A. OVERVIEW AND HISTORY OF THE PROCEEDINGS

[1] The Applicant Angelina Codina (hereinafter, Codina) brought three separate Applications in this Court over the course of a one month period. They are dated August 19, September 5, and September 19, 2016. All three Applications seek relief in the nature of certiorari and prohibition and, in one case, mandamus.

[2] The three Applications relate to a preliminary inquiry that is currently proceeding before Ray J. in the Ontario Court of Justice. In that proceeding, Codina is being prosecuted on an Information containing three counts. Two of these counts allege breaches of her prior recognizance, contrary to s. 145(3) of the Criminal Code, and one count alleges representing or advising a person in relation to immigration matters, for consideration and without proper authority, contrary to s. 91(1) of the Immigration and Refugee Protection Act (or IRPA).

[3] The three Applications allege that Ray J. lost jurisdiction at the preliminary inquiry in the following circumstances:

(i) On August 17, 2016, the parties appeared before Ray J. prior to arraignment at a “focus hearing,” pursuant to ss. 536.3, 536.4 and 536.5 of the Criminal Code. Ray J. had been assigned as the judge who was to conduct what was scheduled as a preliminary inquiry, commencing on September 2, 2016, and she conducted a “focus hearing” in advance of the preliminary inquiry. The Applicant Codina argued a number of legal Motions before Ray J. seeking, for example, a stay of proceedings and quashing of the Information. Ray J. made certain rulings and it is alleged in the first Application that her rulings amounted to jurisdictional error;

(ii) On September 2, 2016, the parties again appeared before Ray J. at what was scheduled as the first day of the preliminary inquiry. In the meantime, Codina had brought the first of the three Applications presently before me, dated August 19, 2016 and summarized above. It had not yet been perfected or heard in this Court but it had been served on Ray J. and there had been a scheduling and case management appearance in this court before Low J. At the appearance before Ray J. on September 2, 2016, there was argument concerning the effect of Rule 43 of the Criminal Proceedings Rules for the Superior Court of Justice, and whether or not the procedure for prerogative relief set out in that Rule had been followed. Codina took the position that the preliminary inquiry proceedings were now “suspended,” due to the effect of Rule 43.03(5). Ray J. disagreed and ruled that the preliminary inquiry was not “suspended” and that it would proceed. In the second Application before me, Codina alleges that Ray J. committed jurisdictional error in this ruling;

(iii) On September 7, 2016, the parties again appeared before Ray J., the Applicant was arraigned and the preliminary inquiry commenced. At the time of arraignment, there were three separate Informations before the Court. A number of changes had been made to the counts in the original Information, sworn on September 18, 2015. The two new Informations had been filed in court during the year leading up to the preliminary inquiry. The Crown asked that Codina be arraigned on the second of the three Informations, sworn on January 18, 2016. Codina made various objections to being arraigned on this second Information. Ray J. ruled against Codina and the arraignment proceeded. It is alleged that this ruling amounted to jurisdictional error.

B. ANALYSIS

(i) The availability and scope of prerogative relief in criminal proceedings

[4] It is settled law that prerogative relief, in criminal proceedings, is limited to jurisdictional error. In R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 at para. 19 (S.C.C.), McLachlin C.J.C. gave the unanimous judgment of the full court and stated:

The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: R. v. Skogman, (1984) 13 C.C.C. (3d) 161. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100 (citing Forsythe v. The Queen (1980), 53 C.C.C. (2d) 225 (S.C.C.). [Emphasis added.]

In R. v. Skogman (1984), 13 C.C.C. (3d) 161 at 167 (S.C.C.), Estey J. gave the majority judgment and stated:

It need only be added by way of emphasis that such certiorari review does not authorize a superior court to reach inside the functioning of the statutory tribunal for the purpose of challenging a decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached a conclusion different from that which the reviewing tribunal might have reached. [Emphasis added.]

See also: R. v. Dubois (1986), 25 C.C.C. (3d) 221 at 224 (S.C.C.); R. v. Forsythe (1980), 53 C.C.C. (2d) 225 at 228-9 (S.C.C.).

[5] What this means is that any errors made in the application of, or exercise of, a statutory power are errors within jurisdiction and they are not reviewable by way of prerogative relief. As Major J. explained in R. v. Deschamplain (2004), 2004 SCC 76, 196 C.C.C. (3d) 1 at para 17 (S.C.C.), speaking for the majority:

The preliminary inquiry judge has jurisdiction to conduct the inquiry according to the rules of evidence. Any error with respect to the application of those rules that does not rise to the level of a denial of natural justice (which also goes to jurisdiction: see Dubois, supra, at p. 377; Forsythe, supra, at p. 272) constitutes an error of law, not a jurisdictional error. Errors of law are not reviewable by way of certiorari. [Emphasis added.]

