Court File and Parties

Court File No.: CR/24-1149 Date: 2025-08-18 Ontario Superior Court of Justice

Between:

His Majesty the King Respondent

- and -

Sharaf Sharaf Applicant

Counsel:

• M. Moser, for the Crown Attorney
• A. Ostroff, for the Applicant

Heard: August 5, 2025

Before: A.J. Goodman J.

Ruling on Certiorari Application

[1] Introduction

The applicant, Sharaf Sharaf ("Sharaf") is charged with a single count of dangerous driving causing bodily harm, contrary to s. 320.13(2) of the Criminal Code, RSC 1985, c. C-46. The event is alleged to have occurred on September 1, 2024 at Hamilton, Ontario.

[2] Nature of Application

This is an application for an order in the nature of certiorari quashing the ruling of the Justice of the Peace Visser on November 14, 2024 and ordering the matter back to the Ontario Court of Justice ("OCJ") for a preliminary inquiry.

[3] Issue

The issue is whether there is a denial of the principles of natural justice in failing to grant the applicant's statutory right to conduct a preliminary inquiry, notwithstanding the discussions and events that occurred in the lower court.

[4] Unique Procedural Context

This is a very unique case, whereas the lower court did not make any determinations, per se, but rather, the focus here is on the procedures engaged by the parties and the court in having the matter committed to the Superior Court without the benefit of a preliminary inquiry.

[5] Ruling and Reasons

After hearing the submissions of counsel, I granted the certiorari application with mandamus in aid, and ordered that the matter return to the OCJ for a preliminary hearing. I advised the parties that written reasons would follow. These are my reasons.

Background

[6] Current Status

The applicant is currently before the Superior Court on an Indictment charging a single count of dangerous driving causing bodily harm.

[7] Initial Appearance and Charges

The applicant appeared in the Ontario Court of Justice on November 13, 2024, on the charge of dangerous driving causing bodily harm as well as other charges that included a charge of possession for the purpose of trafficking a Schedule I substance, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"). This was a 'set date' appearance.

[8] Representation and Withdrawal of CDSA Charge

On November 13, 2024, the applicant was represented at the proceedings by an articling student. The charge contrary to the CDSA was withdrawn by the Federal Crown. That charge was a straight indictable offence that would have entitled the applicant to a trial in the Superior Court and to have a preliminary inquiry.

[9] Mistaken Belief Regarding Preliminary Inquiry Eligibility

After the CDSA charge was withdrawn, the court heard submissions as to what should be done with the remaining Criminal Code charge. The articling student was under the mistaken impression that this charge was not eligible for a preliminary hearing. Neither Crown counsel nor the presiding Justice of the Peace realized that this was a mistake.

[10] Adjournment

Ultimately, the Justice of the Peace presiding on November 13, 2024 ordered the matter to be adjourned for one day only because the applicant was not present in court.

[11] Notice of Election and Transfer

On the following day, November 14, 2024, a Notice of Election was filed by counsel which clearly stated that the applicant was electing trial by judge and jury with a preliminary hearing. The Articling Student provided a written Notice of Election to the court. The written Notice of Election was signed by Mr. Royle and the mode of trial that was selected read, "A court composed of a judge and jury (and with a preliminary inquiry if the accused is entitled to a preliminary inquiry and if one is requested)". The Justice of the Peace ordered the matter to be transferred to the Superior Court.

[12] Crown Pre-Trial Discussion

For the purposes of this application, the applicant filed an affidavit from lawyer, Dina Abboud. Ms. Abboud evinced that:

On November 4, 2024, I was assigned to conduct a Crown pre-trial in the Applicant's matter. At approximately 3:15 p.m. that day, I held a telephone pre-trial with Assistant Crown Attorney Kathy Malkovich. During this pre-trial discussion, I was advised by Ms. Malkovich that the Crown was electing to proceed via indictment. Upon being informed of this, I advised Ms. Malkovich that the Applicant would request a preliminary hearing, and that we would need to determine a time estimate for the preliminary hearing. In response to this, the Crown indicated that the charges were not eligible for a preliminary hearing and that our office would need to file a Notice of Election and that at the next appearance the charges would then be transferred to the Superior Court of Justice assignment court. I accepted this correction and thus believed I had been mistaken with respect to eligibility for a preliminary hearing. As a result, we then discussed a time estimate for a Superior Court jury trial, which based on the anticipated number of witnesses, was agreed to require one week. After the Crown pre-trial, I recorded a summary of what had been discussed and agreed upon in our system so that it could be consulted by whichever articling student addressed the matter at the next court appearance. In these notes, consistent with my discussion with the Crown, I wrote "Need to file NOE + put into SCJ Assignment court at next appearance, not prelim eligible."

