COURT FILE NO.: CR-16-1987-00
DATE: 2018 03 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
CARSON COUGHLIN, for the Crown
- and -
PRABHJEET SINGH,
ABHIJEET NAGRA, and
DILSHER SINGH
LEO SALLOUM, for PRABHJEET SINGH,
ROOTS GADHIA , for ABHIJEET NAGRA, and
NIC ROZIER and KATERINA PERCHENOK for DILSHER SINGH
IAN SMITH and AMY OHLER, Amicus
JUDGMENT ON APPLICATIONS REGARDING
THE LOCATION OF THE TRIAL
DURNO, J.
Contents
Introduction. 3
The Shortage of Courtrooms in Brampton. 6
The Transfer of Cases from Brampton. 9
The Impact of Transferring Cases. 14
The History of this Trial 17
The Positions of Counsel 46
Analysis. 47
Federal Legislation. 47
Provincial Legislation. 48
The Inherent Jurisdiction of the Superior Court 53
The Positions of Counsel 54
The Legislation. 55
Analysis. 56
Conclusions Regarding the Questions Provided to Prabhjeet Singh and counsel on December 8, 2017. 59
Is an Order transferring a trial out of the location in which the indictment was filed subject to judicial review?. 60
The Positions of Counsel 61
Are Transfer Orders subject to Judicial Review?. 67
The Routes to Judicial Review. 70
If the Chief Justice’s Order is subject to judicial review, should the Order be quashed based on administrative law principles including procedural fairness, disclosure, the right to be heard, and the provision of reasons or on the basis that the Order was unreasonable? 84
The Positions of Counsel 84
Analysis. 88
Did Prabhjeet Singh have notice?. 101
What case-specific information was available to the Court when the transfer Order was made? 102
Was the Decision of the Chief Justice Unreasonable?. 107
The Positions of Counsel 107
Analysis. 109
Monday Morning Transfers. 113
Final Comments on Transfers. 114
Change of Venue, s. 599 of the Criminal Code. 117
The Positions of Counsel 118
Analysis. 119
The Conduct of the Applications. 123
Conclusion. 128
Introduction
[1] In 2012, the Ontario Ministry of the Attorney General, the Superior Court of Justice and Ontario Court of Justice concluded that Brampton’s A. Grenville and William Davis Courthouse (the Davis Courthouse) did not have enough courtrooms for the caseloads of both courts. In February, 2017, construction started on a six story addition which is anticipated to be completed in December, 2018 or early 2019.[^1]
[2] Pending completion of the addition, some criminal cases in which the indictment was filed in Brampton have been held in Orangeville, Guelph, and Milton, all in the Superior Court’s Central West Region, and Kitchener, which is in the Central South Region. Since January, 2015, 19 criminal proceedings[^2] have been transferred to other locations.[^3]
[3] On December 7, 2017, pursuant to s. 14(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the Chief Justice of the Superior Court of Justice ordered that this trial be held in Kitchener subject to the Court’s commitment to continue to attempt to keep as many trials as possible in Brampton. The commitment applied to this trial before and after the Chief Justice’s Order.
[4] Prabhjeet Singh, through three counsel, raised issues regarding the transfer of cases. After his counsel of choice asked to be removed from the record, amicus curiae was appointed to assist the court with the issues counsel had raised. While the first six questions noted below were provided to Prabhjeet Singh, counsel and amicus by the Court, further issues were raised on behalf of Prabhjeet Singh the day before the hearing started. As such the following questions must be answered:
i) Does the Superior Court of Justice have the authority to move proceedings, including pre-trial motions, from the courthouse in which the indictment was filed to be heard in another courthouse in the same Region?
ii) If the authority in i) exits, who can exercise that authority?
iii) Does the Superior Court of Justice have the authority to move proceedings, including pre-trial motions, from the courthouse in which the indictment was filed to be heard in another courthouse in a different Region?
iv) If the authority in iii) exists, who can exercise that authority?
v) Are the answers to i) and iii) dependent on whether the trial will be conducted with or without a jury?
vi) Is the answer to v) dependent on whether the jury is selected in the courthouse in which the indictment is filed or selected in the court house to which the proceeding is moved?
vii) Is an Order transferring a trial out of the location in which the indictment was filed subject to judicial review?
viii) If the Chief Justice’s Order is subject to judicial review, should the Order be quashed relying upon administrative law principles including procedural fairness, disclosure, the right to be heard, and the provision of reasons or on the basis that the Order was unreasonable?
ix) Has Prabhjeet Singh filed an adequate change of venue application pursuant to s. 599 of the Criminal Code, R.S.C., 1985, c. C-46?
x) If the answer to ix) is yes, should the application be granted and the trial ordered to proceed in Brampton?
[5] While two previous Superior Court judgments (R. v. Jeffries, 2010 ONSC 772, 86 W.C.B. (2d) 859, and R. v. Lane, 2014 ONSC 4553, 115 W.C.B. (2d) 44) recognized the Superior Court’s authority to move proceedings within a region, this is the first ruling to address the movement of proceedings to a region other than the region in which the indictment was filed. This is also the first ruling to address whether administrative law principles and judicial review are available for administrative decisions made by judges in the course of a criminal proceeding.
[6] Before addressing the questions, some background information with respect to the Davis Courthouse, the transfer of cases and the events to date in this proceeding will provide context for the answers provided below.
The Shortage of Courtrooms in Brampton
[7] While Superior Court Judges are federally appointed, the provincial government is responsible for providing court facilities. As a direct result of the R. v. Askov 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 judgment, the Davis Courthouse was constructed and opened in 2000. When first planned there were to be 56 courtrooms. The second plan in 1991 included 45 courtrooms.[^4] The third plan, upon which the Davis Courthouse was built, included 36 courtrooms. Not surprisingly, it was not long before courtroom shortages occurred.
[8] The Superior Court has 16 courtrooms including 7 criminal jury courtrooms in the Davis Courthouse.[^5] Of the 7 criminal jury courtrooms, three have only two counsel tables which are not suitable for multiple accused[^6] proceedings. One of the three smaller courtrooms is a “child-friendly” courtroom with video facilities for children or vulnerable witnesses to testify from outside the courtroom. Of the remaining four, two are large enough for jury selections and are routinely used for that purpose. When one is being used for a trial, there can be line ups of cases waiting for jury selection.
[9] For example, during the week of January 8, 2018, there were four criminal jury selections (three involving challenges for cause) from the regular trial list[^7] and one civil jury selection. Since one of the jury selection courtrooms was being used for a trial, jury selections were held on the first four days of the week. This delays the start of the trial and extends the time the Court and counsel anticipated the trial would last.
[10] In 2012, the Superior Court and the Court Services Division determined that sixteen courtrooms were insufficient and in particular, seven jury courtrooms did not provide adequate courtroom space for the criminal trials in Peel. The Provincial Government’s first solution was to provide modular courtrooms which were scheduled to be provided to Newmarket, Barrie and Brampton. Preparation and installation progressed in Newmarket and Barrie. Nothing happened in Brampton.
[11] On January 5, 2015, the Provincial Government announced that “… the ministry has been exploring solutions to address the caseload demand pressures at the Brampton courthouse for a number of years.”[^8] The ministry decided that the modular courtroom solution should be “paused” to allow for a re-evaluation of the most efficient approach with a longer term outlook. The ministry decided to “re-scale the project” and construct a permanent addition, consisting of two floors of courtrooms and four floors that will address future demands.[^9]
[12] The memorandum continued:
In order to meet the immediate operational needs of the Superior Court of Justice resulting from the length of time required to deliver the re-scaled Brampton project the ministry is currently refining interim operational strategies with support and input from Court Services and Criminal Law and Victims and Vulnerable Persons Divisions. We are currently working with the Superior Court of Justice Central West Region to make courtrooms available between Kitchener, Milton and Orangeville.
[13] A Ministry of the Attorney General news release[^10] stated that the addition would be completed by December, 2017 and:
While construction is underway, additional courtroom space will be made available in the Milton, Orangeville and Kitchener facilities to deal with added pressures.
[14] The availability of courtrooms in Orangeville and Kitchener is dependent on whether sittings are occurring at those locations. Kitchener’s courthouse was opened in March, 2013 and has courtroom availability some, but not all weeks. Dufferin County, which includes Orangeville, built a jury courtroom in the Orangeville courthouse complex, a facility that is owned by the municipality, not the Ontario government. The new jury courtroom can be rented by the day from the county but scheduling can be challenging because the Provincial Offences Court uses the courtroom and advance notice is required. Otherwise, Orangeville has one jury courtroom with two counsel tables and a second Superior Court non-jury courtroom that is roughly 18 feet by 24 ½ feet with a prisoners’ box.
[15] The Superior Court addressed the courtroom shortage through the transfer of charges from the Caledon Ontario Provincial Police (OPP) to Orangeville. Caledon is in the Region of Peel whose northern border is close to the main street of Orangeville. In the Askov era, the Ontario Court of Justice moved all Caledon OPP charges to Orangeville. Where the cases proceeded to the Superior Court, they were tried in Orangeville. However, shortly after the Davis Courthouse opened, all Caledon OPP indictments were returned to Brampton after the committal for trial. When the courtroom shortage became apparent, all Superior Court Caledon OPP cases were transferred to Orangeville[^11].
The Transfer of Cases from Brampton
[16] While more cases have been transferred since late 2014, contrary to Prabhjeet Singh’s submission, cases have been moved within regions for many years. In Central West Region, Brampton cases have gone to Orangeville and Milton. On occasion, because no courtroom was available in Milton, Milton proceedings were moved to Brampton. Other Superior Court regions also move cases within the regions as does the Ontario Court of Justice.
[17] Since 2014, Brampton criminal cases have been moved in three situations. First, the most frequent scenario, cases are moved on the Monday at the start of the “weekly sitting” when no courtroom is available for the proceeding. This occurs after the mandatory “Monday Morning Pre-trial” at which counsels’ input in regards to a transfer is sought. Ms. Gadhia noted in submissions, “It is an unfortunate circumstance of our adversarial system that everybody plays checkers until the very end.” The “collapse rate” where trials do not proceed because of resolutions, adjournments, re-elections or withdrawals results in uncertainty with regards to courtroom needs until late Monday morning. As a result of the Court’s commitment to keep as many cases in Brampton as possible, while a final decision is “last minute,” it maintains flexibility instead of sending cases to other locations only to have courtroom space become available in Brampton. As Ms. Gadhia noted, there have been Mondays when counsel are told their case is being transferred around 11:00 a.m. yet by later in the morning or early afternoon, the case remains in Brampton as a result of changes in other cases.
[18] The second scenario were cases are moved began in the fall of 2017. Due to the large number of ongoing jury trials, particularly those involving multiple accused, it became apparent to the Trial Coordinator that there was no reasonable likelihood that a courtroom would be available for some cases. Looking at the ongoing lengthy trials, the Trial Coordinator could project future courtroom availability. While unforeseen events occur in trials, it was reasonable to proceed on the basis that a trial will continue until completion when it had been ongoing for several weeks or months.
[19] To cite just one example, R. v. Merritt and Fattore was scheduled to be completed before the summer of 2017. The pre-trial motions occupied roughly one year, including four months in Kitchener. The jury trial started in September, 2017 and ended in early January, 2018. Given the number of counsel involved, the trial had to be in one of the four courtrooms with four counsel tables. Other trials including multiple accused trials were ongoing during the same period.
[20] As counsel were told at Trial Readiness on November 3, 2017, projecting suitable courtroom availability is what occurred in this case in early November, 2017. Since jury trials are not moved out of Brampton after they started, it was apparent no courtroom would be available for this trial in Brampton. On that basis, counsel were notified that the motions and trial would be held in Kitchener even though, as this case amply illustrates, the Court continues to take into consideration concerns raised by counsel. The Regional Senior Judge and Trial Coordinator re-arranged the scheduling after Mr. Grill’s first adjournment application referenced below.
[21] The third scenario occurred in three or four trials where the schedule included several weeks or months of pre-trial applications. Where there are multiple accused persons, the only courtrooms that can accommodate the motions in the Davis Courthouse are jury courtrooms. The motions would be held in a jury courtroom when no jury was required. In those circumstances, in order to keep the jury courtrooms for jury trials, cases with lengthy pre-trial motions have been moved to Kitchener for all or some of the pre-trial motions.
[22] At the start of every Assignment Court since late 2014 an announcement has been made explaining the courtroom shortage. The comments include that anyone setting a trial date in Brampton should proceed on the basis the trial could be moved to Orangeville, Kitchener, Guelph or Milton and that the Court tries to keep as many trials in Brampton as possible. The decision whether to transfer a case was generally made on the Monday morning of the weekly sittings after the judicial trial conference. While counsels’ and self-represented accused person’s input would be considered, no one had a veto. Whenever a case was transferred, if a Brampton courtroom became available that would permit the proceeding to be completed in Brampton, it was returned to the Davis Courthouse.
[23] Where the case was tried with a jury, the jury would be selected in Brampton after being told in the judge’s opening comments that the trial would be in Kitchener, Guelph, Orangeville, or Milton. Jurors receive mileage from their home to the location of the trial or they could come to the Davis Courthouse and taxis are provided to drive them to the location of the trial. In most cases held in Kitchener, judges sat shorter hours, such as sitting from 10:30 am to 4:00 pm, to accommodate the additional travel time.
[24] In the fall of 2017, the Assignment Court announcement included that for a very few cases the decision to transfer was made earlier than the first day of trial. The projected scheduling was clear that no suitable courtrooms would be available, as noted above.
[25] On December 11, 2015, the President of the Criminal Lawyers’ Association (CLA) wrote to Van Melle, R.S.J., regarding the transfer of cases. He suggested that there was extensive consultation with all other justice system participants except the CLA regarding the transfer of cases and that in one instance, a trial was moved even though there was a Brampton courtroom available because the Court was upset with the Courts Services Division’s response to the courtroom shortage.
[26] On January 13, 2015, Her Honour responded by letter produced by Ms. Rozier and Ms. Perchenok during these proceedings. It outlined the reasons for the transfer of cases, that the extensive consultation leaving out the CLA did not occur, confirming the Court’s commitment to do everything reasonable to keep cases in Brampton, rejecting the assertion that a case was transferred when it was not necessary, and asking for information about that case. To date, no response has been received. The letter concluded, ‘You have my permission to share this letter with all members of your Association.”
[27] There is also a Local Criminal Justice Coordinating Committee where concerns regarding criminal law proceedings can be raised. Roughly four times a year, the Brampton Committee, which includes members of the defence bar as well as provincial and federal prosecutors meets to discuss any issues the members seek to address.
[28] To date, while always subject to reconsideration, two practices have assisted in informing the transfer decisions. First, once a jury trial starts in Brampton it is not moved because the jury would have no notice that they may be sitting in a different location. Second, if a courtroom becomes available for the case to return to Brampton, it is only returned if the case can be completed in Brampton.
The Impact of Transferring Cases
[29] The impact of moving criminal proceedings is not insignificant. First, cases are transferred when they would not be reached in Brampton because of the courtroom shortage. When cases are not reached, s. 11(b) Charter issues arise as accused persons’ right to a trial within a reasonable time is in jeopardy. When cases are moved, there is a trial on the merits and not a stay of proceedings or the potential for a stay. While the right to a trial within a reasonable time is an accused person’s constitutional right, that is not the only consideration from s. 11(b) of the Charter of Rights and Freedoms. There is also a public interest in timely trials on their merits.
[30] As Sopinka J. wrote in R. v. Morin 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 785-786:
There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.
[31] More recently, in R. v. Jordan, [2016] S.C.R. the Court held:
22 Of course, the interests protected by s. 11(b) extend beyond those of accused persons. Timely trials impact other people who play a role in and are affected by criminal trials, as well as the public's confidence in the administration of justice.
23 Victims of crime and their families may be devastated by criminal acts and therefore have a special interest in timely trials (R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1220-21). Delay aggravates victims' suffering, preventing them from moving on with their lives.
25 Last but certainly not least, timely trials are important to maintaining overall public confidence in the administration of justice. As McLachlin J. (as she then was) put it in Morin, "delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice" (p. 810). Crime is of serious concern to all members of the community. Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community's sense of justice (see Askov, at p. 1220). Failure "to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures".
34 Despite this confusion, prejudice has, as this case demonstrates, become an important if not determinative factor. Long delays are considered "reasonable" if the accused is unable to demonstrate significant actual prejudice to his or her protected interests. This is a problem because the accused's and the public's interests in a trial within a reasonable time does not necessarily turn on how much suffering an accused has endured. Delayed trials may also cause prejudice to the administration of justice.
153 Finally, s. 11(b) implicates several distinct interests, both individual and societal. Excessive delay implicates the liberty, security, and fair trial interests of persons charged, as well as society's interest in the prompt disposition of criminal matters and in having criminal matters determined on their merits: Morin, at p. 786. …
[32] In addition, witnesses testify sooner than they would if the case was adjourned to a later trial date. The more delay, the more that witnesses’ memories, availability, and willingness to participate in the criminal justice system can be adversely impacted. For the accused, his or her family and friends, the complainant and his or her family and friends when a proceeding is transferred, the case is completed.
[33] There are also adverse effects when proceedings are transferred. Particularly in the post-Jordan era, trial efficiency is an important consideration and objective. Where the trial is held in Kitchener and on occasion in Orangeville, courts sit reduced hours to accommodate the travel time. In the result, transferred trials take longer to complete. The public, witnesses, friends and relatives of victims, friends and relatives of accused persons, the media, and other members of the public are required to travel greater distances to testify and/or watch the trial. The accused has to arrange to get to the other location or to obtain lodging at or near the other location. However, when an accused person does not drive or otherwise have access to transportation, orders are made that they attend the Davis Courthouse where they are given a taxi to the other location. For all counsel, there is additional travel time and expense as well as less time for preparation and other commitments. There are also added time and expenses to the Crown and police services as a result of moving proceedings.
[34] A significant percentage of criminal law retainers in the Superior Court involve Legal Aid Ontario (LAO). The transfer of cases involves added costs to LAO. Where there is a private retainer, a transfer results in additional mileage and in some cases, accommodation fees that either increase legal fees for the accused or counsel may be forced to bear the additional costs personally.
[35] Finally, the trial judge has to either travel daily to the other location or obtain accommodation. As with counsel, this results in less out-of-court preparation time, longer commutes and less time for other commitments.
[36] For all of these reasons, it is imperative that all reasonable steps be taken to keep as many proceedings as possible in the Davis Courthouse and, if they are moved, to return them to Brampton as soon as possible.
The History of this Trial
[37] On March 7, 2015, the three accused were charged with criminal negligence causing death[^12] and manslaughter. They were committed for trial on December 14, 2016, 21 months and 7 days after the original information was sworn. Accordingly, the proceeding arrived in the Superior Court with significant Jordan[^13] concerns.