[6] It is also settled law that prerogative relief is a discretionary remedy. The traditional bases for declining prerogative relief, as an exercise of discretion, include delay, misconduct, an available right of appeal, or where the Applicant “has suffered no prejudice” because the result “would otherwise have been inevitable.” See: R. v. Papadopoulos (2005), 201 C.C.C. (3d) 363 at paras. 19-21 and 25-8 (Ont. C.A.); McHale v. Ontario (2010), 2010 ONCA 361, 256 C.C.C. (3d) 26 at para. 87 (Ont. C.A.); Matsqui Indian Band v. Canadian Pacific Ltd., [1995] 1 S.C.R. 3 at paras. 30-37. In addition, there has always been discretion to decline prerogative relief when it is sought at the early stages or in the middle of a proceeding and has the effect of delaying and disrupting that proceeding, as opposed to seeking relief at the end of a proceeding. For example, in Re. Whitmore and the Queen (1989), 51 C.C.C. (3d) 294 at 296 (Ont. C.A.), Grange J.A. stated:

Ewaschuk J. held that he would not exercise his discretion to hear the application for prohibition and certiorari on the simple ground that the rulings of the justice of the peace were interlocutory ones made at a very early stage of the prosecution before that prosecution could proceed to a preliminary inquiry and before the procedural steps for the protection of the accused came into play. He was influenced also by the fact that two years had passed since the information was presented and no progress had been made towards the trial. He then went on to consider the complaints of the appellant outlined above and rejected them all.

We agree with the learned trial judge’s disposition of the preliminary question and with his resolution of the individual issues. In our view, the facts of this prosecution do not justify interference at this early stage.

Also see: R. v. Duvivier et al. (1991), 64 C.C.C. (3d) 20 at pp. 23-25 (Ont. C.A.).

(ii) The first Application, brought at the stage of the “focus hearing”

[7] As summarized above, on August 17, 2016 the parties appeared before Ray J. for a “focus hearing,” prior to a scheduled preliminary inquiry. This was the anticipated election that had been indicated by the parties at the judicial pre-trial. The Crown stated that it would be proceeding by indictment. Codina raised a number of legal issues before Ray J. who ruled on them, as follows:

First, Codina sought to argue a motion to stay the proceedings. Ray J. ruled that, at a “focus hearing,” she had no greater jurisdiction or powers than a judge presiding at a preliminary inquiry and that the power to grant a stay was reserved to the trial judge. Ray J. went on to clarify that there had not yet been an arraignment and, “If this matter ends up being a trial, and if I become a trial judge, I’ll be able to deal with those issues”;
Second, Codina sought to “bring a constitutional issue before the court” concerning “the constitutionality of the statutes themselves.” Codina took the position that “the preliminary court judge … has an authority, even with constitutional issues, as long as they go to jurisdiction. As long as they touch on jurisdiction, you can hear them.” Ray J. ruled that she had no “discretion to hear constitutional issues”;
Third, Codina submitted that there were a number of defects in the Informations and that the defective counts and defective Informations should be quashed or dismissed. In addition, she alleged non-compliance with s. 523 of the Criminal Code, because two new and amended Informations had been filed by the Crown at various stages of the proceedings. This latter defect was said to be so serious as to amount to an abuse of process. A further defect related to the authority of CBSA officers to arrest and lay charges and whether this invalidated the Informations. Codina submitted, “If the arrest is not permissible in law, then again the charges have to be dropped, the Information has to be dropped.” Finally, she raised issues concerning a search warrant and submitted that her “rights were violated and therefore I think that the charges have to be dropped. So, that’s on the warrant, on the search warrant.” Ray J. inquired, “Because of the Charter violations, you’re suggesting the Information should be quashed?” Codina replied, “Yes … the Charter violations are on numerous counts, but it goes even beyond that, I mean there would be an abuse of process to proceed … which goes to … natural justice.” At the end of lengthy submissions, Ray J. ruled that CBSA officers “are peace officers within the meaning of the Criminal Code,” that “there is no irregularity or deficiency in the charge here,” and that “the Information itself is valid, it’s not deficient, and the application to quash the Information is dismissed”;
Fourth, Codina tried to raise issues concerning “non-disclosure” and “a conflict with Crown counsel.” Ray J. held that these issues did not go to “the validity of the Information” and that “they are trial issues.” Ray J. repeated, “If there is an arraignment and this turns into a trial, the trial judge may have those powers”;
Finally, Codina sought leave to call various police witnesses in support of her legal arguments. Ray J. ruled that “those issues can all be dealt with after the arraignment.” Codina resisted any arraignment and asked for an adjournment to the next scheduled date, namely, September 2, 2016. However, Codina did confirm that her election would remain as indicated at the judicial pre-trial, namely, a preliminary inquiry. She stated, “It is going to be by preliminary inquiry, that’s definitely. I would never go into a trial.”

