Supreme Court of Canada
Batchelor v. R., [1978] 2 S.C.R. 988
Date: 1977-12-20
Fred Batchelor (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1977: March 25; 1977: December 20.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Extraordinary remedies—Prohibition—Application for prohibition and motion to quash—Criminal Rules requiring return of all documents—Failure of Provincial Court to make the return—Right of Provincial Court to proceed further on failure to make return—Ontario Criminal Appeal Rules 4-8—Criminal Code, s. 714.
Appellant was charged on April 3, 1975, with impaired driving and was brought before the Provincial Court on the same day. Problems arose with fixing a date for trial. After new informations charging the same offences had been laid on July 17, 1975, and the accused appeared on September 12, 1975, the case was rewarded for a week. On September 19 again no trial date was fixed and then on September 26, despite objections by the defence, a further adjournment was directed “to set a date for the trial”. On September 29, 1975, appellant moved to quash to order adjourning the case, to quash the proceedings and to prohibit any Provincial Court Judge from proceeding with the matter. The notice of motion was served on the Provincial Court Judge with the endorsement prescribed by Rule 6 of the Ontario Criminal Appeal Rules requiring him to make a return of the record to the Supreme Court. The motion to prohibit was made returnable on October 10, 1975, in accordance with the Rules. However on October 3 the Provincial Court Judge before whom the matter came directed that the trial proceed on October 8. Counsel for appellant did not draw to the Court’s attention that he had moved for prohibition. On October 8, on being advised of the motion the case was set over to October 15 to set a new trial date. Because the transcript of proceedings (Rule 8) was not ready there were several consent adjournments of the motion eventually to December 5, 1975. Neither appellant nor his counsel appeared before the Provincial Court on October 15. A different Provincial Court Judge presided and a new Crown counsel appeared and asked for a bench warrant for the arrest of the appellant. The arrest was made but
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appellant released on a recognizance of $500 with one surety. The case was then remanded for one week to December 11, 1975. On December 5 a second notice of motion was brought seeking to quash the warrant of arrest, set aside the order for a recognizance and the recognizance, asking for prohibition and asking that the return required Rule 7 be made. Both motions were then adjourned to December 12 and then to December 23. The remand date of December 11 had intervened and, while neither appellant nor his counsel appeared and the judge issued a bench warrant, counsel who had previously appeared for him addressed the Court as amicus curiae and objected that the Court had no jurisdiction to make any order in the matter before it. The judge suggested that the execution of the warrant be postponed pending termination of the prohibition proceedings. That same afternoon the case was called again and an order sought and made for forfeiture of appellant’s bail. This resulted in a third notice of motion for prohibition. All three motions were dismissed on December 23 on the basis that the service of the notices of motion to prohibit did not deprive, suspend or strip of jurisdiction the Provincial Court Judge. The subsequent appeal was dismissed by the Court of Appeal without reasons.
Held: The appeal should be allowed.
Per Laskin C.J. and Judson, Spence and Dickson JJ.: The argument by the Crown that if the effect of a motion for prohibition and for an order to quash is to suspend the jurisdiction of the Provincial Court Judge pending disposal of the motion, there would be a stultification of criminal proceedings in the Provincial Courts, was not persuasive. Such an argument could equally apply to any proceedings, civil or criminal, available to challenge the jurisdiction of an inferior Court Judge, and Superior Courts are well able to control abuses of process should they occur or recur. However the matter is regarded there must be a suspension of jurisdiction when an application to quash or an application to prohibit and to quash is served on an inferior court with the command, under the rules, to make a return forthwith. The judge compelled to make the return cannot go on with the matter before him until the application to the Superior Court is disposed of. While not holding that there was any loss of jurisdiction in the Provincial Court
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the unexplained delay by the Provincial Court Judges to make the return forthwith had the same effect as if a return was properly made whereupon jurisdiction was suspended. Hence the Provincial Court had no power to order the arrest of the accused, no power to require that he enter into a recognizance of bail and no power to order forfeiture of bail. Jurisdiction over the accused in respect of the charges was not however lost by the Provincial Court.
Per Martland, Richie, Pigeon, Dickson, Beetz and de Grandpré JJ.: The main issue is the effect of the service of a notice of motion for prohibition and to quash proceedings pending in the Provincial Court on the jurisdiction of that Court, in a case where the judge served with the notice has neglected to make the return required by Rule 7 forthwith to the Registrar of the Supreme Court. If the Provincial Judge complies with the mandatory direction in Rule 7 he is left with nothing on which to proceed with the case and can take no further steps concerning it unless or until the order is refused in which event the clerk of the court refusing the motion is authorized to return the matter to the jurisdiction from which it was removed in terms of s. 714 of the Criminal Code. Notwithstanding any differences which may exist between civil and criminal proceedings by way of certiorari, s. 714 contemplates the subsistence of the Provincial Court’s jurisdiction between service of the notice and disposal of the motion by the Supreme Court. The jurisdiction continues, though dormant, at least until such time as the motion is granted. The failure of the Provincial Court Judges to make the required return may well be the subject of other proceedings but could not be treated as affecting the continued jurisdiction of that Court which is recognized by the Criminal Code.
[Re Cedarvale Tree Services Ltd. and Labourers’ International Union (1972), 22 D.L.R. (3d) 40; Re Holman and Rea (1912), 27 O.L.R. 432; In re Miron v. McCabe (1867), 4 P.R. 171; Hannon v. Eisler, [1955] 1 D.L.R. 183; Frankel v. The Queen (1969), 68 W.W.R. 201; R. v. Cluff (1882), 46 U.C.Q.B. 565; R. v. Titchmarsh (1914), 32 O.L.R. 569; R. v. Foster (1903), 5 O.L.R. 624, referred to.]
