ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-4576
DATE: 2015-11-12
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
PASQUALE FILICE
Applicant
Kevin McKenna, for the Respondent Crown
Peter Boushy, for the Applicant
HEARD: October 16, 2015
DECISION ON CERTIORARI APPLICATION
MILANETTI, J.
[1] Counsel for Mr. Filice brings this application for the extraordinary remedy of certiorari in connection with a trial held before Justice Campling on April the 7, 2014. Although counsel had been retained to represent Mr. Filice weeks before the trial date, he was not available for the trial date set earlier by Mr. Filice personally (on January 9, 2014).
[2] On that January date, Mr. Filice was cautioned that the trial would proceed with or without counsel. Justice Campling went through the history of all attendances as well as the absence of a formal application for adjournment from an agent for counsel who had been retained, and ultimately given the Crown’s “somewhat strong opposition to the adjournment request” decided to proceed with the trial.
[3] Mr. Filice was thus forced to represent himself. The witnesses were called and the trial completed. Justice Campling ultimately decided that he was satisfied beyond a reasonable doubt in relation to the first count – mischief in relation to property situated at 25 Sunflower Court, by wilfully damaging property of a value over $5,000.00, contrary to section 430(3) of the Criminal Code that 1) the property was valued in excess of $5,000.00; 2) that Mr. Filice damaged it in the ways described – that there was no possibility that it had been done by anyone else; and 3) he was “satisfied, subject to a mental disorder issue, which I will mention in due course, that you intentionally caused the damage to property.” (page 80 of the transcript)
[4] In relation to the second count, Mr. Filice did by verbal means knowingly convey a threat to Jennifer Currie to burn real property of Ida Filice, to wit: residential property, contrary to section 264.1(1)(b). Justice Campling found that Mr. Filice made the threat and thus “subject only to the mental disorder issue, he was satisfied that that charge had been made out beyond a reasonable doubt as well”. (pages 80 to 81 of the transcript)
[5] Justice Campling went on at page 81 to order a section 672.1(1) assessment to determine if at the time of these offences Mr. Filice was suffering from a mental disorder so as to be exempt from criminal responsibility under subsection (16)(1) of the Code. Justice Campling explained this order to Mr. Filice; remanding him out of custody (for the assessment) until May the 5th, 2014.
[6] Defence counsel takes significant issue with the approach taken by Justice Campling. He maintained that justice was denied Mr. Filice in many ways – he was not allowed to be represented by a lawyer he had specifically retained, and thus was forced to represent himself despite the fact that English was not his first language (raised by Mr. Confente as a friend of the court at the outset (page 78 of the transcript), and that he had mental health issues that the judge should have recognized very early on.
[7] The issue before this court is whether or not certiorari is the appropriate remedy. Mr. Boushy maintains that it is; the Crown suggests it is not. They argue that given the completion of the trial and the Justices’ conclusory findings on all essential elements of the offences that the correct remedy is an appeal of the decision. The Crown references section 776 which states:
No conviction or order shall be removed by certiorari:
(b) where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken but the defendants did not appeal.
[8] The defendant argues (in relation to section 776) that as a conviction was not registered (owing to the section 672.11 Assessment Order) an appeal is not in fact available. A close reading of Justice Campling’s decision shows that while indeed a formal finding of guilt was not declared, Justice Campling made specific findings in relation to the essential elements of each of the offences. The trial and the decision was I find, completed subject to the assessment results.
[9] Did Justice Campling commit a jurisdictional error by denying Mr. Filice’s application for adjournment? In his text, Justice Ewaschuk states that:
The extraordinary remedies of certiorari, prohibition and mandamus are available in Superior Courts only to question the jurisdiction of inferior courts or decisions by those courts that constitute jurisdictional error (including denial of natural justice or procedural fairness), and are not available to question errors of law or errors of mixed law and fact or fact alone since a judge does not lose jurisdiction by the latter types of error.
The text goes on further to state:
Jurisdiction is generally concerned with the authority of a court to decide a matter or issue and not the correctness of the court’s decision. Review by appeal is the general remedy for error unless the error amounts to jurisdictional error.
[10] The Crown relies on the decision of R. v. Kreutziger (1970) 1970 1012 (BC CA), 73 W.W.R. 435 B.C.C.A. where an application for adjournment was declined, a conviction registered, and then certiorari granted. The Crown appeal was allowed and the conviction was restored based on the precursor to s. 776 – s. 682.
[11] Additionally, the Crown sites R. v. Madden (1977) O.J. 734, which states at paragraph 9:
Where…a trial judge has embarked upon a trial in the proper exercise of his jurisdiction, the superior courts have accorded him the widest latitude in the conduct of the trial without prerogative intervention, the proper remedy for error of fact or law being by way of appeal at the conclusion of trial.
