Court File and Parties

COURT FILE NO.: CR-21-30000013-00MO

DATE: 20210329

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. MOHANARANJAN NAVARATNAM, Applicant/Defendant

BEFORE: Low J.

COUNSEL: Emily Dixon, for the Applicant (Defendant)

Peter Van den Bergh, for the Respondent, Her Majesty the Queen

HEARD at Toronto: March 29, 2021

ENDORSEMENT ON APPLICATION FOR CERTIORARI

[1] The applicant accused brings application for certiorari following two appearances before the Ontario Court of Justice wherein the accused brought an application for directions in the following terms:

This is a motion for directions regarding the applicability of R v Reddick (Reddick), 2020 ONSC 7156, which declared sections 278.94(2) and 278.94(3) of the Criminal Code unconstitutional.

The Applicant argues that Reddick is binding because of vertical principles of stare decisis: it is a decision of a higher court. In the alternative, as per R v Sullivan, 2020 ONCA 333, the burden is on the Crown to demonstrate that the declaration of constitutional invalidity is plainly wrong (at para 38).

The Applicant previously filed two pre-trial motions on October 19th, 2020. The facts of the case are outlined in the Applicant's factum for the section 276 and 278.3 applications, respectively.

Reddick was recently released on November 23, 2020 and declared sections 278.92, 278.94 and 278.94(3) unconstitutional and of no force and effect. Specifically, the Court held that the provisions violates sections 7 and 11(d) of the Charter of Rights and Freedoms by affording the complainant broad participatory rights that undermine the role of the Crown (Reddick, supra at paras 122-123).

Reddick further held that section 276 applications are now instead governed by the procedure outlined in R v Darrach, 2000 SCC 46 (Reddick, supra at paras 132-133). Accordingly, the complainant does not have a right to have standing and make submissions in the section 276 application which was previously filed.

As the third party records regime remains intact, the Applicant takes no issue with counsel for the complainant continuing to participate and asks that the two applications be bifurcated. Indeed, they are two distinct applications governed by two different statutory regimes.

The Crown's position in this matter is that Reddick is not binding and that the defence must bring a notice of constitutional question to challenge the statutory scheme in order for this Court to determine whether the provisions are constitutionally sound. Respectfully, this position is unreasonable as it undermines notions of longstanding notions of precedent and invites the possibility of inconsistent decisions.

[2] The applicant filed no evidence on the application. There was thus no factual matrix upon which the ruling sought could be made.

[3] The application came on before the Ontario Court of Justice December 22, 2020. On that appearance, after it becoming clear that the substance of the application was a challenge to the constitutionality of the statutory scheme, after it becoming apparent that the applicant had not served and filed a proper notice of constitutional question nor served the Attorney General with notice, the court, instead of dismissing the application summarily, gave the applicant an opportunity to try again on another day on proper notice to the proper parties.

[4] On January 11, 2021, the matter came back on. Again, there was no evidentiary record placed before the court, the applicant taking the position simply that the impugned provisions of the Criminal Code were unconstitutional because the opinion in R. v. Reddick, 2020 ONSC 7156 held it to be so.

[5] Again, rather than dismissing the application summarily, the applicant was given a third chance to place the matter properly before the court and a new date was set with ample time for comprehensive argument on an evidentiary record.

[6] Between that appearance and the date for argument on the merits, the applicant launched this application for certiorari, thus putting a halt to the proceeding.

[7] The applicant argues that the application judge, in declining to hold on his application for directions that R. v. Reddick applies and thus negates the complainant’s standing on the pre-trial evidentiary motion, breached the court’s duty of fairness or the rules of natural justice thus warranting a writ of certiorari.

[8] The transcript itself discloses, over the course of two hearing dates, not only no failure of fairness on the part of the court, but abundant indulgence in granting the applicant time and additional opportunity to present a properly constituted application.

[9] The gravamen of the applicant’s complaint is that he ought not to have to show his hand. Whether he has a hand to show is not known at this point as there is no evidentiary record. Second, if there is in fact material in his possession, it is unknown whether it will cross the initial threshold under s. 278.93 on an in camera proceeding. Accordingly, the question is both academic and premature on the facts as they presently appear.

[10] It is the applicant’s position that having to show one’s hand in this context constitutes a procedural unfairness and that the applications judge’s refusal, in the absence of a factual matrix, to declare that R. v. Reddick applies and thus negates the complainant’s rights of standing, is a denial of natural justice.

[11] These arguments are untenable.

[12] The applicant characterizes the statutory scheme whereby the complainant has standing in the pre-trial admissibility hearing as being unfair and denying him natural justice. This is a distortion of the principle of natural justice which inheres in the right to make representations. Natural justice is not an entrenched right to impeach a witness by ambush. The criteria in assessing the constitutionality of the provisions are not identical to and should not be conflated with indicia of natural justice.

[13] The applications judge, it is said, is putting the applicant to comply in effect with disclosure under ss. 278.93 and 278.94 in requiring the applicant to put forth a factual or evidentiary basis for the constitutional challenge. It is said that this is a breach of fairness and a denial of natural justice. I cannot agree with this submission. The court does not engage in academic or hypothetical exercises. It deals in facts. That the court requires the litigant to comply with the statute and the rules of court is neither unfair nor a denial of the right to be heard, and here, as I have mentioned above, the court was more than indulgent in permitting the applicant further opportunity to frame his constitutional challenge properly.

[14] If the applications judge made a determination that the provisions in ss. 278.94(2) and (3) are constitutional, not following R. v. Reddick but instead cases such as R. v. Bickford, 2020 ONSC 7510, and R. v. A.M., 2020 ONSC 7674; 2020 ONSC 8061, such a determination would be, at its highest, an error of law. It is unnecessary to opine here as to whether there was an error of law or not.

[15] An error of law does not deprive the court of jurisdiction; nor does it amount to an excess of jurisdiction. Certiorari does not lie for an error of law.

[16] The application for certiorari is dismissed.

Low J.

Date: March 29, 2021