R v. Amiri, 2021 ONSC 7478

COURT FILE NO.: CR-20-0178; CR-21-1079

DATE: 20211112

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen v. Ali Amiri

BEFORE: D. E. Harris J.

COUNSEL: Ali Amiri, self-represented, Applicant

Igor Osowski, Crown Respondent

Jessica Mor for the Complainant

HEARD: November 10, 2021 by Zoom video conference

ENDORSEMENT

1Mr. Amiri applied for certiorari to quash a decision of Justice Monahan in the Ontario Court of Justice made August 16, 2021. The order appointed counsel to cross-examine the complainant under Section 486.3(3) of the Code, appointed counsel for the complainant on Mr. Amiri’s third party records application and authorized a witness to testify at trial over Zoom videoconferencing. The trial is scheduled for late December of this year. Justice Kranjc is the trial judge. She has already dealt with several motions.

2The grounds upon which Mr. Amiri argues that Justice Monahan’s orders ought to be quashed include that there was insufficient notice to him of the Crown’s applications, that Justice Monahan was not the trial judge and therefore had no jurisdiction, that no materials were filed and that Legal Aid protocols with respect to the appointment of counsel for the complainant were not observed. There was also an argument that the decision that the witness could testify by Zoom was procedurally flawed.

3Assuming without deciding that certiorari is available to review the decisions in issue here, in my view, the Applicant’s arguments are devoid of merit. There was no legal error, let alone jurisdictional error: R. v Awashish, 2018 SCC 45 at paras 11, 33; R. v. DesChamplain, 2004 SCC 76, [2004] 3 S.C.R. 601(S.C.C.); R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 (S.C.C.).

4The overarching concern with this application, however, extends beyond this immediate conclusion. Even if jurisdictional error had been shown, certiorari and the other prerogative writs are discretionary remedies: Criminal Pleadings & Practice in Canada, 2nd Edition (online), E.G. Ewaschuk, Part IX. Appeals and Extraordinary Remedies, Section 26.:57; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535. Extraordinary remedies are not run of the mill remedies. They are not appeals.

5It is obvious that this is not a case in which the extraordinary remedy discretion ought to be exercised. It would be entirely inappropriate to meddle in ongoing trial matters taking place in the Ontario Court in the absence of truly exceptional circumstances. It is hard to imagine when this kind of intervention would be proper. It certainly is not here. The judges of the Ontario Court are well able to control their own process without interference from other judges.

6A number of Ontario Court judges have already been involved in this matter. And of course there is a trial judge seized of the trial. For yet another judge to review the proceedings would only cause havoc and confusion, without any appreciable improvement in the fairness or integrity of the trial. Likely, quite the opposite result would occur.

7There is a strong disinclination to hear interlocutory matters. This is an excellent example of the reason behind this general rule. In my view, this application is little more than an attempt to make mischief with the Applicant’s trial. Even if there had been error, certiorari to quash the decision would plainly not have been warranted. The application is dismissed.

D.E.Harris J.