Court File and Parties

COURT FILE NO.: CR-19-0029 DATE: 2019-06-24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SARKIS MIRZOYAN Defendant/Applicant

Counsel: Melissa Montemurro, for the Crown David Landesman, for the Defendant/Applicant

HEARD: June 14, 2019

Reasons for Decision

CHARNEY J.:

Introduction

[1] The defendant, Sarkis Mirzoyan, brings this Application for certiorari to quash two decisions of Justice Kenkel of the Ontario Court of Justice.

[2] In the first decision, dated April 4, 2019, the provincial court judge found that he had authority to hear and decide the Applicant’s request for an “administrative transfer of venue” even though he was the judicial pre-trial judge assigned to the case.

[3] In the second decision, dated April 23, 2019, the provincial court judge dismissed the Applicant’s request for an “administrative transfer of venue”.

[4] The Applicant takes the position that his request for an “administrative transfer of venue” could only be decided by the Chief Justice of the Ontario Court of Justice in accordance with s. 36(1) of the Courts of Justice Act, RSO 1990, Chap. C.43. He takes the position that the provincial court judge exceeded his jurisdiction when he purported to decide the request for an “administrative transfer of venue”. He asks that the decision of the provincial court judge dismissing his request be quashed, and that his request for an administrative transfer of venue be remitted to the Chief Justice of the Ontario Court of Justice for a decision.

[5] The Application for certiorari must be dismissed. The Applicant’s request for an “administrative transfer of venue” was not an application that could be brought under any legislation, regulation, rule or practice direction. There is no legislation, regulation, rule or practice direction that would authorize the Applicant to make this request to the Chief Justice of the Ontario Court of Justice, either directly or through a provincial court judge.

[6] If the Applicant wants to apply for a change of venue he must bring an application to the judge of the court before which the trial is to take place under s. 599 of the Criminal Code, R.S.C. 1985, c. C-46.

[7] Since the Applicant has not elected whether to be tried in the Ontario Court of Justice or the Superior Court of Justice, he cannot yet apply under s. 599 of the Code. His application for a change of venue should have been dismissed summarily on that basis.

[8] The provincial court judge had no obligation to refer the Applicant’s request for an “administrative transfer of venue” to the Chief Justice of the Ontario Court of Justice, and he did not exceed or fail to exercise jurisdiction in declining to do so.

Facts

[9] Steeles Avenue is the roadway that marks the boundary between the City of Toronto and York Region. On January 2, 2019, York Regional Police officers were driving in the area of Weston Road approximately 1.5 kilometres south of Steeles Avenue in the City of Toronto when they observed a suspected hand-to-hand drug transaction between two persons. The officers stopped to investigate and both persons were arrested. A loaded handgun, pills, cash and a weigh scale were seized from Mr. Mirzoyan’s car. The Applicant was arrested and charged with eight indictable offences.

[10] After his arrest, Mr. Mirzoyan was brought to the police station in Richmond Hill in York Region, and held for a bail hearing in Newmarket the next day. He was released on bail by a Justice of the Peace in Newmarket and was required to appear in Newmarket to answer his charges.

Application to Contest Venue

[11] A judicial pre-trial was held in the Ontario Court of Justice on March 27, 2019 before Justice Kenkel. The defence counsel raised the issue of venue, asking why the case was proceeding in York Region rather than in Toronto, where the alleged offences were committed. The defence counsel relies on the “local venue rule”, the common law presumptive rule that a trial is to be held in the district where the crime allegedly occurred (R. v. Simons (1976), 30 C.C.C. (2d) 162; R. v. Garbera, [2011] O.J. No. 3739 at paras. 18 and 28; R. v. Robson, [2004] O.J. No. 3304).

[12] The defence counsel took the position that the case should be transferred from York Region to Toronto, and indicated his intention to raise the venue issue at the next pre-trial on April 4, 2019.

[13] The charges against Mr. Mirzoyan are not within the absolute jurisdiction of the Ontario Court of Justice. No election has been made under s. 554 of the Code. As such, the Ontario Court of Justice is not the trial court. The Applicant acknowledges that he cannot bring an application to change venue under s. 599 of the Code until he makes his election under s. 554.

