R. v. Jonsson, 2001 SKCA 53
[7] Certiorari does not lie in the circumstances. The chambers judge correctly stated the well-established principle that certiorari is only available concerning questions of jurisdiction of an inferior court and decisions of such court which constitute jurisdictional error, including a denial of natural justice or procedural fairness. See for example Harelkin v. University of Regina. [Footnote [5]] The Provincial Court judge was clearly acting within her jurisdiction when she deemed the election pursuant to the provisions of s. 536(2). Her finding the Crown had not met its disclosure obligations was gratuitous and not within her jurisdiction but such finding does not affect her ultimate decision. This was not a court of competent jurisdiction for the purposes of deciding the disclosure issue [see R. v. Seaboyer, [Footnote [6]] Mills v. The Queen[Footnote [7]] and R. v. Laporte[Footnote [8]]. In Seaboyer Madam Justice McLachlin stated:
The jurisdiction of a judge on a preliminary hearing is conferred exclusively by Part XVIII of the Criminal Code. In Mills this court found that a justice presiding over a preliminary inquiry does not have the jurisdiction to grant a remedy under s. 24 of the Charter because a preliminary inquiry is not a “court of competent jurisdiction” under that section. The majority held that the magistrate sitting on a preliminary inquiry is not a court of competent jurisdiction because the Criminal Code gives the magistrate “no jurisdiction which would permit him to hear and determine the question of whether or not a Charter right has been infringed or denied” (per McIntyre J. at p. 493). La Forest J., agreeing with this view, elaborated on the task of the magistrate at p. 565:
The task of the preliminary hearing magistrate under the Criminal Code is by the Code limited in essence to determining whether, in his opinion, the evidence presented before him is or is not sufficient to commit the accused for trial; if it is, he is to commit the accused; otherwise, he must discharge him.
I see no warrant in the Charter for extending the ambit of the specific task assigned to the magistrate by the Code. From a practical standpoint, too, I would think this would unnecessarily complicate his task, require more evidence or at least a more thorough sifting of evidence than is required at a preliminary hearing, and in any event require the magistrate to look at the issues before him in a manner different from that contemplated by the Code.
I see no reason to depart from the statement of McIntryre J. in Mills that the Criminal Code does not permit a preliminary inquiry judge to determine whether a Charter right has been infringed or denied. Both statutory interpretation and policy support this view. The Criminal Code restricts the task of the preliminary inquiry judge to determining if there is a sufficient case to warrant prosecution. While evidentiary rulings may be made in the course of discharging this function, they have no effect on the outcome of the trial or the accused’s guilt or innocence. To discharge the function of determining if there is sufficient evidence to warrant committal it is sufficient to accept the rules of evidence as they stand; the rights of the accused do not require more at this stage. As for policy, there is much to be said for leaving Charter challenges in so far as possible to the trial judge. The trial judge is likely to have a more complete picture of the evidence and its significance in the context of the case and is thus better situated to decide such questions. Moreover, permitting constitutional challenges before the preliminary court judge is likely, as in this case, to produce interlocutory appeals on narrow issues which may take years to complete, during which time the trial is delayed. All these reasons suggest constitutional questions are best left to the trial judge. [Footnote [9]]
[8] Further the respondent had an alternate remedy. He could have made an application to a court of competent jurisdiction pursuant to s. 24 of the Charter of Rights and Freedoms to have the disclosure issue decided. This was never done notwithstanding the numerous adjournments. The disclosure process is set out in R. v. Girimonte[Footnote [10]] at p. 49-50:
[41] In Stinchcombe, supra, at p. 12, Sopinka J. observed that most disclosure problems could be resolved by reasonable discussions between counsel conducted in good faith. I share that view. I would add that in complex cases, like this one, where judicial “pre-trials” are available in the Provincial Division those “pre-trials” afford an excellent opportunity for counsel to solicit the assistance of a judge in resolving contentious disclosure issues. We are fortunate in Ontario to have a highly qualified and respected criminal bench in the Provincial Division. The experience and expertise of those judges can prove invaluable in resolving disclosure disputes in a manner which ensures compliance with Stinchcombe and avoids unnecessary delay and protracted preliminary inquiries. Even though judges of the Provincial Division cannot review Crown disclosure decisions (except where the trial is in the Provincial Division), their view as to what material should be disclosed should, and no doubt, will carry great weight with Crown counsel.
[42] In rare cases, the Crown will not have provided sufficient disclosure to allow the accused to make a reasonably informed election. If the Crown takes the position that the requested disclosure will be made, but requests further time to make that disclosure, a justice should adjourn the taking of the election and allow the Crown a reasonable time to fulfill its disclosure obligations. If the time needed to make proper disclosure is inordinate, any delay in the proceedings will count against the Crown. If there is a true disclosure dispute, that is the Crown refuses to produce material which the defence claims should be produced and is essential to the making of an informed election, a justice may adjourn the taking of the election to allow the accused to seek the appropriate remedy in the superior court. If it turns out that the Crown has improperly withheld disclosure, any delay caused by the bringing of that application in the superior court will count against the Crown. [Footnote [11]]
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