Positions of the Parties

[13] Applicant's Position

The applicant submits that the learned Justice of the Peace was misinformed as to the entitlement of the applicant to a preliminary hearing on the charge and erroneously transferred the matter to the Superior Court of Justice without allowing the applicant to have the option of a preliminary hearing.

[14] Availability of Certiorari

The applicant contends that, notwithstanding the limited availability of certiorari as a remedy in criminal proceedings, it is available where the fundamental rights of an accused are irremediably affected by the process engaged in this case, and where an appeal would offer no immediate and effective remedy.

[15] Jurisdictional Error and Natural Justice

In particular, the applicant submits that in committing him to stand trial, the lower court committed jurisdictional error by failing to apply the principles of natural justice. This is premised on erroneous information advanced by the Crown and the applicant's reliance on same, including and counsel's own misunderstanding of the availability of a preliminary inquiry in this case.

[16] Crown's Position - No Jurisdictional Error

The Crown responds submits that the lower court did not commit jurisdictional error to commit the applicant to trial without a preliminary inquiry.

[17] Crown's Argument on Statutory Language

The Crown says that, based on the authorities, there is no foundation upon which this court ought to grant the relief sought. Certiorari is not available to the applicant in this case as the Justice of the Peace did not commit a jurisdictional error by adjourning the matter to the Superior Court without holding a preliminary inquiry. The language of s. 535 plainly states that a preliminary inquiry shall be held after an accused, having been put to their election, requests one.

[18] Crown's Argument on Correct Application

The Crown submits that in this case, the Justice of the Peace correctly applied the governing provisions of the Criminal Code. On the written Notice of Election filed by the applicant's counsel, the election was to be tried by judge and jury, and with a preliminary inquiry if the accused is entitled to a preliminary inquiry and if one was requested. Thus, the Crown asserts that the certiorari ought to be dismissed, as the ruling was correct and that there was no jurisdictional error.

Legal Principles

Scope of Review on Certiorari

[19] Definition and Grounds for Certiorari

Certiorari is a type of common law writ where the applicant seeks judicial review of a judge's decision by a higher court. It can only be issued where the reviewable court has committed a jurisdictional error, for example, by failing to observe a mandatory provision or statute, or by acting in breach of the principles of natural justice: R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 11, 20, and 23; Dubois v. The Queen, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366, at pp. 373-74.

[20] Effect of Successful Certiorari

A successful certiorari application will quash the decision of the lower court: R. v. Stipo, 2019 ONCA 3, 144 O.R. (3d) 145; and Skogman v. the Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 106.

[21] Limited Scope of Review

It is well established that on an application for certiorari the scope of review is "very limited": R. v. Wilson, 2016 ONCA 235, at para. 25; and R. v. Szpyrka, 2019 ONCA 421, leave to appeal refused, [2019] S.C.C.A. No. 38752.

[22] High Threshold for Review

In R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 57, Rothstein J. explained why a reviewing judge must be satisfied the preliminary inquiry judge exceeded his or her jurisdiction on a certiorari application:

[E]xcess of jurisdiction is the standard for a preliminary inquiry judge's decision to either commit an accused to trial or issue a discharge. This high threshold for review is premised on the fact that a preliminary inquiry does not result in a final determination of guilt or innocence; therefore, there is less need for broad supervisory remedies.

Application of the Legal Principles to this Case

[23] Limited Review and Jurisdictional Error

As mentioned, the scope of review on certiorari is very limited. Such a review does not permit a reviewing court to overturn a decision of the lower court merely because that court committed an error of law: R. v. Deschamplain, 2004 SCC 76, [2004] 3 SCR 601, at para. 17. Rather, certiorari permits review only where it is alleged that the court has acted in excess of its statutory jurisdiction or in breach of the principles of natural justice which, by the authorities, amounts to an excess of jurisdiction.

