COURT FILE NO.: CR-21-5048-01MO
DATE: 2022/08/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Christopher-Maik Bernier
Applicant
Samir Adam for the Respondent
Self-represented Applicant
HEARD: July 15, 2022
decision on application for prohibition in a part iii provincial offences act matter
Ryan bell j.
The application
[1] The applicant, Mr. Bernier, 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 applicant seeks to prohibit Legault J. of the Ontario Court of Justice from proceeding with this matter before the disposition of the applicant’s appeal in the Court of Appeal for Ontario.
Factual background
[2] 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.
[3] The applicant sought to review the application judge’s decision by way of certiorari. On March 21, 2022, the application for judicial review was dismissed by London-Weinstein J.: R. v. Bernier, 2022 ONSC 1765.
[4] By notice of appeal dated April 12, 2022 and filed May 25, 2022, the applicant appealed the order of London-Weinstein J. to the Court of Appeal. The applicant’s appeal has not been scheduled.
[5] Legault J. was assigned as the trial judge on information 21-30103. On April 13, 2022, the Crown served the applicant with the Crown’s application to join this information and information 21-30103.
[6] On June 19, 2022, the applicant challenged the jurisdiction of Legault J. to hear the Crown’s joinder application while his appeal to the Court of Appeal is pending. Legault J. concluded that in the absence of an order from the Court of Appeal staying the proceeding, he was within his jurisdiction to consider the Crown’s application for joinder.
[7] On June 20, 2022, the applicant served his notice of motion for prohibition.
Analysis
[8] The applicant’s position is that the decision to proceed with information 21-5048 before the disposition of his appeal violates the principles of natural justice. He submits that the jurisdiction of the trial court “remains in suspension” because it is dependent on the outcome of the appeal. The applicant further submits that the notice of appeal and associated requisition had the effect of removing both the information and the record of the Superior Court of Justice to the Court of Appeal; as a result, there was “nothing left” for the Superior Court to return to the Ontario Court of Justice following the decision of London-Weinstein J.
[9] There is no merit to the applicant’s arguments.
[10] It is well-established that extraordinary remedies, including prohibition, are available to parties in criminal proceedings only for a jurisdictional error by a provincial court judge: R. v. Awashish, 2018 SCC 45. As the Court of Appeal explained in R. v. Davis, 2018 ONCA 946, at para. 13:
They are not available as a means to review or correct what are said to be errors of law in the exercise of jurisdiction. To permit recourse to them to review what are said to be errors of law gives rise to de facto interlocutory appeals and violates the general principle against interlocutory appeals in criminal cases: Awashish, at paras. 2, 10-11, 17 and 20.
[11] Lack of success is not the equivalent of jurisdictional error: Davis, at para. 15. Permitting parties access to extraordinary remedies for every perceived legal error risks fragmenting criminal trials and would be “in direct tension with the approach set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, to achieve prompt justice in criminal cases.” See also Davis, at para. 15.
[12] Contrary to the applicant’s submission, there was no loss of jurisdiction as a result of the filing of his appeal from the order of London-Weinstein J. By operation of s. 780 of the Criminal Code, upon the dismissal by London-Weinstein J. of the applicant’s application to review, the proceeding was returned to the Ontario Court of Justice to be dealt with in the ordinary course: R. v. Batchelor, 1978 CanLII 35 (SCC), [1978] 2 S.C.R. 988. The applicant’s disagreement with Legault J.’s ruling that, absent an order from the Court of Appeal staying the proceeding, he was within his jurisdiction to consider the Crown’s application for joinder, does not constitute jurisdictional error.
[13] The applicant argues that the case cannot proceed while his appeal from the order of London-Weinstein J. in the Court of Appeal is pending. He argues that the notice of appeal leads to an automatic stay of proceedings. I disagree. The court in R. v. Davis, 2018 ONCJ 604 rejected the same arguments, relying on the Quebec Court of Appeal’s decision in R. v. Boutin (1990), 58 C.C.C. (3d) 237. In Boutin, the Quebec Court of Appeal held that although s. 784 of the Criminal Code gives an accused a right to appeal from a decision refusing relief sought in proceedings by way of mandamus, certiorari, or prohibition, the accused does not have a right to a stay of the trial proceedings pending the appeal. The power to grant a stay is discretionary. The Court of Appeal in Boutin observed that, given the s. 784 right of appeal is in respect of a decision granting or refusing a discretionary remedy, it would be illogical to claim that Parliament intended that the stay of proceedings should itself be mandatory. I agree with this observation.
[14] I also note that in his notice of appeal, the applicant did not seek an order staying the matter pending the determination of the appeal, nor did he request that the appeal be expedited.
[15] The applicant also argues “[t]hat when the writ application and the requisition of the Ontario Court of Appeal have been complied with, there is nothing left before the Ontario Court of Justice or The Honourable Justice Jean G. Legault to try.” I reject this argument for two reasons. First, it ignores s. 780 of the Criminal Code, which authorized the return of the proceedings to the Ontario Court of Justice “forthwith” following London-Weinstein J.’s dismissal of the application. Second, the effective result would be to automatically stay the proceeding in the Ontario Court of Justice on the filing of the notice of appeal. I have already rejected this contention.
[16] The applicant further argues that even if his appeal does not automatically stay the proceedings in the Ontario Court of Justice, I can make an order staying the proceedings pending the outcome of the appeal pursuant to ss. 106 and 107 of the Courts of Justice Act, R.S.O. 1990 c. C.43. The applicant is incorrect. Sections 106 and 107 apply only to civil proceedings in the courts of Ontario: Courts of Justice Act, s. 95(1).
[17] For these reasons, the application is dismissed.
The Honourable Justice Ryan Bell
Released: August 12, 2022
COURT FILE NO.: CR-21-5048-01MO
DATE: 2022/08/12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
CHRISTOPHER MAIK BERNIER
Applicant
DECISION ON APPLICATION FOR PROHIBITION IN A PART III PROVINCIAL OFFENCES ACT MATTER
Ryan Bell J.
Released: August 12, 2022