[14] At the conclusion of the pre-trail hearing on March 27, 2019, the judicial pre-trial judge stated:

The matter will go to April 4 th as requested by both counsel. On that day…the accused should attend so that he can elect his mode of trial. And that’s critical here because as the defence indicates there may well be a change of venue application with respect to the location of the trial, and it is likely that the election is important to identify the actual trial court. That’s also an issue that both counsel will look into in the meantime.

[15] On April 2, 2019, Mr. Mirzoyan brought an application asking the Ontario Court of Justice to transfer the proceeding to Toronto “whether by administrative action, or otherwise by Order of this Court”. The Notice of Application asked the Court:

[T]o examine the information and the circumstances, hear submissions from the Crown and the Applicant, and determine the proper location to proceed before any further steps are taken in this matter.

[16] The attached “Detailed Statement of Facts and Grounds to be Argued” stated:

This Application is brought requesting the Ontario Court of Justice examine and correct the location of the proceedings chosen by the police and the Crown, and to prevent a continuing abuse of this Honourable Court’s process.

[17] The primary relief requested by the defence was a stay of proceedings for an abuse of process. Alternatively, the defence sought an order transferring the proceeding to Toronto.

[18] The Application also included, as a final alternative, the following order:

Should this Honourable Court determine that a transfer to the correct location is an administrative decision properly left to the Chief Justice, then the Applicant respectfully requests an Order be made referring the matter to the Chief Justice, or her designate, for a direction assigning the venue of the proceeding before any further steps are taken in the proceeding.

[19] The Crown’s position was that:

Only a Trial Court has the power to grant a change of venue and to adjourn the Trial to permit the change of venue. This is due to the fact that the Application is to change the venue of Trial (not other pre-trial stages of the prosecution)…Given no election has been made to date, this Application is premature as it is not known whether the Trial Court will be the Ontario Court of Justice of the Superior Court of Justice.

[20] Justice Kenkel was assigned to hear the change of venue application on April 4, 2019 because he happened to be the only judge available to hear the matter on that day. The submissions on the issue of venue were heard on April 4 and April 23, 2019.

[21] Counsel for defence raised a preliminary objection to Justice Kenkel hearing the application on the ground that, as the pre-trial judge, Justice Kenkel had been privy to a “full and frank discussion of the issues” and “without prejudice discussions”. The Applicant argued that these amounted to settlement discussion, knowledge of which disqualified Justice Kenkel from hearing the change of venue application. The Applicant’s counsel did not claim that Justice Kenkel’s conduct of the pre-trial raised a reasonable apprehension of bias, and, in his submissions before me, Applicant’s counsel expressly disavowed any claim or reliance on reasonable apprehension of bias.

[22] On April 4, 2019, Justice Kenkel ruled that the pre-trial discussions did not have any impact on his ability to fairly decide the change of venue application. He reasoned by analogy to s. 551.3 of the Criminal Code, which authorizes the case management judge to “encourage the parties to make admissions and reach agreements” and “encourage the parties to consider any other matters that would promote a fair and efficient trial”, but still permits the case management judge to adjudicate certain procedural issues and issues related to the admissibility of evidence and the Charter of Rights and Freedoms. In his written reasons released on April 24, 2019, he stated, at para. 7:

While a judge of this court is not part of the trial court as required by that section (s. 551.3) unless the accused so elects, the management function is similar with regard to a preliminary hearing. In my view a judge assisting with case management towards a preliminary hearing is well place to hear an application on a discrete procedural issue such as venue.

Ontario Court of Justice Decision on the Application to Contest Venue

[23] On April 23, 2019 the provincial court judge dismissed the application with brief oral reasons, and provided written reasons on April 24, 2019: R. v. Mirzoyan, 2019 ONCJ 311.