[38] The first appearance in the Superior Court was January 13, 2017. At the outset of the Assignment Court the above noted announcement was made regarding the transfer of cases. Mr. Salloum appeared for Prabhjeet Singh by designation, Mr. Ellison appeared on behalf of Ms. Gadhia for Abhijeet Singh and Ms. Perchenok for Dilsher Singh by designation.
[39] A pre-trial conference was held on February 9, 2017. Mr. Grill attended on behalf of Prabhjeet Singh. He said nothing about the transfer of cases. His pre-trial conference report said nothing about the transfer of cases. When the case was addressed in court and various dates and Jordan implications were being discussed, I said that I would do whatever I could to schedule the case in May or June as the Jordan “presumptive ceiling” date was in September and none of the counsel could assist with the “net” Jordan date.[^14] I would need ten days to two weeks to ensure there was a judge and I continued:
whether the courtroom would be in this building or not, I do not know.
[40] Accordingly, on February 9, 2017 all counsel, including Mr. Grill, were told that the trial might not be in the Brampton courthouse. Mr. Grill addressed the court on scheduling issues after the comment but said nothing about where the trial would be held.
[41] On February 22, 2017, November 13, 2017 was set for trial with Mr. Salloum appearing for Prabhjeet Singh. He said nothing about the transfer of cases. November 3, 2017 was set for Trial Readiness.
[42] On November 3, 2017, counsel were advised at the Trial Readiness Court appearance that the pre-trial motions would be held in Kitchener. Mr. Salloum appeared for Prabhjeet Singh and made no comments.
[43] The trial judge’s secretary emailed all counsel in the afternoon of November 3, 2017, advising that the trial would also be in Kitchener. Counsel were told that if any of the accused had difficulties getting to Kitchener, they were to advise the Trial Coordinator by not later than November 7, 2017. If transportation was required the accused were to attend the Davis Courthouse at 8:30 am on trial dates, and would be given cab rides to Kitchener. Further, counsel were told that the transfer was because “… at this point there are no courtrooms available in Brampton for a three accused trial. The courtroom situation will be monitored but it does not appear that a courtroom will be available. If a courtroom becomes available, the case will be moved back to Brampton but only if there is courtroom availability to complete the trial in Brampton.”
[44] On November 7, 2017, Prabhjeet Singh’s counsel, Gary Grill, applied to adjourn the trial. His affidavit filed in support of the application referred to a motor vehicle accident on October 5, 2017 where his airbags deployed, his vehicle suffered extensive damage, he briefly blacked out and when exiting his vehicle had difficulty regaining his balance. When the police arrived he felt well enough to decline emergency medical assistance. He suffered soft tissue leg, back and neck injuries. The next weekend, he suffered a torn calf muscle and was on crutches for a week. The pain was such that for a week he cancelled several court appearances and lectures he was to give at Osgoode Hall Law School where he is an adjunct professor. The affidavit did not say that he was unaware that cases were being transferred.
[45] Mr. Grill explained that the effects of the injuries included daily headaches and that he eventually had to take pain medication. He noted that much of the preparation for this case had been completed. He would assign his associate, Leo Salloum, to assist in court although LAO had not authorized junior counsel.
[46] However, he could not commute to Kitchener and effectively represent Prabhjeet Singh. Driving was already very difficult and adding multiple hours, especially in the winter would be “simply too much for [him] to bare.” His assistance would be rendered ineffective. Ethical obligations compelled him to bring the application. Additionally, there were many other reasons why a Kitchener trial would be personally difficult and would “likely involve numerous accommodations by the Court.” The reasons, “mundane for sure,” were domestic and professional but important to him and his family. Given his injuries, he did not believe his personal and professional issues were necessary to detail in the application.
[47] Mr. Grill said that his application was in part a plea: if there was any way the case could be tried in Brampton, he could continue as counsel. Travelling to Kitchener would be difficult for him because of his injuries. When a taxi from Brampton to Kitchener was offered, he said it would not assist as sitting in a car for that long would cause problems.
[48] In submissions, he said he taught at Osgoode Hall Law School on Monday and Wednesday evenings. He had “significant family parenting responsibilities” with respect to his child. Mr. Grill continued:
I would likely have to bring the application as well, because I haven’t made – I haven’t been able to make the necessary arrangements that I otherwise would have if I was doing – if I chose to do a trial out of town.
[49] Mr. Grill said he had not personally heard the Assignment Court openings about cases being transferred. He was now aware of it. When Mr. Salloum returned to the office on November 3, 2017 and told him the trial would be in Kitchener, he asked what Mr. Salloum was talking about. Mr. Salloum asked Mr. Grill if he had never heard the Assignment Court opening. Mr. Grill took complete responsibility for not knowing about transfers. Mr. Salloum clearly knew and it was not communicated properly to Mr. Grill. He said that had it been communicated to him:
I would have indicated, I can, you know I can take that risk, but not in the winter months because I’m teaching and I can made arrangements in the other months. It’s a reason, not an excuse.
[50] Mr. Grill referred to the case as serious but “not a particularly complex one.”
[51] Ms. Gadhia also sought to adjourn the trial because she would not have accepted the file had she known the case would be moved to Kitchener although she was present when the trial date was set. She submitted that more notice should be given to counsel when cases are being moved.
[52] Mr. Grill then said that he would “otherwise have been bringing this adjournment application on other bases that would not necessarily have mirrored Ms. Gadhia’s adjournment submissions. He said that there were other bases for bringing the application “that I did not think were necessary in these circumstances, because I want to be transparent.” There was no way he was going to Kitchener because of his medical issue. He anticipated his medical problems would no longer be an issue in February.
[53] Everyone agreed that a February 12, 2018 trial would hopefully permit Mr. Grill to recover. It appeared as though the adjournment would not result in Jordan applications for the other accused. The case was adjourned to permit the Court to address scheduling issues.
[54] That afternoon Daley, R.S.J. and the Trial Coordinator re-arranged the schedules so that the trial could be held in Brampton. Counsel were notified by memo that on the basis of Mr. Grill’s medical issues only, the trial would be held in Brampton. Otherwise, the motions and trial would have been in Kitchener.
[55] The next day Mr. Grill had a doctor’s appointment and was diagnosed with concussion symptoms. The doctor recommended he not work. Mr. Grill obtained a letter from his doctor and provided it to all counsel and the Court.
[56] On November 9, 2017, Mr. Salloum appeared on a second adjournment application. Ms. Perchenok, counsel for Dilsher Singh, advised that their office had reassessed their s. 11(b) position and an adjournment to February would result in a Jordan Application. She brought on oral severance application on behalf of Dilsher Singh. Ms. Gadhia joined the severance application on behalf of Abhijeet Singh. Prabhjeet Singh opposed severance. Mr. Salloum said that severance was not in Prabhjeet Singh’s interests. The Crown opposed severance.
[57] I heard submissions on the severance application based on my appointment as a Case Management Judge by Daley, RSJ pursuant to s. 551.1 of the Criminal Code. I dismissed the application and the trial was adjourned to February 12, 2018 with the possibility of pre-trial motions being heard the week of January 29, 2018, provided Mr. Grill had recovered sufficiently.
[58] Roughly 15 minutes later after some scheduling matters were addressed the following exchange occurred:
THE COURT: … if there’s nothing further, thank you.
MR. SALLOUM: I’ve just received a text message from Mr. Grill. … Just to update the Court one of the pre-trial motions that will be argued in January, and this is something that I’ll be arguing myself if necessary, will be if the matter is not going to be heard in Brampton an application will be to be removed from record as counsel of record.
[59] The Court told Mr. Salloum that the timing of this information left a considerable amount to be desired, that everyone is told in advance the trial could be moved, and when the trial date was set counsel were told the case might not be in Brampton. The idea that this new application could be heard in January was surprising.
[60] Later, Mr. Salloum clarified that the application did not have to be heard at the end of January. He continued:
So there’s nothing about the end of January that’s magic for that application. It can be brought at any time prior to that certainly if the timing is what concerns the Court.
THE COURT: It does. And the timing of January raises concerns.
[61] Counsel for Dilsher Singh and Nagra applied to have the severance application revisited. I declined to do so, finding it was premature. However, it was problematic to have heard full submissions on severance on the basis the trial could proceed with three accused in February, preparing and delivering the reasons to then be told that unless the trial was going to be in Brampton, Mr. Grill would seek to be removed from the record leaving his client without counsel.
[62] Mr. Salloum said that he could file the application within a week. The skeleton of the arguments had been provided to him by Mr. Grill and he offered to outline them. With the written application to be filed within a week, I said that it would not be of assistance to get an oral outline at that time. When I said that I was uncertain what the Court had to do to alert counsel to the potential that the trial would not be in Brampton, Mr. Salloum said, “Lack of notice to counsel is not one of the grounds of the application.”
[63] After saying that he would need one week to file his material, Mr. Salloum was directed to file within one week and the Crown and other counsel by November 29, 2017. The arguments were set for November 30, 2017.
[64] Two days later, Mr. Salloum wrote to the Crown, with copies to counsel for the co-accused and the Trial Coordinator. He advised that Mr. Grill had decided it was inappropriate to proceed as the Court had directed. Mr. Grill wanted to make the arguments in relation to the trial being in Brampton and to be removed from the record, felt it was inappropriate for Mr. Salloum to do so and that the motions were likely premature. Until an “authoritative reason” was provided to indicate otherwise, Prabhjeet Singh was entitled to proceed on the basis his trial would be in Brampton because he was committed for trial in Brampton and was remanded to Brampton. He would not rely upon obiter dicta[^15] about construction and other court cases. If the Crown or Court brought a change of venue application he reserved the right to oppose it.
[65] Further, independently of Prabhjeet Singh, Mr. Grill reserved “his right to bring a motion that preserves his right to practice in a geographically restricted fashion that does not include lengthy trips to distant parts of the province.” Mr. Salloum advised that he would appear on November 30, 2017 and seek an adjournment.
[66] Counsel for Dilsher Singh wrote to Mr. Grill and Mr. Salloum the same day noting they “absolutely disagreed with the notion that their client’s fair trial interests could be held hostage to co-accused’s counsel’s preference to litigate a matter in Brampton rather than Kitchener.” Further, “Any pre-trial application of this nature …. must be brought and argued forthwith.” Counsel noted that this would include any application for Mr. Grill to be removed as counsel.
[67] The letter continued:
In particular, any matter that has the potential to adversely affect or displace the currently set trial dates and time estimate needs to be resolved immediately (November 30). To do otherwise would be unfair to the co-accused, to the Crown and its witnesses, and to the Administration of Justice. Unless you are prepared to unequivocally abandon any further claim to remove yourself if the matter is moved to Kitchener, we believe you have an ethical obligation to address the matter now.
The clearly unfortunate reality of space limitations in the Brampton Superior Court is well known; as is the fact that matters proceeding in the Superior Court in Brampton are not infrequently traversed to be in other locations (including Kitchener). None of this is a recent development. (the letter contained a footnote regarding the letter from then RSJ Van Melle to the President of the Criminal Lawyers’ Association and that it was reported in the media.) Suffice to say that your operative premise of there being no “reasonable expectation” the trial will be heard anywhere but Brampton is fallacious.
The possible prejudice to our client is real and significant. An expedient resolution to the above noted concerns is required so as to protect our client’s rights to have a trial within a reasonable time in a fair and efficient manner, as well as to protect the reputation of the Administration of Justice.
[68] On November 22, 2017, I released an endorsement directing that all the applications were to be perfected by December 1, 2017. This was a one week period - the same period for which Mr. Salloum had agreed he could file his material on the applications. The oral arguments would take place before December 15, 2017. After that date, no further applications could be brought in relation to the location of the trial or the removal of counsel.
[69] The endorsement concluded noting that the Court was not unmindful of Mr. Grill’s medical issues. Accommodations had been made to address them. Regrettably, through Mr. Salloum’s letter Mr. Grill had determined when the issues could be argued. The letter necessitated the endorsement. While it would result in another counsel arguing the applications, Mr. Grill’s positions in the letter left no alternative.
[70] To this stage in the proceeding, there had been no indication that the transfer issues related to anything other than Mr. Grill’s personal situation and preferences. That changed on November 30, 2017. Ms. Leora Shemesh appeared “on behalf of Mr. Grill,” referring to herself as “the voice of Mr. Grill.” Mr. Salloum was present as well. Ms. Shemesh said “[Mr. Salloum] is not on the panel unfortunately for these types of cases for Legal Aid, and he’s not in a position to address it,” referring to arguing the applications. When it was noted that Mr. Salloum’s letter did not mention that fact, Ms. Shemesh said, “Well I can tell Your Honour that he is not.”
[71] Counsel were reminded that it was not acceptable to have these arguments at the start of the trial, an issue that had been fully addressed in court on November 9, 2017. It would be unfair to Prabhjeet Singh, who could be left without a lawyer on the morning of trial.
[72] Ms. Shemesh said Mr. Grill was still not well, was awaiting an appointment with a neurologist, and having MRIs. He had advised the Law Society that he was not working until January. In those circumstances, he was not in a position to respond to the deadlines in the November 22, 2017 endorsement. Ms. Shemesh said, “We need more time.” Legal Aid had to be contacted to obtain funding for the applications.
[73] Ms. Shemesh said there was the potential for affidavits from other government officials like LAO. When she was told that LAO has been paying mileage when cases were transferred if the courthouse was 50 km from counsel’s office if it was outside LAO’s Greater Toronto Area,[^16] she said there was no longer any guarantee and that counsel were being denied mileage.[^17]
[74] Ms. Shemesh asked that the arguments on the transfer issues be made in January as her understanding was that Mr. Grill had been cleared to come back to work in January. However, she would set the hearing according to her own dates and was prepared to “work quite diligently.” She was content “out of an abundance of caution, to litigate [the issues] herself so that there are no further concerns or further delays.”
[75] While the Crown pressed to have the applications at least started before Christmas, Ms. Shemesh said that was not possible. Ordinarily she would have argued them in December but she could not because she was going to be travelling with her family, going out of the country, on December 18 and returning January 3, 2018. She would not be “physically present” until January 3, 2018. She asked that the material be filed the week of December 18 although she would file sooner if she could do so. They were working “as diligently as we possibly can” but she was dealing with a counsel who was not well.
[76] Ms. Shemesh said there was merit to the motions and if they were not litigated, Prabhjeet Singh could be without a lawyer, “so hence we’re bringing the motion to avoid having to lose counsel of record.” While she felt the arguments were anticipatory since the trial might not be moved, “… we’re certainly prepared to make them.” In the absence of any further clarity on where the trial would be “we’re prepared to bring” the “Brampton only” motion. If “forced to move” they would bring a motion, opposing the transfer order.
[77] Ms. Shemesh spoke of Mr. Grill’s child care issues, saying he had an obligation to pick-up his children “on these days” and it would be absolutely impossible for him to meet the 4 pm deadline for child pick-up even with reduced sitting hours. Ms. Shemesh said “child care pick-up is definitely not after 4:00 and it’s before 4:00. And so you’d have to leave Kitchener obviously to get there.” When asked how Mr. Grill could do a trial in Toronto or Brampton with that deadline, she said, “There are ways in which it can be done where a child can stay longer in school but not ‘til 6:00, right?” She said Mr. Grill never took a trial out of Toronto or Brampton and then varied it to he “would never take a case ordinarily in Kitchener.”
[78] The real concern was the need for Mr. Grill to go to any jurisdiction that “may impinge or hinder his ability to deal with child care issues and others.” She continued, “And we’ll fully set out that. Perhaps on the filing of materials, Your Honour or someone else may take the position that there are live concerns and the trial won’t be moved.” Nothing further was ever filed “fully setting out” Mr. Grill’s situation.
[79] Ms. Shemesh initially said the legal issue was “whether or not Kitchener was within the region and upon a close examination of the Juries Act, (R.S.O. 1990, C.J.3), whether or not Kitchener fits within the ability to move a trial to a courthouse which is not within the region itself.” She described them as Mr. Grill’s motions.
[80] Ms. Shemesh was asked to clarify what motions were proposed and after a recess said they would be:
i) a “Brampton Only” motion that would include arguments about the movement of a Brampton case to a different courthouse anywhere. “They” would argue that the Superior Court had no jurisdiction to transfer cases within the region in which the indictment was filed or outside that region. Further, she submitted that the Juries Act precluded a Brampton jury from sitting in Kitchener.
ii) a s. 10(b) Charter application by Prabhjeet Singh that he would be deprived of his counsel of choice if the trial was not held in Brampton because his lawyer would be unable to travel.
iii) an order removing Mr. Grill as counsel of record.
[81] Ms. Shemesh said that there might also be an application to remove me as the Case Management Judge because of my involvement in the transfer of cases and because I issued the endorsement directing the issues that had to be addressed before Christmas.
[82] Dates were scheduled for arguments and filing deadlines ordered to accommodate Ms. Shemesh’s professional and personal schedule. The adjustment to the schedule resulted in the Crown and Court having to return to work early from holiday vacations.
[83] After receiving input from all counsel, it was estimated that the arguments would take three to five days. The case was adjourned until December 5, 2017.
[84] On December 5, 2017, Ms. Shemesh appeared “for Prabhjeet Singh, on behalf of Gary Grill.” She said they were diligently working towards perfecting the motions she had hoped to litigate, including consulting with “certain government officials.” However, late the night before and again that morning, Mr. Grill told her that he wanted to be removed from the record as “in the last 24 hours his condition continues to deteriorate.” Ms. Shemesh had been a close colleague for 18 years and had never before heard him speak the way he did that day. While no formal application was filed, there had been an earlier medical letter regarding concussion symptoms.
[85] Mr. Coughlin for the Crown noted his concerns about issues repeatedly being raised without notice as Ms. Shemesh had just told him of the application. Ms. Perchenok expressed the desire to move the case along and keep the scheduled dates. When asked for his input, Prabhjeet Singh said he understood he would have to get another lawyer.
[86] Because Prabhjeet Singh’s defence was funded through an agreement reached before his Rowbotham Application was argued, he was remanded to December 9, 2017 to obtain input from LAO on whether that agreement could apply to new counsel. It was reiterated that if the applications raised by Mr. Grill, Mr. Salloum and Ms. Shemesh were being pursued it could not wait to the end of January or February.
[87] Prabhjeet Singh then asked if he could have more time and wait until January to determine if Mr. Grill’s medical issues would permit him to represent him. He was told by the Court that Mr. Grill was not asking for that and that he wanted off the record that day. Previously, there had been concerns raised by counsel for both co-accused as to whether Mr. Grill would be able to proceed in February. To wait would put the trial date in jeopardy, particularly in light of his deteriorating condition. There was a risk that Prabhjeet Singh would be without counsel. He felt it would be very hard to find new counsel and was told by the Court that he would be assisted in his efforts to get new counsel.