Paragraphs 10 and 11 of that decision are also most significant to me in my decision. They read:
In the case at bar, whether the trial judge was right or wrong in ruling as he did or in making or failing to make a proper determination of a preliminary matter essential to the ruling I do not decide. He was deciding on the admissibility of evidence, a matter clearly within the exercise of his duty and jurisdiction. He entered upon the inquiry into the question of admissibility of the wiretap evidence, he conducted a full hearing, he heard evidence and argument, he listened fairly to both sides and he decided the issue upon the merits. If he erred, he did so in the exercise of his jurisdiction, not in excess of it. Such error if it exists is to be remedied by appeal, not by certiorari and mandamus. This principle applies even though he may have erred in interpreting the statute as to the elements necessary to constitute admissibility, the nature and scope of the inquiry he ought to make, the validity of the authorizations for interceptions on their face when tested against the provisions of the statute, and whether the police had properly acted within this authority. All these are matters for him to decide in ruling on evidence in the course of trial, and he must be left free to make such decisions and to carry forward the trial to completion without intervention by this court, except by way of appeal.
Moreover, this principle has its roots in an important aspect of the administration of justice – the need to proceed assiduously in any trial to bring about a final determination of the charge on the merits. As Schroeder, J.A. said in Regina v. Jones and Daley, supra, at page 751:- “These principles have been adopted and applied consistently in our courts and for the best of reasons. If a disappointed litigant were at liberty to obtain an order of mandamus or prohibition whenever he was dissatisfied with an order or ruling made by a court in this court of a trial, this would constitute a disastrous interference with the orderly administration of justice and the wheels of justice would soon grind to a halt…”
That is not to say that there are no circumstances in which this court will intervene by way of prerogative remedies in the conduct of a trial. There may appear in a particular case abuse of power or error so fundamental that it will in that case be held to be an excess of jurisdiction. This is not such a case. I have found nothing in what the trial judge did, so far as the record shows and counsel submitted, that can be said to constitute an excess of jurisdiction in making his ruling on the admissibility of the wiretap evidence.
[12] Defence counsel relied heavily on the decision of my brother Justice Ricchetti in the City of Mississauga v. Malik case [2010] O.J. No. 1606. In that case Justice Ricchetti granted certiorari and set aside decisions of two separate justices of the peace (in similar companion actions) who failed to accede to requests of the prosecution to adjourn the trials when interpreters were mistakenly not ordered. Each of the lower courts denied the request for adjournment and then proceeded to stay the proceedings under the Charter.
[13] A full reading of this decision demonstrates that it is quite distinguishable from the case before me. In Malik, Justice Ricchetti looked at the reasons for denials of the adjournment requests in these two matters and found that same is clearly a discretionary matter for the presiding judicial officer, and thus should be given considerable deference, provided the decisions are made judicially. Sufficient reasons are required to facilitate the review available for even discretionary decisions. Justice Ricchetti goes on to articulate a list of factors that would be relevant to an adjournment request. There are many distinguishing features between our case and Malik. In Malik this was the first time up (January 7, 2010), less than four months post offence date (September 21, 2009).[^1]
[14] In each of these decisions there was an administrative error; an interpreter was mistakenly not ordered. When the prosecution sought to adjourn the trial to obtain the services of an interpreter, the request was denied. When asked to start trial without one, the court refused and the charges were stayed based on a Charter breach.
[15] In the case before me Justice Campling went through the long history (pages 4, 5 and 6 of the transcript) of this matter from the charges on June 27, 2013 through to the trial date set for April 7, 2014, as well as the caution provided to Mr. Filice on January 9, 2014. Justice Campling said that the notation of the “caution” meant “that the trial would go ahead whether you had a lawyer or not, so that if you were getting a lawyer you needed to get one available today”. (page 6)
[16] Given Justice Campling’s decision was an exercise of his discretion, and I find he has given the request due consideration, providing reasons for same, the case before me is quite distinguishable from that in Malik. As a result, I do not accept that Justice Campling failed to exercise his discretion judicially, nor did he exceed his jurisdiction. Given this finding, and all of the circumstances of this case, I do not accept that this is an appropriate case to grant the extraordinary remedy of certiorari that the courts say should only be made in exceptional cases. This matter should be appealed as mandated by s. 776. Application dismissed.
[17] The matter shall return to Ontario Court, Courtroom 100 on October 26, 2015 to be spoken to.
MILANETTI, J.
Released: November 12, 2015
COURT FILE NO.: 14-4576
DATE: 2015-11-12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
HER MAJESTY THE QUEEN
Respondent
– and –
PASQUALE FILICE
Applicant
REASONS FOR JUDGMENT
JAM:co
Released: November 12, 2015
[^1]: In the companion case of Fasih the offence date was September 22, 2009 and the first court date was January 12, 2010.