[8] Codina submits that Ray J. committed repeated jurisdictional errors, in her rulings on the above summarized issues. In my view, there is no merit to this Application and prerogative relief is denied for the following four reasons:

First, Ray J.’s various rulings were all within her jurisdiction. The legal issues that Codina raised before Ray J. at the “focus hearing” were all matters on which the presiding judge was entitled to rule, rightly or wrongly. Even if Codina had persuaded me that some ruling by Ray J. was erroneous, and she has not, it would at most constitute “an error of law, not a jurisdictional error,” as Major J. put it in R. v. Deschamplain, supra. Codina’s arguments before me all seek “to reach inside the functioning of the statutory tribunal for the purpose of challenging a decision reached by that tribunal within its assigned jurisdiction,” as Estey J. put it in R. v. Skogman, supra;
Second, Ray J. was correct in refusing to entertain Charter arguments, constitutional arguments, and arguments in support of a stay of proceedings. Codina is of the view that a judge presiding at a preliminary inquiry has the authority to rule on these matters, if they go to jurisdiction. I have already rejected this argument in the companion decision, R. v. Codina, 2016 ONSC 7305, dismissing an Application for declaratory Charter relief. Ray J. directed Codina, correctly, that all of these arguments could be considered, after arraignment, if Codina elected to be tried by Ray J. in the Ontario Court of Justice. Codina firmly rejected any such election;
Third, the great majority of Codina’s arguments were directed at the validity of the Information and the validity of certain counts in the Information. Ever since R. v. Jarman (1972), 10 C.C.C. (2d) 426 at 429 (Ont. C.A.), the law has been clear in this province that rulings on these matters are not amenable to prerogative relief. In this regard, the Court in Jarman stated the following:

A clear distinction must be drawn between a case in which the offence charged in the information is one which is beyond the Court’s jurisdiction to entertain and a case which lies within its jurisdiction. With the former situation we are not here concerned. Where the information falls within the latter category the Judge before whom the matter comes on for trial has exclusive jurisdiction to determine its validity, and no appeal lies from his decision until the case has been finally disposed of by him. Before this stage is reached any decision made by him in the course of the hearing is not subject to review either on appeal or before another Court on a motion to quash, or in other proceedings in which an extraordinary remedy is invoked. An error by the trial Judge as to the validity of an information does not deprive him of jurisdiction – the sole basis on which an extraordinary remedy can be granted on an application of this nature. Nor, except on an appeal from a final decision, is it arguable that the trial Judge lacked jurisdiction on account of the invalidity of the information. [Emphasis added.]

More recently, in R. v. Webster (1992), 78 C.C.C. (3d) 302 at 307-8 (S.C.C.), the Supreme Court took the same approach. Lamer C.J.C. gave the unanimous judgment of the Court and stated:

With respect to the availability of certiorari, the general rule is that the Provincial Court Judge conducting the preliminary hearing has jurisdiction to determine the validity of the information and that the correctness of his or her ruling in that regard cannot be challenged by certiorari: see, for example, the decision of Martin J.A. in R. v. Volpi (1987), 34 C.C.C. (3d) 1 at p. 13 (Ont. C.A.), and the decision of Schroeder J.A. in R. v. Jarman (1972), 10 C.C.C. (2d) 426 at p. 429 (Ont. C.A.). To the same effect is the following passage from R. E. Salhany, Canadian Criminal Procedure (5th ed. 1989), p. 482:

The general view has been that certiorari (or any other extraordinary remedy) will not lie to review the decision of a trial judge dealing with the validity of an information or indictment since that decision is within his jurisdiction.