[88] After a recess, Prabhjeet Singh asked if Mr. Grill could return as counsel if he got better by January. He was told that everything could not be “put on hold” to see if Mr. Grill returned. There were significant scheduling issues that arose with the case that could not wait for six weeks.
[89] Ms. Shemesh said that as part of his motion materials, Mr. Grill would include issues with Kitchener that would have to be dealt with, including his childcare issues. He would not be able to travel to Kitchener. It was not that he was unwilling to do so. Ms. Shemesh was asked if Mr. Grill got off the record but was later able to come back on in January, would he “raise the issues that we have just spent several appearances and hours trying to straighten up?” She replied:
No, no. That’s the very reason why I’m bringing the motion now to have him removed as counsel, because I think Mr. Singh should make every effort today, to start looking for a new lawyer to represent him effectively in February.
[90] Mr. Grill thought it was more beneficial for Prabhjeet Singh to have a lawyer who could devote the time and energy to the file as he could not.
[91] It was again reiterated that counsel saying they “would advise” if and when applications would be brought was contrary to the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), (SI/2012-7) (the rules of court) and contrary to orders that were previously made. The applications were scheduled for two to four days. Despite being repeatedly told that the applications in regards to transfers would be heard in advance, Ms. Shemesh submitted that the motions were anticipatory and there was no point in holding the motions in advance.
[92] Ms. Shemesh said she did not want anyone to be under the misconception that Mr. Grill could travel to Kitchener. She continued:
… I’m not sure why some of these issues weren’t raised, you know front and centre. It would be literally impossible …
THE COURT: Front and centre at the outset, I couldn’t agree more.
[93] Ms. Shemesh said that maybe if Mr. Grill was able to “get back” in January, then the Court would somehow ensure the case stayed in Brampton.
[94] To avoid coming back on a later date with a formal application for what appeared to be an inevitable order removing Mr. Grill from the record, he was removed as counsel of record. This would enable Prabhjeet Singh to pursue new counsel. Ms. Shemesh said that he would be given assistance to get another lawyer.
[95] On December 7, 2017, Mr. Salloum appeared to assist Prabhjeet Singh although he was not retained. Mr. Tim Lutes, counsel for LAO, appeared and confirmed that the funding agreement remained in place. Prabhjeet Singh only had to retain new counsel. Contrary to Ms. Shemesh’s representations, he said there was nothing from LAO’s perspective to prevent Mr. Salloum from arguing the applications. Only “experienced murder counsel” on the Complex Case Panel could sign a certificate for a manslaughter charge. How that lawyer allocates the work assignments was for him or her to determine. In many cases junior lawyers argue pre-trial motions. More often than not the junior lawyers are not on the Extremely Serious Matter Panel or the Complex Case Panel. They just have to be a lawyer in good standing and have a LAO number so they can bill. Mr. Lutes gave Prabhjeet Singh a list of counsel from the Complex Case Panel who could be approached to represent him.
[96] Prabhjeet Singh said the case was “a very big decision” for his life. His future depended on it. He had decided that he did not want another lawyer on the case. On December 7, the day after Mr. Grill’s health had deteriorated to the point he asked to be removed from the record, Mr. Grill told Prabhjeet Singh that he would be able represent him in February. Mr. Grill obtained Prabhjeet Singh’s judicial interim release order and did his preliminary inquiry. Prabhjeet Singh had a great deal of faith in Mr. Grill who, along with Mr. Salloum had already prepared for the trial. The case was too complex for anyone to pick up two months before the trial date.
[97] Prabhjeet Singh was told that his former counsel asked to be removed from the record. He was not ordered off, nor did he ask that the schedule be adjusted. It was suggested by the Court that he should not stop seeking new counsel on the expectation that Mr. Grill was going to be available in January or February. Prabhjeet Singh said he would argue the transfer motions himself.
[98] Mr. Salloum said Mr. Grill was “very much hoping to step back in” for Prabhjeet Singh. He had seen a neurologist who felt that with rest for the month of December, he could be back to work in January. Mr. Salloum said that Mr. Grill was not able to meet the filing and other deadlines in December “[w]hich is why he was removed as counsel of record.” He agreed that I had been told first that he would do the motions and then that Ms. Shemesh would. However, he said the motions could not be done without Mr. Grill’s involvement. The inability to “supervise or mastermind” the motions was interfering with his recovery.
[99] Further, Mr. Salloum submitted that it was not appropriate to view Mr. Grill’s position as a circumvention of a court order. It was his injury, “the intervening influence of the laws of nature,” that had the effect of circumventing the court order. Mr. Salloum said “the problem with this case is that everyone involved, including the court, takes the position that these motions could not be heard at the end of January.”
[100] Mr. Salloum was told there were lengthy cases scheduled in Brampton in early January. Others were scheduled that were not as long. There were seven jury courtrooms in the Davis Courthouse and one was required for jury selections even if a trial was transferred. There were courtrooms with child-friendly facilities. It was possible that even in the last week of January, it would not be clear that the trial could proceed in Brampton. Mr. Grill’s issues were not the only ones to address. Mr. Salloum said that while the limitations on the courthouse were regrettable, Mr. Grill’s limitations were more regrettable.
[101] Mr. Salloum submitted that it was unrealistic to separate Mr. Grill’s health issues and childcare issues from arguments about why the case should not be moved to Kitchener. It was better to view them globally. Mr. Grill had many reasons “all which impact each other overlappingly.” Mr. Grill was “stressed out” because he could not get to Kitchener because of his child care. The stress caused healthcare implications. Being sent to Kitchener would increase the stress because of his childcare concerns and that would impact on his recovery. Mr. Salloum said that Mr. Grill was confident that he could do the trial in Brampton, “which Your Honour has said you cannot speak to at this time.” Prabhjeet Singh and Mr. Salloum felt there was a lot of merit to the motions to be argued.
[102] Mr. Salloum said that the best available option was to wait to the end of January and determine if there was a courtroom available in Brampton. If there was a courtroom there would be no motions and Mr. Grill could represent Prabhjeet Singh. If the Court’s position was that the motions had to be argued before the trial, then Mr. Grill could not be counsel. As a result of Prabhjeet Singh’s discussions with Mr. Grill, he decided he did not need another lawyer. Mr. Grill’s doctor was telling him that if the trial was in Brampton “he could probably do it.” Mr. Salloum offered his own medical opinion that Mr. Grill’s health was deteriorating because of the filing deadlines in this case.
[103] Mr. Salloum was again asked about severance. He responded that severance was not in Prabhjeet Singh’s best interests.
[104] The Crown said that the Court had twice set schedules to accommodate Mr. Salloum and then Ms. Shemesh. He mentioned an experienced criminal lawyer by name who said he was interested in representing Prabhjeet Singh.
[105] On December 8, 2017, pursuant to the direction of the Chief Justice of the Superior Court, I advised Prabhjeet Singh and all counsel that the trial would be held in Kitchener and that I was appointing amicus to assist the Court with regards to the jurisdictional issues. When amicus was appointed, Prabhjeet Singh had no counsel of record and it was uncertain if the issues Ms. Shemesh raised would be litigated.
[106] On December 12, 2017, Ian Smith appeared as amicus along with all counsel and Prabhjeet Singh who were given the questions to be addressed at that time. The questions as noted below, dealt with the Superior Court of Justice’s authority to transfer cases within a region and out of the region in which the indictment was filed as well as whether different results applied if it were a jury trial and where the jury was selected had to be determined. These were the issues Ms. Shemesh said would be argued after a court recess during which I infer she contacted Mr. Grill.
[107] Mr. Ellison, appearing for Ms. Gadhia, asked if assuming the court had jurisdiction to transfer proceedings, a question could be included with regards to what notice should be given when a transfer order was made. He was told that there was no difficulty with the issue being addressed and if the jurisdiction to move cases existed, “how.” The Court said that submissions on that issue would be received and submissions in relation to “how” transfers were made.
[108] Prabhjeet Singh appeared without counsel, although Mr. Salloum was seated in the body of the court. Prabhjeet Singh said that Mr. Grill was trying to find him a lawyer and had a list of six names that he recommended but all were unable to do the trial. The list of counsel was filed as exhibit. Of the six, four, including Leora Shemesh said they would not accept the case if it was in Kitchener. Three were not available for the trial date.
[109] Prabhjeet Singh said that he intended to participate in the applications and that Mr. Salloum would help him. When asked if he would be bringing a recusal application, Prabhjeet Singh said that he would not.
[110] A discussion with counsel followed regarding the issues to be litigated and time estimates. Counsel and Prabhjeet Singh were told that the threshold issue was whether the Court had jurisdiction to transfer cases. If the court did not, if something was being missed, then the Superior Court and other courts had to find “Plan B” - another means of addressing the courtroom shortage in Brampton and the issues that precipitated transfers in other regions. It was not an issue that dealt with one case or one lawyer.
[111] Counsel felt that two days, with a third if necessary, would be sufficient to address these issues. When asked if he was going to file anything Prabhjeet Singh said that he did not know. He would speak to Mr. Salloum and let the Court know.
[112] Counsel were also given, the following authorities and legislation which they could consider in answering the questions: Courts of Justice Act, s. 14(1) and (2); Criminal Code, s. 470; R. v. Askov, [1990] 2 S.C.R. 1197, Jordan, Cody, 2017 SCC 31, R. v. Williamson, 2014 ONCA 598, 314 C.C.C. (3d) 156, Jeffries, and Lane.
[113] Neither Prabhjeet Singh nor Mr. Salloum raised any issues regarding the questions. Mr. Salloum said nothing about administrative law or judicial review to anyone. Prabhjeet Singh was told that he should continue to look for a lawyer and that the trial was two months away. One lawyer on the list said he could do the case. LAO had provided a list of 20 to 25 lawyers who were on the panel that would permit them to conduct the trial. Prabhjeet Singh was offered the opportunity to come to the Assignment Court on December 15, 2017, when a Legal Aid Worker would be present to assist him in getting counsel.
[114] On December 15, 2017, Prabhjeet Singh appeared, and had the interpreter read the following text he had received from Mr. Salloum:
Leora Shemesh says she can take my case in Kitchener. She is available for most of the trial dates now, but needs to appear before you to discuss scheduling before she can go on record. She request that the matter be brought back on [December 20] to discuss trial dates and her availability.
[115] On December 20, 2017, Ms. Shemesh appeared on behalf of Prabhjeet Singh, “not Gary Grill any longer.” She was prepared to act for Prabhjeet Singh for a trial held in Kitchener on the scheduled dates except for two scheduling “hiccups.” The week of February 26, 2018 she was required to be in a five-day Superior Court matter in Kitchener that could not be adjourned. In her words, “the other hiccup was a case I tried to adjourn.[^18]” It was a four-day federal prosecution scheduled for the week of February 13, 2018. That case had been adjourned twice before, once by the defence and once by the Crown. She had tried to get that client to agree to have another counsel conduct the trial but he would not.
[116] The original February 13 trial date included a two week break in March to accommodate Mr. Grill’s child’s spring break. Those weeks were still unavailable as Ms. Gadhia had cancelled a February vacation to accommodate Mr. Grill’s second adjournment and had rescheduled her vacation for the two weeks in March.
[117] Ms. Shemesh asked if the trial was going to be in Kitchener because there were ten or eleven lawyers who would accept the file if the trial was in Brampton. She named two of the lawyers. Another lawyer had expressed an interest in representing Prabhjeet Singh. There was no suggestion that Mr. Grill would represent Prabhjeet Singh if the trial was in Brampton. Ms. Shemesh said all of the problems would be alleviated if the trial were in Brampton. She was told, “For today’s purposes you should assume the trial will be in Kitchener.”
[118] When asked if the Toronto trial could be adjourned, Ms. Shemesh said she would make her best efforts to adjourn it, file the application between Christmas and New Year’s Day, and argue it January 3 or 4, 2018. On that basis, I would proceed with the schedule that had been discussed, including exploring whether the jury panel could be brought in at the end of the last week of January to at least get the vetting completed in advance of February 12, 2018.
[119] Ms. Shemesh said her understanding was that she would be making submissions on the transfer of cases issues to be argued early in January – dates that had already been set to accommodate her schedule.
[120] Amicus was to file his factum addressing the five questions relating to transferring charges by December 29, 2017. The Crown and all co-accused were to file material for the motions by January 4, 2018 with oral argument scheduled for January, 5, 8 and 9, 2018.
[121] Based on Ms. Shemesh’s commitment and with some expectation that her adjournment application would be granted, a tentative schedule was set including summoning 800 jury panel members for jury selection starting January 31, 2018. Relying on Ms. Shemesh’s word, it was anticipated that she would apply for an adjournment of her College Park trial, make the submissions on the transfers motions and others and conduct the trial if the adjournment was granted.
[122] On December 22, 2017, just before 1 pm, Ms. Shemesh faxed a letter to the Crown and the Trial Coordinator saying her client at the College Park trial would not permit her to seek an adjournment or have other counsel conduct that trial. Accordingly, she would be unable to assist Prabhjeet Singh. There was no mention of the January applications.
[123] On December 29, 2017, amicus filed his factum concluding that the Court had jurisdiction to transfer cases within and out of a region for jury and non-jury trials. The jury could be selected in Brampton or another location.
[124] On January 4, 2018, at 4:30 p.m. Mr. Salloum faxed 80 pages to the trial office and advised that Prabhjeet Singh had retained him as counsel. He filed three applications: a recusal application, an application in which he agreed with amicus’ answers to the questions and, for the first time, an application raising administrative law issues seeking a judicial review of the Chief Justice’s order, a “proper hearing” regarding any transfer, a Criminal Code, s. 599 change of venue order that the trial be held in Brampton, an adjournment application, and if necessary, severance in aid. Neither the Court nor other counsel knew anything about the applications until the faxes arrived.
[125] At the commencement of the hearing on January 5, 2018, Mr. Salloum confirmed that Prabhjeet Singh had retained him for the trial. The outstanding LAO issues were addressed during an “emergency phone call” on January 3, 2018. Prabhjeet Singh signed a waiver acknowledging Mr. Salloum’s level of experience. Essentially, Mr. Salloum stepped in because there was nobody else to represent Prabhjeet Singh for the motions or trial. Mr. Grill would be “remotely available to give advice, especially on procedural matters.” Further, Ms. Shemesh would be an additional safety net and mentor Mr. Salloum. No one would be coming to court with him. While as of January 1, 2018, Mr. Grill was no longer on medical leave, Mr. Salloum said there was no potential for Mr. Grill to return as counsel.
[126] The counsel who had expressed an interest in taking over the case, had never picked up the disclosure despite the fact Mr. Salloum called and texted him daily. Another very experienced criminal lawyer from Kitchener was present in court later in the day on January 5, 2018, was prepared to take the case, and spoke to Prabhjeet Singh. Prabhjeet Singh did not follow up with counsel.
[127] Counsel for Prabhjeet Singh’s co-accused and amicus understandably filed no responding material. When the issue of late filing arouse, Mr. Salloum said the remedy would be to adjourn the arguments. Given the history of the proceeding and the necessity to determine the issues everyone but Mr. Salloum thought were going to be argued, the issues were addressed with commendable skill and patience by Ms. Rozier, Ms. Gadhia, Mr. Coughlin and Mr. Smith.
[128] On January 8, 2018, Mr. Lutes appeared for LAO and said:
Legal Aid is very much aware of the situation with respect to counsel for Mr. Singh. Attempts were made to assist with perhaps a transfer of counsel. That did not meet with success prior to the New Year. Mr. Singh has confirmed that his counsel of choice has always been and remains the office of [Grill Barristers] and that Mr. Salloum is certainly employed within that firm. The funding remains in place that was originally in place …. The certificate issued to Mr. Grill never was cancelled. It always remained, even though he had been removed from the record. So, the funding stays in place.
And that Legal Aid Management has reviewed the situation with respect to Mr. Salloum addressing the pre-trial motions, and perhaps continuing through the trial should that need be. It will be with the supervision of Mr. Grill at each and every step. And so as far as Legal Aid is concerned, all policies and procedures are being complied with.
[129] I turn next to the questions raised throughout this proceeding. The first four questions can best be addressed simultaneously.
i) Does the Superior Court of Justice have the authority to move proceedings, including pre-trial motions, from the courthouse in which the indictment was filed to be heard in another courthouse in the same Region?
ii) If the authority in i) exits, who can exercise that authority?
iii) Does the Superior Court of Justice have the authority to move proceedings, including pre-trial motions, from the courthouse in which the indictment was filed to be heard in another courthouse in a different Region?
iv) If the authority in b) exists, who can exercise that authority?
The Positions of Counsel
[130] Amicus submits that the Superior Court has the jurisdiction to transfer cases in both scenarios. For intra-regional transfers, pursuant to the Courts of Justice Act, R.S.O. 1990, C. c. 43, the R.S.J. has the authority to transfer cases and can delegate that authority to a judge of his or her region. For inter-regional transfers, the Chief Justice has the jurisdiction to transfer cases and can delegate that authority to the R.S.J. in the region in which the indictment was filed. The R.S.J. can delegate authority to a judge of his or her region.
[131] Crown counsel and counsel for Abhijeet Nagra and Dilsher Singh agree with amicus. Mr. Salloum’s factum, while noting that he does not agree with some of amicus’ comments, concludes, “It is obvious that the Courts of Justice Act confers upon the Chief Justice of Ontario the administrative authority to move cases within Ontario” and “It is similarly obvious that the Regional Senior Justice can similarly move cases within a region.”
Analysis
[132] Starting first with the legislation that applies to the Ontario Superior Court of Justice.
Federal Legislation
[133] Pursuant to s. 92(14) of the Constitution Act, 1867:
In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
[134] This authority has been interpreted to include the power to define the court’s territorial jurisdiction: Re County Courts of British Columbia (1982), 21 S.C.R. 446; Jeffries, at paras. 50-62. The “territorial jurisdiction” of the Superior Court of Justice is the Province of Ontario: Jeffries, at paras. 24, 37-39, 47 and 49; R. v. Feige, [1992] O.J. No. 2521 (Gen. Div.)
[135] The Criminal Code provides jurisdiction over the accused in s. 470 as follows:
Subject to this Act, every superior court of criminal jurisdiction and every court of criminal jurisdiction that has power to try an indictable offence is competent to try an accused for that offence
(a) if the accused is found, is arrested or is in custody within the territorial jurisdiction of the court; or
(b) if the accused has been ordered to be tried by
(i) that court, or
(ii) any other court, the jurisdiction of which has by lawful authority been transferred to that court.
[136] Section 470 was enacted in 1985 to loosen the long-standing common law rule that trials be held in the locality in which it occurred. The section abolished the concept that a crime should be tried in the community where it is alleged to have occurred: R.E. Salhany, Canadian Criminal Procedure, 5th ed., Canada Law Book, pp. 29-30.
