Court File and Parties

COURT FILE NO.: CR-23-53 DATE: 20231120 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Darcy Joseph McGinley

BEFORE: Justice D.A. Broad

COUNSEL: Anthony Minelli, for the Applicant/Crown Lance Beechener, for the Respondent/Accused

HEARD: November 14, 2023

Endorsement

Background

[1] On September 27, 2021, the respondent was convicted of sexual assault by Justice Good in the Ontario Court of Justice at Brantford. Before he was sentenced, the respondent discharged his trial lawyer, retained new counsel and brought an application for an order setting aside the guilty verdict and declaring a mistrial. The respondent alleged that his former counsel provided him with ineffective legal assistance that undermined the fairness of his trial, advancing three grounds for his argument. First, he contended that trial counsel unilaterally decided not to call two witnesses at trial, thereby usurping his sole and exclusive right in that regard. Second, he submitted that he was not properly advised of his right to elect his mode of trial and would have otherwise elected a trial by jury in the Superior Court, and thirdly he argued that his trial lawyer had conducted an ineffective cross-examination of an important Crown witness.

[2] The mistrial application was heard in August 2022 and continued into January and February 2023. On March 21 2023 Justice Good allowed the application and declared a mistrial. She concluded that trial counsel had provided ineffective legal assistance and thereby deprived the respondent of the fair trial by deciding, against the respondent’s expressed desire, not to call two defence witnesses. In so doing Justice Good relied upon the Supreme Court of Canada’s decision in R. v. Swain, [1991] 1 S.C.R. 933 in holding that the respondent retained control of the conduct of his defence, including the decision of which witnesses to call to testify. Although she found that counsel’s refusal to call the two witnesses would not have impacted the reliability of the court’s verdict and would have been detrimental to his case, the respondent was nevertheless deprived of an important choice which belonged to him. She found that trial counsel’s conduct in this respect fell below the standard expected of trial counsel by undermining the fairness of the respondent’s trial.

[3] Justice Good did not rule upon the other two grounds advanced by the respondent in support of a mistrial on the basis that her conclusion with respect to counsel’s failure to heed the respondent’s instructions with respect to defence witnesses was dispositive.

[4] The applicant/Crown brought an application for an order by way of certiorari and for mandamus in aid, quashing the trial judge’s decision to declare a mistrial and directing her to rule upon the remaining two issues in the mistrial application.

[5] The applicant submits that Justice Good erred in law by declaring a mistrial in particular by following and not distinguishing Swain, and thereby failed to exercise her jurisdiction to complete the trial.

[6] The respondent argues that the trial judge made no error in her decision to declare a mistrial as it was clearly within her jurisdiction as the trial judge to reopen the trial prior to sentencing and order a mistrial for the reasons provided. Even if the trial judge did commit a legal error, it was not a jurisdictional error which is a requirement for the making of an order by way of certiorari. In any event, the trial judge’s reason for declaring the mistrial cannot be reasonably characterized as a legal error.

Discussion

[7] In the case of R. v. Awashish, 2018 SCC 45 the Supreme Court of Canada unanimously held at para. 20 that “certiorari in criminal proceedings is available to the parties only for a jurisdictional error by a provincial court judge. By contrast, for third parties, certiorari is available to review jurisdictional errors as well as errors on the face of the record relating to a decision of a final and conclusive character vis-à-vis the third-party.”

[8] Writing for the court, Rowe, J. observed at para. 16 that the broader approach which would permit certiorari to the parties for both jurisdictional errors and errors of law on the face of the record runs contrary to the general rule against interlocutory appeals and to the legislative objective behind s. 674 of the Criminal Code which abolishes appeals save as provided for in the Code. He added at para. 17 that permitting the parties access to certiorari review for an error of law risks fragmenting criminal trials, thereby introducing inefficiency, delay and the determination of issues on an incomplete record and would be in direct tension with the approach set out in R. v. Jordan, 2016 SCC 27 to achieve prompt justice in criminal cases.

[9] Notably, Rowe, J. stated at para. 19 that the use of certiorari to provide for de facto interlocutory appeals would give rise to an unprincipled distinction between trials before provincial courts and those before superior courts.

[10] At para. 23 Rowe, J. confirmed that in the criminal context, jurisdictional errors occur in two ways - first, where the court fails to observe a mandatory provision of a statute or second, where a court acts in breach of the principles of natural justice.

[11] The applicant submits that although it is open to a trial judge in the Ontario Court of Justice to declare a mistrial following conviction and prior to trial, if she does so by making an error of law then she has committed a jurisdictional error which would support an application for certiorari.

[12] The applicant argues that a jurisdictional error may be found in the court failing to observe the mandatory provision in s. 570 of the Code which requires that, where an accused is tried and determined by a judge to be guilty of an offence, the judge shall sentence the accused or otherwise deal with the accused in the manner authorized by law. However, the applicant also submits that on an application for certiorari the court can find a jurisdictional error due to an error of law without reliance on s. 570.

[13] The applicant seeks to distinguish Awashish on the basis that it does not touch upon the set of facts in the case at bar. The decision under review by way of certiorari in Awashish was in the context of pre-trial motions for disclosure, and therefore was truly interlocutory in nature, thereby engaging the policy objective stated by Rowe, J. against to interlocutory appeals. Awashish was not concerned with the granting of a mistrial following conviction and before sentencing.

[14] The applicant relies upon the case of R. v. Toutisanni [2007] O.J. No. 1671 (S.C.J.) aff’d 2007 ONCA 773 in which Nordheimer, J., as he then was, adopted the reasoning in R. v. Little, [1984] O.J. No. 557 (Ont. H.C.) at para. 10 that

“a superior court can review a decision of an inferior Court in quashing and information, staying a charge or declaring a mistrial even though the inferior Court has jurisdiction to enter upon the inquiry or hearing of the charge, if the inferior Court committed an error of law in making the ruling. Second, the remedies of certiorari and mandamus are available, in exceptional cases, even if the applicant has a right of appeal (emphasis added).”