I would not, however, wish to foreclose entirely resort to certiorari in certain rare and highly exceptional circumstances. It may well be that in those rare circumstances described in R. v. Moore, in which the charge is an absolute nullity, certiorari may be available. [Emphasis of Lamer C.J.C. in the original.]

None of Codina’s attacks on the Information in this case were such as to render it “an absolute nullity,” for example, by charging an offence unknown to law.

Fourth and last, this Application should not be heard, regardless of any arguable merits. As an exercise of discretion, it should be dismissed for the reasons explained by the Court of Appeal in Whitmore and in Duvivier. It was brought at the very early stages of the criminal process, before the preliminary inquiry had even commenced. As will be seen in the next sections of these reasons, it led to further delays and to fragmentation of the proceedings. It is virtually indistinguishable from Re. Whitmore and the Queen, supra, in my view.

[9] For all these reasons, the first Application is dismissed.

(iii) The second Application, brought on the first day of the preliminary inquiry

[10] As summarized above, on September 2, 2016, the parties appeared before Ray J. on what was scheduled as the first day of the preliminary inquiry. Codina had served Ray J. with the first Application dated August 19, 2016, seeking prerogative relief, which I have now dismissed in the Reasons set out above. She had filed the Application with this Court and, at a scheduling and case management appearance before Low J. on September 1, 2016, Codina was ordered to perfect the Application by October 24, 2016.

[11] Codina had also served and filed an originating Notice of Application in this Court, seeking various declarations of Charter of Rights violations in relation to the same proceedings. It was also dated August 19, 2016. It had been served and filed in this Court on August 24, 2016 and a date of November 21, 2016 had been obtained for hearing the Application. My Reasons dismissing that Application are being released concurrently with these Reasons. See: R. v. Codina, 2016 ONSC 7305.

[12] In other words, Codina now had two different interlocutory proceedings underway in this Court. She took the position before Ray J. on September 2, 2016, that the Superior Court proceedings had the effect of staying or suspending the preliminary inquiry. She relied on Rule 43.03(5) of the Criminal Proceedings Rules. The Crown took the position that the preliminary inquiry was not suspended and pointed out that a Crown witness “has been scheduled to arrive in Canada from Europe this weekend, to testify next week before Your Honour.”

[13] Rule 43 sets out required procedures in relation to “Extraordinary Remedies” in this Court. It is Rule 43.03 that is relevant to the issue on the present Application, namely, whether service of a Notice of Application “suspends” a preliminary inquiry. Rule 43.03 provides as follows:

43.03(1) A notice of application under this rule shall be in Form 1 and comply with rule 6.03 and shall also state the subpoena, warrant or other order or determination to which the application relates.

(2) Where an applicant seeks to quash a warrant, conviction, order or determination, other than a subpoena or warrant to compel the attendance of a witness, there shall be endorsed upon the notice of application a notice in the following form addressed to the Court Services Manager or coroner or as the case may be:

By virtue of subrule 43.03(3) of the Criminal Proceedings Rules for the Superior Court of Justice Ontario), you are, upon receiving this notice, to return forthwith to the Clerk’s Office at ___ true copies of the conviction (or as the case may be) herein referred to, together with true copies of the indictment, information, exhibits and papers or other documents touching the matter, as fully and as entirely as they remain in your custody, together with this notice and the certificate prescribed in the said rule.

(3) Upon receipt of the notice of application endorsed under subrule (2), the Court Services Manager or coroner, as the case may be, shall forthwith return to the Clerk’s Office at the place where the application is returnable true copies of the conviction, order, or warrant, together with true copies of the indictment, information, exhibits and any other proceedings or documents touching the matter, and the notice served upon him or her with a certificate attached thereto in the following form:

Pursuant to the accompanying notice I herewith return to this Honourable Court the following:

True copies of:

1 the information;

2 the conviction (or as the case may be);

3 the exhibits, if capable of reproduction and relevant to the matters in question;

4 any other papers or documents touching the matter, if capable of reproduction and relevant to the matters in question.

And I hereby certify to this Honourable Court that I have above truly set forth all exhibits, papers and documents in my custody or power relating to the matter set forth in the said notice of application.

(4) Subject to subrules (5) and (6), the documents listed in the certificate under subrule (3), together with any transcript of the proceedings filed by the applicant, shall have the same effect in law as a return to a writ of certiorari.

(5) Subject to subrule (6), service of a notice of application to quash under subrule (2) upon a provincial court judge, justice or justices, coroner, or as the case may be, suspends the proceedings which are the subject of the application.