[24] Importance of Preliminary Inquiries

Parliament has expressly chosen to retain preliminary inquiries for the most serious offences in the Criminal Code and to retain the applicability of the rules of evidence at those preliminary inquiries, subject to the narrow exceptions. I accept that a preliminary inquiry must be conducted according to the rules of evidence and remains an important procedural safeguard for those charged with serious offences.

[25] Jurisdictional Error Standard

The superior court may review only for jurisdictional error and not simply errors of law on the face of the record: see Dubois v. The Queen, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366, at pp. 373-74. As Doherty J.A. explained in R. v. Manasseri, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28:

[T]he reviewing court does not simply redo the limited weighing function assigned to the preliminary inquiry judge. The reviewing court can interfere only if jurisdictional error is established. The jurisdictional error inquiry looks not at the correctness of the ultimate decision, but at whether the preliminary inquiry judge exceeded or declined to exercise his or her jurisdiction in the course of arriving at that decision. [Citations omitted.]

[26] Denial of Natural Justice as Jurisdictional Error

The Supreme Court of Canada in R. v. Forsythe, [1980] 2 S.C.R. 268, 2004 SCC 77, at para. 14, held that a preliminary inquiry judge will have committed a jurisdictional error if the proceeding is conducted in a manner which is a denial of natural justice.

[27] Fair Hearing and Natural Justice

In R. v. Hughes, 2007 CanLII 20780 (ON SC), 262 C.C.C. (3d) 98 (Ont. S.C.), albeit considering whether the extent of judicial intervention at a preliminary hearing constituted a denial of natural justice, nevertheless, Dambrot J. wrote, at paras. 63-64:

My only point is that while the preliminary hearing today is conducted in accordance with the adversary system, and the accused has the right to natural justice at the hearing, nonetheless the scope of proper judicial intervention at the preliminary hearing, by virtue of its nature, may be greater than it is at trial.

The ultimate question for me to answer, then, is not whether the accused was in fact prejudiced by the interventions at the preliminary hearing, but whether he might reasonably consider that he had not had a fair preliminary hearing, or whether a reasonably minded person who had been present throughout the preliminary hearing would consider that the accused had not had a fair preliminary hearing.

[28] Procedural Fairness Under Section 540(9)

Further, under s. 540(9), I agree with the commentary articulated in the case of R. v. Ahmad et al., 2014 ONCJ 88, at para. 19:

Procedural fairness is provided to the accused under s. 540(9) by allowing the accused to apply to the preliminary inquiry judge to examine or cross-examine "any person" with respect to the information that is admitted. … No exact definition of relevancy or materiality that must be shown by the applicant is found in s. 540(9). It is a broad discretion given to the preliminary inquiry judge when he or she finds it "appropriate" to require a person to give evidence. The exercise of this discretion is only limited by the purposes of the preliminary inquiry which includes a discovery function, the powers specifically given to the preliminary inquiry judge to regulate the proceedings, and the overarching Parliamentary intent to streamline the inquiry. [Citations omitted, emphasis added.]

[29] Natural Justice in Criminal Context

Importantly, in the criminal context more generally, Ratushny J. commented in R. v. Francis, 2005 CanLII 24259 (ON SC), 202 C.C.C. (3d) 147, at para. 18 as follows:

Natural justice has been defined as the principles of procedural fairness developed by the common law and re-enforced frequently by statute. Section 7 of the Canadian Charter of Rights and Freedoms has enshrined principles of natural justice. They consisted historically of two limbs: the right to be heard and the right to an unbiased decision maker. In a modern criminal context, natural justice includes both procedural fairness and substantive fairness. [Emphasis added; Citations omitted.]

[30] Right to Make Full Answer and Defence

In an application for certiorari, the court in R. v. Newburgh, 2015 ONSC 5279 said the following when determining whether the judge acted in breach of the principles of natural justice, at paras. 23-26:

An accused person's right to make full answer and defence is one of the principles of fundamental justice protected under the Canadian Charter of Rights and Freedoms. While the accused is not entitled to those rules and procedures most likely to result in a finding of innocence, he/she is entitled to rules and procedures, which are fair in the manner in which they enable the accused to defend against and answer the Crown's case.

The principles of natural justice concern procedural fairness that ensure that an objective decision maker reaches a fair decision. In the context of the right of an accused person to make full answer and defence, there are some fundamental rules related to natural justice or procedural fairness.

