Crown had established a prima facie case against the applicant.

E.A. Maguire, for respondent.

P. Calarco, for accused/applicant.

[1] LEITCH J.: — The applicant seeks an order in the nature of certiorari to quash the order of Skowronski J. dated August 19, 2013 holding that the Crown had established a prima facie case against the applicant on charges of assault and sexual assault.

Background Facts

[2] The applicant is accused of assault and sexual assault on account of an incident alleged to have occurred in London, Ontario on January 25, 2001. In 2003, the applicant was found unfit to stand trial in the Ontario Court of Justice.

[3] On July 29, 2013, the Ontario Review Board was advised by the Crown that it had no information as regards whether a prima facie case had ever been made out by the Crown against the applicant under s. 672.33 of the Criminal Code, R.S.C. 1985, c. C-46, which mandates an inquiry every two years after an accused is found unfit to stand trial to decide whether sufficient evidence can be adduced at that time to put the accused on trial. [page362]

[4] Section 141(10) of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA") provides that "[f]or the purpose of applying s. 672.33(1) of the Criminal Code to proceedings under this Act in relation to an offence alleged to have been committed by a young person, wherever in that subsection a reference is made to two years, there shall be substituted a reference to one year."

[5] The applicant was a young person when he was found unfit to stand trial. Therefore, an annual inquiry was required pursuant to s. 672.33(1) of the Criminal Code.

[6] On July 31, 2013, the Ontario Review Board adjourned the case to allow the Crown to bring the required application.

[7] On August 19, 2013, the Crown proceeded ex parte before Skowronski J., who ordered "that sufficient evidence can be adduced at this time to put the accused on trial pursuant to s. 672.33".

[8] As noted, the application before Skowronski J. was without notice to the applicant or his counsel. The only evidence presented on the application was an affidavit of a London police officer who deposed that he spoke with the alleged victim and his mother and "based on the conversation I am satisfied that there still exists reasonable grounds that [the applicant] committed the [offences] and this case can proceed to a trial if so required".

[9] This application seeks a grant of certiorari to quash the order of Skowronski J.

Procedural History of this Application

[10] This application was brought on September 6, 2013. The applicant's position as set out in his factum was that the order of Skowronski J. should be quashed and the applicant should be acquitted.

[11] Mr. Calarco submitted on behalf of the applicant that Skowronski J. committed jurisdictional errors in permitting the Crown to proceed in the absence of a proper application for an extension of time in which to bring the application; in proceeding in the absence of notice to the accused/applicant; in holding that there was admissible evidence before him capable of establishing a prima facie case; and in effectively delegating the decision that a prima facie case existed to a police officer rather than exercising jurisdiction himself.

[12] The applicant's position was ultimately summarized, at paras. 35 and 36 of his factum, as follows:

There was no basis upon which the provincial judge could grant an extension of time to make out a prima facie case, nor was there any evidence [page363] upon which such a case could be established. The ex parte hearing was conducted in a manner contrary to the principles of fundamental justice and without authorization in legislation. The fact that the applicant was entitled to the protections of the YCJA makes these failures more serious. As there was no basis for the action of the provincial judge, the decision of the court below must be quashed.

With there being no prima facie case established, as required by s. 672.33 of the Criminal Code, this Honourable Court should make the order that was the only one open to His Honour and order the acquittal of the applicant.

[13] On the scheduled hearing date for the application, the Crown sought an adjournment. The adjournment was sought because the Crown had not filed any materials in response to the application.

[14] I think it is fair to say that the adjournment request was reluctantly granted by Grace J., who noted, "the Crown has much to answer for". He was only satisfied "by the thinnest of margins" that an adjournment should be granted and he imposed conditions on the Crown.

[15] The responding materials filed by the Crown established that prima facie hearings were held in 2004, 2005, 2006 and 2007, and that sufficient evidence was found in each instance to maintain charges against the applicant. In his reply, the applicant acknowledged those hearings.

[16] In her affidavit filed in response, Ms. Bellehumeur, detailed the four prima facie hearings she participated in and stated, in para. 5 of her affidavit, that she "cannot explain why there were no prima facie hearings from 2007 to 2012". Ms. Bellehumeur further deposed, in para. 14 of her affidavit, that the index offence is "an extremely serious one".