(6) A judge may, upon service of a notice of application therefor in such manner, if at all, as the judge may direct, order that the proceedings which are the subject of the application to quash shall continue upon such terms as appear just. [Emphasis added.]

[14] Codina’s August 19, 2016 Application for prerogative relief had been before Low J. in this Court on September 1, 2016 for a case management appearance. Low J. had set October 24, 2016 as the date for perfecting the Application and speaking to its scheduling. When the parties appeared before Ray J. at the preliminary inquiry on the next day, September 2, 2016, there was some disagreement as to what had happened before Low J. and as to whether the preliminary inquiry was or was not suspended.

[15] After reading and considering the effect of Rule 43, and hearing submissions, Ray J. asked the Crown to obtain the Court Reporter’s recording of the proceedings before Low J. in this Court on the previous day. The Crown obtained the recording. It was played in open Court before Ray J. and the parties. There were further submissions and Ray J. ruled that the preliminary inquiry was not suspended. She reasoned as follows:

And Justice Low, as we all heard on the tape, did not order that the proceedings shall continue. Because in her opinion, the Notice of Application was deficient. And she has provided until October the 24th for the relevant material to be provided. And she indicated very specifically in her reasons that the proceedings at this time are properly before me. The preliminary inquiry is properly before me.

Now, she stated on the tape that I heard of the proceedings that there had not been acceptance of the notice by her Court. Now, had there been acceptance of the notice by her Court, then … there would be potential for subsection (5) to apply.

So, the process that applies in the Superior Court, pursuant to sub-rule (6), has not been completed to the point where Justice Low can consider whether or not she is making an order that these proceedings shall continue. It has not even reached that stage.

The bottom line is, for reasons that she has explained on the record, she has not accepted service of that notice. So, it is my view that the Superior Court has to accept service of that notice before I can be given notice that that application, under sub-rule (2), has been made. But if she has accepted service and is satisfied that the service is proper, then the service that has been made upon me of an intention to make this application can be accepted by me. And then, that would suspend the proceedings if the Superior Court had not made an order that the proceedings should continue. So, that is my decision. And so, now we will move onto the preliminary inquiry.

[16] The transcript of the September 1, 2016 appearance in this Court before Low J. is now part of the record before me and I have reviewed it. Low J. clearly did not make an Order under Rule 43.03(6), that the preliminary inquiry “shall continue.” However, she also questioned whether Codina had complied with Rule 43.03(2) and (3). She stated that the only material before the Court was a seven page “photocopy of a handwritten document” (the Notice of Application) with “no acknowledgement of service on it … There’s no acknowledgement of service. There is no Affidavit of Service.” In the end, Low J. ruled as follows in relation to the Rule 43.03(5) and (6) issue:

In my view, this is an issue that is properly before the Ontario Court of Justice judge presiding at the opening of the proceeding. The arguments can be made before that judge so I am not going to make an Order at this time.

There is no Order not to proceed.

[17] Codina submits that Ray J. made a jurisdictional error in proceeding with the preliminary inquiry, in the face of Rule 43.03(5) and in the absence of an order pursuant to Rule 43.03(6).

[18] In my view, it is unnecessary to decide this issue. The record is unclear and, in any event, nothing turns on this second Application for prerogative relief. It was open to Ray J. to read Low J.’s reasons as questioning whether Codina had complied with Rule 43.03(2) and (3), in which case Rule 43.03(5) and (6) would not be engaged. In addition, the Court Clerk in the Ontario Court of Justice had certainly not yet made a return of the record, including a true copy of the Information, which added to the lack of clarity as to whether Ray J. had jurisdiction to proceed. On the other hand, Ray J. acknowledged that the Ontario Court of Justice had been properly served, as she had been given the Notice of Application by her own court staff. Furthermore, Low J. never definitively decided the issue as to whether Codina had complied with Rule 43.02(2) and (3). The last reason for finding the record to be unclear is that Low J.’s ultimate ruling concerning the application of Rule 43.03(5) and (6) is ambiguous. See: R. v. Batchelor (1980), 56 C.C.C. (2d) 20 (Ont. H.C.J.) and R. v. Batchelor (1977), 38 C.C.C. (2d) 113 (S.C.C.), where there is a good discussion of the effect of service of the prerogative writs on proceedings pending in the Ontario Court of Justice.

