This week’s top three summaries: R v Irwin, 2020 ONCA 776: rule against #collateral attack, R v Ellis, 2020 NSCA 78: 11(b) and #disclosure, and R v JB, 2020 ONSC 7647: #certiorari on prelim.

R v Irwin, 2020 ONCA 776

[December 9, 2020] The Rule Against Collateral Attack [Reasons by C.W. Hourigan J.A. with Doherty and G. Pardu JJ.A concurring]

AUTHOR’S NOTE: The rule against collateral attack is a principle that rarely receives much thought or treatment in criminal law. This case provides a thorough overview of the rule and when it does not apply. Though the case is quasi-criminal in nature, the principles apply with equal force to cases involving breaches of court orders in particular. Importantly, there is a difference between attacking the reasons for the legal conclusion reached in the other decision and the legal order itself. There is a narrow window between the two things that allows some freedom to challenge aspects of the ruling in a subsequent proceeding - just not the order itself.  


[1] The appellant, Robert Irwin, was charged with failing to comply with six orders issued pursuant to the Building Code Act 1992, S.O. 1992, c. 23 (the “Act”).The orders required him to obtain building permits for certain structures on his property or remove them. He did not appeal those orders. Instead, he raised as his primary defence at trial for some orders that he had obtained the required building permits years before the orders were issued. For the other orders, he argued that he did not need a building permit. The respondent submitted that these defences were unavailable because they amounted to a collateral attack on the orders.


[5] In 1996, an inspector from the Vaughan Building Standards Department issued six orders to comply with respect to buildings on the property numbered 1, 2, 3, 4, 5, 6 and 7 (the “1996 Orders”). Those orders required Mr. Irwin to obtain a building permit for the relevant buildings or remove them. Mr. Irwin was eventually charged under the Act with failure to comply with the 1996 Orders.

[6] Mr. Irwin’s evidence was that after he was charged with breach of the 1996 Orders, he gave his then lawyer, Scott Sievert, building permits related to buildings numbered 1, 2, 5, 6, and 7. For buildings numbered 3 and 4, Mr. Irwin was of the view that no permits were required. He testified that the city asked him to submit a site plan for all the buildings, which he did in 1996. Shortly thereafter, he was told by Mr. Sievert that the charges would be withdrawn.

[7] Mr. Irwin testified that he complied with the 1996 Orders. His evidence was that the permits were kept in his lawyer’s office. However, they were later destroyed in a fire that also took Mr. Sievert’s life.

[8] Mr. Irwin heard nothing further on the issue of permits from the respondent for 17 years. Then in 2013, a different inspector from the City of Vaughan issued new orders to comply (the “2013 Orders”). These new orders were identical to the 1996 Orders; they alleged the same infractions, almost verbatim, and attached the same hand-drawn Schedule "A" of Mr. Irwin's property. The only differences were that new order numbers were added, and they indicated on their face that they replaced the 1996 Orders. The required action stated on each order to comply was, “obtain the required building permit or remove the unauthorized construction and restore the building/property to its former state.”

[9] Mr. Irwin took no fresh steps to comply with the 2013 Orders. He also did not avail himself of the appeal route in s. 25 of the Act, which provides:

A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8 (3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made.

[11] At trial, Mr. Irwin testified that no additional buildings or structures were erected after 1996. He explained that he obtained the required building permits from the 1970s through to 1996. He did not, however, produce any building permits at trial. Mr. Irwin’s evidence was that he gave any permits in his possession to Mr. Sievert to deal with the 1996 charges. All were subsequently lost in the fire.

[13] Among the documents produced were copies of Mr. Irwin’s applications for various building permits for buildings 1, 2, 5, 6, and 7. Some of those documents bear both an application number and a second stamped number that Mr. Irwin claims is a building permit number. The building inspector who issued the 2013 Orders testified that the stamped number is assigned to an application on its receipt. The same number will eventually be used as a building permit number if a permit is granted. Therefore, according to the building inspector, the stamped number Mr. Irwin was relying on was not necessarily indicative that a permit had been issued.

[14] Mr. Irwin also relied on a letter from Mr. Sievert dated December 13, 1996, to Jack Hamilton of the respondent’s legal department. In the letter, Mr. Sievert confirms a telephone conversation with Mr. Hamilton wherein Mr. Hamilton advised that the respondent would be withdrawing the charges and that there was no need for Mr. Irwin to appear in court.

The General Principles of the Rule Against Collateral Attack

[23] The jurisprudence regarding the collateral attack rule is well established. Generally, a collateral attack is defined as an attack on an order “made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order”: Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, at p. 599. The rule provides that, with limited exceptions[2], “an order issued by a court must be obeyed unless it is set aside in a proceeding taken for that purpose”: R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 21.

