NEWMARKET

COURT FILE NO.: CR-09-10948

DATE: 20140915

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ALEXANDER BUDIMIROVIC

Applicant

Ms. Rosenberg for the Federal Crown

Mr. Budimirovic, self-represented

HEARD: July 28, 2014

APPLICATION TO QUASH COMMITTAL FOR TRIAL

O’CONNELL J.

[1] Mr. Budimirovic seeks to quash his committal for trial, by Tetley J., at Newmarket on May 30, 2013. Mr. Budimirovic submits that Mr. Justice Tetley lost jurisdiction when he did not grant him an adjournment.

[2] He made strident submissions before me, which were impassioned and complete. His submissions were inclusive of the fact that if I did not grant him the relief he was seeking he would go all the way to the Supreme Court of Canada.

[3] I assured Mr. Budimirovic that I was going to read through the material in the context of his and Crown counsel’s argument and would be reserving to adequately consider the issues raised, the materials relied upon, and recognizing as well that Mr. Budimirovic was self-represented.

[4] On the first scheduled preliminary inquiry date, May 20, 2010 then counsel for the applicant, Mr. Gill, advised that Mr. Budimirovic was in hospital and not able to proceed. This information was imparted to Mr. Gill on the same day via a surety for the applicant.

[5] Mr. Gill confirmed that Mr. Budimirovic was indeed in hospital and unable to attend, having been admitted to detox.

[6] In addition a co-accused had recently retained counsel. The matter was adjourned to December 08, 2010 for commencement with the dates of December 16 and 17th secured as continuation dates.

[7] On December 08, 2010 the matter was adjourned again due to a death in the family of counsel for a then co-accused, as well as illness of the same co-accused.

[8] On December 16, 2010 Crown counsel advised the court that he was going to withdraw the charges on the three co-accused on the original information. This left Mr. Budimirovic as the last person for prosecution. The Crown advised it was ready to proceed against Mr. Budimirovic. Counsel Mr. Gill requested an adjournment which was granted. The matter was remanded to January 05, 2011.

[9] January 05, 2011 the matter was adjourned at the request of the applicant, for another pre-trial.

[10] The pre-trial was held on January 28, 2011 and the matter was thereafter adjourned to February 22, 2011 to be spoken to so the applicant could consider his options.

[11] On February 22, 2011 the applicant, via duty counsel, advised the court that he was in the process of discharging Mr. Gill and was retaining new counsel.

[12] He requested a four week adjournment to March 22, 2011. The request was granted by the court.

[13] On March 22, 2011 newly retained counsel, Ms. Schofield went on the record and requested an adjournment to April 21, 2011 for a further pre-trial. The matter was adjourned.

[14] However as a consequence of the misplacement of the Crown brief the matter did not proceed to a judicial pre-trial on April 21, 2012, with Ms. Schofield at the helm, until May 05, 2011.

[15] The matter was then scheduled for trial on the dates of April 10, 11 and 12th 2012, eleven months later.

[16] Justice Tetley heard an application to stay the prosecution on March 06, 2012 for unreasonable delay. Ms. Schofield was counsel of record. The trial date of April 10, 2012 was preserved pending determination of the 11(b) application.

[17] The learned judge dismissed the 11(b) application on March 09, 2012.

[18] On March 22, 2012 counsel Ms. Schofield served the crown with an application of Mr. Budimirovic to re-elect his mode of trial to a court composed of a judge and jury.

[19] On April 10, 2012 counsel advised that she was instructed to seek out another judicial pre-trial and advised the court that if the matter were to proceed to preliminary hearing, she may have to bring an application to be removed as counsel of record.

[20] Crown counsel, Mr. Frost, advised the court that the Crown had no prior indication of defence counsel’s request to remand the matter for a judicial pre-trial. Crown counsel was content however to have a judicial pre-trial held before another justice as the Crown was anxious to have the preliminary hearing commence.

[21] The matter was held down for a pre-trial. Upon recommencement before Tetley J. who did not conduct the judicial pre-trial, defence counsel indicated that she was seeking to be removed from the record because of a breakdown in the solicitor client relationship, as well as the fact that Mr. Budimirovic expressly wanted to discharge her.

[22] The applicant advised that he concurred in Ms. Schofield’s request. Justice Tetley conveyed to the applicant the consequences of discharging counsel at this late stage and advised him that he may wish to consider his desire to discharge counsel. The applicant and Ms. Schofield spoke off the record. As a consequence of her off the record discussion with her client, Ms. Schofield renewed her application to be removed as counsel.

[23] However before that issue was resolved she conveyed the applicant’s request for an adjournment. Justice Tetley advised the applicant that if Ms. Schofield was removed as counsel, the applicant would likely be required to represent himself at the preliminary inquiry.

