R. v. R.S., 2019 ONCA 906
[68] The appellants submit that, because the order of Thomas R.S.J. was given in a prerogative writ proceeding rather than on an appeal, Ontario Court of Justice judges are not bound by his ruling that the Ontario Court of Justice has no jurisdiction to conduct preliminary inquiries requested prior to September 19, 2019. As I understand this argument, the appellants contend that, because the scope of prerogative writ applications is tied to jurisdictional questions, as are the remedies available in those applications, any order made on a prerogative writ application cannot be binding on the Ontario Court of Justice, even if the jurisdictional determination involves a ruling on a pure question of law. On this analysis, a ruling on a question of law made in the context of a prerogative writ application is persuasive, but not binding on the Ontario Court of Justice. Exactly the same ruling made by the same judge, but in the context of an appeal in the Superior Court of Justice, is binding on the Ontario Court of Justice.
[69] Mr. Gold, but not Mr. Halfyard, goes a step further. He submits that, as a matter of logic, this court’s decision in a prerogative writ matter is not binding on any other court in Ontario. Presumably, the same logic means that any decision of the Supreme Court of Canada in a prerogative writ matter is also not binding on any court in Canada.
[70] It may be that at some time in the past, the record available on a prerogative writ application and the record on an appeal were sufficiently different that one could properly distinguish, for stare decisis purposes, between rulings on questions of law made on prerogative writ applications and the same ruling made on appeal. I see no justification for that distinction now. This court and the Supreme Court of Canada have both accepted that stare decisis is applicable in the prerogative writ context: see R. v. Sansalone, 2013 ONCA 226, 303 O.A.C. 350, at para. 11; Bessette v. British Columbia (Attorney General), 2019 SCC 31, 376 C.C.C. (3d) 147, at para. 45.
[71] During argument, counsel submitted that Bessette is of limited value. He argued that the court merely accepted a concession made by the Attorney General. I do not read the reasons that narrowly. Bessette involved a prerogative writ application in respect of statutory provisions governing an individual’s right to choose to have his trial in French or English. The superior court judge had declined to consider the merits of the application. In holding that the superior court judge should have considered the merits, the court pointed to the practical efficiencies of doing so. The court said, at para. 45:
Further, and crucially, the Attorney General acknowledged in oral submissions that a Supreme Court of British Columbia decision on the language of Offence Act trials would serve as binding precedent for the statutory courts hearing such trials in the province. Thus, had the Supreme Court judge decided the merits of Mr. Bessette’s petition, his decision would have discouraged further interlocutory appeals on the same ground, rather than encouraging them. [Italics in original, underlining added; citations omitted.]
[72] I read the court as indicating that the Supreme Court of British Columbia should have heard the merits of the application because, in doing so, it could have determined the legal issue for the entire trial court and avoided the confusion and costs of repeated litigation. The court did not come to the conclusion that the superior court bound the trial court in the context of a prerogative writ application merely because the Attorney General conceded the point. Rather, the court observed that the Attorney General “acknowledged” the application of stare decisis in the context of prerogative writ applications. In other words, the Attorney General acknowledged what the court clearly regarded as the proper legal interpretation of the stare decisis doctrine as it relates to prerogative writ applications.
[73] More to the point, and setting aside what courts have said, there is no practical or policy reason for drawing the distinction urged by the appellants. The courts are hierarchical. The Superior Court of Justice is above the Ontario Court of Justice in the hierarchy. The doctrine of stare decisis compels courts who are subject to the supervisory authority of higher courts to apply the law as pronounced by those higher courts. That obligation exists to promote order, certainty and efficiency. The justification for the doctrine applies equally to decisions on questions of law made on prerogative writ applications as it does to decisions on questions of law made on appeals. The distinction urged by the appellants runs dead against the purposes of the doctrine of stare decisis.
[74] Several judges of the Ontario Court of Justice have held that they were bound by the decision of Thomas R.S.J.: see R. v. Dabrowski et al., 2019 ONCJ 677; R. v. Benoit (30 September 2019), Sudbury (Ct. J.); R. v. Clark et al., 2019 ONCJ 678; R. v. Dumlao, 2019 ONCJ 692; R. v. Rival (1 October 2019), Kitchener (Ct. J.); R. v. Iaboni et al., 2019 ONCJ 689; R. v. Rasidoff (2 October 2019), Barrie (Ct. J.); R. v. Mehring, 2019 ONCJ 691. They were correct to do so.
[75] The decision of Thomas R.S.J. on the jurisdictional issue presented to him involved the determination of a question of law. His determination of that question was binding on judges in the Ontario Court of Justice, just as this court’s determination is binding on judges in the Superior Court of Justice and the Ontario Court of Justice.
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