APPEAL from a judgment of the Court of Appeal for Ontario dismissing without reasons an appeal from a judgment of O’Driscoll J. dismissing three motions for prohibition. Appeal allowed to the extent of setting aside the warrant of arrest, the recognizance of bail and the forfeiture of bail.
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H.J. Keenan, for the appellant.
Jeff Casey, for the respondent.
The judgment of Laskin C.J. and Judson, Spence and Dickson JJ. was delivered by
THE CHIEF JUSTICE—This Court is concerned in this appeal with the main ground on which the appellant has challenged the decision of the Ontario Court of Appeal affirming, without written reasons, the judgment of O’Driscoll J. dismissing three motions by the appellant for prohibition directed to certain Provincial Court Judges and seeking also orders quashing informations charging offences under ss. 234 and 236 of the Criminal Code. That ground relates to the effect of service of such a motion as aforesaid, made pursuant to Rules 4 and 5 of the Ontario Criminal Rules, upon the jurisdiction of a Provincial Court Judge to proceed with pending charges, and to the effect upon his jurisdiction of his failure to make a return forthwith to the Registrar’s Office of the Supreme Court of Ontario, as prescribed by Rule 7 of the Criminal Rules.
The appellant raised other issues in this appeal, including a contention that a Provincial Court Judge was powerless to grant more than one adjournment under s. 738(1) of the Criminal Code, at it stood at the time of the proceedings herein, but this Court did not call upon the respondent Crown to deal with them, being unanimously of the opinion that they were without merit in the present case. I would add, parenthetically, that an amendment to the Criminal Code, enacted by 1974-75-76 (Can.), c. 93, s. 43 as s. 440.1, and which came into force on April 26, 1976, after the proceedings in this case commenced, now provides that there is no loss of jurisdiction by a failure to comply with the provisions of the Criminal Code relating to adjournments or remands.
It is said by the Crown, on the point in issue in this appeal, that if the appellant is correct in his submission that the effect of service of a notice of motion for prohibition and for an order to quash is to suspend the jurisdiction of the Provincial Court Judge, pending disposition of the motion, there would be a stultification of criminal proceedings in
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the Provincial Courts, a means of paralyzing criminal process. This argument, of itself, is hardly persuasive and is an argument, really in terrorem, which can be made with respect to any proceedings, civil or criminal, which are available to challenge the jurisdiction of an inferior Court Judge to proceed with a matter before him. Superior Courts are well able to control abuses of process if they occur and if they recur. The issue raised by the appellant must be dealt with on its merits, and there is, apparently, a need to do so to provide guidance in this area of the law.
There is no doubt, on the record herein, that there were tactical moves involved in connection with the charges laid against the accused, a jockeying or manoeuvering on adjournments that could easily have been cut off if any one of the Provincial Court Judges before whom the proceedings successively came had simply asserted his authority and given peremptory directions for trial both to the Crown and to the accused. That, unfortunately, was not done until the accused had been before the Court for four successive weeks on the new informations sworn against him when those first laid were declared nullities on a date fixed for trial thereon. Moreover, it was not until the third notice of motion to prohibit and to quash was brought that the Provincial Court Judge to whom it was directed made the return required by Ontario Criminal Rule 7. There was an interval of more than two and one half months (from October 1, 1975 to December 18, 1975) between the launching of the first and third motions.
I turn to the chronology of events in this case. The accused was charged on April 3, 1975, was brought before the Provincial Court on the same day, and, on indication by him that he wished to retain counsel, the case was adjourned to April 17, 1975 (presumably by consent) to set a date for trial. On the latter date, the accused appeared with counsel and it was agreed that the trial would proceed on July 9, 1975. When the case then came on before Judge Munro, objection was taken to the informations as being defective on their face. Crown counsel it was who said they were nullities,
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and the informations were quashed accordingly. Two new informations charging the same offences were laid on July 17, 1975 and the accused was summoned to appear on September 12, 1975.
Counsel for the accused wished to proceed at that time but Crown counsel stated that the case was “not marked for trial today”, and he added “This is the first time up, and it is merely to set a date for trial” and further (when defence counsel objected) “That is the standard procedure”. Again defence counsel insisted on going on and appealed to the Court for a ruling, adding that it was unfair to the accused to be put off again and contending that in view of the previous proceedings September 12 must be taken as a trial date. The Crown was not ready with any witnesses and the trial judge, Judge Rennicks, said he would follow “the practice here... that on the first time up he would be granted an adjournment”. It was of course “the first time up” on the new informations but not the first time up for the charges against the accused.
It is clear from the exchanges of counsel at the time that defence counsel felt that the criminal process was being abused, but when Crown counsel asked him if he had a trial date to suggest he said “no”, and refused to consent to the Crown’s suggestion of November 18, 1975. It is obvious to me that the proper course for the trial judge to have taken was to fix a trial date but instead he remanded the matter to September 19, 1975 to set a date for trial. Defence counsel then said “Might that be a date to commence trial?”, whereupon Crown counsel said that his police officer witness was on holidays but “he’ll be here in November”. Defence counsel objected and refused again to consent to have the case go over to November 18, more than two months away. The Court then said “Well then all I can do is to remand it for a week”. That, however, was far from being all he could do.