[24] The provincial court judge held that the Ontario Court of Justice has jurisdiction to hear the challenge to venue at the preliminary stage without resort to an application to the Superior Court of Justice. In this regard, he relied primarily on the decisions in R v. Simons, [1976] OJ No 152, R v. Robson, 2004 ONCJ 137 and R v. Davis, 2018 ONSC 4630, affirmed 2018 ONCA 946. He stated, at para. 6:

It makes sense that a challenge to venue could be brought in an expeditious way as part of the ability of this court to control its own process where one party asserts that the proceedings were initiated in the wrong forum.

[25] The provincial court judge then considered the test to be applied to an application for an administrative change of venue. He held that the test was the same as the test for a transfer under s. 599 of the Code, except that the legal burden was on the Crown to show why the trial should not be transferred. He stated, at paras. 8-9:

A change of venue application is brought before the trial court pursuant to s. 599 of the Criminal Code. Typically the application relates to trial fairness in jury cases but the section also applies to trials heard by judge alone … The burden is upon the applicant to show cause why “it appears expedient to the ends of justice” to move the trial to a different venue – s. 599(1)(a).

In a case such as this where the Information is laid in a region other than where the offence occurred and the alleged offence is a discrete event, not part of a larger cross-border investigation or otherwise connected to another region, I agree with the defence that it is unfair to put the burden on the defendant to bring a change of venue application pursuant to s.599 where they must show why the case should be moved…In this application which is prior to trial I adopt the test set out in s.599 as explained below, but I find not just the evidential burden but the legal burden should be on the Crown on the balance of probabilities to show why the presumptive rule was not complied with.

[26] The provincial court judge concluded that the Crown had met its legal burden to prove that it is expedient and necessary in the ends of justice that the case remain in Newmarket. He dismissed the application, and ruled that the Information “will remain in this court for the preliminary hearing or trial depending upon the accused’s election”. He summarized his reasons for this conclusion at para. 18:

Other than the location of the arrest, this case has no link to Toronto. Neither party involved in the alleged drug transaction resides there. No Toronto police officer was involved in the investigation. Even the firearms examination was done locally by an officer with the York Regional Police. The only potential Crown civilian witness happens also to reside in this region. The Crown’s office in Toronto has no interest in prosecuting this case. There’s no evidence of any prejudice to the accused if the matter were to remain in Newmarket. This case has been case-managed here and is otherwise ready to proceed to trial or preliminary hearing. Considering all of the circumstances I find the Crown has proved that it’s expedient and necessary in the ends of justice that the case remain here.

[27] The provincial court judge did not remit the matter to the Chief Justice of the Ontario Court of Justice. It is apparent from his written reasons that he was of the view that he had the jurisdiction to dismiss the application for an administrative transfer.

Issue

[28] Since this is an application for certiorari, the merits of the provincial court’s decision to dismiss the application for an administrative transfer are not before me. The only issue on this Application is whether the provincial court judge made a jurisdictional error: R. v. Awashish, 2018 SCC 45, at paras. 10, 11 and 20.

[29] This Application raises one issue: Was the provincial court judge required to remit the application for an “administrative transfer of venue” to the Chief Justice of the Ontario Court of Justice for a final decision?

Analysis

[30] The issue of administrative transfers of venue has received detailed legal analysis in two recent Superior Court decisions: R. v. Singh, 2018 ONSC 1532 and R. v. Davis, 2018 ONSC 4630. My analysis must start with those two decisions.

R. v. Singh

[31] The Singh case dealt with the authority of the Chief Justice of the Superior Court of Justice to transfer criminal proceedings from a courthouse in one judicial region (Central West) to a courthouse in a neighbouring judicial region (Central South) for “administrative purposes”.

[32] “Administrative purposes”, broadly speaking, refers to the allocation of limited judicial resources – judges and courtrooms – so as to accommodate trials in an efficient and timely manner. It relates to the “effective and efficient administration of justice” on a systemic level. Trials may be moved from the courthouse in one judicial region to a courthouse in a neighbouring judicial region when there is a shortage of suitable courtrooms. The details and recent history giving rise to the need for these administrative transfers – primarily to address the Brampton courtroom shortage - are fully set out in the decision of Durno J. in Singh, and need not be reviewed for the purposes of this decision.

[33] Durno J. reviewed the federal and provincial legislation relevant to the issue of administrative transfers of venue. First is s. 470 of the Criminal Code, which provides:

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.