[17] Ms. Bellehumeur also deposed that in her oral submission to Skowronski J., she did address the issue of extending the time for the prima facie hearing but acknowledged, "in her haste, she neglected to make that part of my written application and to seek a formal endorsement of the time extension".

[18] I note that according to the transcript of the hearing before Skowronski J., Ms. Bellehumeur indicated that there had not been a prima facie hearing in more than two years; she recited s. 672.33(1.1), which permits a court to extend the period for holding a prima facie hearing if the extension is necessary for the proper administration of justice; she could not explain fully why the two-year period was not adhered to but there was a transfer of this matter to other jurisdictions and something inadvertent happened she supposed; and in an effort to comply with the section, a police officer met with the alleged victim and indicated in an affidavit that he was still willing to proceed should this matter go to trial.

[19] Ultimately, the Crown conceded in its response to this application that this court should grant an order for certiorari. The Crown conceded that the proceedings embarked upon before Skowronski J. to determine whether a prima facie case existed were flawed because they took place absent the accused/applicant and his counsel. The Crown also conceded other errors as further outlined in these reasons.

[20] The Crown submitted in its response that the matter should be remitted to the Ontario Court of Justice and that the Crown should be permitted to bring a s. 672.33 application to seek an extension of time to bring a prima facie hearing.

[21] Mr. Calarco filed a reply on behalf of the applicant in accordance with the endorsement of Grace J.

[22] However, in his reply Mr. Calarco took issue with the Crown's alternative position that the court had inherent jurisdiction to conduct the mandated hearing. The Crown abandoned this alternative submission at the hearing of this application.

[23] Mr. Calarco also took the position in his reply that the Crown was improperly seeking to introduce further evidence on this application.

[24] As set out in para. 9 of his reply factum:

The Crown seeks to introduce evidence before this court to establish that a prima facie case exists. This court should not accept it in considering disposition.^1 All such materials (Tabs 17--19 of the respondent's application record) were prepared well after the initial hearing date before Grace J. No satisfactory explanation has been given as to why such or similar materials were not produced in the court below, or to Grace J., particularly where Crown counsel has asserted that she was able to establish on four occasions between 2004 and 2007 that such a case existed. No proper explanation has been advanced as to why no prima facie hearings took place between 2007 and 2013 nor why time for such a hearing should be extended. At some point, the Crown must bear responsibility for its laches. That time has come.

[25] Mr. Calarco's position was that the appropriate remedy for the applicant in these circumstances is an order requiring the Youth Court judge to acquit the applicant or an order acquitting the applicant of the charges.

[26] Given how the application developed and the ultimate concessions of the Crown, I will first detail the position of the Crown and then the position of the applicant.

The Position of the Crown

[27] Ms. Maguire, on behalf of the Crown, conceded that the Crown made a mistake. It should not have proceeded ex parte and there should have been an application for an extension of time pursuant to s. 672.33(1.1). She also conceded that the affidavit of the police officer filed at the hearing before Skowronski J. could not amount to a prima facie case.

[28] The Crown's position is that the Ontario Court of Justice did not lose jurisdiction, but rather had no jurisdiction from the outset because no notice had been given to the applicant of the hearing before Skowronski J., nor was he present or represented at the hearing.

[29] According to the Crown, while errors are conceded, "these errors, while not insignificant, have little bearing in this case, because they occurred within a proceeding that was void at the outset."

[30] Therefore, the Crown asserts that the order of Skowronski J. was void ab initio and Mr. Calarco's arguments made on this application can be similarly made before the Ontario Court of Justice, and the Crown is requesting a "second chance".

[31] Indeed, the Crown acknowledged that the natural consequence of its position is that the Crown will have a second opportunity to bring an application on notice and in the presence of the accused with better evidence in support of a prima facie case.

The Position of the Applicant

[32] Mr. Calarco on behalf of the applicant emphasized that s. 672.33(6) of the Criminal Code mandates that a court shall acquit the accused where no prima facie case has been made out.

[33] Mr. Calarco emphasized the statutory mandate for regular and timely prima facie hearings, particularly for a young person.