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On September 19, 1975, the case came up again before a third Provincial Court Judge, Judge Newall, and the Crown too was represented by a third counsel. There was again a contention by the defence that the trial should go on but the matter had been marked to set a date for trial. The Crown, wishing to go on with other cases, asked that defence counsel consent to trial on November 21, but when the latter refused Crown counsel said “I am suggesting one week, September 26th to set a date”. Defence counsel asked “Can we have a trial at some stage of these proceedings, Your Honour?” The Court did not fix a date but simply accepted Crown counsel’s suggestion to put the case over for a week, and the last entry on the transcript is Crown counsel’s statement “To set a date for trial”. There is legitimate ground to wonder who was in charge of the Court’s proceedings.
So the case came back on September 26, and although this time the Judge was the same, a fourth counsel appeared for the Crown. It seems to me that he misstated the position when he said, referring to what occurred on September 19, “there was no consent to the adjournment last time and we had to put it over till today”. What defence counsel wanted was a trial date to be fixed by the Court and not another adjournment to fix a trial date. During the proceedings on September 26, defence counsel referred again, as he had on the earlier occasions, to an alleged representation to him by the Crown that the charges would not be re-laid. Crown counsel said he knew nothing of this and would check, and the matter was stood down temporarily to enable him to do so. When it was called again after a recess, this is what the transcript discloses:
MR. KRUPNIK [Crown Counsel]: Returning to the matter of Fred Batchelor, Your Honour, I’ve tried to get in touch with Mr. Applegath who is the acting Crown in the Scarborough Court, but he was in the process of proceeding with a trial and could not get out to speak to me. I have therefore spoken to Mr. Peter Rickaby of the Crown Attor-
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ney’s office of this Judicial District and advised him of the facts. He in fact remembered speaking to Mr. Batchelor and advised him that the Crown would be proceeding in this matter, and he also advised Mr. Evans of that fact.
THE COURT: I am going to put this matter over for obvious reasons and I think you know what they are Mr. Evans.
MR. EVANS: I would be obliged if you would put it on the record for what reason you are putting it over. I might indicate at this time I don’t see the point in putting it over.
THE COURT: I can’t deal with the matter for obvious reasons.
MR. KRUPNIK: Your Honour, this is not a trial date, this is just a date to set a date.
And so, again, despite objections by the defence, and the Court not taking the matter in hand, an adjournment was directed by Judge Newall to October 3, 1975, Crown counsel stating without any remark on the matter by the Court that it was to set a date for trial. In his factum in this Court, counsel for the Crown said that Judge Newall disqualified himself and adjourned the matter accordingly, but I do not find this in the transcript of the particular proceedings, although it appears from the subsequent proceedings on October 3 that Crown counsel had told the Judge on September 26 that the Crown wanted to proceed against the accused because he had a record, and it was because of this disclosure that Judge Newall said that he could not hear the matter.
Of course, the Judge was precluded by s. 738(1) of the Criminal Code from adjourning the matter for more than eight days unless there was consent for a more extended enlargement but a trial date could have been indicated, and, lacking consent, there could be adjournments made within the terms of s. 738(1) to bring the parties to that date.
On September 29, 1975 the accused moved to quash the order adjourning the case and to quash the proceedings, and also to prohibit Judge Newall or any other Provincial Court Judge from proceeding with the matter. The notice of motion questioned the jurisdiction of the Provincial Court to
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make repeated adjournments, the allegation being that there was no proper exercise of judicial discretion in allowing the adjournments and that there was undue hardship on the accused, amounting to a denial of natural justice, when he had been ready on four successive occasions to proceed to trial. The notice of motion contained the endorsement prescribed by Rule 6 of the Ontario Criminal Rules, as follows:
By virtue of Rule 7 of Part I of the Rules Respecting Criminal Proceedings of the Supreme Court of Ontario, you are, upon receiving this notice, to return forthwith to the Registrar’s Office at Toronto, the Orders herein referred to, together with the information, exhibits and other papers or documents touching the matter, as fully and as entirely as they remain in your custody, together with this notice and the certificate prescribed in the said Rule.
An affidavit of service of the notice of motion on Judge Newall on October 1, 1975 was sworn on October 2, 1975. The motion was made returnable on October 10, 1975, this being in accordance with the Ontario Criminal Rules.
It will be convenient to set out the relevant Rules at this point, they being Rules 4 to 8 inclusive:
4. (1) Proceedings in criminal matters by way certiorari, mandamus and prohibition shall be brought by originating notice, and may include an application to quash a conviction, order, warrant or inquisition, and an application for discharge of a person in custody.
(2) Such proceedings shall be brought before a Judge of the High Court of Justice sitting in court.
5. Notice of a motion that includes an application to quash shall be served within thirty days of the conviction, order, warrant or inquisition sought to be quashed, shall be returnable within ten days of service of the notice of motion, and shall be served at least seven days before the return day thereof upon the judge, Provincial Judge, justice or justices making the conviction or order, or issuing the warrant, or the coroner making the inquisition, and upon the informant (if he is not a peace officer), and upon the Attorney General (if he is not the applicant). The notice shall specify the objections intended to be raised, and no other objections may be raised save by leave of the Judge hearing the matter.
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(Note: as to other notices of motion, see Rules 215-217 of Practice and Procedure.)