[34] The courts have interpreted the phrase “territorial jurisdiction” as being province wide since the territorial jurisdiction of both Superior Court and Ontario Court of Justice judges is the entire province of Ontario: Davis at paras. 16 – 18, and cases cited therein. Durno J. explained (at para. 136) that s. 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”.

[35] Durno J. next considers ss. 79.1 and s. 14 of the Courts of Justice Act. Section 79.1 (together with the Designation of Regions Regulation, R.R.O. 1990, Reg. 186) provides that Ontario is divided into eight regions “for administrative purpose related to the administration of justice in the province”.

[36] These eight regions cover large territories and, except for Toronto Region, each judicial region includes multiple municipalities and regional municipalities and counties.

[37] Section 14 (1) and (2) of the Courts of Justice Act set out, at a very general level, the powers and duties of the Chief Justice of the Superior Court of Justice and the regional senior judges (“RSJs”). These sections provide:

14 (1) The Chief Justice of the Superior Court of Justice shall direct and supervise the sittings of the Superior Court of Justice and the assignment of its judicial duties.

(2) A regional senior judge of the Superior Court of Justice 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.

[38] Sections 14(1) and (2) apply only to the Superior Court of Justice, but ss. 36(1) and (2) provide identical provisions to the Chief Justice and the regional senior justices of the Ontario Court of Justice. These sections, which are relied on by the Applicant in this case, provide:

36 (1) The Chief Justice of the Ontario Court of Justice shall direct and supervise the sittings of the Ontario Court of Justice and the assignment of its judicial duties.

(2) A regional senior judge of the Ontario Court of Justice shall, subject to the authority of the Chief Justice of the Ontario Court of Justice, exercise the powers and perform the duties of the Chief Justice of the Ontario Court of Justice in his or her region.

[39] Also relevant is s. 75(1) of the Courts of Justice Act, which applies to the Chief Justice and the RSJs of both the Superior Court of Justice and the Ontario Court of Justice:

75 (1) The powers and duties of a judge who has authority to direct and supervise the sittings and the assignment of the judicial duties of his or her court include the following:

1. Determining the sittings of the court.

2. Assigning judges to the sittings.

3. Assigning cases and other judicial duties to individual judges.

4. Determining the sitting schedules and places of sittings for individual judges.

5. Determining the total annual, monthly and weekly workload of individual judges.

6. Preparing trial lists and assigning courtrooms, to the extent necessary to control the determination of who is assigned to hear particular cases.

[40] Durno J. noted, at para. 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.

[41] This observation applies equally to the authority of the Chief Justice and the RSJs of the Ontario Court of Justice under ss. 36 (1) and (2) of the Courts of Justice Act.

[42] Based on these provisions, Durno J. held, at para. 147, that the Chief Justice has the “has authority to determine the location of a trial anywhere within Ontario” and the RSJs “have the authority to determine the venue of a trial in the region over which they preside”. These conclusions would also apply to the Ontario Court of Justice.

[43] Durno J. concluded, at para. 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. (Emphasis added.)

[44] Durno J. held that the Chief Justice’s authority to make inter-regional administrative transfers, and the RSJ’s authority to make intra-regional administrative transfers, is not diminished by the fact that the trial will be a jury trial. He held, at para. 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.

[45] It is important to emphasize that Durno J. was dealing with administrative transfers, and not applications to change venue under s. 599 of the Criminal Code. Decisions regarding administrative transfers are not made in an adversarial context; the affected parties have no right to be heard or to make submissions to the decision maker (Singh, at para. 264).

[46] Moreover, Durno J. expressly rejects the contention that administrative transfers should take into consideration the same factors as a judge hearing a s. 599 change of venue application. He states, at paras. 265 - 266:

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.

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.

R. v. Davis

[47] The facts in Davis are very similar to the facts of the case before me. The Applicant was arrested in Mississauga, Ontario in Peel Region, for offences allegedly occurring entirely in Mississauga. He was arrested by members of the York Regional Police. Peel Region is in the Central West judicial region, and York Region is in the Central East judicial region. Following the arrest, the police transported the Applicant back to York Region, where he was processed and taken to court in Newmarket for a show cause hearing. In the ordinary course, offences alleged to have occurred in Peel are tried in Brampton in the Central West Region.

