COURT FILE AND PARTIES

COURT FILE NO.: CR-15-10-MO

DATE: 2015/08/07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. George Newburgh

BEFORE: Valin J.

COUNSEL: C. Proulx, for the Crown

M.A. MacDonald, for the accused

HEARD: August 7, 2015

ENDORSEMENT

[1] This is an application by way of certiorari to quash the order of Rogers O.C.J. (the “judge”) dated February 19, 2015, directing that the accused bring an application or a motion to have the public prosecutor removed as counsel for the Crown.

[2] For the reasons that follow, the application is granted.

Background

[3] On September 7, 2013, the accused was arrested on two charges under the Controlled Drugs and Substances Act. David Holmes, a lawyer practicing in the Parry Sound area, was retained to act as Crown counsel to prosecute those charges.

[4] The accused was scheduled for two days of trial in the Ontario Court of Justice commencing on February 3, 2015. The accused was put to his election on that day. He elected trial by a superior court judge sitting alone. The matter was put over to set a date for a preliminary hearing.

[5] Counsel appeared before the judge in remand court on February 19, 2015 to set a date for the preliminary hearing. Defence counsel advised the court that an out of town judge was required and that the trial coordinator had suggested a two-week adjournment to make those arrangements.

[6] The judge adjourned the matter to March 5, 2015 to set a date for the preliminary hearing.

[7] An exchange then occurred between the judge, defence counsel, and Crown counsel about the fact that defence counsel had placed the name of Crown counsel on her witness list and that she intended to call Crown counsel as a witness at the preliminary hearing.

[8] Crown counsel complained that the effect of that defence tactic would be to disqualify him from acting as prosecutor in the case. Defence counsel informed the court that she intended to challenge the veracity and integrity of the arresting officer and that Mr. Holmes had relevant evidence. Defence counsel also admitted to the judge that the trial originally scheduled in the Ontario Court of Justice became a preliminary hearing due to the conduct of the prosecutor. She proposed to subpoena Mr. Holmes. She submitted that Mr. Holmes, if he objected, would have an opportunity to challenge the subpoena.

[9] During this exchange, both counsel interrupted the judge on more than one occasion. The judge’s disappointment at the lack of respect between counsel, and his frustration at the constant interruptions by counsel, are evident from the transcript.

[10] The judge expressed the opinion that the tactic proposed by defence counsel was highly unusual. He stated that, if defence counsel had evidence to advance that would have the effect of removing the prosecutor from the case; the proper procedure was to bring a motion to disqualify Crown counsel. The judge ultimately ordered defence counsel to proceed in that fashion. That is the order, which is the subject of this application.

Issues

[11] Two issues arise on this application. First, did the judge have jurisdiction to make the order under review?

[12] Second, even if he had jurisdiction to make the order under review, did the judge act in excess of his jurisdiction?

Analysis

[13] Certiorari is restricted to “jurisdictional review or surveillance” by a superior court of statutory tribunals. It applies where it is alleged that a tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice, which is taken to be an excess of jurisdiction.[^1]

[14] The inherent power of the court to control its own process lies in the Superior Court of Justice. Over time, amendments to the Criminal Code of Canada have granted increased jurisdiction to provincial courts. A statutory court has an implied legislative mandate to control its own process to the extent necessary to prevent an injustice and accomplish its statutory objectives.[^2]

[15] Crown counsel relied on the decision of the Ontario Court of Appeal in R. v. Romanowicz[^3] as authority for the proposition that the judge had jurisdiction to make the order under review because of his inherent jurisdiction to control the court’s process.

[16] I do not agree. In Romanowicz, the Ontario Court of appeal repeatedly referred to the power of the criminal trial court to control its own process. I emphasize the words “trial court.”

[17] Similarly, Crown counsel relied on a number of authorities for the proposition that a provincial court judge presiding over a preliminary hearing or sitting in cases where there has not been an election is vested with jurisdiction at common law to take such reasonable procedural steps as necessary to ensure fair proceedings in the court over which he/she presides.

[18] Those authorities are distinguishable from the facts of this case. Here, the judge was not presiding over a preliminary hearing. In addition, the accused had elected trial by a superior court judge sitting alone.

[19] The Ontario Court of Justice is a statutory court, which derives its jurisdiction from the provisions of the Criminal Code. Section 2 of the Criminal Code provides that the Ontario Court of Justice is a court of criminal jurisdiction. Parts XVIII, XVIII.1, and XIX of the Criminal Code give jurisdiction to judges of the Ontario Court of Justice when acting in the capacity of a preliminary hearing judge, case management judge or trial judge respectively. Defence counsel conceded that, if a judge of the Ontario Court of Justice is acting in any of those three capacities, he/she has the inherent jurisdiction to control the process of the proceeding before him/her.