[34] Mr. Calarco's position is that where the Crown has failed to bring a matter to court for six years with no explanation, the Crown should not be rewarded by the court permitting a further opportunity to bring the application.

[35] Mr. Calarco further noted that the circumstances that occurred in November 2013 are another example of the Crown not proceeding in the manner that it ought to have.

[36] Overall, Mr. Calarco submitted that there is a complete lack of any evidence of Crown action to respect the mandatory provisions of the Criminal Code and the rights of the applicant.

[37] As Mr. Calarco also noted, there is no explanation as to why the materials now referenced at Tabs 17--19 of the Crown's response were not placed in front of Skowronski J.

[38] Mr. Calarco accepted that the outstanding charges are serious, but submitted that the applicant's rights and the mandatory provisions of the Criminal Code must also be respected.

[39] Therefore, the position on behalf of the applicant was that an acquittal should be entered or the matter remanded to the Youth Court with an order that the applicant be acquitted of the charges.

Disposition

[40] As Mr. Calarco noted, Ms. Maguire relied on the written argument of the Crown in R. v. Talbot, [1996] O.J. No. 5323 (C.J. (Prov. Div.)).

[41] In Talbot, the accused was found unfit to stand trial in 1991, but the first application for a hearing was made in 1996.

[42] In my view, Mr. Calarco has properly characterized what occurred before the Ontario Court of Justice in this case. That is, that Skowronski J. initially had jurisdiction pursuant to s. 672.33. His order was not void ab initio. However, he lost jurisdiction because he proceeded ex parte and made orders that cannot be supported.

[43] I concur with the observations of my colleague Grace J., that "the Crown has much to answer for".

[44] The Crown in its response appropriately acknowledged that the order in issue must be quashed.

[45] Mr. Calarco relied significantly on the Court of Appeal decision in R. v. Thomson (2005), 2005 8664 (ON CA).

[46] In Thomson, the Court of Appeal considered circumstances where the Crown had brought a certiorari application before the Superior Court of Justice to quash the appellant's discharge at a preliminary hearing.

[47] The Court of Appeal noted that the application judge had followed a practice that had developed in relation to Crown certiorari applications to quash discharges after preliminary inquiry.

[48] The Court of Appeal referenced R. v. Whynot, 1994 4130 (NS CA).

Proceedings in the nature of certiorari involve bringing up for review a decision of an inferior tribunal. When a Superior Court gives relief on such an application, it can only undo, quash or set aside the proceedings of the inferior tribunal. Because certiorari is not a remedy akin to an appeal, the Superior Court cannot exercise the jurisdiction of the tribunal whose proceedings are challenged. At most, the Superior Court has but the power to send the proceedings back to be resolved on proper principles. The remedy that results is negative in nature. It is not positive.

[49] The Court of Appeal noted that only justices have jurisdiction to order an accused to stand trial following a preliminary inquiry.

[50] Mr. Calarco submitted that because s. 672.33 references a "court", which includes a Superior Court, this court can order an acquittal.

[51] With respect to Mr. Calarco's first point, in my view the court that has jurisdiction in respect of the offence charged against the accused must conduct the hearing contemplated by s. 672.33.

[52] I turn next to his second point that this court can remit the matter to the Youth Court and order that the applicant be acquitted.

[53] As the Court of Appeal noted in Thomson, citing Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC):

Traditionally, certiorari has been limited remedially. That is, it can only be used to quash an order.

[54] Therefore, in Thomson the Court of Appeal held that the appropriate order was to quash the discharge and remit the matter.

[55] I am satisfied that a similar order must be made on this application. The order of Skowronski J. dated August 19, 2013 holding that the Crown had established a prima facie case against the applicant on charges of assault and sexual assault is quashed. The matter is remitted to the Youth Court judge for further consideration. The Crown must apply to extend the period for holding a prima facie hearing and establish that the extension is necessary for the proper administration of justice; the Crown must seek leave to introduce further evidence on the application and thereafter the application must be reconsidered.

Application allowed.

Notes

1 If the court accepts that evidence, it is admitted that a prima facie case would exist.

End of Document