6. Upon a notice of motion under Rule 5 shall be endorsed a notice in the following form, addressed to the judge, Provincial Judge, justice or justices, or coroner as the case may be:
“By virtue of Rule 7 of Part I of the Rules Respecting Criminal Proceedings of the Supreme Court of Ontario, you are, upon receiving this notice, to return forthwith to the Registrar’s Office, at Toronto, the conviction (or as the case may be) herein referred to, together with the information, exhibits and other papers or documents touching the matter, as fully and as entirely as they remain in your custody, together with this notice and the certificate prescribed in the said rule.
C.D.
Solicitor for the Applicant
To: A.B.
Provincial Judge at
(or as the case may be)”
7. Upon receiving the notice so endorsed, the judge, Provincial Judge, justice or justices, or coroner shall forthwith return to the Registrar’s Office at Osgoode Hall, Toronto, the conviction, order, warrant or inquisition, together with the indictment, information, exhibits and any other papers or documents touching the matter, and the notice served upon him with a certificate attached thereto in the following form:
“Pursuant to the accompanying notice, I herewith return to this Honourable Court the following:
“1. The indictment or information;
“2. The conviction (or as the case may be);
“3. The exhibits;
“4. Any other papers or documents touching the matter.
“And I hereby certify to this Honourable Court that I have above truly set forth all exhibits, papers and documents in my custody or power relating to the matter set forth in the said notice of motion.”
8. (1) The documents listed in the certificate together with the transcript of the proceedings (if any be supplied by the applicant) shall have the same effect as a return to a writ of certiorari.
(2) The Judge hearing the application may direct a further or amended return.
Before the return date of the motion, the accused appeared again with counsel before the
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Provincial Court, this time before Judge McEwan, on October 3, 1975. Again there were exchanges between counsel (the same Crown counsel this time who had appeared on September 26 and the same counsel who had appeared for the accused throughout) but the Judge took a stronger stand than the Court had exhibited previously and directed, peremptory to the Crown, that the trial proceed on October 8. Counsel for the accused did not disclose the fact that he had moved for prohibition, a matter that ought certainly to have been drawn to the Court’s attention.
When the case was called on October 8, the same Crown counsel appeared but another counsel appeared for the accused, a partner of accused’s previous counsel. Crown counsel immediately advised the Court, the Judge being Judge Camblin, of the motion to quash and for prohibition returnable on October 10, said he was ready to proceed but suggested that in view of the motion the case should be adjourned to some day after the motion was heard. Defence counsel contended that there was nothing the Provincial Court could do because the record ought to have been returned to the Supreme Court and that Court would decide whether the case would be returned to the Provincial Court for hearing. Judge Camblin feared that if he did nothing jurisdiction might be lost and so he put the case over to October 15 to set a new trial date.
The motion for prohibition came before the Weekly Court in Toronto on October 10, 1975 but was adjourned on consent to October 23 because the transcript of the proceedings (referred to in Criminal Rule 8) was not ready. Successive adjournments, apparently for the same reason, were made on consent on October 23 and November 13, the adjournment on the latter date being to December 5, 1975.
The accused did not appear before the Provincial Court on October 15 nor was counsel there on his behalf. A different Provincial Judge presided and a new Crown counsel appeared who asked immediately for a bench warrant for the arrest of the accused. There was no reference to the motion for prohibition in the one page transcript of the proceedings. The Judge directed issue of the war-
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rant. The accused was arrested on December 4, 1975 and taken before Judge Gardhouse who, on the suggestion of Crown counsel, directed that the accused be released on entering into a recognizance in the amount of $500 with one surety. Duty counsel appeared for the accused and accepted this as satisfactory, and the case was then remanded for a week to December 11, 1975.
On December 5, 1975, the adjourned date of the first motion for prohibition a second notice of motion as of that date, was brought before Osler J. seeking to quash the warrant of arrest and to set aside the order for a recognizance and also the recognizance, asking for prohibition, and also asking that Judge Newall or any other Provincial Judge make the return required by Criminal Rule 7. This second notice of motion was served on the agent of the Attorney‑General present at that time and also on Judge Gardhouse, Osler J. having directed abridgement of the time for service on Judge Gardhouse.
Osler J. adjourned both motions for prohibition to December 12, 1975, noting on the record that this was by reason of the failure of the Provincial Judge to forward the record as required by Criminal Rule 7. On December 12, 1975, the two motions for prohibition were further adjourned on consent to December 23, 1975.
In the meantime, the remand date of December 11 intervened, and Crown counsel who had appeared on September 26, October 3 and October 8, informed Judge Bigelow, who was presiding in the Court, that prohibition proceedings had been taken. Crown counsel had been advised by counsel for the accused that it was not likely the accused would appear and so Crown counsel intended to ask for a bench warrant. Judge Bigelow first expressed doubt whether he could issue such a warrant in view of the fact that the Supreme Court of Ontario had prohibition proceedings before it. After being told that the accused was supposed to appear so a trial date could be set, Judge Bigelow issued the warrant, saying that was the only way jurisdiction could be retained. Although the accused did not appear on December 11 nor was he represented, counsel who had appeared for him on October 8 asked to address the Court as amicus
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curiae and thereupon objected that the Court had no jurisdiction to make any order in the matter before it. Judge Bigelow was inclined to agree, but after hearing from Crown counsel he suggested that execution of the bench warrant be postponed pending termination of the prohibition proceedings and to be governed by the outcome of the prohibition proceedings.