[48] The issue in Davis was whether the provincial court judge sitting in Newmarket exceeded his jurisdiction “because the trial was being held in the Central East Region and there was neither a sufficient geographical connection between the location of the alleged offence and the Central East Region, nor was there an order under the Courts of Justice Act by the Chief Justice transferring the trial from the Central West Region to the Central East Region”.

[49] The accused argued that only the Chief Justice of the Ontario Court of Justice had the jurisdiction to transfer the charge relating to an offence occurring in Central West Region to Central East Region. His application was dismissed by the provincial court judge, and he applied for certiorari in the Superior Court on the basis that the provincial court judge had “exceeded his jurisdiction in commencing trial proceedings against the Applicant”.

[50] The application for certiorari was dismissed by Di Luca J., who held that the provincial court judge in Newmarket had jurisdiction to hear the case. Notwithstanding this conclusion on jurisdiction, Di Luca J. did raise the concern that the Crown’s decision to prosecute the case in Newmarket could amount to an abuse of process. He stated, at paras. 6 and 7:

I reach this conclusion notwithstanding my concerns about why this matter is being tried in the Central East Region. Simply stated, apart from the fact that the Applicant was investigated by members of the York Regional Police, there is no connection between the alleged commission of this offence and the Central East Region. Indeed, the Applicant was arrested in Mississauga where he was observed engaged in an alleged drug transaction. Following his arrest, the York Regional Police took the Applicant to their “home” jurisdiction for processing. Rather than initiating process in the Central West Region, the police initiated court process in their “home” jurisdiction and the Crown, for reasons that are not clear on the record, has decided to maintain the prosecution in this jurisdiction. In my view, this raises potential concerns about forum shopping. While these concerns do not amount to a jurisdictional problem, they may suffice to warrant a change of venue or other administrative action. Depending on the circumstances of the case, they may also amount to an abuse of process.

As I have determined that this does not affect the court’s jurisdiction, I need not decide this issue. However, the defence is free, in my view, to pursue a change of venue application before the trial judge when the matter resumes. The defence is also free to seek an administrative transfer of the trial to the Central West Region.

[51] In considering the jurisdictional issue, Di Luca J. reviewed various decisions on the territorial scope of the judge’s jurisdiction, and concluded, at para. 19:

A central theme in these cases is that as a matter of jurisdiction the modern trend is to recognize a single jurisdictional unit, usually the province in which an offence occurs, see Ellis, supra, at paras. 38-44. In this regard, the courts have also recognized that the division of the province of Ontario into regions is a matter of administrative significance but not jurisdiction…

[52] Di Luca J. accepted that the Crown “retains some discretion to decide where a prosecution will take place”, but “does not have the sole or exclusive authority to determine the location of a prosecution”(at para. 24, italics in original).

[53] While the “local venue rule” has been abolished by s. 470 of the Criminal Code, Di Luca J. indicated that it remains important as an objective basis for establishing the venue of the trial and to prevent venue shopping by either the Crown or the defence. He stated, at para. 26:

In terms of the Crown’s discretion, it appears that the spirit and purpose of the common law “locality” rule remains important. As such, the general, though not invariable rule, will be that the Crown should prosecute a case in the geographical location of the alleged offence and that the trial will be held in that location.

[54] Di Luca J. recognized that there are often “legitimate reasons why the Crown might chose to commence a proceeding in a geographical location outside the specific location where an offence took place” (para. 28), but that the Crown’s discretion in that regard must be balanced against a concern for venue shopping. See also: R. v. Lawson 2018 ONSC 4251 at paras. 28-30, per Healy J.

[55] The most obvious process for addressing this question of venue is to proceed with a change of venue application under s. 599 of the Code. Di Luca J. stated at para. 31(h):

Where an accused objects to the location of trial on the basis that it is outside the region or location where the offence allegedly occurred, an application for a change of venue under s. 599 of the Criminal Code can be brought… There is a dearth of case law examining a change of venue application in judge alone trials… That said, there is nothing in s. 599 of the Code that limits a change of venue to jury cases where there is a concern about the ability of the jury to fairly try the accused.

