Ontario Court of Appeal decision addresses interlocutory motions

By John L. Hill

Law360 Canada (July 6, 2022, 2:26 PM EDT) --
John Hill
John L. Hill
When will it ever end? This is the cry sometimes heard from criminal litigants and counsel for both the defence and the Crown. Apart from disclosure delays, extensive waits for court dates and lengthy trials, sometimes delays occur because of the time it takes to litigate interlocutory motions. A recent Ontario Court of Appeal decision has effectively shut the door on one such motion that had it been granted could have elongated trial times in Ontario: R. v. M.N. 2022 ONCA 358

M.N. was charged with sexual assault in June 2019. With delays, his trial is not expected to conclude until the fall of 2022. M.N. was granted bail. In November 2019, he elected to be tried by judge alone. In July 2021, late production was made of an occurrence report concerning a complaint accusing M.N. of breaching his bail by contacting the complainant. No new charge had been laid.

Nonetheless, M.N. claimed that this late disclosure impacted on his right to make an effective election to have his trial conducted by a judge before a jury. To remedy his situation, M.N. asked for a mistrial and when that was refused, he sought an order in the Superior Court for an order for certiorari setting aside the trial judge’s decision and for mandamus directing the trial judge to order his re-election to judge and jury trial. An application judge ordered the continuation of the trial in the Ontario Court of Justice.

M.N. appealed. The sole issue adjudicated in the Ontario Court of Appeal was to determine if the application judge erred in refusing certiorari quashing the trial judge’s decision and the refusal to grant mandamus to allow M.N. to re-elect.

The Appeal Court acknowledged that certiorari is an extraordinary remedy to be used only in “tightly limited” situations. This is to prohibit interlocutory appeals. The general rule is that appeals are allowed only once the trial has ended. The prohibition of interlocutory appeals has become well established in part to speed the ultimate resolution of criminal matters.

Certiorari is available only when a provincial court judge commits a jurisdictional error. The main argument in this appeal case was that M.N. had to make a decision on his mode of trial months, indeed years, before full disclosure was made. Is it just that he should have to wait to the end of his trial in order to bring an appeal and only then, if successful, correct the method in which he stands trial?

The Ontario Court of Appeal accepted the notion that allowing certiorari in the provincial court could lead to substantial delays if this floodgate allowing interlocutory motions were opened. The same argument could later be used in trials conducted in Superior Court.

A key argument put before the Ontario Appeal Court was that to deny M.N. a right to re-elect during trial would put him at a disadvantage to a person being tried in Manitoba. It was pointed out that in R. v. Ruston [1991] M.J. No. 112 (Man. C.A.) the accused attempted to re-elect when the Crown announced its intention to call similar fact evidence after the time frame for re-election as of right had expired. The Court of Appeal in that province held Michael Dean Ruston’s rights to a trial by jury had been infringed.

However, the Ontario Appeal Court held that Ruston has no application in Ontario. It was long-standing precedent in Ontario that there is no right of immediate interlocutory appeal from any decision implicating an accused’s Charter rights where jurisdictional error is alleged.

Even if the allegation was ineffective assistance of counsel, which was not alleged, it has not been demonstrated that M.N. has been prejudiced.

Finally, the court turned its attention to the nature of certiorari. It is a discretionary remedy. It would be incumbent on the applicant to establish that the circumstances are such that it is in the interests of justice to grant a prerogative remedy.

In dismissing this appeal, the Ontario Court of Appeal took one small step in ensuring the efficiency of criminal trials in Ontario.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.

Photo credit / Sergei Fedulov

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