Court File and Parties

COURT FILE NO.: 21-5048-MO DATE: 2022/03/21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – Christopher-Maik Bernier Accused

Counsel: Jonathan Thompson for the Federal Crown

HEARD: January 12, 2022, submissions in writing

DECISION ON APPLICATION FOR JUDICIAL REVIEW IN A PART III PROVINCIAL OFFENCES ACT MATTER

ANNE London-Weinstein J.

[1] The Applicant is charged with offences contrary to the Taxation Act, 2007, S.O. 2007, c. 11, Sched. A. The forum for the prosecution is the Ontario Court of Justice. The Crown successfully applied to have the prosecution of this matter transferred to be tried by a judge of the Ontario Court of Justice, as opposed to being tried by a justice of the peace in the Provincial Offences Court of the Ontario Court of Justice.

[2] The Applicant objected to the transfer of the prosecution. He made arguments as to why the matter should not be transferred in front of the Application Judge of the Ontario Court of Justice. On October 1, 2021, after hearing from both parties, the Application Judge granted the Crown’s application for transfer. The issue decided by the Application Judge was whether the Ontario Taxation Act information should be administratively transferred from one Ontario Court of Justice venue (administered by the City of Ottawa) to another Ontario Court of Justice venue (administered by the Province of Ontario).

[3] The Applicant now seeks to review the Applicant Judge’s decision by way of certiorari. He asserts that the brevity of the Application Judge’s reasons may obscure a wrongful reliance on improper or irrelevant considerations in granting the transfer.

[4] Judges of the Ontario Court of Justice are carrying a heavy workload. Matters that can be fairly dealt with expeditiously must be dealt with in that manner in order to keep abreast of a formidable work schedule. While the Application Judge’s stated reasons for granting the transfer are brief, they are correct in law. Further, the Application Judge asked the Applicant if he understood, to which the Applicant responded that he did, though he did not agree with the Application Judge’s ruling. There is no basis to suggest that the Application Judge misapprehended the test before him or relied on irrelevant or improper considerations. While judges must be sensitive to the needs of self-represented persons, if the Applicant needed time to research the matter, or he did not understand the Application Judge’s ruling, it was incumbent upon him to say so when the Application Judge asked him directly if he understood, to which he replied in the affirmative.

[5] The Applicant also alleges that counsel for the Public Prosecution Service of Canada have no standing to prosecute this matter. However, a letter dated September 21, 2021 and endorsed by the Crown Attorney for Ottawa, Brian Holowka, authorizes any federal Crown working under the direction of the Chief Federal Prosecutor in the National Capital Region office of the PPSC to act on or dispose of the charges as agent for the Attorney General of Ontario. I permitted the Applicant additional time to respond to the issue of the authenticity of the delegation letter. The Applicant responded to that issue, but also raised other issues. I reviewed the additional issues raised by the Applicant, but I dismissed the application. I also found there was nothing improper or suspicious in regard to the letter of delegation signed by the Crown, Mr. Holowka.

[6] Certiorari is a discretionary remedy. The Respondent argues that this relief is barred by the general prohibition against certiorari in interlocutory matters. The counter-argument is that the delegation itself is not part of the trial, but occurs prior to the trial, and the delegation is not an interlocutory issue. I need not decide that issue. Certiorari should only be granted where a “substantial wrong” or “miscarriage of justice” has occurred that would warrant this court granting relief in the nature of mandamus, prohibition, or certiorari: see Provincial Offences Act, R.S.O. 1990, c. P.33, s. 140(1).

[7] I see no substantial wrong or miscarriage of justice which would be occasioned by having the Applicant tried by in the Ontario Court of Justice rather than in the Provincial Offences Court. In fact, such delegations are carried out on a routine basis in the daily workings of the court. The transfer of the matter will cause some inconvenience to the Applicant, but there is no substantial wrong, or miscarriage of justice being manifested here. The Ontario Court of Appeal has repeatedly advised that certiorari should be granted rarely for POA matters. See Harver v. Credit Valley Conservation Authority, 2021 ONCA 156, 12 M.P.L.R. (6th) 174 citing R v. 1353837 Ontario Inc., (2005), 74 O.R. (3d) 401, 249 D.L.R. (4th) 480 (C.A.), and York (Municipality) v. Irwin, 2017 ONCA 906, 68 M.P.I.R. (5th) 179 at para 7.

[8] The application is therefore dismissed.

Anne London-Weinstein J.

Released: March 21, 2022