[19] The more important basis for finding it unnecessary to decide this issue is that it ultimately makes no difference whether Rule 43.03(5) was or was not engaged on September 2, 2016. I have now dismissed the underlying Application for prerogative relief, as being without merit. If Low J. had received and reviewed a perfected Application Record, which had not yet been filed when the matter was before her, she would have made an Order pursuant to Rule 43.03(6) because the Application has no merit. In other words, the Applicant “has suffered no prejudice” because the continuation of the preliminary inquiry “would otherwise have been inevitable,” had her Application been perfected and fully considered by this Court on September 1st or 2nd, 2016. See: R. v. Papadopoulos, supra; R. v. Volpi and Lanzino (1987), 34 C.C.C. (3d) 1 at 13 (Ont. C.A.).

[20] Codina effectively conceded this latter point, in oral argument before me. She agreed that the preliminary inquiry is almost complete and that nothing would be gained by ruling now that it should have been “suspended” on September 2, 2016. She described the second Application for prerogative relief as somewhat “academic,” since her real interests depend on the first Application, which I have already dismissed. I agree with this concession. In my view, the second Application is entirely ancillary to the first Application. Given my dismissal of the first Application, the second Application must inevitably suffer a similar fate.

[21] For all these reasons, the second Application is dismissed.

(iv) The third Application, brought at the time of arraignment

[22] On September 7, 2016, the parties appeared before Ray J. on the second scheduled day of the preliminary inquiry. No progress had been made on September 2, 2016, the first scheduled day, because of the extensive argument about the effect of Codina’s first Application for prerogative relief, as summarized above.

[23] The proceedings on September 7, 2016 began with argument, prior to arraignment, concerning the fact that there were three different Informations before the Court. The first Information was sworn September 18, 2015 and contained three counts (two s. 145(3) Criminal Code offences and one s. 91(1) IRPA offence). The second Information was sworn January 18, 2016 and contained the same three counts but expanded the timeframe on two of the counts and amended the precise terms used to describe the alleged s. 145 breaches of recognizance. The third Information was sworn August 17, 2016 and contained four counts. The additional count charged Codina jointly with a corporation, Ronson Professional Group Inc., and alleged a s. 91(1) IRPA offence.

[24] The Crown initially indicated that they were proceeding on the third Information. Codina argued that this third Information charged a completely new offence and that s. 523 of the Criminal Code, therefore, did not apply. Ray J. agreed and ruled that Codina would be entitled to a bail hearing on the third Information, if the Crown elected to proceed on it. In these circumstances, the Crown elected to proceed on the second Information.

[25] Codina was then arraigned on the second Information, in spite of her objections that it too charged different offences from those charged in the first Information and that s. 523, therefore, did not apply. She submits that Ray J. committed jurisdictional error in having her arraigned on the second Information and that she was entitled to a fresh arrest, fresh s. 10 Charter cautions, and a fresh bail hearing. The appropriate remedy is to quash the Information.

[26] Codina had already argued this point at the time of the “focus hearing,” on August 17, 2016. I have already ruled, in the above Reasons, that Ray J. did not commit jurisdictional error in dismissing the argument.

[27] Codina also argued this point, as an abuse of process, on the Application for a declaration that her arraignment on the second Information violated s. 7 of the Charter. I have already ruled that this is a matter that Codina can raise before the trial judge, if she is committed for trial. See: R. v. Codina, 2016 ONSC 7305 at paras. 19-23.

[28] As I said in my Reasons on the Charter Application, the second Information “varies the particulars alleged but it continues to charge the same offences.” In my view, Ray J. did not commit jurisdictional error in having Codina arraigned on the second Information, without requiring a fresh bail hearing. Section 523 applied to this new Information.

[29] For all these reasons, the third Application for prerogative relief is dismissed.

C. CONCLUSION

[30] All three of the Applications seeking prerogative relief are dismissed for the reasons set out above.

M.A. Code J.

Released: November 24, 2016

CITATION: R. v. Codina, 2016 ONSC 7335

COURT FILE NO.: CR-16-00000311-00MO

DATE: 20161124

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANGELINA CODINA

REASONS FOR JUDGMENT

M.A. Code J.

Released: November 24, 2016

R. v. Codina, 2016 ONSC 7335

Case Summary

A. OVERVIEW AND HISTORY OF THE PROCEEDINGS

B. ANALYSIS

(i) The availability and scope of prerogative relief in criminal proceedings

(ii) The first Application, brought at the stage of the “focus hearing”

(iii) The second Application, brought on the first day of the preliminary inquiry

(iv) The third Application, brought at the time of arraignment

C. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 3