Provincial Legislation
[137] The Superior Court of Justice has eight regions created under s. 79.1 of the Courts of Justice Act in 1990 and the Designation of Regions Regulation, R.R.O. 1990, Reg. 186.
[138] The Central West Region has six centres: Brampton in the Regional Municipality of Peel, Milton in the Regional Municipality of Halton, Orangeville in Dufferin County, Guelph in Wellington County, Walkerton in Bruce County and Owen Sound in Grey County. The distances from the Davis Courthouse to each location are: Milton, 22 km; Orangeville, 49 km; Guelph, 63 km; Walkerton, 151 km and Owen Sound, 156 km. The Kitchener courthouse is 75 km from the Davis Courthouse.
[139] Pursuant to s. 14(1) of the Courts of Justice Act, the Chief Justice:
… shall direct and supervise the sittings of the Superior Court of Justice and the assignment of its judicial duties.
[140] Pursuant to s. 14(2) of the Courts of Justice Act, Regional Senior Judges:
… shall, subject to the authority of the Chief Justice of the Superior Court of Justice, exercise the powers and perform the duties of the Chief Justice in respect of the Superior Court of Justice in his or her region. [emphasis added]
[141] Considering s. 14(1) and (2), there is no regional limitation on the Chief Justice’s authority to direct and supervise the sittings of the Superior Court of Justice. The Chief Justice’s authority is province-wide. The authority of the R.S.J. is limited by the authority of the Chief Justice and limited to his or her region.
[142] Pursuant to s. 75 of the Courts of Justice Act, the following powers of the Chief Justice or RSJ include:
75(1) … authority to direct and supervise the sittings and the assignment of the judicial duties of his or her court include the following:
Determining the sittings of the court.
Assigning judges to the sittings.
Assigning cases and other judicial duties to individual judges.
Determining the sitting schedules and places of sittings for individual judges.
Determining the total annual, monthly and weekly workload of individual judges.
Preparing trial lists and assigning courtrooms, to the extent necessary to control the determination of who is assigned to hear particular cases.
[143] In Re Gentles, [1994] O.J. No. 1409 (Gen. Div.), Moldaver J., as he then was, noted:
24 Recognizing the importance of an independent and autonomous judiciary, the legislature has seen fit, for the most part, to place in the hands of the judiciary the tools necessary to ensure the most efficient and effective use of judicial personnel and resources. ..
25 Under our constitutional and legislative arrangements, it is the responsibility of the judiciary, not the parties, to determine the allocation of judicial work and the assignment of individual judicial officers to individual cases. …
[144] Based on the current federal and provincial legislation, venue and jurisdiction are not synonymous. The venue of a trial is the place where it would normally be held. Jurisdiction involves the court’s authority to hear a particular proceeding or select the location of a trial: Jeffries, at paras. 29-35.
[145] As Gauthier J. notes at para. 34-35 of Jeffries, at common law an accused had to be tried in the locality in which the crime was committed because jurors were summoned and required to report what crimes they knew had been committed in the community of their own knowledge. From the same jurors, petit juries were selected to try the accused. No one other than the local inhabitants would have known of the offence. However, the above-noted legislative changes have broadened the scope of the court’s territorial jurisdiction.
[146] Her Honour rejected the Crown’s submission that it was the Crown who selected the trial venue as follows:
50 With respect, I take a different view. Whatever rights the Crown may have enjoyed at common law regarding the right to select the venue of trial, subject to the "local venue" rule, have been supplanted by legislative intervention. As a result of that intervention, the authority to select the venue of trial is an administrative matter, and lies with the courts, in the person of the Regional Senior Justice. I say this for the following reasons.
51 Firstly, the common law rule itself circumscribes what the Crown calls its prima facie right to select the venue of trial. The common law rule was that trials are to take place in the community in which the offence allegedly occurred. This principle alone fetters the Crown's so-called discretion to select the venue of trial.
52 Secondly, as the Crown itself agrees, whatever discretion it claims is subject to an abuse of process. In this vein, R. v. Reyat, [1990] B.C.J. No. 1331 holds that the Crown has no authority to issue an indictment and direct a place of trial which has no connection to the charge. Accordingly, and notwithstanding that territorial jurisdiction is granted all over Ontario to the courts, the Crown cannot issue an indictment and direct a place of trial where there is no connection to the charge.
61 I conclude that the legislative authority granted to the Chief Justice and the RSJ in relation to these administrative tasks extends to the authority to determine the venue of a trial in the region over which he or she presides.
62 Accordingly, whatever authority the Crown may have enjoyed at common law respecting the choice of venue, that authority has been overtaken by legislative amendments under the Courts of Justice Act, enacted under the constitutional grant of power to the province in relation to the administration of justice in civil and criminal courts. The selection of where a trial may be held is a matter that lies within the purview of the administrative head of a judicial region which is the RSJ, exercising the administrative powers of the Chief Justice of the Superior Court, subject to the provisions of s. 599 of the Criminal Code.
[147] I agree with Gauthier J. with one clarification in regards to para. 61. I agree that R.S.J.s have the authority to determine the venue of a trial in the region over which they preside. However, the Chief Justice does not preside over a region. The authority of the Chief Justice in s. 14(1) of the Courts of Justice Act is not restricted to any region. The Chief Justice’s jurisdiction is over the Province of Ontario, not one region. Accordingly, the Chief Justice has authority to determine the location of a trial anywhere within Ontario.
[148] To address the Brampton courtroom shortage, the Chief Justice has ordered that any proceeding in Brampton can be transferred from the Central West Region to Central South Region if it is determined by the RSJ or his or her designate that the proceeding cannot be held in Brampton. As has been repeatedly stated, there is always an overriding commitment by the Court to take all reasonable steps to keep as many proceedings in Brampton as possible.
[149] At one point in submissions, Mr. Ellison, appearing for Abhijeet Nagra, argued that this authority would cause concerns if it became routine for cases to be moved all over Ontario. I agree. However, no one has suggested that this authority should be routinely used to move cases all over Ontario. There is nothing from which it could be inferred that there is or would be a plan to do so. As noted above, while transferring of cases has benefits, there are other considerations compelling courts to do whatever can reasonably be done to keep cases in the location where the indictment was filed.
[150] There remains a presumption that a trial will be held in the place where the offence occurred. Reasons of convenience, court efficiency, and the need for members of the community in which the crime is alleged to have occurred to see justice done all continue to support holding the trial where the indictment was filed. However, in Canada there is no right to have a trial in a particular city, village or town where the offence occurred. For example, the Superior Court does not sit in Niagara Falls. All offences arising out of Niagara Falls that are tried by indictment are tried in Welland.
[151] In sum, pursuant to s. 14 of the Courts of Justice Act, the Chief Justice has the authority to transfer cases anywhere in Ontario and R.S.J.s have the authority to transfer cases anywhere within his or her region.
The Inherent Jurisdiction of the Superior Court
[152] Amicus raised a further basis upon which the Superior Court could have jurisdiction to transfer trials – the Court’s inherent jurisdiction to control its own processes. However, amicus concluded the safer course was the one noted above and not to rely upon the Court’s inherent jurisdiction.
[153] Superior court possess inherent jurisdiction to ensure they can function as courts of law and fulfill their mandate to administer justice: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 18 at para. 18 Inherent jurisdiction provides powers that are essential to the administration of justice as well as to maintain the rule of law and Constitution. Inherent jurisdiction includes those residual powers required to permit the court to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner, albeit subject to any statutory provisions: Ontario (Public Safety & Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 26.
[154] While these authorities and those noted below would support the Court’s inherent jurisdiction as a basis upon which transfers could be made, it is not necessary to rely upon it for the purpose of these reasons. As Prabhjeet Singh relies upon the Court’s inherent jurisdiction in support of his judicial review arguments, I will return to inherent jurisdiction when addressing those submissions.
[155] I turn next to the jury questions:
v) Is the Superior Court’s authority to transfer charges dependent on whether the trial will be conducted with or without a jury?
vi) Is the answer v) to dependent on whether the jury is selected in the courthouse in which the indictment is filed or selected in the location to which the proceeding is moved?
The Positions of Counsel
[156] Amicus concluded that jury trials could be transferred within a region or to another region without offending the Juries Act. This includes selecting a jury in the region where the indictment was filed and subsequently holding all or part of the trial in a different region. Amicus also concluded that the jury could be selected in the location where the trial was held if it was outside of the region in which the indictment was filed.
[157] Crown Counsel and counsel for all of the accused agreed with amicus.
The Legislation
[158] Section 626(1) of the Criminal Code addresses the qualifications of jurors and states:
- (1) A person who is qualified as a juror according to, and summoned as a juror in accordance with, the laws of a province is qualified to serve as a juror in criminal proceedings in that province.
[159] Section 2 of the Juries Act, provides the following persons are eligible and liable to serve as jurors:
Subject to sections 3 and 4, every person who,
(a) resides in Ontario;
(b) is a Canadian citizen; and
(c) in the year preceding the year for which the jury is selected had attained the age of eighteen years or more,
is eligible and liable to serve as a juror on juries in the Superior Court of Justice in the county in which he or she resides.
[160] Section 1 of the Juries Act states that “county” includes a district.
[161] Since Brampton is in the Region of Peel, and not a county, s. 151(1) of the Courts of Justice Act is applicable and provides:
A reference in this Act or any other Act, rule or regulation to a county or district for judicial purposes is deemed to be a reference to the corresponding area that, for municipal or territorial purposes, comprises the county, district, union of counties or regional, district or metropolitan municipality.
[162] Therefore, for the purposes of this case, ‘county” in s. 2 of the Juries Act means the Regional Municipality of Peel.
Analysis
[163] I agree with the conclusions and reasoning of amicus. The fact there will be a jury trial does not prevent the Superior Court from changing the location of the trial regardless if the transfer is intra-regional or inter-regional. The jury can be selected from the location in which the indictment was filed or the location where the trial will be held as occurs when a Criminal Code s. 599 change of venue order is made.
[164] The starting point of the analysis is that trials on indictments filed in Brampton should be presided over by residents of the Region of Peel. As the Supreme Court of Canada held in R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 1:
The right to be tried by a jury of one's peers is one of the cornerstones of our criminal justice system. It is enshrined in two provisions of the Canadian Charter of Rights and Freedoms -- the s. 11(d) right to a fair trial by an impartial tribunal and the s. 11(f) right to a trial by jury.
[165] The most common reason that Criminal Code s. 599 change of venue orders are made is concerns about the impartiality of the jury in the location in which the indictment was filed. In those cases for Brampton trials, the presumption of a Peel jury would be displaced because of concerns for the accused’s fair trial rights. Where jury impartiality is not at issue, attempting to ensure that a Peel jury hears the trial is consistent with the presumption that trials be adjudicated by jurors from the region where the indictment was filed.
[166] The common law principle regarding the locality of the offence is not inviolate and is superseded by s. 470 of the Criminal Code. Where Ontario trials are moved for administrative purposes, including ensuring that cases are heard within the constitutionally mandated time limits in Jordan and on their merits, the common law locality of the offence presumption gives way to the best interests of the administration of justice. See R. v. Lane, 2014 ONSC 4553.
[167] Next, jury selection is part of a criminal jury trial and part of jury service. When jury panel members participate in the jury selection and receive their preliminary instructions, they are serving in a proceeding in the “county” in which they reside. Further, I agree with amicus that there is no authority that limits a jury trial to being held in only one place after the jury is selected. Nor is there authority that would invalidate a trial that starts in the location in which the indictment was filed with jurors from that “county” and continues in another “county.” This analysis applies to intra-regional transfers as well as inter-regional ones.
[168] That is not to say that a jury selected from residents of another county in or out of the location where the indictment was filed would conflict with s. 2 of the Juries Act. There is nothing in that legislation that would preclude a jury being selected from a panel drawn from the location where the trial would be held. Section 470 of the Criminal Code confers jurisdiction over the person on any Superior Court in Ontario to hear cases where all or part of the offence charged is alleged to have occurred anywhere in Ontario. There is no “location where the offence is alleged to have occurred” restriction.
[169] Further, the Supreme Court of Canada has found the Charter does not mandate proportionality representative lists. The Court also noted the restrictions on jury lists with the result that a jury panel may represent neither Canada’s broader population or the particular community where the offence is alleged to have been committed. Other limits exclude non-citizens, those who have committed criminal offences and excuse panel members for whom serving on a jury would pose a hardship: Kokopenace, at paras. 41 and 44. Accordingly, any jury anywhere in Ontario has jurisdiction to hear all Ontario cases.
[170] However, if a jury panel were to be summoned in a location other than where the indictment was filed, the transfer would have to occur well in advance of the trial date to permit sufficient time for a panel to be summoned. While there may be cases where this would be appropriate, for most but not all cases, it would remove the flexibility of determining whether any cases have to be transferred on the first day of the sittings.
[171] There is an additional basis upon which juries selected in one region and serving in another could be authorized. Section 626 (1) of the Criminal Code provides that a person qualified and summoned to serve in accordance with provincial laws, “is qualified to serve as a juror on criminal proceedings in that province.” The qualifications for jury service in Ontario are Ontario residence, Canadian citizenship and being at least eighteen years of age in the year preceding the year in which the jury is selected. Where the jury panel members are summoned from the “county” where jury selection is to occur they are summoned according to provincial legislation. Having met all of qualifications under the provincial legislation, a jury panel member is eligible to sit anywhere in Ontario.
Conclusions Regarding the Questions Provided to Prabhjeet Singh and counsel on December 8, 2017.
[172] Returning to the questions:
i) Does the Superior Court of Justice have the authority to move proceedings, including pre-trial motions, from the courthouse in which the indictment was filed to be heard in another courthouse in the same Region? Yes.
ii) If the authority in i) exits, who can exercise that authority? The Regional Senior Judge, who can delegate that authority.
iii) Does the Superior Court of Justice have the authority to move proceedings, including pre-trial motions, from the courthouse in which the indictment was filed to be heard in another courthouse in a different Region? Yes.
iv) If the authority in b) exists, who can exercise that authority? The Chief Justice can authorize the transfer of cases where it is necessary and delegate the authority to make such decisions on a case-by-case basis.
v) Are the answers to i) and iii) dependent on whether the trial will be conducted with or without a jury? No
vi) Is the answer to v) dependent on whether the jury is selected in the courthouse in which the indictment is filed or selected in the court house to which the proceeding is moved? No
[173] I turn next to the issues that were first raised on behalf of Prabhjeet Singh on January 4, 2018.
Is an Order transferring a trial out of the location in which the indictment was filed subject to judicial review?
[174] Prabhjeet Singh’s factum seeks the following remedies:
The Case Management judge has the inherent jurisdiction to review the Order of the Chief Justice, it should be invalidated and rendered a nullity as it was not issued through a lawful exercise of statutory authority.
In the alternative, the Case Management Judge has the authority under s. 599 of the Criminal Code to change the venue of trial to Brampton, and
The Case Management Judge should order that a proper hearing with disclosure and evidence must be heard to satisfy the principles of fundamental justice and of procedural fairness.
[175] While the s. 599 order issue will be addressed later in these Reasons, the following issues require a determination:
i) Are decisions to transfer proceedings subject to judicial review because they must be made in accordance with administrative law principles?
ii) If they are, should the Order of the Chief Justice be quashed as a nullity and either an order made that the trial will be in Brampton issued or a “proper hearing” held to determine where the trial will be held?
The Positions of Counsel
[176] Mr. Salloum submits that transfer orders must comply with administrative law requirements, that the Order of the Chief Justice transferring the proceeding to Kitchener and all transfer orders are subject to judicial review, and that the Chief Justice’s Order was unlawfully made and should be quashed on judicial review. He seeks to have the Court apply administrative law principles to a decision in the course of a criminal law proceeding.
[177] Mr. Salloum agrees that there is no authority that directly supports his argument that an administrative decision made in the course of a criminal law proceeding is subject to judicial review applying administrative law principles. While there was a passing reference in his material to Prabhjeet Singh’s s. 7 Charter rights, he does not frame his argument as a Charter application. There were no references to remedies under s. 24(1) of the Charter in his written material or in his oral submissions.
[178] The only reference to the Charter in Prabhjeet Singh’s factum was in the “Application of the Relevant Administrative Law” section as follows: “In the case at bar, however, it is clear that the liberty portion of the s. 7 right is engaged and therefore the full suite of legal protections applies.” The factum then set out the right to a hearing, a limited right to counsel of choice, the right to reasonable reliance, the right to disclosure, and the right to advance notification.
[179] In oral submissions, Mr. Salloum argued that because of the “added guarantees of s. 7,” Prabhjeet Singh was entitled to procedural fairness “beyond the mere procedural fairness afforded Ms. Baker.[^19]” Section 7 rights go beyond any other procedural fairness rights and require Prabhjeet Singh and other accused persons to have the highest form of procedural fairness. Further, he submitted that R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, disclosure is “taken for granted when s. 7 is engaged.”
[180] Relying heavily on Baker v. Canada (Minister of Immigration and Citizenship), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, Mr. Salloum submits that the Chief Justice’s order as well as the “Monday Morning transfers” must comply with administrative law principles and are subject to judicial review. He describes the “Monday Morning Transfers” as “spur of the moment” and “uninformed decisions.”
[181] Mr. Salloum submitted there is a two-sided coin of judicial review: “the duty of fairness which does not substantially engage with the decision” and “the landscape of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190” - procedural fairness. The procedure for firing a police officer in Nicholson v. Haldimand-Norfolk, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311, was essentially the model for the procedure he was seeking in this case. He contends that there must be four elements:
Notice: Mr. Salloum submits that oral notice is the lowest form of notice. Written notice would be higher.
Disclosure: Mr. Salloum contends that it has wrongly been treated as a fact that Brampton is an unusually busy courthouse. He does not accept that that alleged fact has created a unique situation necessitating the movement of cases administratively. Prabhjeet Singh does not concede the Brampton Courthouse is uniquely overburdened. Nor does he accept that the interests of the parties are considered in every transfer order.
The right to be heard: Mr. Salloum submits that this would be through an in-person hearing or the provision of written materials setting out the relative hardships and prejudice of a proposed transfer order.
Reasons: Mr. Salloum contends that reasons should issue in regards to all cases being moved and all cases that are not moved.
The right of appeal: Mr. Salloum conceded that I had no authority to create a right of appeal and that the Court of Appeal would be a difficult place to take this argument.
[182] Mr. Salloum contends the following analysis supports his submission. Pursuant to s. 96 of the Constitution Act, 1867, the government of Canada appoints judges of the superior courts. Section 92 of the Constitution Act, 1867, delegates to the provincial legislatures the exclusive authority to make laws in an enumerated list of areas, including:
- The Administration of Justice in the Province, including the Constitution, Maintenance and Organization of Provincial Courts, both civil and criminal jurisdiction, and including Procedures in Civil Matters in those Courts.