First, when an accused person's interests might be adversely affected by a court, the court must allow the accused an opportunity to present his/her case which may include preparing and presenting evidence and/or responding to arguments presented by the Crown.

Second, a court's decision, which affects the right of the accused to make full answer and defence, should be based on logical proof or evidence.

Analysis

Did the lower court commit jurisdictional error in ordering committal without a preliminary inquiry being held in the circumstances of this case?

[31] Review of Transcripts

I have had the benefit of the transcripts of proceedings in the OCJ both for November 13 and 14, 2024 along with other evidence and submissions.

[32] No Failure to Observe Mandatory Provisions

Here, it is not argued that there was any failure on the part of the jurist to "observe mandatory provisions of the Criminal Code" which would result in a loss of jurisdiction: see, for example, R. v. Wagner, 2017 ONSC 6603.

[33] Preliminary Inquiry Must Be Fair

As I held in R. v. K.F., 2023 ONSC 4410, at para. 146, (albeit on another legal issue), it is unquestioned that a preliminary inquiry must be conducted fairly and according to natural justice: see e.g. R. v. Farewell, 2006 ONCJ 209.

[34] Certiorari for Denial of Natural Justice

Accordingly, a motion to quash, or certiorari, may be brought on the ground of a want or excess of jurisdiction, which term embraces the denial of natural justice including the right to a fair hearing: see R. v. Botting, 1966 CanLII 229 (ON CA), 2 O.R. 121 (Ont. C.A.), at para. 42; Reference Re Dick, 1968 CanLII 231 (ON SC), 2 O.R. 351, (Sup. Ct.); Farewell, at para. 61.

[35] Determining Denial of Natural Justice

Other subsequent cases have also applied the observations of Laskin C.J. in Forsythe. The difficulty is in determining what constitutes a "complete denial to the accused of a right to call witnesses or of a right to cross-examine prosecution witnesses" as opposed to "mere disallowance of a question or questions on cross-examination or other rulings on proffered evidence."

[36] Extent of Restriction on Cross-Examination

As Vertes J. pointed out in R. v. Kasook, 2000 NWTSC 33, at para. 41:

Ordinarily, certiorari does not lie for an error of law made within jurisdiction (such as an erroneous ruling on the admissibility of evidence or that a line of questioning cannot be pursued). This is subject of course to the proviso that rulings limiting the right to cross-examine may develop into a violation of natural justice. It is a question of the extent to which the statutory right to cross-examine has been restricted. Numerous decisions indicate that, while incidental questions in cross-examination may be curtailed by the judge at the preliminary inquiry, a blanket refusal to permit cross-examination on matters that may be relevant to issues at trial constitutes a denial of the right to make full answer and defence at the subsequent trial and would thus be jurisdictional error. [Citations omitted]

[37] Principles of Fundamental Justice

In United States of America v. Turenne, 1999 CanLII 14200 (MB KB), 137 Man R (2d) 247 (Q.B.), in reference to a preliminary inquiry, it was noted that "the court must consider whether the principals of fundamental justice require that the accused be forced to stand trial to answer what may be a manifestly unreliable case. They may be forced to stand trial even though they may eventually be acquitted": at para. 28.

[38] Preliminary Inquiry as Important Safeguard

Indeed, the Supreme Court of Canada has made it clear that the judicial screening function performed by preliminary inquiries is an important safeguard of individual rights. Its paramount purpose is to protect citizens against exposure to the risk of unwarranted trials: see R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 SCR 93, at p. 105, R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30.

[39] Primary Purpose of Preliminary Inquiry

To that end, in the case of R. v. R.S., 2019 ONCA 906, I adopt the comments along with the following principles that were fully articulated by Doherty J.A., at paras. 50-52:

The primary purpose of the preliminary inquiry is to screen out meritless allegations. A preliminary inquiry gives the accused the opportunity to have a judicial determination of whether the Crown can produce sufficient evidence to justify the case going forward to trial. The accused is entitled to have this determination made after an inquiry governed by Part XVIII, at which the accused has a full opportunity to challenge the evidence presented by the Crown. If the accused obtains a discharge, the prosecution comes to an end, except in those rare cases where the Attorney General initiates new proceedings by way of a preferred indictment. I have no difficulty in concluding that the right to challenge the evidentiary basis for the prosecution at an early stage in the process, and potentially bring the prosecution to an end, is a substantive right: see Downey (ONSC), at para. 73.