[24] The rule protects the integrity of the justice system by prohibiting a party from avoiding the consequences of an order issued against it by proceeding in another forum: Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 72 and R. v Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333 349. Caldwell J.A. writing for the Saskatchewan Court of Appeal, succinctly summarized the rule this way: “In practical terms, the common law rule prevents a person charged with violating a court order from saying, in his or her defence to that charge, that the order is invalid or unlawful”: R. v Envirogun Ltd., 2018 SKCA 8, 3 W.W.R. 247, at para. 43.

[27] In Maybrun [R. v. Consolidated Maybrun Mines Ltd., 1998 CanLII 820 (SCC),], the Supreme Court directed that the analytical focus should be on whether the legislature intended to permit collateral attacks on the order, or intended instead that a party must challenge the order through other review mechanisms. The court listed five non-exhaustive factors that may be considered in determining the intent of the legislature for challenging the validity of an administrative order: (1) the wording of the statute under the authority of which the order was issued; (2) the purpose of the legislation; (3) the existence of a right of appeal; (4) the kind of collateral attack in light of the expertise or raison d’être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with the order: Maybrun, at paras. 45-51. These factors “are not independent and absolute criteria, but important clues, among others, for determining the legislature’s intention”: Maybrun, at para. 46.

Residual Discretion No to Apply the Collateral Attack Rule

[28] As important as the collateral attack rule is for the integrity of the administration of justice, it is not absolute. This court has recognized that because the rule was developed to advance the ends of justice, it should not be mechanically applied when court orders are attacked where doing so would result in an injustice: Amtim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62, 118 O.R. (3d) 617, at para. 15.

[29] Not all collateral attacks on court orders offend the rule’s underlying principles, and the court has the discretion not to apply it in those circumstances. For example, in R. v. Domm, (1996) 1996 CanLII 1331 (ON CA), 31 O.R. (3d) 540 (C.A.), the question was whether an accused charged with breach of a court order banning publication of a criminal proceeding could challenge the validity of that order on non-jurisdictional grounds. In his analysis, Doherty J.A., at pp.17-18, made the following comments, which reflect the flexibility of the rule and the inherent discretion judges have in choosing whether to apply it:

The rule against collateral attack on court orders serves to reinforce the compliance component of the rule of law and enhance the repute of the administration of justice by providing for the orderly and functional administration of justice: R. v. Litchfield, supra, at pp.110-111. If a collateral attack on an order can be taken without harm to those interests, then the rule should be relaxed. Review by a trial judge of orders made on pre-trial motions provides an example of a situation in which those interests are not harmed by collateral attack: Litchfield, supra, p. 111 Dagenais, supra, at pp. 311-12

[30] While these cases affirm the existence of judicial discretion when applying the collateral attack rule to prior court orders, the role discretion plays when one is attacking a prior administrative order has received less attention.

[31] If the legislature has definitively prescribed a particular appeal mechanism for challenging an administrative order, a court is bound to give effect to that legislative choice, absent constitutional infirmity. The collateral attack doctrine is a common law rule of judicial creation that must yield to contrary legislative enactment: Canada (Attorney General) v. Telezone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paras. 61, 67.

Limits to the Application of the Collateral Attack Rule

[35] On further appeal to the Supreme Court [in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,], Arbour J. found that the appeal should be dismissed on the basis that the effective relitigation of the employee’s criminal conviction before the labour arbitrator amounted to an abuse of process. She rejected the applicability of the collateral attack rule in this context. Her reasons for doing so were as follows, at paras. 33-34: ...

Binnie J. described the rule against collateral attack in Danyluk, supra, at para. 20, as follows: “that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it” (emphasis added).

Each of these cases concerns the appropriate forum for collateral attacks upon the judgment itself.  However, in the case at bar, the union does not seek to overturn the sexual abuse conviction itself, but simply contest, for the purposes of a different claim with different legal consequences, whether the conviction was correct.  It is an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force, as clearly it does.  Prohibited “collateral attacks” are abuses of the court’s process.  However, in light of the focus of the collateral attack rule on attacking the order itself and its legal effect, I believe that the better approach here is to go directly to the doctrine of abuse of process.

[36] This case’s significance is that it instructs that before considering whether a collateral attack is permissible, the court should first review the defence or legal argument being asserted to determine whether it is correctly characterized as a collateral attack. If it is not, then the doctrine is inapplicable, and the court need not consider the issue further.