[183] The Chief Justice derives the authority to transfer proceedings from s. 14(1) of the Courts of Justice Act. The R.S.J.s derives the authority to transfer proceedings from s. 14(2) of the Courts of Justice Act. There is no contest that the authorities conferred can be delegated to a judge of the Superior Court of Justice. He submits that the Chief Justice’s Order and all transfer orders are final orders which permit judicial review applying administrative law principles.
[184] Mr. Salloum’s arguments continue: since the transfer of proceedings is not a judicial act, it is administrative and subject to judicial review. When considering and making a transfer order, the judge is an administrative actor or decision-maker. Administrative actors are statutory bodies in this context acting under statutory authority. Any statutory action is reviewable by a Superior Court Judge. The exercise of administrative authority must comply with the principles of fundamental justice including procedural fairness. The only recourse for someone affected by an administrative decisions is administrative law and judicial review. Neither the Chief Justice’s order in this proceeding nor “Monday Morning transfers” comply with administrative law requirements. In addition, the “Monday Morning transfers” had an additional flaw: there was no time for judicial review of such transfers.
[185] Mr. Salloum argued that judicial review applies to all administrative decisions made in the course of criminal law proceedings. For example, he contended the following decisions require input from all parties affected by the decision and are open to judicial review initiated by the accused, and inferentially, the Crown or a judge who seeks to quash an administrative decision: the decision which case(s) proceeds when not all trials on a list will be reached, the decision which judge is assigned to a proceeding[^20] and the R.S.J.’s decision to assign a judge to a sittings. Inferentially, that would also include a decision that a proceeding was scheduled in a particular courtroom, the order in which cases are called at sittings,[^21] and determining if a family law proceeding involving the custody of a young child or a child in need of protection proceeded before a criminal law trial.
[186] However, Mr. Salloum drew the following distinctions. He submits that when a judge in Assignment Court, after a pre-trial conference or at any time remands an accused to the “sittings commencing” date, that judge is not “determining the sittings of the court” pursuant to s. 75 of the Courts of Justice Act, an administrative act. The judge is remanding an accused – a judicial act.
[187] Further, he argued that if the judge deciding whether a case would be transferred did so based on evidence heard in court and based on hearing from different parties, that would be a judicial decision and reviewable “the way we appeal judicial decisions.” It would not be reviewable by judicial review as it would no longer be an administrative decision. If the decision maker was “someone who has to make a quick decision, doesn’t hear from both parties, doesn’t spend a lot of time, you know, interrogating and cross-examining people, then that’s the very definition of an administrative decision-maker. That’s what all the administrative decision-makers look like”
[188] Mr. Salloum submitted that there are two routes open to access judicial review: the inherent jurisdiction of a Superior Court Judge based on common law authorities including Crevier v. Quebec (Attorney General), 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220 or by invoking the provincial Judicial Review Procedure Act, R.S.O. 1990, c. J.1. The latter requires leave to have the issue addressed by a single judge of the Superior Court. Mr. Salloum submits that I “essentially” granted leave when I permitted counsel to make submissions on when counsel should be notified of a transfer order and how they were made. Permitting those areas to be addressed granted leave to bring the judicial review to a single judge instead of a panel sitting in the Divisional Court because I would have found there were urgent issues to be determined.
[189] The Crown, Ms. Gadhia, Ms. Rozier and Ms. Perchenok, and amicus submitted that I should dismiss all of the arguments summarily. They submitted that the arguments are doomed to failure, with no reasonable prospect of success. In doing so, they rely upon Rule 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), (SI/2012-7)[^22] R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), Jordan and Cody.
[190] In the alternative, they submitted that transfer orders are not subject to judicial review. In any event, the procedure was appropriate. What Mr. Salloum suggests is required would result in chaos in the criminal courts.
[191] However, Ms. Gadhia submitted that it would be fairer to notify counsel of the decision 30 to 60 days in advance of the trial date so that counsel could make appropriate arrangements. If it turned out that there was a suitable courtroom in Brampton for the trial, the transfer order could be cancelled.
[192] For the reasons dictated in court, I declined to summarily dismiss the applications.
[193] I turn next to the issues raised by Prabhjeet Singh.
Are Transfer Orders subject to Judicial Review?
[194] While a detailed examination of the principles of administrative law and judicial review is not required, an overview will place the issues in context. Administrative law was developed so that the Superior Courts could have oversight over administrative actions by non-judicial government actors, other decision makers and in some limited circumstances, inferior courts: London (City) v. Young (2006), 64 Admin. L.R. (4th) 149 (Ont. S.C.), at para. 10; D.J. Mullan, Administrative Law Cases, Text and Material, 5th ed. (Toronto, Emond Montgomery Publications Limited, 2003), at p. 24.
[195] Judicial review involves the jurisdiction to supervise administrative actions by public authorities: Martineau v. Matsqui Institution, [1980] 1 S.C.R. 612. Whether to grant judicial review is discretionary: Volochay v. Massage Therapists for Ontario, (2012), 2012 ONCA 541, 111 O.R. (3d) 561 (C.A.), at para. 52.
[196] In Volochay v. College of Massage Therapists of Ontario, at para. 68, the Court of Appeal held:
68 The application judge recognized the principle that unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court.
69 The rationales for this principle are well known. The principle respects administrative decision-making and the legislature's intent that internal review processes be exhausted before the court intervenes. At the same time, the principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case calls for intervention. Stratas J.A. summarized the rationales for the principle in C.B. Powell at paras. 31-32, and I can do no better than quote his words:
Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker's findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.]
70 In my view, this principle applies even though s. 2(1) of the Judicial Review Procedure Act provides that an application for judicial review may be brought "despite any right of appeal" to either an administrative tribunal or to the court. The ability to bring an application for judicial review does not compel the court to undertake judicial review - exceptional circumstances are still required to justify early intervention.
[197] In administrative law, if the decision affects “the rights, privileges or interests of an individual” it is sufficient to trigger the application of the duty of fairness: Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, at p. 653. However, the existence of a duty of fairness does not determine what requirements will be applicable in a given set of circumstances: Baker, at para. 21. The concept of procedural fairness is “eminently variable” and flexible. Its contents must be determined in the specific context of each case based on an appreciation of the context of the particular statute and rights affected: Baker, at paras. 21 and 22. The content of the principles of natural justice and fairness in application to individual cases will vary according to the circumstances of each case: Martineau, at para. 7.
[198] Concern must be had for the nature of the decision including the closeness of the administrative process to the judicial process, the nature of the statutory scheme and the terms of the statute to which the body operates, the importance of the decision to the individual or individuals affected, the legitimate expectations of the person challenging the decision and the choice of the procedure, particularly when the statute leaves the choice of procedure to the decision-maker or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Baker, at paras. 23-27.
The Routes to Judicial Review
[199] Before addressing the suggested routes, one preliminary matter should be examined. While Prabhjeet Singh’s factum noted “the Case Management Judge” can review the order of the Chief Justice, it was never suggested in oral submissions that it is in my capacity as the Case Management Judge that I would judicially review the order. Section 551.3 of the Criminal Code sets out a non-exhaustive list of powers of a Case Management Judge. There is nothing in that section from which it could be inferred that it authorizes a judge to embark on a judicial review applying administrative law principles to a decision made in the course of a criminal proceeding. Indeed, s. 551.3 was enacted to ensure trials proceeded efficiently, not to add another procedural layer to criminal proceedings.
[200] Dealing first with whether the Judicial Review Procedures Act provides a route to review an administrative decision made in the course of a criminal proceeding, that Act provides:
2.(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
6.--(1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court.
(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
[201] The Divisional Court is a branch of the Superior Court. Every judge of the Superior Court is a judge of that branch although the Divisional Court consists of the Chief Justice, the Associate Chief Justice and “such other judges as the Chief Justice designates from time to time;” Courts of Justice Act, s. 18. It is reasonable to infer that when the Chief Justice or Associate Chief Justice assigns a judge to Divisional Court, such an assignment complies with the “time to time” designation requirement in the Courts of Justice Act.
[202] As regards Divisional Court matters, s. 21(1) of the Courts of Justice Act states that a proceeding in the Divisional Court shall be heard and determined by three judges sitting together. However, a single judge may hear the matter if it is one the Chief Justice or a judge designated by the Chief Justice is satisfied, from the nature of the issues involved and the necessity for expedition, can and ought to be heard and determined by one judge: Courts of Justice Act, s. 21(2)(c).
[203] I am not persuaded that a transfer order can be judicially reviewed under the Judicial Review Procedures Act. First, s. 2 of that Act states that an applicant for judicial review may grant any relief the applicant could be entitled to in any one or more of the following: mandamus, prohibition or certiorari, proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed exercise of statutory authority. When the legislation was enacted, it was, at least in part, a consolidation of the preexisting prerogative writs: Assn. for the Protection of Amherst Island v. Ontario (Ministry of the Environment), 2014 ONSC 4574, 324 O.A.C. (Div. Ct.), at para. 15.
[204] In general, the decisions of the Superior Courts are not subject to prerogative writs. In R. v. Sheppard, [2001] O.J. No. 4402, the Court of Appeal held:
1 Prerogative writ relief does not lie against a decision of a Superior Court judge, save perhaps in constitutional cases where a limitation on prerogative writ relief would deny an applicant an effective remedy for a constitutional violation. There is no allegation of a constitutional violation here: Kourtessis v. M.N.R. (1993), 1993 CanLII 137 (SCC), 81 C.C.C. (3d) 286 at 309 (S.C.C.); Dagenais v. Canadian Broadcasting Corp. (1994), 1994 CanLII 39 (SCC), 94 C.C.C. (3d) 289 at 308 (S.C.C.); B. Gover, V. Ramraj, The Trial Lawyers Guide to Extraordinary Remedies, Canada Law Book (2000) at pp. 4-5.
2 The appellant's application to have the trial judge, who is a Superior Court judge, prohibit himself from proceeding with the sentencing process because he lacked jurisdiction to make the order he had made directing that the appellant undergo a psychiatric assessment is a distortion of the supervisory function of the prerogative writ. It was in reality an attempt to circumvent the well established principle that interlocutory appeals cannot be brought to challenge rulings made in the course of criminal trials: R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] 1 S.C.R. 1764. The value of that principle is demonstrated by the delay occasioned to the sentencing process by this appeal.
[205] Second, s. 1 of the legislation states that a “statutory power” includes a power or right conferred by or under the statute to exercise a “statutory power of decision.”[^23] That term is defined as a power or right conferred by or under a statute to make a decision deciding or prescribing the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or the eligibility of any person or party to receive, or to the continuation of, a benefit or license, whether the person or party is legally entitled thereto or not.
[206] I am unable to see how a transfer order would affect a legal right, power, privilege, immunity, duty or liability of Prabhjeet Singh. There is nothing from which it could be concluded that the legislation permitted judicial review of decisions made in the course of a criminal proceeding.
[207] Third, Prabhjeet Singh has not complied with the filing requirements under that legislation: Judicial Review Procedures Act, ss. 6, 9-10.
[208] Fourth, with regards to Mr. Salloum’s argument that I effectively granted leave under the Judicial Review Procedures Act, I am not persuaded that by telling counsel they could make submissions on when counsel should be notified of a transfer and “the how,” that I was granting leave to have a judicial review application heard by a judge of the Superior Court instead of a Divisional Court panel. At the time the comments were made, no one had raised the administrative law arguments, much less the applicability of the Judicial Review Procedures Act. Further, in the absence of any indication when the Divisional Court could hear the application, urgency is not established.
[209] Turning next to Mr. Salloum’s second suggested route to judicially review transfer orders, the Superior Court is a court of inherent jurisdiction: Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162. The powers of inherent jurisdiction are central to the role of Superior Courts which “form the backbone of our judicial system.” Inherent jurisdiction derives from the very nature of a Superior Court: Endean, at para. 23. It provides the court with a “reserve or fund of powers that serves four functions: i) to ensure convenience and fairness in legal proceedings, 2) to thwart actions that would render judicial proceedings ineffective, 3) to prevent abuses of process and 4) to act in aid of superior courts and in aid or control of inferior courts and tribunals: MacMillan Bloedel Ltd. V. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, at para. 40.
[210] The powers of inherent jurisdiction should be “exercised sparingly and with caution:” R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 30. Resort to inherent jurisdiction may only occur where it is “necessary to address the ‘specific exceptional circumstances of the case:” Ontario v. Criminal Lawyers’ Assn, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 46-47.
[211] Unlike the constitutionally-protected core jurisdiction of superior courts, legislation may limit inherent jurisdiction: Criminal Lawyers’ Assn; at para. 23. Even where regulated by statute or rule of court, inherent jurisdiction can be exercised provided it does not contravene any statutory provision: I H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal probs. 23, at para. 20. Further, one aspect of the inherent powers is the power to regulate the court’s process and proceedings: Jacob, at pp. 25, and 32-40.
[212] With that background, I am not persuaded that transfer orders are subject to judicial review. I reach that conclusion for the following reasons.
[213] First, accepting that the decision to transfer a proceeding is an administrative decision, the context in which the decision is made cannot be ignored. R. v. Singh, Nagra and Singh is a criminal proceeding in the Superior Court of Justice. Criminal procedures are found in the Criminal Code. To excise one or more administrative decisions from an ongoing criminal proceedings to be subject to judicial review would add an interlocutory application and potential appeal into criminal proceedings. In general, interlocutory proceedings are eschewed in criminal law: Sheppard, at para. 2. As the Supreme Court of Canada held in R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944, at para. 17: “criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own. This policy is the basis of the rule against interlocutory appeals in criminal matters.”
[214] Further, the Court of Appeal provided the following comments in R. v. Johnson (1991), 1991 CanLII 7174 (ON CA), 3 O.R. (3d) 49 (C.A.) starting at para. 7:
7 These cases dictate that issues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should routinely be raised and resolved within the confines of the established criminal process which provides for a preliminary inquiry (in some cases), a trial, and a full appeal on the record after that trial.
8 Those same cases identify the policy concerns which underline the predilection against resort to the superior court for relief during criminal proceedings. Such applications can result in delay, the fragmentation of the criminal process, the determination of issues based on an inadequate record, and the expenditure of judicial time and effort on issues which may not have arisen had the process been left to run its normal course. The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process. A similar policy is evident in those cases which hold that interlocutory appeals are not available in criminal matters: see R. v. Morgentaler (1984), 1984 CanLII 55 (ON CA), 48 O.R. (2d) 519, 14 C.R.R. 107, 16 C.C.C. (3d) 1, 41 C.R. (3d) 262, 14 D.L.R. (4th) 184, 6 O.A.C. 53 (C.A.); R. v. Mills, supra, per McIntyre J. at pp. 958-64 S.C.R., pp. 92-96 C.R.R., pp. 495-500 C.C.C.; R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] 1 S.C.R. 1764, 41 C.R.R. 39, 49 C.C.C. (3d) 453, 70 C.R. (3d) 383 sub nom. Meltzer v. Laison, 96 N.R. 391, at pp. 1773-74 S.C.R., pp. 46-48 C.R.R., pp. 460-62 C.C.C.
9 I stress, however, that this limitation on resort to Charter or extraordinary remedy relief during criminal proceedings has been judicially imposed and cannot be taken as the equivalent of an absolute privative clause barring all such applications. Where the circumstances are such that the interests of justice require immediate intervention by the superior court, that jurisdiction can and will be exercised. R. v. Rahey, supra, provides a good example of a situation in which such intervention was warranted.
[215] R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, involved a Crown mandamus application in the course of a provincial court trial.
[216] The impact on criminal proceedings would be significant if every administrative decision made in the course of a criminal proceeding, including those noted above were subject to judicial review. In R. v. Baptiste, (2000), 2000 CanLII 22649 (ON SC), 74 C.R.R. (2d) 333 (Ont. S.C.), McKinnon J. examined whether the Crown’s decision to call a jailhouse informant was subject to judicial review applying administrative law principles. His Honour’s instructive comments, with appropriate modifications, are applicable to this application.
[217] At para. 29 of Baptiste, McKinnon J. held, “[to] permit the importation of administrative law principles into the prosecutorial environment of the criminal law deserves reflection upon the potential impact of such a policy. There would be no end to decisions which would be reviewable …” And further, “[i]t is immediately apparent that to import administrative law principles and apply them to the everyday decision-making functions of the prosecution would effectively result in the complete paralysis of the administration of the criminal law:” Baptiste, at para. 30. To import judicial reviews of judicial administrative decisions into criminal proceedings would have the same effect.
[218] In Re Saikaly and The Queen (1979), 1979 CanLII 3023 (ON CA), 48 C.C.C. (2d) 192, (Ont. C.A.) the Court of Appeal dealt with an argument that the Attorney General’s decision to prefer an indictment was subject to judicial review. Relying on Haldimand-Norfolk, it was argued the rules of natural justice required a hearing. The Court of Appeal rejected the submission. MacKinnon A.C.J.O. concluded that if the Attorney General was required to give a hearing to anyone who might be affected every time they proposed to exercise the discretion conferred upon him by statue by virtue of their office, the administration of criminal justice would come to a standstill.
[219] The same reasoning applies to transfers. Preferred indictments are rare events in criminal proceedings, even post-Jordan. What Mr. Salloum seeks to introduce into criminal proceedings is a judicial review for any administrative decision. This would include the assignment of the courtroom, the assignment of a trial judge, the order in which cases are called during sittings, the assignment of judges to sittings or otherwise, and whether a case is transferred.
[220] Every day the Chief Justice, R.S.J.s and judges acting upon delegated authority make decisions which would be subject to review. Paraphrasing McKinnon J.’s comments in Baptiste, these decisions are made frequently in every courthouse in Canada from minute to minute, hour to hour, and day to day. The nature of the administrative workings of the courts make it singularly inappropriate to judicial review. To the extent the decisions affect individual accuseds’ interest, they can be dealt with at trial where the customary procedural safeguards affecting the rights of accused persons are engaged. This would include Criminal Code s. 599 change of venue applications, adjournments or Charter applications. All would be pursued within the criminal proceeding.
[221] Other counsel have suggested that Prabhjeet Singh’s arguments and applications are either intended to delay, completely paralyze the administration of justice or have the effect of doing so in this prosecution. Whether that is the objective need not be determined.
[222] If, as Mr. Salloum suggests the further requirement of an appeal from the judicial review decisions is added to the procedure, the paralysis worsens.