[24] After being asked expressly if he wanted to terminate his relationship with Ms. Schofield, the applicant indicated yes. Ms. Schofield was then removed as counsel for the applicant.

[25] Justice Tetley gave careful consideration for the applicant’s request for an adjournment and provided to the applicant a thorough explanation as to why he would not adjourn the matter any later than the following morning.

[26] The applicant was arraigned in the afternoon of April 10, 2012. The matter was then adjourned to the next day at the applicant’s request.

[27] The applicant sought an adjournment the next morning, April 11, 2012. That request was denied. The court gave the applicant leave to have a friend assist him at counsel table in the taking of notes.

[28] The Crown called five police officers as part of its case. The applicant cross-examined three of those officers. During his cross-examination of the third officer, the applicant advised the court that he was not up to the task of self-representing.

[29] The learned judge ruled that the Crown’s case would proceed to conclusion and advised that the witnesses could be recalled if the applicant or a future counsel wished to ask further questions.

[30] Once the Crown’s case was in, the preliminary inquiry Justice on his own motion, suggested a remand of the case for three weeks to allow the applicant to update the court on a search for counsel. May 07, 2012 was selected as a return date for the update and to set dates to continue the preliminary inquiry.

[31] On May 07, 2012 the applicant requested a further remand to get counsel. Justice Tetley concurred with the request and adjourned the matter to June 06, 2012. Justice Tetley made it plain that if counsel were not retained the court would set continuation dates.

[32] On June 06, 2012, no counsel was present for the applicant. The court set continuation dates of December 03 and 11, 2012.

[33] On December 03, 2012 the applicant yet again sought an adjournment of the preliminary inquiry in order to retain new counsel and to review the transcripts of the evidence from the earlier preliminary inquiry dates. The court granted the request and fixed January 11, 2013 as the set date for the fixing of continuing preliminary inquiry dates.

[34] On January 11, 2013, the applicant advised he still did not have counsel, but was prepared to set the new dates for continuation.

[35] New dates were fixed of May 10 and 30, 2013.

[36] The preliminary hearing continued on May 10 and 30 with the applicant calling a police officer and an inmate. The Crown facilitated the production of both witnesses. The applicant was finally committed to stand trial on May 30, 2013. The matter was then adjourned for a judicial pre-trial in Superior Court on August 06, 2013.

[37] In the Superior Court no one has appeared as counsel for the accused nor has anyone contacted the Crown to say that they are prepared to be counsel.

[38] Inclusive of July 28, 2014 the date that the applicant appeared before me arguing for the quashing of his committal to stand trial, the applicant did not have counsel.

DECISION

[39] As I noted at the outset of these reasons the applicant was strident in his submissions, and indeed emotional as to his former lot in life. He was respectful and concise in his oral argument.

The preliminary inquiry justice did not act with lack of jurisdiction either statutorily or via infringement on natural justice

[40] The preliminary inquiry Justice acted with extreme patience and politeness with respect to the numerous attendances and in particular in the indulgences that he gave to Mr. Budimirovic, inclusive of adjournments that were granted.

[41] He clearly did not lose jurisdiction, the nature of which is statutorily proscribed.

[42] There is no basis for this court to interfere with the committal.

[43] As Justice Watt, as he then was, said in Her Majesty the Queen, and Michael Scott and Derrick Delpeache, [2003] O.J. No. 90 (Sup.Ct. Justice):

The nature and extent of the authority of the superior court of criminal jurisdiction sitting in review of an order to stand trial after a preliminary inquiry is familiar and well-travelled ground. There is a single basis: lack of jurisdiction. See, for example, Patterson v. The Queen 1970 180 (SCC), [1970] S.C.R. 409, 411 per Judson J.; and Re Martin, Simard and Desjardins v. The Queen; Re Nichols v. The Queen (1977), 1977 1383 (ON CA), 20 N.R. 380, 41 C.C.C. (2d) 336, 338 (Ont. C.A.) per Estey C.J.O. affirmed sub nom re Martin, Simard and Desjardins v. The Queen (1978), 1978 30 (SCC), 41 C.C.C. (2d) 342 (S.C.C.).

When an applicant moves to quash an order to stand trial on the ground that the order was made without the evidentiary foundation required by s. 548(1), a judge of the reviewing court is not entitled to substitute his or her own views of the sufficiency of the evidence to meet the standard of s. 548(1) for the conclusion reached by the provincial court judge. There is not, in other words, a de novo consideration of the standard of s. 548(1) by a different judicial officer. The issue is not whether the reviewing judge would have reached the same conclusion as the judge who presided, but rather, whether the judge at the preliminary could have reached the decision that she or he did.

