IN THE SUPREME COURT OF NOVA APPEAL DIVISION
Clarke, C.J.N.S., Chipman and Freeman, JJ.A.
Cite as: R. v. Colley, 1991 NSCA 1 BET WEE N:
CLEVELAND COLLEY appellant - and - HER MAJESTY THE QUEEN respondent THE COURT: Order quashing committal for trial confirmed; appeal allowed from part of order requiring submissions of counsel to be made before same Provincial Court Judge who refused to hear submissions on preliminary inquiry per reasons for jUdgment delivered orally by Freeman, J.A.; Clarke, C.J.N.S. and Chipman, J.A., concurring. S.C.C. No. 02370 SCOTIA
) Castor H.F. Williams ) for appellant ) ) Bruce P. Archibald and ) Denise Smith ) for respondent ) ) Appeal Heard: ) March 15, 1991 ) ) Judgment Delivered: March 15, 1991
The reasons for the judgment of the Court were delivered orally by: FREEMAN, J.A.: The appellant accused, successful in to quash the Provincial Court order committing him for trial, has appealed from the order of the Trial Division remitting matter to the same Provincial submissions of defence counsel. The appellant, Cleveland stand trial on eight fraud-related counts and one of theft by His Honour Judge Hughes Randall of the application for an order in the nature of certiorari quashing the committal was heard before Mr. Trial Division. The application was based on the allegation that at the preliminary inquiry "Counsel for Mr. make submissions with respect to the charges but was not allowed to do so by the learned Provincial Court Judge." The Crown accepts that statement. The transcript discloses that after an application the Court judge to hear the Colley, was committed to Provincial Court. His Justice David Gruchy of the Colley requested to defence counsel
Castor Williams indicated in response from the bench that the accused had nothing to say on his own behalf and informed the court that there would wi tnesses, there was d iscu ssion between the judge and c oun seI as to the wording of the various charges. this Judge Randall announced that the accused would to stand trial on March 1, 1990, in County Court. Mr. Williams then said: to address the court, do you know what I He was interrupted by the judge who said: "Well as far as evidence to commit and that's aIr there has to be as far as I'm concerned." "Okay," Mr. you, your Honour." Judge Randall concluded the exchange as follows: "There's those changes that have to be, you that I've made. aut there's evidence satisfactory, in my mind, to commi t." Mr. Justice Gruchy quoted Chief Justice Laskin in Forsythe v. The Queen 2
to a statutory inquiry be no defence At the conclusion be ordered "Your Honour, I would like mean with " I'm concerned, there's ' Williams replied. "Thank know, the decision of former (1980), 53 C.C.C.
3
(2d) 225 at p. 229: " In speaking of lack of jurisdiction, was not referring to lack of initial jurisdiction of a Judge or a Magistrate to enter upon a preliminary inquiry. This is hardly rather was with the jurisdiction and, in my opinion, the situations in which there can be a loss course of a preliminary However, jurisdiction will be lost by who fails to observe a mandatory provision of the Criminal Code: see Doyle v. C.C.C. (2d)T77, 68 D.L.R. (3~270, 597. Canadian law recognizes natural justice goes to jurisdiction:-see L'Alliance des Professeurs eathoIIques de Relations Board of Quebec (I953), 107 C.~C. [1953] 4 D.L.R. l6f, [1953] case of a preliminary inquiry, I cannot conceive that this could arise otherwise than by denial to the accused of a right to call witnesses or of a right to cross-examine witnesses. Mere disallowance questions on cross-examination or other proferred evidence would not, in ,my view, amount to a jurisdictional error. Magistrate who presides at a preliminary inquiry has the obligation to obey pre sc rip t ions 0 f s , 4 7 5 [am. Supp.), s. 8] of the Criminal added) He also cited, as persuasive authority, R. (1986), 25 C.C.C. (3d) 221, ~. (2d) 282 (Ont. C.A.), B,. v , Marshall Q.B.) and Re Michael Gordon Young (1982), H.C.J.) this Court a likelihood. The concern loss of this initial of jurisdiction in the inquiry are few indeed. a Magistrate The Queen (1976), 29 [1977] 1 S.C.R. that a denial of Montreal v. Labour 183, 2 S.C.R. 140. In the a complete prosecution of a question or rulings on However, the Judge or the jurisdictional R. S • C• 1 9 70, c. 2 ( 2nd Code." (emphasis Dubois v. v , Taillefer (1978), 42 C.C.C. (1982), 9 A.R. 589 (Alta 7 W.C.B. 375 (Ont.
He quoted Holland, " A committal for trial is a for the accused. While society must be protected, the rights of the accused guarded. To refuse right to make submissions before a committal is made is a denial of natural justice. " The defence must be given a fair chance to if it can, that what might otherwise appear to be a prima facie case of guilt, could contruction placed upon it. right which was denied in this particular case." In that case, in circumstances similar to the present case, the matter was "remitted to the Provincial Court Judge who committed the appel~ants to hear argument of all counsel whether the appellants should Justice Gruchy followed that example. The appellant argues that it should not to the same Provincial Court Judge because of an apprehension of bias •. Counsel urges that above show the "judge had argume nts. " 4
C.J.O. in Taillefer as follows: very serious matter must also be jealously counsel for the accused the show, have an innocent This is a fundamental as to be committed for trial." Mr. be remitted the words of Judge Randall quoted foreclosed his mind to any
A reasonable person might arrive at that conclusion. While the words of Judge Randall might be innocuous context, following as they counsel to address the apprehension that his mind was made up. any decision Judge Randall submission of counsel would be tainted by that suspicion. We are satisfied evidentiary burden for circumstances as discussed Administrative Action, 4th London, pp. 262-268. Mr. Justice Gruchy's order committal is confirmed. The appeal is allowed from that part of his order remitting the Judge to hear submissions of counsel, and that part of the order is set aside. Concurred in: Clarke, C.J.N.S.~~L~~~ Chipman, J.A.5
in another did the denial of the right of court, they raise a reasonable In those circumstances, might come to after hearing the the appellant has met the setting aside decisions in like in de Smith, Judicial Review of ed., 1980--Stevens & Sons Ltd. quashing the order of matter to the same Provincial Court
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