R. c. Ben Aïssa, 2016 QCCQ 2830
Jurisdiction to quash a subpoena
[23] On the matter of jurisdiction, the case law is unanimous: only a judge of the Superior Court has the power to quash a subpoena.
[24] In R. v. Rashwan, 2001 CarswellOnt 5641, 56 W.C.B. (2d) 286, the Crown prosecutor applied for a motion to quash a subpoena issued at the behest of a self-represented accused. Justice Fernandes of the Ontario Court of justice ruled that he did not have the power to quash subpoenas issued by a Justice of the Peace, a judicial officer of the same court.[6]
[25] The decision in Rashwan, was based on two precedents: R. v. Boissonneault (1993) O.J. 2485, a decision of Salhany J. of the Ontario Court (Gen. Div.) and R. v. Morissette (1990) O.J. 2487, a decision of Fontana J. of the Ontario Court, Provincial Division. Both these cases support the proposition that the jurisdiction to quash a subpoena can only be exercised by a judge of the Superior of Court.[7]
[26] Authority for the view that a subpoena can only be quashed by a court of superior jurisdiction can also be found in R. v. Primeau, 1995 CanLII 143 (SCC), [1995] 2 SCR 60, a decision of the Supreme Court of Canada. In that case, the central issue concerned the compellability of a witness subpoenaed to testify at the preliminary hearing of two individuals charged with murder. As the accused also faced a murder charge for the same crime (he was charged separately), he filed a motion seeking relief under s. 24(1) of the Charter to prevent him from being called as a witness and a writ of prohibition to prevent the Provincial Court judge from compelling his presence and testimony at the preliminary inquiry.
[27] None of the parties took issue with the jurisdiction of the Superior Court to hear the challenge to the subpoena. In fact, the Superior Court’s authority on the matter was taken for granted. The only procedural issue concerned the remedial powers of certiorari to include the Charter remedies sought through s. 24(1) of the Charter. However, the manner in which the Court framed and decided the procedural issue left no doubt that the Superior Court alone had the power to hear a third party challenge to a subpoena:
XIII. As a result of these two differences, the procedural route to follow for a third party is determined by the level of court issuing the order. A provincial court order is to be challenged through an application to a superior court judge for the extraordinary remedy of certiorari. However, given that this remedy is limited to the quashing of an order, the Court decided that it was necessary, for specific circumstances, to enlarge the remedial scope of certiorari (at p. 866)[8] : (underlining added)
it is open to this Court to enlarge the remedial powers of certiorari and I do so now for limited circumstances. Given that the common law rule authorizing publication bans must be consistent with Charter principles, I am of the view that the remedies available where a judge errs in applying this rule should be consistent with the remedial powers under the Charter. Therefore, the remedial powers of certiorari should be expanded to include the remedies that are available through s. 24(1) of the Charter. [Emphasis in original.]
XVI. As the order in question has been issued by the Provincial Court, the appellant must challenge it by seeking the extraordinary remedy of certiorari from a superior court judge. Technically, of course, the appellant has not followed the correct procedure as he sought relief in the form of a s. 24(1) Charter remedy and by means of prohibition. However, neither the appellant nor the superior court judge had the benefit of the reasons of this Court in Dagenais to guide them. If one examines the nature of the application made by the appellant, there is considerable resemblance between prohibition and the s. 24(1) remedy sought, and the expanded notion of certiorari developed in Dagenais. (emphasis added)
[28] Not without consideration is the fact that my authority as a judge presiding a preliminary inquiry is strictly governed by statute (part XVIII of the Criminal Code). Thus, I have no inherent powers outside those that are specifically set out in the Criminal Code. As no statutory provision entitles me to quash a subpoena, I can only conclude that such an order is beyond the scope of my modest jurisdiction.
[29] In short, both the weight of judicial authority and the limited powers of a magistrate at a preliminary hearing, lend themselves to the conclusion that I cannot rule on an order to quash a subpoena.