[223] Another consideration that is totally missing from Mr. Salloum’s analysis is that the Superior Court of Justice conducts proceedings in criminal, civil and family law.[^24] The scheduling and assignment of proceedings in all areas of law would be subject to judicial review. For example, if a decision had to be made that either a family law child custody trial dealing with very young children or a criminal trial with no imminent s. 11(b) issues was to be tried and the other adjourned, that decision would require submissions from the parties in both cases, the provision of reasons, and the decision would be subject to judicial review. Whether done in advance of the trial date or on a Monday morning, all parties for criminal, civil and family law cases would have to be canvassed for their input, disclosure provided, in Mr. Salloum’s submission would include of all court lists in the surrounding area, copies of all correspondence between the Attorney General and the Superior Court with regard to transfers, evidence regarding courtroom availability, and reasons provided to all counsel whether or not their case was going to be transferred. As such, Mr. Salloum’s proposal has the prospects of creating not only chaos in the criminal justice system but the complete paralysis of the justice system.
[224] Finally, as this case illustrates, the impact of Jordan and the directives from the Supreme Court of Canada are important considerations. This case arrived in the Superior Court with less than 9 months left under the presumptive ceiling. Counsel determined that a November trial date would not raise Jordan issues without specifying the ‘net Jordan date.”[^25] In Jordan, the Supreme Court of Canada noted the new framework made courts more accountable (at para. 114) and referenced: the need for the justice system to prioritize cases that have faltered do to unforeseen events (at para. 75), the importance of the court’s role in changing courtroom culture (at para. 114), the need for all participants in the justice system to work in concert to achieve speedier trials (at para. 116), that it is in the interest of all constituencies to make the most of the limited resources at their disposal (at para. 116), and that all participants are to be proactive (at para. 117). The Court also held that the new framework implicated the sufficiency of resources by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is contrary to the public interest and constitutionally impermissible (at para. 117).
[225] While I agree there is common law authority for judicial review of administrative decisions outside of a criminal law proceeding, I do not agree that Crevier provides authority for judicial review of decisions made in the course of a criminal trial. The issue in Crevier was whether, through a provincially enacted privative clause, a Professions Tribunal could be immune from the supervision of the Superior Court in regards to jurisdiction and law. I am unable to see how that case supports an argument that the Superior Court’s administrative decisions are subject to judicial review when made in the course of a criminal case.
[226] Second, administrative law was developed so that the Superior Courts could have oversight over administrative actions by non-judicial government actors, other decision makers and, in some limited circumstances, inferior courts.[^26] There is no authority that this oversight applies to or was ever intended to apply to administrative decisions of the Chief Justice, R.S.J.s or other Superior Court judges acting pursuant to delegated authority in the course of criminal proceedings.
[227] Third, administrative law generally involves applying what were formerly extraordinary remedies such as certiorari and mandamus even where the judicial review is not created by statute. In Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481, the Court found the prerogative remedies of mandamus, prohibition and certiorari were brought together by the Judicial Review Procedures Act: at para 20. As noted above, the Superior Court is generally not subject to extraordinary remedies. Prabhjeet Singh does not allege a Charter breach or seek a Charter remedy, which is one of the limited circumstances where an extraordinary remedy might be appropriate in relation to the Superior Court. However, prerogative remedies are discretionary and it is not readily apparent why a Charter application would not be heard in the course of the criminal proceeding, not by way of judicial review.
[228] Fourth, the Chief Justice’s order is not a final order. The Court maintains a commitment to take all reasonable steps to keep cases in Brampton, including ones in which a transfer order has been made. Lest there be any concern that this commitment is a reality, the reversal of the November 3, 2017 Order to transfer this case belies the skepticism. As this case illustrates, the Court remains open to consider concerns raised by counsel or self-represented individuals after transfer orders. Further, as per Jeffries, any party can bring a Criminal Code, s. 599 application to change the venue of the trial after a transfer order has been made.
[229] I appreciate that this could place an accused in a “Catch-22” situation as the final decision may not be made until the Monday morning even when a case has been ordered transferred because of courtroom availability projections. However, to remove the flexibility and efforts to keep cases in Brampton would result in the unnecessary adverse effects noted earlier applying – a situation to be avoided.
[230] Fifth, while not determinative, judicial review has never previously been applied to judicial administrative decisions in criminal law proceedings. On Mr. Salloum’s definition of administrative acts in the course of criminal proceedings, there are thousands of administrative decisions made yearly in criminal proceedings. To subject such decisions to judicial review would cripple an already overburdened criminal justice system.
[231] Sixth, Mr. Salloum’s distinction regarding where and how the decision was made is illogical. If a decision relies upon s. 14 of the Courts of Justice Act whether the decision is made in or out of court, it is based on the same legislation. It is an administrative decision, as is the scheduling of trials.
[232] I find judicial review does not apply to the Chief Justice’s order in this case or to any other order made pursuant to the Chief Justice’s authority under s. 14(1) of the Courts of Justice Act or to a decision of an RSJ to transfer a case within his or her region pursuant to s. 14(2) of the legislation. Judicial review does not apply to transfer orders made on the Monday morning or well in advance of the trial.
[233] If I am wrong in those conclusions, I will consider whether the Chief Justice’s order should be quashed applying administrative law principles.
If the Chief Justice’s order is subject to judicial review, should the order be quashed based on administrative law principles including procedural fairness, disclosure, the right to be heard, and the provision of reasons or on the basis that the order was unreasonable?
The Positions of Counsel
[234] Mr. Salloum argued that when the order of the Chief Justice is viewed through the lens of administrative law, it is a nullity and must be quashed. He contends that this order as well as those made by the R.S.J. or through his or her delegation, whether “Monday Morning transfers” or ones made earlier, are not lawfully made and are nullities. Further, he submits there should be no further orders moving this trial to Kitchener or anywhere else.
[235] Mr. Salloum continued that the Chief Justice’s decision was uninformed and manifestly lacking in procedural fairness because there was no disclosure, no notice of an upcoming decision, no right to be heard, no reasons provided, and was not in writing.
[236] While conceding the procedures adopted to deal with the courtroom shortage were developed in good faith, Mr. Salloum argues that since Brampton is the first court location to transfer cases, there are real concerns that the transfer process will be used by other court locations to transfer cases. What the Superior Court is doing is clearly not enough. The Court has to go back to the drawing board and establish a new procedure.
[237] By way of disclosure, Mr. Salloum submitted that before the mandatory hearing the accused should have been given copies of the trial lists for January 29, 2018, the week set for pre-trial motions, and for February 12, the week the trial is to commence. He argues that Stinchcombe, requires that such a hearing be preceded by disclosure of all facts that are not clearly irrelevant. He goes further and requires “all of the scheduling information for all relevant courthouses.” In oral submissions, he argued this would include the court lists for 2001 Finch Ave, West, Toronto, an Ontario Court of Justice facility where the Ministry of the Attorney General built a jury courtroom in 2007 that has never been used for a jury trial and is currently used daily by the Ontario Court of Justice for other criminal law proceedings.
[238] On November 15, 2017, when asked what the Court was required to do to let counsel know that anyone setting a trial date in Brampton had to proceed on the basis that the trial could be transferred, Mr. Salloum submitted that “notice to counsel is not one of the grounds of the application.” Notwithstanding that commitment, he now submits the notice is deficient. When asked in submissions what he was referring to when he said notice was not an issue on November 7, 2017, he said he meant notice to the co-accused of his eventual arguments.
[239] Mr. Salloum submitted that the Brampton Assignment Court notice is “perfunctory.” What is required is notice of an application or motion. Mere notification on the Monday before the trial is not sufficient to meet even the barest requirements of procedural fairness. Nor is it sufficient to announce a decision to move a case without first announcing that a decision to move the trial was being discussed.
[240] Mr. Salloum also submitted that notice applied to the person affected, not to the person’s eventual counsel. R.S.J. Van Melle’s letter was not notice to Prabhjeet Singh. Conceding that the Chief Justice or another judge is balancing the various factors, he argues that is done with no input from the parties.
[241] Further, Mr. Salloum argues the Court’s intent does not have a definition in law, nor does it affect a statutory grant of jurisdiction, relying upon Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121. The proper analysis asks whether the statutory grant of administrative authority was exercised for a proper purpose.
[242] Mr. Salloum questions why the order was made when it was, contending it was made because Prabhjeet Singh wanted an assurance his trial would be in Brampton. Further, obiter dicta and other material suggest that cases are normally moved on the Monday before trial and this order was issued nearly two months before trial. Obiter dicta also suggests that there was no way to know if a courtroom was free, yet the order was made. He contends that the lack of transparency means it is impossible to conclude whether the order was made after consulting the February 2018 court schedule, but obiter dicta suggests that those schedules were not available in November.
[243] Despite saying he had prepared a segment of his submissions to proposing a method of determining transfer issues, when challenged on the implications of his submissions, Mr. Salloum said it was not his task to design procedures that would be fair and just. It is for others to design a better system.
[244] Mr. Salloum’s proposed fairer method included that all counsel could be told that if they oppose their case being transferred, they should advise the court. If they did, they would be entitled to notice with regards to what other cases were and were not being moved and why. Counsel would also have a right to the disclosure referenced earlier, to be heard and reasons for the transfer would be required in every case, whether the case was moved or the trial held in Brampton.
[245] There would have to be evidence that the Davis Courthouse is overburdened. In the Askov era, that involved the analysis of Dr. Carl Barr. Mr. Salloum does not concede that the Davis Courthouse is “uniquely overburdened.” Nor does he accept that Brampton does not have enough courtrooms.
[246] Mr. Salloum contended that Prabhjeet Singh is prejudiced by his inability to challenge assertions that the movement of cases is “necessary,” that juries have been cooperative, and “that the court has ordered definitively that the trial will be in Kitchener.”
[247] Ms. Salloum argued that any Court ordered transfer must have the procedural components of a change of venue application under s. 599 of the Criminal Code brought by the Crown or the accused. In his factum, Mr. Salloum described s. 599 orders as similar to, but distinct from the administrative power to move cases. He submits that the same factors that courts consider on s. 599 applications must be considered when the court moves cases, citing the Court of Appeal judgment in R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.)
[248] The Crown, counsel for Abhijeet Nagra and Dilsher Singh, and amicus submitted the arguments should be summarily dismissed. Further, the Chief Justice’s order and the Monday Morning transfer orders comply with procedural fairness requirements and should not be quashed. The arguments should be summarily dismissed.
[249] The arguments were not summarily dismissed for the reasons indicted during the arguments.
Analysis
[250] There are several components of Mr. Salloum’s submissions that are factually and/or legally wrong. First, Brampton is not the first location to transfer cases. Indeed, on a few occasions well before 2014, proceedings were moved from Brampton to Milton and from Milton to Brampton. Other proceedings have been moved elsewhere within the Central West Region and within other Superior Court regions. The Ontario Court also moves cases within its regions.
[251] Second, Stinchcombe requires Crown Counsel to provide disclosure in its possession in the course of a criminal prosecution, not in relation to administrative decisions made by the judiciary. The prosecuting Crown does not have court lists of other courthouses. I am unaware of anything in Stinchcombe or any case that would support an obligation on a court to disclose court lists when an administrative decision is made. In addition, I am unaware of what authority a Superior Court would have to order the Ontario Court of Justice to provide its trial lists when making an administrative decision, let alone order a Superior Court proceeding be held in an Ontario Court facility regardless of that Court’s schedules.
[252] Third, the submission that the court lists for January 29 and February 12 would have been unknown at the time of the Chief Justice’s decision illustrates a profound lack knowledge how courts schedule trials - a procedure that would be readily apparent whenever trial dates are set. Court lists are not created on the weekend before a weekly criminal sitting or on the Monday morning. Suggesting that the Chief Justice’s decision was made before court lists were known evinces a fundamental misunderstanding of criminal law scheduling.
[253] Sittings lists are set in Assignment Courts, after pre-trial conferences or otherwise months earlier. It should not be surprising that trial lists are kept. Nor should it be surprising that it is possible, and prudent, to determine in advance which trials will be continuing through a future sitting, generally because they are continuing well beyond the trial time estimate, compare it to the number of courtrooms in the courthouse and project that there will be no courtroom available. Indeed, that is what happened with regard to the November 3 transfer order. All counsel were told that in the trial judge’s secretary’s November 3, 2017 email. Further, all counsel, including Mr. Grill were told the reason in court on November 7 with Mr. Salloum and Prabhjeet Singh in attendance. That the same decision-making process applied to the Chief Justice’s December 7, 2017 order is not a quantum leap.
[254] Fourth, with respect to Prabhjeet Singh’s “reasonable reliance” on his trial being in Brampton, there is no right to a trial in the courthouse where the indictment was filed. It is a presumption. Before December 6, 2017, that the trial either may not be in Brampton or would not be in Brampton was mentioned at least three times when this case was in court, once with Mr. Grill in attendance. It is difficult to see how there was “reasonable reliance” the case would definitely be in Brampton.
[255] Mr. Salloum appeared in the Assignment Court on a designation when the notice and explanation were given. It is not unreasonable to assume counsel appearing by designation for an accused will tell the accused what occurred. If the suggestion is that Mr. Salloum not only did not tell Mr. Grill about the Assignment Court announcement but also did not tell Prabhjeet Singh that there was the potential for the trial to be in another location, it is difficult to see how that lies at the feet of the Court. If counsel appearing on designations are not fulfilling their roles as counsel, then perhaps appearances by designations should be reconsidered. That counsel were not advising clients what offered when they appeared for the accused on a designation, was a phenomenon of which I was unfamiliar until this case.
[256] I agree with Ms. Rozier and Ms. Perchenok’s comments in their letter of November 17, 2017. The assertion that there was a reasonable expectation that the trial would be in Brampton is fallacious. Indeed, it is disingenuous. The case had already been transferred to Kitchener once. Mr. Salloum was in court for the Assignment Court announcement. Mr. Grill was in court when all were told it was uncertain whether the case would be in the Davis courthouse.
[257] Fifth, the most charitable description of Mr. Salloum’s submissions that he does not accept that there is a courtroom shortage in Brampton and that it has not been shown that there is a shortage are that they are incredibly irresponsible. Implicitly, he does not accept that R.S.J. Van Melle and judges presiding at Assignment Courts (and presumably anywhere else) state that the Davis courthouse is overburdened is accurate. He refers to the courtroom shortage as a resource problem that may or may not exist. On Mr. Salloum’s analysis, that there is an addition currently being built to the Davis courthouse is not something that evinces that more courtrooms are required.
[258] Presumably that judges have referred to the Brampton judicial and courthouse as being “long stretched beyond their limits (R. v. Ny and Phan, 2016 ONSC 8031, at para. 46, per Fairburn J., as she then was) and as the Brampton courthouse being plagued by lengthy, persistent and notorious institutional delay” and the significant scheduling challenges when two or three multi-month jury trials are ongoing (R. v. Vuong, 2017 ONSC 3808, at para. 18, per Sproat J.) would also be of no import to Mr. Salloum.
[259] The same comments and criticism apply for Mr. Salloum’s submission that he cannot accept that it has ever been necessary to transfer a proceeding. Either the Superior Court Judges are involved in some sort of diabolical and sinister plot to dupe the government into spending millions of dollars on an addition that is not required, to send accused, victims, witnesses, police officers, counsel and judges to other courthouses when they could stay in Brampton; and to spend thousands of taxpayers’ dollars for the additional costs of transferring cases; or there is a shortage and the transfers are necessary. In addition to the public expense and inconvenience, in the face of the Supreme Court of Canada’s clear direction to make trials more efficient and reduce delays, Superior Court judges would be implementing a plan that resulted in longer trials because transfers resulted in shorter sitting hours. With the exception of the alternative reason advanced by Mr. Salloum, to what other end transfers would be occurring was not suggested. That is because there is no other explanation.
[260] Sixth, Mr. Salloum submitted that the order was made because Prabhjeet Singh wants an assurance that his trial be held in Brampton. Accepting that courtroom availability projections can be made on the basis of the scheduled and continuing trials, that there were projected courtroom shortages for multiple accused trials is a readily apparent basis for this transfer. While the two counsel who appeared on behalf of Prabhjeet Singh repeatedly asserted that these issues were premature and, as Mr. Grill wanted, should not be argued until the order was made, in submissions Mr. Salloum agreed that the arguments had to be made in advance of the trial.
[261] On the approach Mr. Grill decided to dictate to the Court on November 17, 2017, the trial lists for January 29 and/or February 12, 2018 would be held in abeyance until he argued the applications for three or four days and until a judge decided the issues in this case which already has Jordan issues. This approach was advanced despite the issue having been fully canvassed in court with submissions from all counsel and the clear direction from the Court on November 15, 2017, that the issues had to be determined well in advance of the motions and trial date.
[262] Seventh, Mr. Salloum’s suggestion that a study similar to that undertaken by Professor Carl Baar and referenced in Askov would be required is unpersuasive. The 1987 report compared delays in Peel with other jurisdictions in Canada. Askov with respect to long term systemic delays in Peel. The issue at this time is relatively short-term in that the transfers are necessary until the addition to the Davis courthouse is completed. It is not clear how a study would assist or how long it would take to be completed.
[263] Eighth, Mr. Salloum submitted that there would have to be an application to the court – presumably by the court, to initiate a transfer. I am unaware of any authority stating that a court can apply to itself for an order. None was suggested.
[264] Ninth, with regard to the order being that of the Chief Justice, while Mr. Salloum wrote that Prabhjeet Singh was not privy to whatever discussions took place between Brampton Superior Court judges and the Chief Justice, I am unaware of any administrative (or any other law) that requires such discussion to be recorded and/or disclosed. Again, Mr. Salloum’s reliance on Stinchcombe is misplaced. The suggestion that counsel should be privy to judicial discussions regarding administrative issues is without merit and impractical. Should recordings be kept of discussions regarding the assignment of judges to trials, courtrooms, and the order of trials in a sitting? The answer is clearly, “no.”
[265] Tenth, with respect to s. 599 applications and the suggested requirement that a transfer order take into consideration the same determining factors in a change of venue application, Jeffries held that the administrative decision where a trial will be held lies the Chief Justice or R.S.J., “subject to the provisions of s. 599 of the Criminal Code:” at para. 62. However, Jeffries does not say that the administrative decision must be made on the basis of the criteria in s. 599. Indeed, it would redundant to require a hearing or “paper arguments” to determine whether a transfer was to occur mirroring or akin to a s. 599 application and then, after that decision was made, the Crown or accused could bring a s. 599 application.
[266] Indeed, in R. v. Borutski, 2017 ONSC 939, at para. 21, R.S.J. McNamara concluded the proper test for an administrative transfer was not akin to a s. 599 change of venue application and should not have the same criteria applied. I agree. In sum, Jeffries does not support the requirement that a hearing or application akin to a s. 599 change of venue application is necessary in the context of administrative transfer orders.
[267] Eleventh, Mr. Salloum at one point argued that the Court should do nothing about potential delays because Askov had directed the Crown to bring s. 599 change of venue applications in all cases that could require transfers to ensure compliance with s. 11(b) rights. I disagree.