It is often said that a preliminary inquiry is not a trial and the guilt of the accused is not an issue. Both are true. To acknowledge those realities is not, however, to diminish the significance of the preliminary inquiry to an accused. As observed by McLachlin C.J. in Hynes, at para. 30:

The preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to 'protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. [citation omitted]

An accused's right to obtain a timely judicial evaluation of the evidence offered by the Crown with a view to avoiding "a needless and, indeed, improper, exposure to public trial" is a significant and substantive right, having a meaningful and direct impact on an accused's liberty and security of the person interests. [emphasis added].

[40] Statutory Interests in Pre-Trial Discovery

Although it is critical to mention that much of the jurisprudence was decided prior to the enactment of ss. 540(7) and (9), and were referring to the accused's right to cross-examine under other sections in the Criminal Code, (which is not being argued here), inherent throughout the provisions in Part XVIII are the accused's limited interests in pre-trial discovery and to assess the nature and strength of the case against them, including s. 540(1)(a). The principles continue to apply, notwithstanding the subsequent enactments to the Criminal Code.

[41] Misrepresentation by Crown

In this case, the issue is the committal to the Superior Court in the face of the admitted error and misunderstanding by the Crown, relayed to the defence about the ineligibility for the impugned offence to a statutory right to a preliminary inquiry. Of course, it is also incumbent on the defence do conduct their own research in the preparation of a defence or related procedures for a client.

[42] Defence Misled by Crown

However, based on the information contained in Ms. Abboud's affidavit, and left unchallenged by the Crown, I accept that the defense was misled or otherwise misinformed, albeit unintentionally by the Crown, as to the eligibility for a preliminary inquiry based on the index offence.

[43] Statutory Right Cannot Be Superseded

As I observed in K.F., the accused has a statutory right to a preliminary inquiry. In my opinion, the principle of trial economy or, in this case, an honest but mistaken belief or error by the Crown and defence, should not be permitted to supersede the importance of trial fairness and natural justice.

[44] Jurisdictional Error Found

In this case, I find that the lower court exceeded its jurisdiction in this regard— a breach of natural justice by virtue of the denial of the applicant's right to a preliminary inquiry as an eligible offence under the Criminal Code. It bears emphasizing that this resulted through no fault or judicial determination by the jurist in the lower court, but rather, premised on a misapprehension of the applicant's statutory right relayed to the court by both the Crown and defence.

Should a Remedy be Granted?

[45] Discretion to Grant Relief

Even where there has been a denial of natural justice leading to a loss of jurisdiction, this court retains the discretion as to whether to grant any relief on a certiorari application: see R. v. LeBlanc, 2009 NBCA 84; R. v. Papadopoulos, 2005 CanLII 8662 (ON CA), 196 O.A.C. 335 (Ont. C.A.).

[46] Denial of Relief Where No Prejudice

Courts have exercised their discretion to deny any relief in situations where the denial of natural justice was such that the defendant had not suffered any prejudice. A superior court can refuse prerogative relief if there is an equally effective alternative remedy: See Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, at p. 588.

[47] No Effective Alternative Remedy

The impugned count carries a significant penalty. There is no other effective, statutory or legal remedy available to the defence at this stage of the proceedings short of affording prerogative relief. As both parties tacitly concede, should the matter wind its way through trial and - upon conviction- an eventual appeal, there is the very real prospect of relief available to the applicant premised on the notion of ineffective assistance of counsel. It is gainsay that much judicial resources and time would be spent if this matter were to be sent back for retrial.

[48] Granting the Application

Therefore, I must conclude that the lower court committed jurisdictional error by denying the applicant natural justice. The appropriate remedy in this case is to grant the application. Given the nature of the relief being sought and its inherent, subsequent delay of the proceedings, I am also advised by applicant's counsel that s. 11(b) of the Charter is not an issue.

Conclusion

[49] Finding of Breach

I find that, in the circumstances of this case, there was a breach of the principles of natural justice, which led to a loss of jurisdiction. The certiorari application with mandamus in aid is hereby granted.

[50] Order

The committal is hereby quashed and the case shall return to the OCJ to conduct a preliminary inquiry. Order accordingly.

A.J. Goodman J.

Date: August 18, 2025

[1] The issue in R.S. was whether there was prospective or retrospective application of the Bill C-75 legislative amendments related to preliminary hearings.