This seemed to be satisfactory but in the afternoon of December 11 the accused’s case was called again and, he not appearing, an order was sought and made that the bail he had given after being arrested on December 4, 1975 be forfeited. On December 18, 1975, a third notice of motion for prohibition, dated December 17, was served on Judge Bigelow and a copy delivered to the Attorney-General, returnable on December 23, 1975. This notice of motion, in addition to asking for an order of prohibition, asked that the warrant of arrest and the estreat of bail be set aside and, as well, the recognizance of bail entered into on December 4, 1975.
On December 23, 1975 the three motions for prohibition came before O’Driscoll J. who dismissed all of them, stating that
The service of a notice of motion to prohibit the Provincial Court judge did not deprive, suspend or strip him of jurisdiction, although he may have proceeded thereafter at his own peril.
In my view, there was nothing said, done or happened in the Provincial Court that brought about any loss or lessening of the jurisdiction of that court to hear the two outstanding charges against the accused Applicant. Consequently, each of the three applications to prohibit will be dismissed.
He refused to make an order as to costs because of “the failure of those at the Provincial Court to carry out the terms of the Rules Respecting Criminal Proceedings”. As to this failure, he remarked:
Under no circumstances could I, nor do I wish to be taken as having placed any stamp of approval upon the actions of those in the Provincial Court, Old City Hall, Toronto, who have chosen to disregard or ignore the provisions of Rule 7 under Rules Respecting Criminal
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Proceedings from October 1, 1975, until approximately mid-December, 1975. On the hearings before me, Counsel for the Attorney General was unable to give any reason, let alone any satisfactory reason, for the lateness of the return, nor was he able to explain why the Provincial Court judges involved did not sign the certificates as required by Rule 7 (supra).
However, he castigated counsel who had appeared for the accused prior to October 8, 1975 as having acted in a way “designed and intended to obfuscate the proceedings before the various Provincial Court Judges”, a harsh assessment in my opinion if based on that counsel’s unwillingness to consent to Crown counsel’s convenience as to a date for trial. Further, he characterized the motions for prohibition as coming perilously close to an abuse of process.
O’Driscoll J.’s short reasons contained no exposition of the effect of service of a notice of motion for prohibition upon the jurisdiction of a Provincial Court Judge, or of the effect on jurisdiction of a Provincial Court Judge’s failure to make a return. The Court of Appeal saw nothing in the case that warranted any reasons for judgment on these matters, probably because a return had been made on or about December 22, (even if irregular because the certificate was signed by a court clerk) and was before O’Driscoll J. on December 23, 1975. In my opinion, the two matters deserve consideration in the light of the law as it was when prohibition and certiorari involved two-step procedures, and in light of the fact that there is now no need to ask first for issue of a writ and, especially, in light of the terms of Criminal Rule 8 providing that the return required by Rule 7 together with the transcript of proceedings (if any be supplied by the applicant) shall have the same effect as a return to a writ of certiorari.
The Rules of Practice of the Quebec Court of Queen’s Bench (Crown Side), S1/74-53, effective June 1, 1974 take a clear and direct line on the matters aforesaid. Section 19 of those Rules provides
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Service of the motion suspends proceedings in the inferior tribunal but the Judge may at any time, even on an ex parte application, give an order permitting such proceedings to continue.
Section 20 of the Quebec Rules directs transmission of the record of the case immediately after service of the motion and, in this respect, is similar to Ontario Criminal Rule 7.
Although the Ontario Rules do not speak clearly on whether or when prohibition and certiorari proceedings have a suspensive effect on proceedings in the inferior Court, the obvious resort is to consider what is the effect, in this connection, of a return to a writ of certiorari, within the meaning of Ontario Criminal Rule 8. I note here that although for convenience of reference, I have referred to the three motions brought on behalf of the accused as motions for prohibition they each include applications to quash, as is permitted by Ontario Criminal Rule 5, and were in conformity with Rule 6, requiring the return of the record forthwith as is provided by Rule 7.
I note too that the concern here is with criminal not civil proceedings, and hence pronouncements in respect of civil proceedings such as that made by the Ontario Court of Appeal in Re Cedarvale Tree Services Ltd. and Labourers’ International Union[1], at p. 49, are not applicable. In that case, Arnup J.A. speaking for the Court said this, speaking of administrative tribunals of an adjudicative character:
It is also clear law that such a tribunal is not required to bring its proceedings to a halt merely because it has been served with a notice of motion for an order of certiorari or prohibition. It is entitled, if it thinks fit, to carry its pending proceedings forward until such time as an order of the Court has actually been made prohibiting its further activity or quashing some order already made by which it assumed jurisdiction.
Arnup J.A. went on to refer to and to discuss Re Holman and Rea[2], but did not make any point of the fact that it concerned prohibition in respect of criminal proceedings (a summary trial of the accused), the prohibition being sought by the com-
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plainant and not by the accused. He noted that the Ontario Divisional Court, in the reasons of Middleton J. (the others agreeing in the result), put the suspension of proceedings on a basis of courtesy rather than on an obligatory basis where the magistrate purports to proceed with the matter before him, although knowing his jurisdiction is disputed and even after having been served with a notice of motion for prohibition. This is a correct view since Middleton J. said, clearly enough (after observing that it would have been more consistent with judicial dignity to have enlarged the hearing until the question of jurisdiction had been determined) that “there is no power in the Court to stay proceedings in an inferior Court pending the hearing of the motion” (at p. 439). However, Middleton J. cited in support In re Miron v. McCabe[3], which involved prohibition arising out of a purely civil matter, a claim in a Division Court whose jurisdiction was disputed.