[20] In this case, the judge was not acting in any of those capacities. He was sitting in remand court. He adjourned the case to a date at which time the date for the preliminary hearing would be set. He was not acting in his capacity as a preliminary hearing judge or as a trial judge. At the time the judge made the order that is the subject of this application, no evidence had been taken. The judge was not sitting in the capacity of a trial management judge. The accused had elected trial in the Superior Court of Justice. In those circumstances, a case management judge would not be appointed in the Ontario Court of Justice.

[21] For these reasons, I conclude that the judge lacked jurisdiction to make the order, which is the subject of this application.

[22] In the event my conclusion in that regard is incorrect, the issue arises whether the judge, in making the order, acted in excess of his jurisdiction.

[23] An accused person’s right to make full answer and defence is one of the principles of fundamental justice protected under the Canadian Charter of Rights and Freedoms. While the accused is not entitled to those rules and procedures most likely to result in a finding of innocence, he/she is entitled to rules and procedures, which are fair in the manner in which they enable the accused to defend against and answer the Crown’s case.[^4]

[24] The principles of natural justice concern procedural fairness that ensure that an objective decision maker reaches a fair decision. In the context of the right of an accused person to make full answer and defence, there are some fundamental rules related to natural justice or procedural fairness.

[25] First, when an accused person’s interests might be adversely affected by a court, the court must allow the accused an opportunity to present his/her case which may include preparing and presenting evidence and/or responding to arguments presented by the Crown.

[26] Second, a court’s decision, which affects the right of the accused to make full answer and defence, should be based on logical proof or evidence.

[27] In this case, the judge based his order on the suspicion that defence counsel had placed the name of Crown counsel on the witness list for the preliminary hearing as a tactic for disqualifying that counsel from prosecuting the case against her client. There was no evidence to support that suspicion. There was no hearing, which afforded defence counsel an opportunity to call evidence or to make submissions.

[28] While the judge may have been correct in his observation that the tactic proposed by defence counsel was “highly unusual” because “it would have the unhappy result of accused persons being able to choose who prosecutes them,” it remains settled law that Crown counsel and defence counsel are subject to the process of the court. They are not immune from subpoena. That said, there is a persuasive burden on the lawyer who seeks to force opposing counsel to testify and relinquish his/her role as counsel. The persuasive burden is to show relevance and necessity.[^5]

[29] The Ontario Court of Appeal has ruled that Crown or defence counsel will only be permitted to call opposing counsel as a witness in exceptional circumstances. It is not sufficient that the counsel may have material evidence to give. The party seeking to call opposing counsel must lay an evidentiary foundation for showing that the counsel’s evidence is likely to be relevant and necessary. This stringent test applies whether it is defence counsel seeking to call Crown counsel or Crown counsel seeking to call defence counsel.[^6]

[30] If afforded the opportunity to seek to obtain a subpoena, it may well be that defence counsel will fail to satisfy the issuing judicial officer of the relevance and necessity of the evidence she proposes to obtain from Crown counsel. In the event a subpoena is issued requiring Crown counsel to testify at the preliminary hearing, there will be an opportunity to Defence counsel to bring an application to quash the subpoena.

[31] The order under review denied the accused the opportunity to seek a subpoena to have Crown counsel testify at the preliminary hearing. The effect of the order was to deny the accused the right to make full answer and defence. It did so by removing one of the procedures available to him to call Crown counsel as a witness at the preliminary hearing with the stated objective of challenging the veracity and integrity of the arresting police officer and the conduct of Crown counsel in the prosecution of the charges against him.

[32] The order resulted in a denial of natural justice to the accused. In those circumstances, I find the judge acted in excess of his jurisdiction.

Result

[33] An order will issue quashing the order of the judge dated February 19, 2015 directing defence counsel to bring a motion to disqualify Crown counsel.

The Honourable Mr. Justice G. Valin

Date Released: August 31, 2015

[^1]: R. v. Russell, 2001 SCC 53 at para. 19 (S.C.C.).

[^2]: R. v. Caron, 2011 SCC 5 at para. 54 (S.C.C.).

[^3]: (1999), 1999 1315 (ON CA), 45 O.R. (3d) 506 at para. 64 (Ont. C.A.).

[^4]: R. v. Rose, 1998 768 (SCC), [1998] 3 S.C.R. 262 (S.C.C.).

[^5]: R. v. Sungalia, [1992] O.J. No. 3718 at paras. 1 and 3 (Ont. Ct. Gen. Div.).

[^6]: R. v. Elliott, 2003 24447 (ON CA), [2003] O.J. No. 4694 at para. 114 (Ont. C.A.).