[15] The applicant notes that, although Rowe, J. in Awashish rejected the approach of the Alberta Court of Appeal in R. v. Black, 2011 ABCA 349 which held that certiorari is available to parties for both errors of jurisdiction and errors of law on the face of the record if the order is such that it immediately and finally disposes of a legal right, that case similarly was not concerned with the declaration of a mistrial but with a ruling on an application for disclosure.

[16] The applicant points out that, in the case at bar, there is no other avenue of redress for the Crown, as it has no statutory right of appeal under section 676 of the Criminal Code from the declaration of a mistrial by a provincial court judge.

[17] I am unable to accept the submission of the applicant that the holding in Awashish that certiorari in criminal proceedings is available to the parties only for a jurisdictional error is distinguishable and should be confined to its own facts, that is, to interlocutory orders such as for disclosure, and that in reference to other orders, including in particular, declarations of mistrial, an error of law the face of the record by itself may support the discretionary remedy of certiorari.

[18] I agree with the respondent’s submission that the Supreme Court in Awashish could not have been more explicit. The Court clearly set forth a rule distinguishing between the rights of third parties to pursue certiorari for both jurisdictional errors and certain legal errors, and the rights of the parties to a criminal proceeding which are limited to jurisdictional error as the sole basis for seeking certiorari and other extraordinary remedies.

[19] The Court in Awashish did not qualify its determination to distinguish between the rights of third parties and those of parties to a criminal proceeding in respect of the scope for certiorari, nor did it leave open the possibility for narrowing its determination to certain types of orders. Rowe, J. considered the appellate and lower court jurisprudence and set out to remove the confusion that that had developed respecting the scope for certiorari. He also supported his finding with reference to the policy objectives underlying the rule including, importantly, lessening the unprincipled distinction between trials that proceed before a provincial courts and those before superior courts.

[20] In the recent case of R. v. M.N., 2022 ONCA 358, in which an accused sought certiorari from an order of the trial judge to refuse his application for a mistrial and re-election, the Court of Appeal followed Awashish in holding at para. 19 that certiorari is only available to parties in a criminal matter where judge of the provincial court makes a jurisdictional error.

[21] The applicant’s reliance upon s. 570 of the Code to argue that the declaration of a mistrial by a provincial court judge following conviction and prior to sentencing represents a jurisdictional error is not supported by the jurisprudence. In R. v. Kippax, 2011 ONCA 766 Watt, J.A. at paras. 62-64 observed that a trial judge who has made a finding of guilt on disputed facts has the authority to vacate the adjudication of guilt at any time before the imposition of sentence or other final disposition, noting that the authority to do so should be exercised only in exceptional circumstances and in the clearest of cases.

[22] In R. v. Kowall Watt, J.A. suggested at para. 33 that counsel is bound to bring an application to reopen a trial following conviction before the trial judge as soon as possible, and stated:

New counsel for the appellant acted properly in bringing his application to reopen rather than simply allowing the case to proceed to sentencing. The trial judge is in a better position to assess the proposed fresh evidence than is the appellate court. Had counsel in this case waited and raised the matter for the first trial (sic) on appeal he would have faced an argument that he failed to exercise due diligence in presenting the evidence.

[23] Moreover, it is well-established that it is within the trial court’s discretion to declare a mistrial, including for claims of ineffective assistance of counsel. See R. v. G.C., 2018 ONCA 392 at para. 4 where the Court of Appeal stated “An incompetence of counsel claim, brought during the course of the trial, should be approached within the principal framework for mistrial applications… It falls squarely within the discretion of the trial judge who is in the best position to assess whether such a remedy is needed in order to avoid miscarriages of justice.”

[24] R. v. Drysdale, 2011 ONSC 5451, is an example of a case in which the trial judge (Trotter, J., as he then was) declared a mistrial following conviction and prior to sentencing. Evidence emerged during the sentencing hearing that raised questions about the strength of the Crown’s case on the issue of identification, leading the defence to apply to reopen the trial. Trotter, J. granted the defence application and declared a mistrial on the basis that he could not fairly continue the trial given his prior adverse findings of credibility against the accused.

[25] I agree with the respondent that it cannot seriously be argued that Trotter, J. in the circumstances presented in Drysdale committed a jurisdictional error by reason of s. 570 of the Code. In any event, that section authorizes the trial judge to “otherwise deal with the accused in the manner authorized by law” which includes re-opening a trial and declaring a mistrial.

[26] An error of law made within a judge’s assigned jurisdiction does not constitute jurisdictional error, as a judge has “the right to be wrong.” In R. v. Villota Hill, J. observed at para. 91 “certiorari lies only where the error goes to jurisdiction and not non-jurisdictional error…Sometimes referred to as “the right to be wrong”, the incorrectness of a decision, or an error of law, made within the court’s assigned jurisdiction does not constitute jurisdictional error” (citations omitted).

[27] I accept the respondent’s submission that the law is clear, particularly post-Awashish, that certiorari is not available for purely legal errors. If a legal error was committed, it fell within the scope of the trial judge’s “right to be wrong.” In holding that certiorari is available for purely legal errors, Toutisanni, is no longer good law in light of the Supreme Court’s decision in Awashish which I find is binding on this Court.

[28] On the basis of the foregoing, it is not necessary to consider and rule upon whether Justice Good made an error of law in declaring a mistrial based upon alleged incompetence of trial counsel in reliance upon the decision in Swain.

Disposition

[29] For the reasons set forth above the application is dismissed.

D.A. Broad, J.

Date: November 20, 2023