In his reasons in Re Holman and Rea Middleton J. observed, at p. 438, that “counsel failed to point out any section authorizing the adoption of the course pursued in this case. The case, therefore, falls to be determined upon general principles”. At the time that Re Holman and Rea was decided, prohibition was not within the Ontario Criminal Rules, being introduced into them only on May 7, 1973 when the present Rules were passed effective September 1, 1973. Although s. 533 of the Criminal Code of 1892 authorized the making of Rules respecting prohibition as well as respecting other prerogative writs (the power is now found in s. 438 of the Criminal Code), the Ontario Rules, passed March 27, 1908 dealt only with motions to quash. They included, however, the provisions which are now found in Ontario Criminal Rules 5, 6, 7 and 8. In Re Holman and Rea, so far as appears, the motion in that case did not include an application to quash, as is the case here.
Notwithstanding the view taken in Re Holman and Rea that an inferior court ought to desist as a matter of courtesy when it is aware of the chal-
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lenge to its jurisdiction brought before a superior court, the Manitoba Court of Appeal in Hannon v. Eisler[4], a case dealing with custody proceedings, said speaking through Coyne J.A. (at p. 195) that “as a general rule I think it can be laid down that the inferior tribunal is bound to desist on application for prohibition in the Queen’s Bench and while an appeal is pending in the Court of Appeal from a decision thereon if the tribunal is aware of [the] application or appeal because, among other reasons, such an appeal is ‘a step in the cause or matter in which it is taken’: Court of Appeal Rule 1; and the cause or matter is not complete until after the step, if undertaken is completed”.
Arnup J.A. said in the Cedarvale case that Re Holman and Rea was followed in Hannon v. Eisler. That was so, but not on the point under discussion here. Middleton J. was followed only in so far as the right to have prohibition was concerned, but he was not followed on the question of the suspensive effect of service of a notice of motion for prohibition on the proceedings in the inferior court. The two cases clearly diverge on this question.
The Rules of the Alberta Supreme Court respecting Crown Practice are similar to the present Ontario Criminal Rules. There is provision for moving by notice of motion without first seeking a rule or an order nisi; there is provision for service and for endorsing on the notice of motion a notice requiring a return forthwith of the record, and there is a requirement that the magistrate or justice make the return forthwith to the clerk of the Supreme Court with an endorsed certificate in a prescribed form specifying what is in the return. The relevant Rules conclude with Rule 866 which states that “the certificate shall have the same effect as a return to a writ of certiorari”. In Frankel v. The Queen[5], the Alberta Appellate Division held that an application for prohibition with certiorari in aid, directed to a magistrate in respect of criminal proceedings before him, has the effect, upon service of the application upon him, of
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suspending the criminal proceedings but that the Court, upon disposing of the application and dismissing it where it has no merit, may make an order by way of procedendo and send the proceedings back to the magistrate to continue with the matter that was before him.
It is clear from this judgment that the Alberta Appellate Division, although concerned as its reasons disclosed, about possible abuse in the resort by an accused to extraordinary remedies, felt that it was obliged to respect the proceedings so taken by an accused but would deal with them speedily to avoid undue delay in the carrying out of judicial processes. It does not appear from the reasons whether the magistrate in the Frankel case made the required return to the application for prohibition with certiorari in aid. Ex facie, the Alberta Appellate Division’s reasons treat the mere service of the notice of motion upon the magistrate as sufficient to suspend his jurisdiction pending disposition of the motion; and if this is so, then, a fortiori, is there a suspension upon the return of the record to the superior court since there is nothing then left before the inferior court upon which it can proceed.
The relevant inquiry is then whether the inferior court can continue to exercise its jurisdiction by refusing or failing to make the return which the Rules require to be made “forthwith”? That court cannot be in a better position by non-compliance with a statutory duty than it would be in if the duty had been carried out. O’Driscoll J.’s mild admonishment of the inferior court in this case for ignoring the requirements of Criminal Rule 7 for about two and one-half months was followed by his briefly stated conclusion that service of the notice of motion for prohibition “did not deprive, suspend or strip him of jurisdiction, although he may have proceeded thereafter at his own peril”. I do not understand these concluding words unless they relate to the eventual successful outcome of the accused’s application for prohibition. Moreover, there is, in any event, no question of a complete loss or deprivation of jurisdiction, but only of suspension while the prohibition proceedings are on foot; and, if there is a suspensive effect,
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the Provincial Court need be under no fear (as Judge Camblin was) that it will lose jurisdiction if it does not keep bringing the accused back within successive eight day periods; its jurisdiction can be re‑asserted immediately upon the dismissal of the prohibition proceedings.
This is provided by s. 714 of the Criminal Code, which is in Part XXIII dealing with extraordinary remedies. Section 714 is as follows:
714. Where a motion to quash a conviction, order or other proceeding is refused, the order of the court refusing the application is sufficient authority for the clerk of the court forthwith to return the conviction, order or proceeding to the court from which or the person from whom it was removed, and for proceedings to be taken with respect thereto for the enforcement thereof.
Clearly, this section, which was in the original Criminal Code of 1892 as s. 895, makes it unnecessary to invoke the old procedure of a procedendo which the Alberta Appellate Division resorted to, apparently ex abundanti cautela, in the Frankel case. Of course, the fact that a procedendo was necessary under the old procedure was indicative of the need for some affirmative direction by the superior court to enable the inferior court to re-assert its jurisdiction.