[268] The only reference to s. 599 in Askov is where Cory J. made several “tentative suggestions” that “may very well be unworkable:” at para. 96. Cory J. said:
Another temporary solution might be to encourage changes of venue. Section 599 of the Criminal Code, R.S.C. 1985, c. C-46, provides:
- (1) A court before which an accused is or may be indicted, at any term or sittings thereof, or a judge who may hold or sit in that court, may at any time before or after an indictment is found, on the application of the prosecutor or the accused, order the trial to be held in a territorial division in the same province other than that in which the offence would be otherwise be tried if
(a) it appears expedient to the ends of justice ...
(3) The court or judge may, in an order made on an application by the prosecutor under subsection (1), prescribe conditions that he thinks proper with respect to the payment of additional expenses caused to the accused as a result of the change of venue.
Both the interest of the individual accused and the inferential societal interest would be served by a change of venue if it resulted in a trial taking place within a reasonable time. If such were the result, then the change of venue would certainly be "expedient to the ends of justice" and fall within the category of changes envisioned by the section. The section itself provides the guarantees that any changes of venue will not prejudice the accused and ensures that appropriate arrangements will be made in order to secure the fair transfer of persons and resources from one jurisdiction to another. In those situations where a change of venue could be fairly and effectively completed and yet is rejected by an accused, such a refusal would weigh against the accused in determining whether there had been an unreasonable delay.
[269] I am unable to see anything in Askov that mandates the Crown to bring s. 599 change of venue applications in every case that could have s. 11(b) Charter concerns. Section 599 applications can be time-consuming and, in the vast majority of the cases, would be little more than an academic exercise as the vast majority of cases remain in and are most efficiently heard in Brampton.
[270] In addition, the submission presumes that one prosecutorial agency is involved in all criminal cases so as to give them information regarding all trial lists. Criminal law in the Superior Court involves federal and provincial prosecutions brought by separate agencies. While the provincial Crown may know the trial lists and courtroom requirements for provincially prosecuted cases, it does not have knowledge of scheduled and anticipated federal prosecutions. Nor does the Public Prosecution Service have information in regards to the provincial prosecutions.
[271] With administrative transfers, the benefits of a s. 599 order noted by Cory J. are included in the orders that routinely accompany a transfer. These include reduced sitting hours in Kitchener at least so that the daily time commitment for the proceeding is close to that of a trial in Brampton. The reduced sitting hours is precisely the accommodations Mr. Grill said would have to be made for a Kitchener trial on November 7, 2017. Further, where an accused uses public transit he or she gets to the Davis courthouse and they are given a cab to the location of the trial. At least once, an order has been made that counsel who did not drive be given a taxi, although by the next day it was not necessary to transfer the case.
[272] Eleventh, as regards the assertion that Prabhjeet Singh’s right to counsel of choice was violated by the “repeated” refusal to adjourn the determination of these issues so that Mr. Grill could personally argue them, the right to counsel of choice is not absolute. Counsel has to be available when the proceeding is scheduled: R. v. Speid (1983), 1983 CanLII 1704 (ON CA), 43 O.R. (2d) 596 (C.A.); R. v. McCallum (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56 (C.A.), at para. 40. The importance of the issues on this motion could not wait. Neither could the case-specific determinations as to whether Mr. Grill was going to be counsel.
[273] While all counsel who have appeared on behalf of Prabhjeet Singh in the Superior Court repeatedly argued that the determination of these issues was premature, a judge can determine the order of proceedings. A Superior Court judge does so through inherent jurisdiction (Cunningham, at para. 18) and/or as a Case Management Judge (Criminal Code, s. 551.3(1)(d) establishing schedules and imposing deadlines). A judge can determine the timing and order of proceedings. The issues related to Mr. Grill personally, including his “stand-alone” application for an order that he personally had a right to practice in a geographically restricted area and to be removed from the record could not wait until the eve of trial. To leave the determination of whether he was on or off the record, severance and/or Prabhjeet Singh being self-represented until the start of the motions or trial would have been the antithesis of efficiency and avoiding delay.
[274] It also must be kept in mind that the schedule was adjusted once because of Mr. Grill’s injuries, and twice to permit Ms. Shemesh, who has worked closely with Mr. Grill for over 18 years, to argue the applications if Mr. Grill was unavailable. Notwithstanding, the importance of the general issues to the administration of justice and the case-specific issues, accommodations were made to have the issues litigated in a timely manner. Ms. Shemesh said that she was prepared to argue the issues in advance of the trial to avoid any delay.
[275] Of further note, Mr. Grill applied to be removed from the record. He was not ordered removed over his objections. He never elaborated on his personal issues, nor did he seek the accommodations that on November 7, 2017, he himself noted would be required for a trial in Kitchener. It was not until Mr. Salloum appeared on the next date that it was clear Mr. Grill got off the record because he could not comply with filing deadlines.
[276] Further, Mr. Grill was practicing as of January 1, 2018. He attended for part of one of the hearing dates. There is nothing from which to infer that he did not supervise or mastermind the material filed. Indeed, there is nothing on the record to indicate that he could not have argued the motions himself.
[277] Further, when Ms. Shemesh provided the outline of the arguments, the implications for not only this proceeding but countless others came into focus. The Court had to act prudently. That this issue would be brought to the attention of the Chief Justice should hardly have been surprising to anyone with even a passing familiarity with criminal proceedings. To put the question of administrative transfers onto the ‘back burner’ and hope that the trial could be held in Brampton, or bury the Court’s head in the sand hoping the issue would go away, would have been irresponsible. If there were jurisdictional issues with the courts’ responses to courtroom shortages, the issues had to be determined as soon as possible.
[278] Further, what was argued at the hearing cannot be ignored. I was told that the issues were complex and required Mr. Grill’s involvement and supervision. They were “Mr. Grill’s motions.” He was practicing before the material was filed and argued. He was supervising every step of the way – supervision that would include oversight of the responses to the questions posed and the additional issues raised. I was told by Ms. Shemesh that counsel were diligently working on the preparation of the arguments.
[279] Yet, when it came to written and oral submission, it was only administrative law issues that were argued. When asked if the administrative law issues would been included in the skeleton of the arguments Mr. Grill had texted him on November 9, 2017, Mr. Salloum said it would not have been included because there was no order in place. That assertion is most difficult to accept since there was a previous transfer order on November 3, 2017 and the arguments presented challenged all transfer orders. All the administrative law arguments that were advanced for the first time a week after amicus filed his factum would apply to the November 3, 2017 transfer order.
[280] While on November 7, 2017, Mr. Grill made an oblique references to other issues, that was in the context of other grounds for an adjournment – not a judicial review. In the highly unlikely event the judicial review argument was what he was referring to on November 7, 2017, he was being less than his stated intention of being transparent.
[281] Accordingly, assuming Mr. Salloum’s assertion that judicial review would not have been part of his skeleton outline on November 9, 2017 was accurate, whatever arguments were being diligently prepared, whatever arguments were to be made, they were never advanced in Mr. Salloum’s factum or submissions. Counsel were given Jeffries and the legislation that appeared to apply on December 12, 2017. Mr. Salloum confirmed that there were no other arguments to be presented by Grill Barristers.
[282] This is not to suggest that counsel should pursue meritless arguments because they said they would. This is to suggest that the validity, importance and complexity of the issues Ms. Shemesh and others were diligently preparing and only Mr. Grill could supervise is in question.
[283] I turn next to examine what Mr. Salloum submits was required to comply with administrative law requirements including, whether there was notice, what was known at the time the Chief Justice made the transfer order, and whether the transfer order was an uninformed decision with no input from Prabhjeet Singh.
Did Prabhjeet Singh have notice?
[284] When the Ministry decided to build an addition to the Davis courthouse instead of providing modular courtrooms, a press release was issued. At the start of the Assignment Court, when this case first appeared in the Superior Court and while Mr. Salloum was in attendance, an announcement was made alerting all counsel and accused that when setting dates in Brampton they had to proceed on the basis that the trial could be transferred and the reason why transfers were being made. A letter from former R.S.J. Van Melle to the Criminal Lawyers’ Association setting out the reasons for transfers and how they were addressed at the time the letter was written, I infer was distributed to members of the association because Ms. Rozier and Ms. Perchenok included it in their letter responding to Mr. Salloum’s letter.
[285] When the first trial date was set, the accused and counsel, including Mr. Grill were told that the trial may not be in Brampton. The trial was ordered transferred on November 3, 2017. The trial judge’s secretary’s email to counsel provided the reason for the transfer and that the courtroom situation would be monitored. When the second trial date was set, the accused and Mr. Salloum were told that the trial may not be in Brampton. Thus, on multiple occasions, Prabhjeet Singh and/or his counsel were given notice that the trial may be transferred. Unless the courtroom shortage somehow evaporated, that the case would be considered for a transfer was readily apparent. Given the nature of the decision, the notice was adequate.
What case-specific information was available to the Court when the transfer Order was made?
[286] Before the Chief Justice’s order was made, it is reasonable to infer that there was some communication between the Brampton Superior Court and the Chief Justice. That should not be surprising since the order was made by the Chief Justice. Nor should it be surprising that the Brampton Superior Court would provide the Chief Justice with the available information about the case. Indeed, it would be irresponsible not to do so. Not to have provided the information would have prevented the Chief Justice from making the order.
[287] While the Chief Justice’s order was made after Mr. Grill had been removed as counsel of record, his potential return as counsel was noted by Mr. Salloum on and after November 9, 2017. It was included in the January 4, 2018 adjournment application. However, in submissions Mr. Salloum said that it was not contemplated that Mr. Grill would return for the trial, regardless of where it was held. In those circumstances, I will separate what was known about Mr. Grill’s issues and the case when the decision was made.
[288] First, there were no issues raised regarding transfers at any court appearance or pre-trial conference before the November 3, 2017 transfer order despite the Assignment Court announcement, letter to the CLA, and newspaper reports of transfers. Mr. Grill knew on February 9, 2017 that the trial may not be in the Brampton Courthouse.
[289] Second, when Mr. Grill brought his first adjournment application, it was primarily based on his physical injuries obtained in the motor vehicle accident and another mishap. However, his affidavit and his submissions included that he had child care issues and taught at Osgoode Hall Law School two evenings a week. He inferred that he knew nothing about transfers because Mr. Salloum had not told him after the Assignment Court. He said that if the trial were in Kitchener, accommodations would have to be made to the sitting hours. He said he was prepared to make childcare accommodations for non-winter months. His main concerns were the two nights that he had to teach at Osgoode Hall Law School. While it was apparent that Mr. Grill did not want to travel to Kitchener at any time, he did not say he was unable to do so. Indeed, with accommodations it was apparent that he could conduct the trial in Kitchener, if he wished to do so.
[290] It was also known that Ms. Shemesh had provided somewhat different representations on behalf of Mr. Grill. She represented to the court that Mr. Grill did not take cases outside of Toronto or Brampton ordinarily, that he could not go to Kitchener because of child care issues, that Mr. Salloum could not argue the applications because he was not on the appropriate LAO panel, and that she would argue the applications.
[291] Mr. Salloum said that Mr. Grill’s childcare was an issue. He provided his own medical opinion that Mr. Grill’s concern for his child care issues (that were never detailed) was impeding his recovery from a concussion he received over a month earlier. Mr. Salloum made these representations even though he was present on November 7, 2017, when Mr. Grill said that he could make child care arrangements were the trial to be heard during other months.
[292] Third, the Order would be made 6 to 8 weeks before the trial was to start.
[293] Fourth, at the November 7, 2017, appearance with both Mr. Grill and Mr. Salloum in attendance, counsel and Prabhjeet Singh were told it had become apparent that no suitable courtroom would be available based on the projections for scheduled and continuing trials. If there was no courtroom available obtaining input would not be productive. Nonetheless, all transfer orders were subject to the caveats that the Court would consider counsels’ input and continue to take all reasonable steps to try to keep the proceeding in Brampton.
[294] With regard to the case itself and Prabhjeet Singh, there was no indication from any counsel on November 3, 7, 10 and 14, 2017, that there were witness issues that would only arise if the trial were in Kitchener. The first indication of a witness issue was after the arguments in on these applications were completed but before the conclusions were provided to counsel with reasons to follow. On January 15, 2018 Mr. Salloum wrote to the Court that the defence expert raised issues regarding his teaching schedule and attending court in Kitchener. The expert took the position that regardless of where the trial was his evidence would have to be heard in a manner that he did not interfere with lectures he was scheduled to give most days of the week between 11 am and 1 pm. It is not readily apparent why it took to January, 2018 to get input from the expert when the new trial date was set in November.
[295] Throughout the entire proceedings, there has never been suggestions of other witness issues.
[296] With regards to Prabhjeet Singh, it had never been suggested that he could not travel to Kitchener if a taxi were provided to transport him from the Davis Courthouse, where he was required to attend. Further, he had no counsel at the time of the order. He was looking for counsel but clearly preferred to wait until it was determined if Mr. Grill was able to conduct his trial. Therefore, transportation of counsel was not an issue at the time the order was made.
[297] Since it is agreed that counsel cannot have a veto on the location of a trial, it is not readily apparent what information was unknown to the court. Similarly, it is difficult to see what Prabhjeet Singh did not know. An announcement was made at his first Superior Court appearance that the trial might not be in Brampton. If counsel appearing on his behalf neglected to tell him, counsel failed in his duties to his client. An earlier order had been made without a hearing subject to it being reconsidered in light of further information and the Court’s commitment to do everything reasonable to keep trials in Brampton. Comments were made in court that the trial may not be in Brampton. All of this information could not have been lost on Prabhjeet Singh, Mr. Grill, Mr. Salloum, or anyone else.
[298] With regards to reason, it is only if one accepts that there is no demonstrated courtroom shortage in Brampton and no necessity to move cases that the reasons for this order were not readily apparent on this record for this Order. Even if Mr. Salloum’s assertion that there is no courtroom shortage and transfers have never been necessary were true, the only reasonable inference, absent the unlikely and untrue diabolical plot noted earlier, is that the Court was of the view there were insufficient courtrooms for this trial on the projections available at the time of the Order.
[299] Finally, judicial review is discretionary. As Prabhjeet Singh and counsel know the transfer order is not a final order. That the November 3 Order was rescinded was known to all involved. In addition, subject to later comments, Prabhjeet Singh had the option of brining a s. 599 change of venue application as provided for in the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).
Was the Decision of the Chief Justice Unreasonable?
The Positions of Counsel
[300] Mr. Salloum submits the order should also be quashed because it was unreasonable. The Chief Justice acted unreasonably in failing to take relevant factors into consideration. Had a hearing been held with all the procedural safeguards, the order would never have been made. The order is abusive to accused persons and a benefit to the state. It is inappropriate to move a trial “to insulate the Crown from the consequences of complacency and shift the burden of the overburdened Brampton courthouse to innocent Canadians.” That the courthouse is overburdened is the Province’s fault because no modular courtrooms were provided when the commitment was made. The Ministry’s first announcement about the addition included a late 2017 completion date. The delay in starting to build the addition and the consequent delay in its completion from 2017 to 2018 are the responsibility of the provincial government.
[301] Mr. Salloum suggests that the Province or the Court is responsible for failing to readjust relevant geographical police and judicial boundaries to lighten the load on Brampton.
[302] Further, it is the fault of the Provincial and Federal Crowns who are not making difficult decisions, failing to de-prioritize some cases. Further, the federal government was at fault for delaying the decriminalization of marijuana.
[303] The factum continued:
Considering that the overburden court system is entirely the result of decisions by various avatars of Her Majesty, it is in the interests of justice that the consequences of that overburden system be imposed upon the Crown. In fact, that is the very logic of Jordan.
[304] Mr. Salloum notes the costs imposed on accused persons when cases are moved. Such costs include travel expenses, the “traumatizing effect” of last minute changes of trial location, and juries that are “likely [to] be less happy and this may effect deliberations.”
[305] He contends that Askov mandates the Crown to bring s. 599 applications in every case where there are potential s. 11(b) Charter concerns. It is the Crown’s responsibility to apply for a change of venue. The Court should do nothing to move trials despite having the authority to do so.
[306] The Crown, Abhijeet Nagra, Dilsher Singh and Amicus all submit the decision was reasonable. Some question the evidentiary basis upon which Mr. Salloum makes his arguments in this area.
Analysis
[307] The decision to transfer this case was reasonable.
[308] First, accepting that the standard of review is reasonableness, the question is whether the decision is within a range of possible outcomes which are defensible in respect of the facts and the law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. The Chief Justice’s decision was within that range of possible outcomes.
[309] Further, on a reasonableness review, decisions are owed deference, importing respect for the decision-making process of adjudicative bodies regarding both the facts and law. A court will not substitute its own view: Dunsmuir, at para. 50. Finally, on a reasonableness review, where no reasons are given on an issue, the review can proceed on an implicit decision where the court infers the reasons from the outcome. If there exists a reasonable basis upon which the decision-maker could have decided as he or she did, the court must not interfere: Alberta v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 53. As noted above, there was a reasonable basis upon which the decision could have been made.
[310] Second, with regards to the premises upon which Mr. Salloum bases his arguments, it is most difficult to reconcile the mandate of Jordan for all justice system participants to address delay and for courts to be proactive, with the assertion that addressing delay concerns insulates the Crown and harms accused persons. isMr. Salloum’s argument that the courts are to sit passively and do nothing, leaving it to Crowns to bring s. 599 applications in every case where delay may place the case in s. 11(b) jeopardy, involves an interpretation of Jordan with which I am unfamiliar. It is an interpretation in which the Court would abdicate its responsibilities.
[311] Mr. Salloum argued that Jordan directs that courts minimize delay and conserve resources, “not merely move cases around and thereby preserve the culture of complacency.” This submission is nonsensical. The very reason the trial was transferred was to address delay concerns. To do nothing when courtroom projections reasonably show there will be no courtroom available, is the antithesis of Jordan. The Supreme Court of Canada has mandated a collective effort to address delay, not passive acquiesces by the judiciary as cases drift into stay territory.
[312] In circumstances where a transfer would allow a case to proceed faster than not transferring it, is consistent with the Supreme Courts direction for trial courts to be proactive. Indeed, doing nothing would perpetuate the culture of complacency.
[313] Third, the evidentiary bases upon which Mr. Salloum blames the Provincial and federal Crowns for failing to make tough decisions is not readily apparent. To be sure, there are occasions when cases are prosecuted that appear to have little prospect of success or may not be in the public interest to prosecute. However, the extent to which those cases create a backlog is uncertain.
[314] With regards to the federal government’s delay in decriminalizing marijuana, Mr. Salloum was unable to assist with how that is impacting the backlog in the Superior Court, where only some production cases are tried and very few marijuana importing cases. It is also not readily apparent how the new law will impact on importing cases.
