



COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario
    (Attorney General) v. Collins, 2012 ONCA 76

DATE: 20120203

DOCKET: M40735 (C52985)

Weiler, Sharpe and Blair JJ.A.

BETWEEN

The Attorney General of Ontario

Respondent

and

Maxine Collins

Appellant [Moving party]

Maxine Collins in person

Greg Skerkowski, for the respondent

Heard and released orally: January 31, 2012

ENDORSEMENT

[1]

The appellants private prosecution was stayed by the Attorney
    General pursuant to s. 579(1) of the
Criminal Code
before her case had
    been considered by a justice of the peace on a pre-enquete hearing pursuant to
    s. 507.1.

[2]

The appellant applied for mandamus to require the justice of the
    peace to proceed with the pre-enquete. The application judge held that the
    recent decision of this court in
R. v. McHale,
2010 ONCA 361
, 256 C.C.C. (3d) 26, leave
    to appeal refused [2010] S.C.C.A. No. 290, stood as binding authority that the
    Attorney General was entitled to stay the proceedings and therefore dismissed
    the mandamus application.

[3]

The appellant wishes to challenge the authority of
R. v.
    McHale
and asked the Chief Justice to strike a five-judge panel to hear
    her appeal.

[4]

On August 24, 2011, Mr. Kromkamp, the Courts senior legal
    officer, wrote to the appellant advising her that O'Connor A.C.J.O. had reviewed
    both her correspondence requesting a five-judge panel and her appellants
    factum but that he had declined to grant her request.

[5]

The appellant moved for an order to review and to set aside that
    decision before Goudge J.A. In his endorsement, dated November 18, 2011, Goudge
    J.A. stated:


In my view the order of O'Connor A.C.J.O. is correct. I see no
      reason for a five-judge panel. Motion dismissed.


[6]

The appellant now moves to review and set aside the order of
    Goudge J.A.

[7]

In our view, the motion must be dismissed on the ground that
    there is no authority to review or appeal a decision of the Chief Justice of
    Ontario or the Associate Chief Justice of Ontario to assign, or to refuse to
    assign, five judges to hear an appeal.

[8]

The Chief Justice of Ontario and, in his or her absence, the
    Associate Chief Justice of Ontario, has, by virtue of the
Courts of Justice
    Act
, s. 5(1) and (2) "general supervision and direction over the
    sittings of the Court of Appeal and the assignment of judicial duties of the
    court." It is pursuant to that authority, and to the court's practice,
    that those judicial officers determine when it is appropriate to assign five
    judges to hear a case. Neither the
Courts of Justice Act
nor the
Rules
    of Civil Procedure
provide for any appeal or review from decisions of the
    Chief Justice or Associate Chief Justice with respect to the assignment of
    judicial duties.

[9]

We would add, however, that it is still open to a panel of three
    judges assigned to hear a particular case, to ask the Chief Justice to consider
    assigning the case to a panel of five judges if that panel of three is
    persuaded that an arguable case can be made for reviewing or overruling one of
    this court's past decisions.

[10]

For these reasons, this motion is dismissed.

K.M. Weiler J.A.

Robert J. Sharpe J.A.

R.A. Blair J.A.