I come, at long last, to consider what significance is to be attached to Ontario Criminal Rule 8 providing that the return under the certificate (prescribed by Rule 7) “shall have the same effect as a return to a writ of certiorari”. At common law, a writ of certiorari had to be authorized by an order of the Court upon an application for the issue of the writ. The order having directed the issue of the writ, the inferior court was directed by the writ to return the record of the challenged proceedings together with the writ to the superior court. An order or rule nisi followed requiring the Judge of the inferior court to show cause why the application to quash should not succeed. Following a hearing on the matter, the rule nisi would be discharged or made absolute in favour of the applicant. Statutory and Rule modifications of the procedure were introduced over the years. For example, in England, the application for the writ
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to quash a summary conviction could be made ex parte and an order nisi obtained requiring the inferior court to show cause: see Short and Mellor, The Practice of the Crown Office (2nd ed. 1908), pp. 49-57. Procedural changes in the Provinces of Canada resulted in dispensing with the need for an order or rule nisi: see Tremeear, Criminal Code (6th ed. 1964), pp. 1286‑1289. An indication of the older practice in Ontario before the introduction of the modern simplified procedure may be gleaned from R. v. Cluff[6]; and see also Daly, Canadian Criminal Procedure and Practice (3rd ed. 1936), pp. 405-421 (and especially the Forms at pp. 413-421).
The material point for present purposes is that the common law was clear that upon the service of the writ of certiorari upon the Judge of the inferior court the proceedings before him out of which they arose were suspended: see 4 Blackstone, Commentaries (1st ed. reprint), Book IV, c. 24, p. 315; Paley, Summary Convictions (9th ed. 1926), p. 835; Seager, Criminal Proceedings Before Magistrates (3rd ed. 1930), p. 451.
When the Ontario Judges adopted their Criminal Rules of 1908 and provided therein for a simplified procedure in respect of certiorari to quash which, upon a return being made, would be dealt with on the merits by the superior court (and thus displace the elaborate procedure of first seeking a writ of certiorari, to which, if issued, a return would be made, and then going back for a hearing on the merits), a question was raised in R. v. Titchmarsh[7], whether the rule-making authorization in the Criminal Code empowered the Judges to abolish the writ of certiorari and to substitute the simplified procedure of a notice of motion. The power to do so was upheld by the Ontario Appellate Division. Riddell J., speaking for the Court, pointed out that although the writ of certiorari was abolished, the remedy remained, and it was the remedy that the Criminal Code was concerned with. As he put it, under the Rules “the remedy
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exists; the manner of obtaining it is different—that is all” (at p. 578).
As in criminal matters so too in civil matters, the complex common law procedure, regulated though it was by Rules, was displaced in Ontario (and elsewhere in Canada) by the simple notice of motion: see, now, The Judicature Act, R.S.O. 1970, c. 228, s. 69. Accused persons and civil law litigants were thus empowered to operate the machinery of the Court, without the Court’s prior intervention, and to require the presiding Judge of the inferior court to make a return to process issued unilaterally by them.
In the Frankel case, the Alberta Appellate Division applied the common law rule to the simplified procedure that, similar to that of Ontario, is prescribed in the Alberta Rules on Crown Practice. In short, although there is now no prior order of a Court for issue of a writ of prohibition with certiorari in aid, the service of an authorized application for such a remedy was given the same suspensive effect upon the proceedings in the inferior Court as was given at common law upon service of a writ of certiorari granted by order of the Court. An illustration of this result under the common law practice a few years before the Ontario Criminal Rules of 1908 were promulgated is seen in R. v. Foster[8]. There the accused was convicted of a liquor offence after a trial in his absence, and a warrant of commitment was issued for his imprisonment pursuant to the sentence imposed upon him. The day prior to the conviction and sentence, a writ of certiorari for which the accused had obtained an order a few days earlier was served on the Judge and Crown Attorney. There was apparently a return to the writ and the discharge of the accused from custody was sought on the return of a writ of habeas corpus. The discharge was ordered by Street J. who said that “the proceedings against Robert Foster were removed from the Court below by the certiorari issued on 30th January, 1903 and served on Judge Bell on the 2nd February, 1903 and that the subsequent proceedings taken before him were void” (at p. 627). He
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restated the principle at the conclusion of his reasons, as follows (at p. 628):
...as there appears to have been no authority in the Court below to issue the commitment under which the prisoner is held, after the proceedings before it had been removed by certiorari, there must be an order for his discharge from custody.
I am not aware of any other effect at common law of a return to a writ of certiorari than that the inferior court, having nothing before it, was powerless to continue with any proceedings against an accused. The common law did not make suspension of inferior court proceedings contingent upon a return to the writ but as following from mere service thereof. There may have been some misunderstanding of the situation when the 1908 Rules were promulgated, these Rules having abolished the writ of certiorari altogether, as noted in R. v. Titchmarsh; and it may have been thought that by reason of the simplified procedure the direction for a return of the record would make it abundantly clear that thereafter the inferior court was powerless to proceed. As put by Létourneau, The Prerogative Writs in Canadian Criminal Law and Procedure (1976), at p. 161:
...in criminal law, the transmission of the record of the proceedings to the superior court, as required to be made forthwith by most rules of court on an application for certiorari, in fact operates as a stay of proceedings.
The author goes on to say that the inferior court is deprived of its jurisdiction to resume the proceedings as, after the removal, nothing is left before it. I think it more accurate to say that the proceedings are merely suspended pending the outcome of the contest in the superior court; jurisdiction will indeed be lost if the application to prohibit and quash is successful but, if not, it survives.