[315] Further, it is difficult to see how the Crown is solely responsible for the backlog caused by trials that occupy extensive court time and/or go well beyond the estimated completion date. In New Approaches to Criminal Trials: Report of the Chief Justice’s Advisory Committee on Criminal Trials in the Superior Court of Justice (2006), the committee concluded that where pre-trial conferences were ineffective, it was the shared responsibility of all participants – the Crown, defence and judiciary: at para. 153. From Jordan and Cody, it is readily apparent that the same can be said for delays and backlogs. It is a shared responsibility of the judiciary, Crowns and defence counsel.
[316] Fourth, as noted above, it is difficult to see what relevant information had not been provided to the Court before the Chief Justice’s decision was made. The only example given was a generalized comment about no information being available to the Chief Justice that witnesses were able to travel to Kitchener. That issue has been dealt with earlier. Had there been any witness issues, surely a court can and should rely on counsel to advise of any difficulties.
[317] Fifth, Prabhjeet Singh knew of the courtroom shortage and that projected courtroom availability were used from the trial judge’s secretary’s November 3, 2018, email and the Court’s comments to Mr. Grill in court in his presence on November 7, 2017. The reasons for the transfer were implicit – the same reasons that applied to the November 3, 2017 transfer order. He also knew that transfer orders were subject to continuing monitoring of courtroom availability and the Court’s commitment to keep as many trials in Brampton as possible.
[318] Sixth, with regards to Mr. Salloum’s assertion that juries sitting in Kitchener would be “likely [to] be less happy and this may effect deliberations,” it is difficult to see on what basis the claim is made. In one of the cases tried in Kitchener with a jury selected in Brampton, after a couple of weeks in Kitchener they were told that a courtroom was available in Brampton so they would be returning to Brampton for the final submissions, charge and deliberations. After the next break, the jury sent a note to the judge that was read out in court indicting that they wanted to continue in Kitchener.[^27]
[319] The Chief Justice’s Order was reasonable. The transfer ensured the trial would be held on the scheduled date as a suitable courtroom was available in Kitchener. It is implicit that the ruling was based on courtroom projections for the weeks of January 29 and February 12, 2018. If transportation was required for the accused, it would be provided. With respect to Ms. Gadhia’s earlier concerns for the timing, the order was two months before the trial was to commence. Where a reasonable basis exists for a decision, it will be upheld as reasonable: Alberta Teachers, at para. 55.
[320] I would not quash the Chief Justice’s Order on a judicial review.
Monday Morning Transfers
[321] For the above noted reasons, the notice provided to counsel and self-represented accused persons is adequate to comply with administrative law requirements. In addition, counsel have input on the Monday morning decisions during the mandatory pre-trial conference. It is not until the state of the list is known that most decisions are made. By that time, counsel or self-represented persons have input. It is difficult to see what other information is required. Accepting as I do that there is a courtroom shortage, the impact of moving cases, the impact of not reaching cases, the Brampton courthouse is overburdened, and that it is necessary to transfer cases, a decision made to transfer a trial to a location where it can be heard and dealt with more expediently in those circumstances complies with administrative law concerns.
Final Comments on Transfers
[322] Having rejected the application of administrative law principles and judicial review to transfer decision (and all other decisions made in the course of criminal proceedings by judges) and, in the alternative, not quashing the Chief Justice’s order and Monday Morning transfers, is not to say that fairness plays no role in transfer decisions. If a transfer order was made for an improper motive and/or the decision impacted on the ability to make full answer and defence to the extent that there was a Charter breach that could be pursued within the criminal law proceeding.
[323] In Lane, Maranger J. found an appropriate test for transfers was whether there were “exceptional circumstances that serve the best interests of the administration of justice:” at para. 22. If that is the test, there is no suggestion or evidence that the transfers of cases is a widespread occurrence in Ontario. The Brampton situation is exceptional, particularly having regard to Jordan in which the Supreme Court of Canada has mandated courts to be proactive in addressing delays.
[324] However, in Borutski, at para. 22, R.S.J. McNamara differed from the suggestion that the presumption regarding the location of the trial was only displaced where the case itself had exceptional circumstances because there may be cases where the case itself is not exceptional, but the circumstances are sufficient to justify an administrative transfer of a trial. I agree with R.S.J. McNamara.
[325] The “interests of justice,” is the appropriate test for the use of the authority to transfer cases. While the phrase means different things in different contexts, some common themes have emerged from the jurisprudence. First, the interests of justice does not address only the interests of the accused. It must include the interests of the prosecution: R. v. Zvolensky et al, 2017 ONCA 273,135 O.R. (3d) 401, at paras. 250 and 251. Nor does it mean the interests of one lawyer or one proceeding. The interests of justice also include the preservation and promotion of the integrity of the criminal justice process: R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 53. While the need to complete trials in a reasonable time is not new, Jordan is.
[326] Further, the court must continue to take all reasonable steps to keep cases in the location where the indictment is filed. That involves the interests of all accused and all litigants in all cases before the Superior Court. But that cannot mean one proceeding or one lawyer gets precedence over all others regardless of the interests of others, regardless of whether there are trials continuing beyond their anticipated completion dates in the multiple accused courtrooms in Brampton or regardless of projections that a trial cannot proceed because others will be continuing. Jury trials that have started in Brampton should not be ordered to move mid-trial with no forewarning to the jury because one lawyer has a case that had to be fit into an already booked court schedule to accommodate him or her. More than one proceeding and more than one lawyer have legitimate interests and concerns regarding the location of the trial.
[327] The competing interests have to be balanced. While one defence lawyer, one Crown, one accused or others involved in a proceeding may feel aggrieved by a transfer, provided they have an opportunity to provide input before the case starts in the other location, there is no unfairness. Particularly in cases with multiple accused persons, pending the completion of the addition to the Davis courthouse, the Court cannot build larger courtrooms every week. While proactive case management continues, there are cases that for a variety of reasons take on a life of their own and continue well beyond the trial time estimates.
[328] When cases have legitimate Jordan concerns and are adjourned for valid reasons without “defence delay,” s. 11(b) waivers or exceptional circumstances for one or more co-accused, the Court has to make accommodations. As the Supreme Court of Canada held in Jordan, within reason, the Crown and justice system should be capable of prioritizing cases that have faltered due to unforeseen events: Jordan, at para. 75. However, that may involve transferring proceedings. As the Court of Appeal held in R. v. Williamson, 2014 ONCA 598, at para. 42, it is the responsibility of the court to move cases to other locations when courtrooms were not available.
[329] In addition, I note that while not framed as such, the Trial Coordinator’s initiative to project courtroom availability for lengthy trials has the effect of implementing a procedure for some cases[^28] that is similar to what Ms. Gadhia proposed – notifying counsel in advance of the transfer, albeit not as long in advance as counsel sought, subject to continuing to attempt to keep the case in Brampton notwithstanding the transfer order. It is an approach for some cases that merits continuing the initiative. However, it is closer to the trial date that more reliable projections can be made than the time Ms. Gadhia suggested for notice. For the majority of cases, there remains significant benefits to making the decision on the Monday morning.
Change of Venue, s. 599 of the Criminal Code
[330] One of the remedies Prabhjeet Singh sought was a change of venue, pursuant to s. 599 of the Criminal Code.
[331] The relevant parts of s. 599 state:
599(1) Reasons for change of venue A court before which an accused is or may be indicted, at any term or sittings thereof, or a judge who may hold or sit in that court, may at any time before or after an indictment is found, on the application of the prosecutor or the accused, order the trial to be held in a territorial division in the same province other than that in which the offence would otherwise be tried if
(a) it appears expedient to the ends of justice; or
(b) a competent authority has directed that a jury is not to be summoned at the time appointed in a territorial division where the trial would otherwise by law be held. [emphasis added]
599(3) Conditions as to expense The court or judge may, in an order made on an application by the prosecutor under subsection (1), prescribe conditions that he thinks proper with respect to the payment of additional expenses caused to the accused as a result of the change of venue.
[332] Strong evidence that a change of venue is necessary to guarantee a fair trial before an impartial jury is required: Suzack; R. v. Godbout (2012), 299 C.C.C. (3d) 304 (Que. C.A.). The onus is on the applicant on a balance of probabilities: Suzack, at para. 35.
The Positions of Counsel
[333] Ms. Salloum, while conceding he had not complied with the Criminal Procedure Rules of the Superior Court of Justice (Ontario) with regards to change of venue applications, submitted that there is sufficient evidence on this record upon which to make an order changing the venue of the trial from Kitchener to Brampton. In Jeffries, Gauthier J. found that court ordered transfers could occur but were subject to s. 599 of the Criminal Code. Acknowledging that there was at least one lawyer who was prepared to take the case but Prabhjeet Singh did not want that counsel, he submitted there would be “some prejudice” were the trial to be held in Kitchener. It was open to find it was “not very much prejudice but that there is some prejudice” were the trial in Kitchener.
[334] All other counsel and amicus submitted the application should be dismissed as having no reasonable prospect of success. For the reasons indicated during the hearing, I did not summarily dismiss the application.
Analysis
[335] First, while Mr. Salloum’s November 16 letter referred to Mr. Grill’s decision to await a court or Crown change of venue application before he brought any transfer-related motions, the court cannot initiate a s. 599 application. Only the Crown or the accused can do so: Criminal Code, s. 599(1).
[336] Second, this application does not provide a proper record upon which to decide whether or not to order a change of venue. Neither the Notice of Application, factum, nor submissions create an adequate record. For example, there is nothing to indicate there will definitely be a suitable courtroom in Brampton.
[337] Third, the “application” does not comply with the notice and affidavit requirements in Rules 22.04 and 22.05 of the Criminal Procedure Rules of the Superior Court (Ontario). This “application” was faxed to the court and the other counsel at 4:30 p.m. the night before the arguments were to begin on other applications.
[338] Fourth, Prabhjeet Singh is involved in only one case. I accept what he said when he submitted that this case was his life. However, the three counsel who have appeared on behalf of Prabhjeet Singh are treating this case like it is the only case to be tried in Brampton. The comments of Doherty J.A. in R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.) that were noted in the November 26, 2017 endorsement bear repeating:
No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.
[339] Similarly, no lawyer is an island to be treated as if he or she is the only lawyer with professional or personal obligations.
[340] While I do not dispute Gauthier J.’s finding that transfers are subject to s. 599 applications, context is important. Where a transfer is ordered as a result of changing the courthouse where all affected indictments are filed, as occurred in Jeffries and could apply with regards to the Caledon OPP charges noted earlier, those changes of locations do not involve courtroom availability issues. Here, the overriding consideration is courtroom availability for this case.
[341] In addition, given the court’s continuing commitment to take all reasonable steps to keep cases in Brampton, if there is a suitable courtroom available for the trial, the trial will be in Brampton. If not, as soon as one becomes available to permit the trial to be completed in Brampton, it will be returned.
[342] If I am wrong and Prabhjeet Singh has appropriately filed an adequate record upon which to determine a change of venue application, there is no basis upon which to conclude that it is expedient to the interests of justice to have the trial in Brampton. There is no evidence on this record as of the date of the “application” that Brampton would have a courtroom available for this trial. That fact alone results in the dismissal of the application
[343] The only basis is that some senior counsel are either unwilling to conduct the trial in Kitchener or are unavailable for the trial. Others are available and willing to conduct the trial in Kitchener. Prabhjeet Singh does not want those counsel.
[344] Further, as regards Mr. Grill’s availability, he was practicing as of the date of these applications. The January 4, 2018, adjournment application said Mr. Grill was prepared to conduct the trial in Brampton. He was apparently unwilling to travel if the case remained in Kitchener without even asking for the accommodations that he said would be required on November 7, 2017. That was Mr. Grill’s decision. However, Mr. Salloum, working under Mr. Grill’s supervision, has said that Mr. Grill is not coming back on the case.
[345] What the material shows is that Prabhjeet Singh has agreed to have Mr. Salloum represent him. Mr. Lutes, counsel for LAO, said that Prabhjeet Singh wished to be represented by Grill Barristers. That is his decision to make despite being told that he should continue looking for counsel. He has agreed to have Mr. Salloum represent him. He knows of Mr. Salloum’s year of call and that Mr. Grill will supervise “every step of the way.”
[346] Prabhjeet Singh has rejected the offer of at least one or two experienced criminal lawyers to represent him. Another lawyer, appeared to be acceptable but he did not pick up the disclosure from Grill Barristers. Of particular note, I infer that as of the date of the application, neither Prabhjeet Singh nor Grill Barristers were looking for another lawyer who would accept the case in Kitchener. That speaks volumes. That Mr. Grill had spoken to several other counsel who would not accept the retainer if the case was in Kitchener is a factor but not determinative. Clearly some lawyers were able and willing to conduct the trial in Kitchener.
[347] I appreciate that Prabhjeet Singh’s first choice of counsel was Mr. Grill. Mr. Grill had been his counsel for many months and he had confidence in him. That an accused person is not represented by his or her first, second or third choice of counsel, does not automatically result in an unfair trial or that a transfer is in the interests of justice. It is not at all unusual for accused persons to appear in court suggesting they are seeking to retain a senior member of a law firm and it is a junior firm member who conducts the trial.
[348] Here, as Prabhjeet Singh said, both Mr. Grill and Mr. Salloum were preparing for his trial. Mr. Grill said that he would have Mr. Salloum conduct the trial with him. Without in any way minimizing the seriousness of a manslaughter charge, Mr. Grill said this was not a complex case. I agree. Indeed, the actus reus of the crime is captured on video. Mr. Salloum can represent Prabhjeet Singh at his trial.
[349] On this record, I am not persuaded a s. 599 order should issue.
The Conduct of the Applications
[350] Before concluding, having had an opportunity to review all the appearances on this case after the submissions were completed, the manner in which these issues have evolved requires comment. During submissions, I noted the arguments being advanced on behalf of Prabhjeet Singh appeared to be evolving. Regrettably, neither consistency nor candor were hallmarks of his counsels’ submissions.
[351] First, on November 7, 2017, Mr. Grill implied that he had no knowledge of trial transfers. On February 9, 2017, he was in court and was told that it was uncertain whether the trial would be in the Davis Courthouse. He said nothing. Mr. Grill knew in February, 2017, that cases were being transferred to other courthouses. Indeed, it is likely he knew before that date that cases were being transferred because of R.S.J. Van Melle’s letter to the CLA, the Ministry’s press release, newspaper reports or from other counsel.
[352] Second, in Mr. Grill’s affidavit, and in submissions on November 7, 2017, he said he could make arrangements to cover his child care commitments but had not done so for this case. He could make arrangements for non-winter months. His central concern was teaching at Osgoode Hall Law School two evenings a week. In the adjournment application filed on January 4, 2018, there is no mention of teaching as a reason he could not conduct the trial in Kitchener. His affidavit for the November 7, 2017, adjournment application said that doing the trial in Kitchener would require accommodations being made. He later said he could not go to Kitchener because of his injuries.
[353] Third, when Ms. Shemesh appeared, she said it was Mr. Grill’s childcare commitments that made him unable to go to Kitchener. It was not that he was unwilling to go. It was impossible for him to travel to Kitchener because of his childcare issues. She mentioned accommodations that are routinely made for Mr. Grill’s childcare, but that after-school care could not go until 6 pm. Ms. Shemesh also said that Mr. Salloum could not argue the applications because he was not on the right LAO panel to be able to do so. That reason was relied upon when I adjusted the dates for the hearings to accommodate Ms. Shemesh’s schedule and Mr. Grill’s recuperation. When Mr. Lutes appeared for LAO, he said Mr. Salloum could have argued the motions. Mr. Grill could have assigned the work as he chose.
[354] Fourth, when Mr. Salloum appeared a couple of days after Ms. Shemesh’s representations, he said it was concern for Mr. Grill’s child care issues that were hampering Mr. Grill’s recovery from the concussion. This has to be viewed in the context that Mr. Grill himself, with Mr. Salloum present, said that he could make child care arrangements. His concern with the trial being in Kitchener was teaching, something not mentioned that day by Mr. Salloum.
[355] Fifth, when Ms. Shemesh appeared on December 20, 2017, after saying she could not argue the applications the week of December 18 because she was going to be out of the country with her family, she said she would argue “Mr. Grill’s motions,” bring an adjournment application for her College Park trial and if the adjournment was granted, conduct this trial. By the end of the appearance, there were no qualifications on arguing the motions and bringing the Toronto adjournment application. Two days later, she announced her College Park client would not agree to her seeking an adjournment and she could no longer assist Prabhjeet Singh. Nothing was said about her commitment to argue the motions she was apparently preparing diligently. Finally, Ms. Shemesh’s name appeared on the list provided to Prabhjeet Singh by Mr. Salloum with an indication that she would not take the case if the trial was held in Kitchener. On December 20, 2017, she said she would conduct the trial in Kitchener.
[356] Sixth, in the course of trying to ascertain why the judicial review arguments had never been mentioned before 4:30 p.m. on the night before the arguments or in the summary of the motions provided by Ms. Shemesh, motions that she was preparing, Mr. Salloum claimed to have no idea what she was working on and, if she had motions on her computer, he knew nothing about them. That assertion is unpersuasive. What is abundantly clear is that throughout Mr. Grill was coordinating and directing all of the positions advanced in this case – whether he was technically “practicing” or not. He was sending texts to Mr. Salloum directing him. He was talking to Prabhjeet Singh and telling him when he could return to conduct the trial. Mr. Grill and/or Mr. Salloum were giving Prabhjeet Singh input on other counsel. Ms. Shemesh said they were “Mr. Grill’s motions.” She said “they” were working on them. Mr. Salloum said Mr. Grill was to supervise and mastermind the motions. That Ms. Shemesh was working on other motions without Mr. Grill and/or Mr. Salloum’s knowledge is unpersuasive. There was one counsel in charge and coordinating throughout.
[357] Seventh, the material filed on January 4, 2018, referenced Mr. Grill’s willingness to represent Prabhjeet Singh if the trial were in Brampton. Yet, during submissions, Mr. Salloum said the applications did not involve Mr. Grill coming back on the case.
[358] Eight, the record is replete with references by the Court to the need to have these issues litigated and determined as soon as possible. Mr. Grill, personally and through Ms. Shemesh and Mr. Salloum, was determined that he would unilaterally dictate to the Court if and when the issues were to be determined. The text he sent on November 15, 2017, said the application would be the last week of January or the week of February 12, 2018. On November 9, 2017, that issue had been fully addressed in court with Ms. Salloum present. Everyone in the case, including Mr. Salloum, agreed the issues had to be determined in advance, not as Mr. Grill wanted. Despite clear directions from the Court that either were conveyed to Mr. Grill or should have been, Mr. Salloum’s November 16, 2017, letter