



W
    A R N I N G

The President of the panel hearing this appeal directs that
    the following should be attached to the file:


An order restricting publication in this
    proceeding under ss. 539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

539(1)
Prior to the commencement of the taking of evidence at a
    preliminary inquiry, the justice holding the inquiry

(a)

may,
    if application therefor is made by the prosecutor, and

(b)

shall, if application
    therefor is made by any of the accused, make an order directing that the
    evidence taken at the inquiry shall not be published in any document or
    broadcast or transmitted in any way before such time as, in respect of each of
    the accused,

(c)

he
    or she is discharged; or

(d)

if
    he or she is ordered to stand trial, the trial is ended.

(2)

Where
    an accused is not represented by counsel at a preliminary inquiry, the justice
    holding the inquiry shall, prior to the commencement of the taking of evidence
    at the inquiry, inform the accused of his right to make application under
    subsection (1).

(3)

Everyone
    who fails to comply with an order made pursuant to subsection (1) is guilty of
    an offence punishable on summary conviction.

(4)

[
Repealed
, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467;
    R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.






CITATION:
R. v. Rutigliano, 2011 ONCA 796



DATE: 20111215



DOCKET: C54092



COURT OF APPEAL FOR ONTARIO



MacPherson, Juriansz and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Michael Rutigliano and Barry Pierson



Appellants



Scott C. Hutchison and Fredrick Schumann, for the appellant
          Rutigliano



Joseph Wilkinson, for the appellant Pierson



Richard Peck, Q.C., Scott K. Fenton, Jeff Campbell and Lynda
          Morgan, for the respondent



Heard and released orally:
December 13, 2011



On appeal from the order made by Justice Joseph M. Fragomeni
          of the Superior Court of Justice dated July 6, 2011 dismissing the
          application for an order in the nature of a writ of
certiorari
quashing the order made by Justice I. André on November 15, 2010, which
          committed the appellants to stand his trial on certain counts in the Information.



ENDORSEMENT




[1]

This is an appeal from the decision of Justice Fragomeni of the Superior
    Court of Justice refusing to quash the appellants committal for trial on
    certain counts.  The appellants argue that the preliminary inquiry justice lost
    jurisdiction when he refused to permit them to call three witnesses who had
    provided information relevant to judicial pre-authorizations that had been
    granted.  The appellants hoped to elicit evidence that would be relevant to
    potential
Charter
breaches that they intend to raise at trial.  At the
    appeal, they restricted their argument to two witnesses who were employees of a
    bank.

[2]

Both the preliminary inquiry justice and the appeal judge regarded the
    proposed witnesses as sub affiants who could only be cross-examined with leave
    of the court.  From that perspective, the appeal judge explained in his careful
    and detailed reasons, that in refusing to grant leave, the preliminary inquiry
    justice made an evidentiary ruling that was within his jurisdiction to make. 
    The preliminary inquiry justice had found, and had a basis for finding, that
    his refusal to allow the cross examinations at the preliminary inquiry would
    not impair the appellants right to make full answer and defence.

[3]

The appellants argue that the two proposed witnesses were not sub
    affiants and that the preliminary inquiry justice and the appeal judge should
    have treated their request to call the witnesses as part of their statutory
    right under s. 541(1) of the
Criminal Code
.

[4]

Without deciding whether the issue of the preliminary justices
    jurisdiction remained open after the appellants consented to committal orders,
    we are of the view that the appeal is without merit.

[5]

The witnesses had provided information relevant to the judicial
    pre-authorizations and the appellants wanted to examine them for that reason. 
    The witnesses had no relevance to the preliminary inquiry on any other basis. 
    The fact that the witnesses were not police officers is no basis for not
    characterizing them as sub affiants.

[6]

The appeal is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J. Epstein
    J.A.


