



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zahran, 2015 ONCA 66

DATE: 20150202

DOCKET: C58824

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ghassan Zahran

Appellant

Matthew B. Day, for the appellant

James Clark, for the respondent

Heard: January 15, 2015

On appeal from the dismissal of an application for
    certiorari to quash a committal for trial by Justice Douglas J.A. Rutherford of
    the Superior Court of Justice, with reasons reported at 2014 ONSC 2678.

ENDORSEMENT

[1]

The appellant appeals the denial of his application for certiorari to
    quash his committal for trial. He submits that the preliminary inquiry judge
    lost jurisdiction when he failed to comply with s. 536(2) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, by failing to read the statutory choice of
    mode of trial provision or by obtaining a valid waiver.

[2]

The application judge denied the application for certiorari on two
    bases: (i) substantial compliance with s. 536(2), and (ii) delay in bringing
    the application, as it was brought beyond the time limit set out in the
Criminal
    Proceedings Rules for the Superior Court of Justice (Ontario)
, SI/2012-7,
    s. 43.04(1).


[3]

The appellant was charged with multiple offences along with two
    co-accused. The appellant was initially represented by counsel, who appeared
    for him frequently in pre-hearing matters, including the scheduling of a date
    for the preliminary inquiry of all three co-accused.

[4]

However, at the time of the arraignment and election of mode of trial, the
    appellant was no longer represented. The preliminary inquiry judge obtained a
    waiver of compliance with s. 536(2) from each of the two co-accused, who were
    each represented by counsel. The following exchange took place with the
    appellant:

The Court: Now, just before you ask Mr. Zahran, you have the
    choice of electing Superior Court/judge and jury, Superior Court/judge alone,
    or trial before me in this court.

[Zahran]: Um, judge alone.

The Court: Okay; and, all right, judge alone of which court?

[Zahran]: Superior Court.

The Court: Okay.

[5]

The appellant and his co-accused were committed for trial on August 28,
    2013. The appellant remained unrepresented and did not seek to re-elect his mode
    of trial. He had a right to re-elect a jury trial within fifteen days following
    completion of the preliminary inquiry under s. 561(1)(b). The appellant again
    had counsel (not fully retained) on November 12, 2013, who then sought the
    Crowns consent for the appellant to re-elect trial by judge and jury. The
    Crown denied the request on December 30, 2013. The certiorari motion was
    scheduled for April 17, 2014. The application was denied on April 29, 2014. The
    trial is scheduled for all co-accused to commence before a judge of the
    Superior Court sitting alone on March 2, 2015.

[6]

The application judge found no loss of jurisdiction because, in all the
    circumstances, the preliminary inquiry judge substantially complied with s.
    536(2). The application judge stated at para. 30 of his reasons:

Mr. Zahran had the benefit of legal representation throughout
    his court appearances following his arrest near the end of 2011, through to
    September 11, 2012. Many of those appearances focussed on finding suitable
    dates for a preliminary inquiry and so Mr. Zahran and his counsel must have
    discussed going to trial in the Superior Court. It would be unrealistic to
    think that the mode of trial was not a matter on which they had settled.
    Indeed, with a number of co-accused, it would be unrealistic to think that any
    one of the lawyers representing the various accused had not discussed election
    plans with the others in light of s. 567, discussed above at paragraph 28,
    dealing with the situation in which co-accused elect different modes of trial.

[7]

We see no basis to interfere with his conclusion. In any event, there
    was no loss of jurisdiction because of the operation of s. 536(4.2) which
    provides:

If two or more persons are jointly charged in an information
    and one or more of them make a request for a preliminary inquiry under
    subsection (4), a preliminary inquiry must be held with respect to all of them.

[8]

Although the record does not indicate which of the co-accused requested
    the preliminary inquiry, it was clear that one or more of them did so request.

[9]

Because the preliminary inquiry judge made no error and did not lose
    jurisdiction, there is no basis to quash the committal or to order that the
    appellant be allowed to re-elect trial by judge and jury.

[10]

The
    appeal is therefore dismissed.

K. Feldman
    J.A.

Janet Simmons
    J.A.


S.E.
    Pepall J.A.