[56] In this regard, Di Luca J. noted that the usual s. 599 analysis would be somewhat different if the offence is being prosecuted outside the location where the offence allegedly occurred, at para. 31(i):

Where an accused brings a change of venue application the onus will rest on him or her as the applicant. However, where the trial is not being held in the ordinary venue, it may well be that the evidential onus shifts to the Crown to persuade the court that the presumptive venue rule should not apply in the circumstances of the case. I say this for the following reason. The burden on the accused to demonstrate the need for a change of venue is premised on the starting point presumption that cases will be heard in the venue where the alleged crime took place, see R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont.C.A.) at para. 30. Most of the case law dealing with change of venue applications involves cases where the indictment or information was filed in the “correct” location, i.e. where the offence took place. It is in this context that the cases address the high onus on the accused to demonstrate that a change in venue is “expedient to the ends of justice”. However, that is not the case where the police and/or Crown have chosen a location that is not where the trial would ordinarily be held.

[57] Indeed, previous decisions have concluded that while the onus is generally on the applicant to show why the venue should be changed, this onus presupposes that the venue is already the district where the crime allegedly occurred: “An application to change the place of trial back to the district in which the offence is said to have been committed should be favourably considered and does not require to be supported by such strong reasons as are needed when the proposed change is a change from that district” see: R. v. Ferreira, [2007] O.J. No. 5648 at para. 35 and The King v. Roy, 14 CCC 368, at p. 370.

[58] At the conclusion of his analysis, Di Luca J. proposed an additional process for addressing the change of venue issue, at para. 31 (k):

Lastly, it would also be open to the accused to seek an administrative transfer from the Regional Senior Judge or Chief Justice as the case may be. Similarly, it would be open to a trial judge when confronted with an information alleging an offence committed in another region, to refer the matter to the Chief Justice or Regional Senior Justice for a transfer under the provision of the Courts of Justice Act, see R. v. Garbera, supra, at para. 32.

[59] The Applicant in this case argues that he was pursuing the precise remedy that Di Luca J. held was open to him in Davis, “to seek an administrative transfer” from Central East Region to Toronto Region from the Chief Justice of the Ontario Court of Justice. Based on the decision of Durno J. in Singh, he argues, only the Chief Justice has the jurisdiction to order an inter-regional administrative transfer, and therefore the provincial court judge exceeded his jurisdiction when he declined to grant the transfer without remitting the issue to the Chief Justice.

Can the accused seek an administrative transfer from the Chief Justice?

[60] While Di Luca J. held that “it would also be open to the accused to seek an administrative transfer from… the Chief Justice”, the immediate and obvious difficulty with this proposition is that there is no procedure that would permit or enable the accused to seek an administrative transfer from the Chief Justice.

[61] In his submissions to the provincial court, the Applicant’s counsel acknowledged that there was no rule or practice direction dealing with such an application, and the court was being asked to make up a process as it went along. As counsel colourfully put it:

[U]nder the rules there is no obvious mechanism. You don’t go knocking on the Chief Justice’s door and say “Hey, can I have an order?” It seems to me that the application has to be brought through the court…because there is no otherwise direct route to the Chief Justice.

[62] The complete absence of any such process should raise an immediate red flag as to whether this is really an option open to the accused. Where an application for change of venue is contemplated, procedures and criteria to be applied have been established. Section 599 of the Criminal Code is the most obvious and relevant example. We can also look to Rule 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the relevant Practice Directions established by the Court, which provide a detailed process for applying to the RSJ for inter-regional transfers of civil cases.

[63] The Applicant in the present case proposed a cumbersome extra-legislative process in which he would make his submissions to the provincial court judge, who would then make a recommendation to the Chief Justice, who would then make a final decision whether to order an inter-regional administrative transfer in this case. It is not clear whether the Chief Justice would be expected to rubber-stamp the provincial court’s recommendation or whether the parties might expect another opportunity to make submissions.