-Power to adjudicate the subpoena on the basis of relevance
[30] The want of jurisdiction with regards to quashing a subpoena does not mean that I do not have the authority to call upon the accused (Mr. Ben Aïssa) to explain how the object of the subpoena (the written defence) is likely to be relevant in the present proceeding. As Justice Fernandes explained at paras. 4 and 6 of his decision in Rashwan, supra, such an inquiry is fundamental to the Court process:
Having ruled that it does not have jurisdiction to quash subpoenas issued by a justice of the peace, a member of this court, this court is of the view, however, that in the appropriate circumstances it has the authority to inquire of the party that has caused a subpoena to issue by a justice of the peace, to demonstrate how that particular witness under subpoena is likely to give material evidence in the proceedings. This is an appropriate function of the trial court.
Just because a subpoena has been issued by a justice of the peace does not mean that the trial judge is then stopped from inquiring in appropriate circumstances whether or not a witness has material evidence to give at that trial. This court invited Mr. Rashwan, no less than five times, to demonstrate how Mr. Ronald Oswald is a material witness likely to give material evidence at this trial, at this trial involving a charge of criminal harassment in which Mr. Rashwan stands as the accused.
[31] In R. v. Maleki, 2006 ONCJ 401 (CanLII), Justice Lane of the Ontario Court of Justice remanded applications to quash a subpoena to the Superior Court. At para. 4 of his judgement, he summarized the Superior Court’s decision holding that a judge of the Ontario Court of Justice (provincial court)—though powerless to decide an application to quash—was entitled by virtue of s. 700(2) of the Criminal Code to hear submissions as to whether or not the evidence was receivable at the trial :
On May 15, 2006, Ducharme J. found that a judge of the Ontario Court of Justice clearly has jurisdiction to hear an application under s. 700(2) of the Criminal Code, and directed that I hear the submissions of the applicants and determine whether the witnesses should be excused. Ducharme J. applied Re. Chase and the Queen (1982) 1982 CanLII 304 (BC SC), 1 C.C.C. (3d) 188 (B.C.S.C.) where MacKay J. found that, while it was quite true that only the superior court has jurisdiction to quash subpoenas, such an order was not necessary, and that it was for the trial judge to make a determination of whether or not the evidence of the applicant is receivable on the trial. “If the trial judge concluded that the evidence was not receivable then he has the power, under s. 628(2) (now s. 700(2)) of the Criminal Code, to excuse the witness from attending.” In the words of MacKay J., “the question is really one going to the admissibility of evidence….”
[32] At para. 7 in Maleki, Justice Lane expanded on the case law authorizing a judge to inquire on the relevance of a witness’ testimony and to excuse them if the testimony was immaterial to the proceedings :
The power of a justice of the Ontario Court of Justice to excuse witnesses under s. 700(2) of the Criminal Code has been upheld in other situations: R. v. Rashwan [2004] O.J. No. 4747 (Spiegel J. of the Ont. S.C.) agreeing with similar rulings by Trafford J. (at para. 12) and by Dambrot J. (at para. 13); R. v. Sunoco Inc. [1986] O.J. No. 2319 (Rosenberg J. of the Ont. S.C.). In a recent application to quash subpoenas in the Superior Court by the C.B.C., O’Driscoll J. held that the matter should properly be argued before the trial judge, and remitted the case back to the Ontario Court of Justice: Canadian Broadcasting Corp. v. Canada 2006 ONCJ 54 (CanLII), [2006] O.J. No. 722 (Cole J. O.C.J.). In light of this jurisprudence, it appears that the finding of my brother Knazen J. in R. v. E. (R.) [1991] O.J. No. 841 (Ont. C. Prov. Div.) restricting the use of section 700(2) of the Criminal Code to physical attendance, as opposed to a discretion to excuse, and the decision of my brother Fontana J. in R. v. Morissette [1990] O.J. No. 2487 (Ont. C. Prov. Div.) declining all jurisdiction to excuse witnesses, have been bypassed. Further to the direction of Justice Ducharme, I find that I do have jurisdiction to deal with the applications before me.
[33] The said decisions are consistent with the powers of a preliminary inquiry judge to make all evidentiary rulings, with admissibility determined by relevance, a concept which is not governed solely by the narrow test for committal.[9] As explained by Justice Arthur W.D. Pickup in R. v. Ellis, 2012 NSSC 329 (CanLII), para. 17 :
It is important to note that a preliminary inquiry judge has jurisdiction to make all evidentiary rulings, and the issue of whether these witnesses are relevant to the inquiry can be put squarely before the preliminary inquiry judge to resolve. The preliminary inquiry judge can determine the nature and scope of the examination of witnesses, and rule on any objections.