In cases like this, the reviewing judge is confined to considering whether there was any evidence before the preliminary inquiry judge upon which that judge, acting judicially, could form an opinion that the evidence was sufficient to order the person charged to stand trial. See, Re Martin and R: Re Nichols and R. (1977), 1977 1383 (ON CA), 20 O.R. (2d) 455, 486-7 (C.A.), per Estey C.J.O. affirmed, 1978 30 (SCC), [1978] 2 S.C.R. 511, 41 C.C.C. (2d) 342; R. v. Tuske (1978), 26 Chitty's L.J. 321, 322 (Ont. C.A.), per Martin J.A.; R. v. Seguin (1982), 1982 5527 (ON CA), 31 C.R. (3d) 271, 276-7 (Ont. C.A.) per Martin J.A.; and R. v. Chambers (1985), 1985 169 (ON CA), 9 O.A.C. 228, 230-1 (Ont. C.A.), per Martin J.A.

[44] It is an understatement to say that there is some evidentiary basis on this record for the committal to stand trial of Mr. Budimirovic. Mr. Budimirovic does not suggest otherwise in his materials and indeed he consented to his committal.

[45] This case is not like those cases where admissibility of evidence at a preliminary inquiry was wrong. Rather it was a case where committal based on the Sheppard test was quite obvious.[^1]

[46] The jurisdiction of the preliminary inquiry justice to finally disallow the newest application for an adjournment, considering in the equation the passage of time from date of arrest, November 26, 2009, to committal date, May 30, 2013, which encompasses the time frame that the matter was before the trial court as it was originally before Tetley J., until the re-election before Tetley J. to trial by judge and jury, then having regard to the post re-election proceedings and adjournments of the preliminary inquiry, is not the model of expediency.

[47] Much of the consumption of that time frame is a function of Mr. Budimirovic’s requests and action. Justice Tetley adjourned the matter to give every opportunity for Mr. Budimirovic to get counsel. I underscore that almost four years have passed between arrest and committal to stand trial.

[48] There is no rule that requires a defendant to have counsel, even though that is the preferable route. Justice Tetley did all he could to occasion that eventuality, yet the applicant once Ms. Schofield was discharged, appears to have done nothing to move in any tenable way, in that direction.

[49] The cases relied upon by the Crown inclusive of that or R. v. Baksh, from the Superior Court at Brampton make it plain that the fair trial interests of the applicant were protected, as was the need to eventually grapple with the need to complete the preliminary inquiry.

[50] I do not find anything in the materials as proffered by the applicant that suggest otherwise.

[51] The manner in which the preliminary inquiry Justice conducted the proceedings, with a very deliberate and fair assessment of the applicant’s various requests and with his best interests in mind, is extraordinarily in the applicant’s favour.

[52] Nor was one iota of prejudice visited upon the applicant. The witnesses that he sought to call at the preliminary inquiry were made readily available by the Crown. Indeed in relation to the inmate, Mr. D’Avolio, whom the applicant wished to call as his witness, the Court and the Crown ensured that that person’s attendance to give evidence was accommodated.

[53] On May 10, 2013 the applicant questioned Mr. D’Avolio for some 113 pages of transcript, in chief. Mr. D’Avolio was in court. The matter was adjourned to continue Mr. D’Avolio’s evidence on May 30, 2013.

[54] On May 30, 2013 the Crown ensured that a video link was available for the reception of Mr. D’Avolio’s continued evidence from his place of abode, Collins Bay penitentiary.

[55] On that date Mr. Budimirovic continued his questioning in chief for another six-an-a-half pages, with the Crown engaging in cross-examination for one page and Mr. Budimirovic re-examining for another four pages of transcript.

[56] Simply put this preliminary inquiry was thorough, and really took on the face of a mini trial.

[57] Nothing in this record does other than make it plain that Justice Tetley indulged and ensured that Mr. Budimirovic, as a self-represented party as time went on, was given exquisite attention to fairness, inclusive of preservation of natural justice.

[58] It is trite that the ability of the preliminary inquiry Justice to control the process before him is within the court’s bailiwick, inclusive of the consideration of adjournment requests and courtroom protocol.

[59] The preliminary inquiry Justice showed exceptional patience and fairness. He granted, on more than one occasion adjournments to allow Mr. Budimirovic to do what he said he would do, retain counsel. But all was for naught.

Conclusion

[60] Curiously the applicant waited in excess of one year to bring his certiorari application and after his trial date in the Superior Court at Newmarket, had been set. The trial date was set on December 09, 2013.

[61] The application is therefore dismissed. There is no merit to it.

[62] This trial must meet its end with a trial on the merits. That trial must occur on September 22, 2014 at Newmarket.

[63] The trial will commence as scheduled on September 22, 2014 at Newmarket with a jury.

O’CONNELL J.

Released: September 15, 2014

[^1]: See Reasons for committal of Tetley J. dated May 30, 2013.