[64] While ss. 36 (1) and (2) of the Courts of Justice Act provide general administrative authority to the Chief Justice and RSJ to direct and supervise the sittings, they say nothing about the accused having a right to apply to the Chief Justice for a transfer or change in venue for “administrative” or any other reasons. Accordingly, the provisions of the Courts of Justice Act do not provide a procedural route for such an application.

[65] Moreover, the requests contemplated by Di Luca J. are not in fact “administrative transfers” as that term was used by Durno J. in Singh. They are really s. 599 applications under a different label. The proposed requests to the Chief Justice would have nothing to do with the allocation of judicial resources for the “effective and efficient administration of justice” on a systemic level. The applications would relate to an allegation that the police or the Crown’s choice of venue was an abuse of process, and consider the same factors as a s. 599 change of venue application.

[66] In my view, it would be inappropriate for such a request to be made directly to the Chief Justice. As Durno J. points out in Singh, the parties affected by administrative transfers have no right to make submissions or be heard by the decision maker. If the Chief Justice received submissions from the accused, she would also have to receive submissions from the Crown. Would she be expected to hold a hearing? Or to decide the request on the basis of a paper record? Could she decline to consider the request? Would she be required to give reasons? How would this analysis differ from a s. 599 application? If the accused were unsuccessful would he still be able to bring a s. 599 application to the trial judge and get a second kick at the can?

[67] As the Supreme Court of Canada recently reaffirmed in Awashish, interlocutory issues which arise in the context of a criminal prosecution should be raised and resolved within the established criminal process. In this case, the established process for a change of venue application is set out in s. 599 of the Code, and the courts should not be encouraging the accused to circumvent that process by seeking relief directly or prematurely from the Chief Justice.

[68] The provincial court judge assumed jurisdiction over the Applicant’s request for an administrative transfer, stating (at para. 7):

It makes sense that a challenge to venue could be brought in an expeditious way as part of the ability of this court to control its own process where one party asserts that the proceedings were initiated in the wrong forum.

[69] I have two points in response to this. Firstly, as the Ontario Court of Appeal stated in Re Service Employees International Union, Local 204 and Broadway Manor Nursing Home et al., (1984), 48 O.R. (2d) 225;, at p. 233: “practicality and convenience…do not confer jurisdiction on a court”.

[70] Second, as events have unfolded, this has not proven to be an expeditious way to proceed. The provincial court judge’s first instinct was to reconvene on April 4, 2019 so that the accused could elect his mode of trial and bring an application under s. 599 of the Code (see para. 14 above). This would have been a far more expeditious process.

[71] Instead of making his election on April 4, 2019, the accused brought this application, which has resulted in more than two lost months of procedural wrangling. The provincial court judge adopted the same test as set out in s. 599 of the Code, but reversed the onus. This could not, however, preclude the accused, if he was not successful, from bringing a s. 599 application at a later date. This is the very kind of redundancy and inefficiency that Durno J. warned against (at para. 265):

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.

[72] While I am dismissing the Application for certiorari, it should be clear from these reasons that it is my view that the provincial court judge should not have entertained the application for an “administrative transfer” for two reasons:

a. The Application was premature and should have been brought under s. 599 of the Code, and,

b. The provincial court judge did not have the authority to order an inter-regional administrative transfer even if he had agreed with the Applicant’s submissions.

[73] Given my analysis, it is not necessary for me to consider the Applicant’s argument that Justice Kenkel, as the judicial pre-trial judge, should not have heard the application. In my view, the application for an “administrative transfer” should not have been heard by any judge.

Conclusion

[74] The issue raised by the Applicant in this Application for certiorari is whether the provincial court judge was required to remit the application for an “administrative transfer of venue” to the Chief Justice of the Ontario Court of Justice for a final decision. For the foregoing reasons, there was no such obligation, and the Application for certiorari is dismissed. The matter is returned to the provincial court to continue the proceedings in that court.

Justice R.E. Charney

Released: June 24, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SARKIS MIRZOYAN Defendant/Applicant REASONS FOR DECISION Justice R.E. Charney

Released: June 24, 2019