It seems to me that, however the matter is regarded, there must be a suspension of jurisdiction when an application to quash or a combined application to prohibit and to quash is served on
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the inferior court with the command, under the Rules, to make a return forthwith. The Judge, compelled to make the return, cannot, unless he risk disobedience with its attendant consequences, go on with the matter before him until the application to the superior court is disposed of by dismissal thereof.
The result to which I would come in this case may be shortly stated. I do not hold that there was any loss of jurisdiction in the Provincial Court, but it is my opinion that the unexplained and seemingly flagrant disregard by Provincial Court Judges of the obligation cast upon them to make a return forthwith had the same effect as if a return was properly made whereupon jurisdiction was suspended. Hence, there was no power to order the arrest of the accused, no power to require that he enter into a recognizance of bail, no power to order forfeiture of bail. I would, accordingly, allow the appeal to the extent of setting aside the warrant of arrest, the recognizance of bail and the forfeiture of bail. Otherwise, I do not subscribe to the contentions of counsel for the appellant that jurisdiction over the accused in respect of the charges against him has been lost. The record should accordingly be returned to the Provincial Court so that the charges may be tried and, I hope, with some expedition. I would also direct that an order of protection of the various Provincial Court Judges issue under Criminal Code, s. 717.
The judgment of Martland, Ritchie, Pigeon, Beetz and de Grandpré JJ., in which Dickson J. also concurred, was delivered by
RITCHIE J.—I have had the advantage of reading the reasons for judgment of the Chief Justice in which he has accurately recounted the very complicated set of facts giving rise to this appeal and as he has also reproduced Rules 4 to 8 inclusive of the Ontario Criminal Rules, (hereinafter referred to as “the Rules”) it will be unnecessary for me to recite them again in full.
The main issue in this appeal is the effect of the service of an originating notice for prohibition and to quash certain proceedings pending in the Pro-
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vincial Court on the jurisdiction of that Court, in a case where the judge upon whom the notice is served has neglected to ‘‘forthwith return to the Registrar’s Office at Osgoode Hall, Toronto, the conviction, order, warrant or inquisition together with the indictment, information, exhibits and any other papers or documents touching the matter...” as he is required to do by the terms of Rule 7.
There is no doubt in this case that the necessary notice and endorsement were duly served on the Provincial Court Judges in accordance with the requirement of Rule 6 and it follows that upon receiving the notice so endorsed, the Judges were seized with the duty to return the requisite documents forthwith to the Registrar under Rule 7.
It appears to me that if the Provincial Judge complies with the mandatory direction contained in Rule 7 to return all papers touching the matter before him forthwith on receipt of the notice, he is left with nothing upon which to proceed with the case and, as a practical matter, he can take no further steps concerning it unless or until the order is refused by the Judge of the Supreme Court who hears the motion, in which event the clerk of that Court is authorized to return the proceeding to the jurisdiction from which it was removed in accordance with s. 714 of the Criminal Code to which the Chief Justice refers and which reads as follows:
714. Where a motion to quash a conviction, order or other proceeding is refused, the order of the court refusing the application is sufficient authority for the clerk of the court forthwith to return the conviction, order or proceeding to the court from which or the person from whom it was removed, and for proceedings to be taken with respect thereto for the enforcement thereof.
Notwithstanding any differences which may exist between civil and criminal proceedings by way of certiorari, and apart from procedural problems which may arise in determining the effect to be given to “a return of a writ of certiorari” under Rule 8, I am satisfied that s. 714 contemplates the subsistance of the Provincial Court’s jurisdiction between the service of the notice and the disposal of the motion by the Supreme Court. This section
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in my view constitutes recognition by the Parliament of Canada of the continuation of this jurisdiction, though dormant, at least until such time as the motion is granted. If it were otherwise the provisions for return of the proceedings in the event of the refusal of the application would be meaningless.
The second question raised by this appeal is whether the unjustified and unexplained conduct of the Provincial Court Judges in failing to make a return as they were required to do by Rule 7 is to be treated as extinguishing that Court’s jurisdiction. I cannot accept the suggestion that a Judge can obliterate the jurisdiction of his Court by disobeying mandatory rules governing his conduct. It may well be that mandamus would lie to compel such an official to comply with his duty, but the persistent disregard of that duty by Judges cannot affect the continued jurisdiction of the Court which is recognized by the Criminal Code.
It has been suggested that if the service of a notice to quash in accordance with the Criminal Rules has the effect of suspending the jurisdiction of the Provincial Court until it is disposed of in the Supreme Court, the result will be that an accused person by his own act could interrupt the course of his trial and stultify the proceedings against him. In my view this suggestion presupposes that the Rules will be disobeyed by the Judges in that no return will be made in accordance with Rule 7. It is, however, not to be lightly assumed that the direction contained in the notice served under Rule 6 would be ignored by a Provincial Judge and the circumstances which developed in the present case must be regarded as exceptional. If the return is made forthwith, I think it may be taken that the motion will be dealt with expeditiously in the Supreme Court. In my opinion, the proceedings are not brought to a halt by service of the notice, and if the rules are complied with, the period of interruption of the hearing before the Provincial Judge will be minimal.
For these reasons I would dispose of this appeal in the manner proposed by the Chief Justice.
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Appeal allowed, warrant of arrest, recognizance of bail and forfeiture of bail set aside.
Solicitor for the appellant: Harry J. Keenan, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.