



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davis, 2018 ONCA 946

DATE: 20181123

DOCKET: C65772

Watt, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Neil Davis

Appellant

Michael A. Moon, for the appellant

Jennifer Conroy, for the respondent

Heard and released orally: November 9, 2018

On appeal from the decision of
    Justice Joseph Di Luca of the Superior Court of Justice, dated July 31. 2018,
    dismissing applications for orders in lieu of prohibition,
procedendo
,
    with
certiorari
in aid, from the ruling of Justice David S. Rose of
    the Ontario Court of Justice, dated April 9, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from a decision of a judge of the Superior Court
    of Justice refusing to issue orders in lieu of prohibition and
procedendo
with
certiorari
in aid.

The Background Facts

[2]

During an unrelated investigation which caused them to be in the Regional
    Municipality of Peel, officers of York Regional Police Services arrested the
    appellant in Mississauga on charges of trafficking in cocaine and possession of
    cocaine for the purpose of trafficking. The offences are alleged to have
    occurred in Mississauga.

[3]

In the usual course of events, offences alleged to have occurred in the
    Regional Municipality of Peel, are tried in that jurisdiction. But here,
    arresting officers transported the appellant back to the Regional Municipality
    of York where the information, alleging offences in Mississauga, was laid; a
    bail hearing held; and the appellant subsequently required to appear for trial.

[4]

Over the next ten months, the appellant appeared before judges of the
    Ontario Court of Justice in Newmarket, the judicial seat of the Regional Municipality
    of York and the Central East Region. His counsel also appeared and participated
    in a judicial pre-trial. About sixteen months in Newmarket, ago the appellant
    elected to be tried in the Ontario Court of Justice. A trial date was fixed for
    what was anticipated to be a three-day trial.

The Pre-Trial Motion

[5]

On the first day of trial, the appellant objected to the territorial
    jurisdiction of the court. He asked the trial judge not to hear the case
    because the court in that judicial Region (Central East) had no jurisdiction to
    hear a case in which the offences charged were alleged to have been committed
    entirely in another Region (Central West).

[6]

The presiding judge dismissed the application. The appellant pleaded not
    guilty. Before trial proceedings could get underway, counsel for the appellant
    filed a Notice of Application for an order in lieu of prohibition with
certiorari
in aid in the Superior Court of Justice. The relief sought was an order
    prohibiting the trial judge from proceeding with the appellants trial.

The Decision of the Application Judge

[7]

The application judge dismissed the application and directed that
    proceedings be returned to the trial judge to continue the trial.

The Notice of Appeal

[8]

The appellant filed a Notice of Appeal in this court challenging the
    decision of the application judge. He sought, among other things, an order from
    a single judge of this court staying the continuation of the trial proceedings
    pending the determination of the appeal. The single judge declined to make the
    order but directed that the appeal be expedited.

Analysis

[9]

In our view this appeal fails for two reasons.

[10]

First,
    it fails on its merits for the reasons given by the application judge in the
    Superior Court of Justice.

[11]

Second,
    it fails for the reasons expressed in the decision of the Supreme Court of
    Canada in
R. v. Awashish
, 2018 SCC 45, a judgment not available to
    counsel or to the courts below.

[12]

The
    challenge to the territorial jurisdiction of the trial court was based on a submission
    that the effect of s. 470 of the
Criminal Code
and various provisions
    of the
Courts of Justice Act
, in particular s. 36, was that
    territorial jurisdiction resided in the place where the offence was alleged to
    have occurred, that is to say, the Regional Municipality of Peel. The appellant
    invoked the jurisdiction of the trial court to decide this issue. The trial
    court decided the issue. The appellant disagreed with the decision. According
    to him, the trial court erred. The appellant then sought relief from the
    Superior Court of Justice, invoking that courts supervisory authority under
    Part XXVI of the
Criminal Code
.

[13]

It
    is well established and confirmed by the decision in
Awashish
that
    extraordinary remedies, among them prohibition,
procedendo
,
and
certiorari
,
are available to parties in criminal
    proceedings only for a jurisdictional error by a provincial court judge. They
    are
not
available as a means to review or correct what are said to be
    errors of law in the exercise of jurisdiction. To permit recourse to them to
    review what are said to be errors of law gives rise to
de facto
interlocutory appeals and violates the general principle against interlocutory
    appeals in criminal cases:
Awashish
,
    at paras. 2; 10-11; 17 and 20.

[14]

In
    this case, the appellant, having already attorned to the jurisdiction of the
    trial court by several appearances; the conduct of a pre-trial; an election of
    mode of trial; and setting of a trial date advanced an argument about what is
    termed territorial jurisdiction. It necessarily follows that the appellant
    acknowledges the trial courts authority, said otherwise jurisdiction, to
    decide this issue. The appellant and respondent advanced arguments about the
    effect of several statutory provisions on the authority of the court to try the
    case. The trial judge decided the issue by interpreting the effect of those
    provisions. His authority to make that decision, said otherwise his
    jurisdiction to do so, was not dependent on the correctness of that decision.
    Right or wrong he had the authority to make that call. He did not have
    jurisdiction only if he were correct and lose it if he were wrong. He did not
    contravene any mandatory provision of the
Criminal Code
nor act in
    breach of the principles of natural justice. The extraordinary remedies are not
    available to review that decision.

[15]

It
    would appear that the appellant has several other pre-trial applications in
    mind for the trial judge. No doubt experienced counsel will proceed with these
    motions in a timely way on the basis of proper material. That said, counsel
    should also bear in mind the teachings of
Awashish
that lack of
    success is not the equivalent, or even a reasonable facsimile, for
    jurisdictional error. There is a general prohibition against interlocutory
    appeals in criminal cases. Accessing extraordinary remedies for every perceived
    legal error violates this principle and is in direct tension with the approach
    set out in
R. v. Jordan
, 2016 SCC 27,
which exhorts all principals in the criminal
    justice process to assist in the timely and informed resolution of allegations
    of crime.

[16]

The
    appeal is dismissed.

David Watt J.A.

K. van Rensburg J.A.

David Brown J.A.