[40] The Toronto analysis has also been adopted in several cases in the British Columbia Court of Appeal. The focus is on whether the legal argument actually attacked the order itself and its legal effect: Fontaine v. Canada (Attorney General), 2019 BCCA 178, 24 B.C.L.R (6th), at para. 89; Lamb v. Canada (Attorney General), 2018 BCCA 266, 10 B.C.L.R. (6th) 118, at paras 94-95; Hollander v. Mooney, 2017 BCCA 238, 27 E.T.R. (4th) 1, at paras. 71-75

[41] In many cases, the defence or legal argument raised will be a clear collateral attack, and this issue may be dealt with summarily.  However, it is essential when considering the collateral attack rule that the court first determines whether an attack on the order's validity or judgment is being made. If it is not properly characterized as such, that will be the end of the analysis.

Application of the Legal Principles

[43] In my view, the appeal judge erred when he found that Mr. Irwin was engaging in a collateral attack by arguing that he had building permits for buildings 1, 2, 5, 6, and 7. By raising the issue of prior permits, Mr. Irwin was arguing that he had complied with the orders. He was not trying to undermine the validity or legal effect of the orders. This was not a collateral attack: Toronto, at para. 34.

[44] However, for the two orders relating to buildings 3 and 4, Mr. Irwin engaged in a collateral attack. His argument against the enforcement of these orders was that no permits were required for the impugned structures. This is a collateral attack because it attacks the validity of the orders themselves. Whether these are permissible collateral attacks must be determined by considering the legislative intent behind the Act: Maybrun, at para. 46.

[48] I recognize that an argument can be made that by taking the position that he had complied with the 2013 Orders before they were issued, Mr. Irwin was implicitly challenging the orders’ underlying basis. In my view, this argument is misguided because it fails to consider the result that the defence was trying to achieve. The argument was not advanced to demonstrate that the 2013 Orders were invalid. Instead, it was made as part of a defence that Mr. Irwin had complied with those orders.

[50] Many defences may be characterized as an implicit attack on the validity of an order because they may call into question some aspect of the order. However, courts should resist automatically characterizing these arguments as collateral attacks. Instead, courts should concentrate on the substance of the defence to determine whether it actually attacks the validity of the order and its legal effect. For example, in Toronto, Arbour J. recognized that the union’s position was an implicit attack on the correctness of the decision’s factual basis. Yet, she found that it was not a collateral attack because it did not attack the order itself and its legal effect.

[51] The same reasoning applies here. Mr. Irwin’s argument that he, in fact, had the permits demanded by the orders is “an implicit attack on the correctness of the factual basis of the [order] not a contest about whether that [order] has legal force”: Toronto, at para. 34.

[56] I am of the view that the defence for buildings three and four is of a different nature than the defence advanced regarding the other buildings such that it qualifies as a collateral attack. In effect, Mr. Irwin’s defence is that these orders should have never been issued. This is a collateral attack, as it seeks to invalidate the building inspector’s orders in a proceeding whose specific object is not the reversal, variation, or nullification of the order: Wilson, at p. 599; Garland, at para. 71. Accordingly, the next question is whether the legislature intended to permit this type of a collateral attack.

[68] I conclude that Mr. Irwin engaged in an impermissible collateral attack on the orders relating to buildings 3 and 4. While some factors suggest that an attack is permissible, I view the purpose of the Act and readily available appeal mechanisms as the decisive factors. The Act’s safety goals would be undercut if individuals could wait for penal proceedings to determine whether a building permit is required. By setting up a broad appeal mechanism, which must be exercised within 20 days of the order, the legislature signalled that expediency is a priority. Permitting collateral attacks of the type Mr. Irwin is making in this case would undermine this design, and is therefore contrary to legislative intent.

[69] I would allow the appeal for convictions on the four orders relating to buildings 1, 2, 5, 6 and 7, set aside those convictions, and enter acquittals in their place. I would not disturb the convictions for the two orders relating to buildings 3 and 4. Since Mr. Irwin was fined $100 per count, I would reduce his total fine to $200.

R v Ellis, 2020 NSCA 78

[December 9, 2020] Charter s.11(b) and Disclosure Requested Late by the Defence [Reasons by Derrick J.A. with Beveridge and Bryson JJ.A. concurring]

AUTHOR’S NOTE: Often, in the rush to save prosecutions from ending on seeming finality of the Jordan deadlines, judges can make the late provision of disclosure seem to be the fault of the defence. Usually, this is done by suggesting that defence counsel who make late disclosure requests which result in adjournments are to blame for the adjournments. Of course, this line of logic flips 30 years of disclosure jurisprudence on its head. After all, the Crown is responsible for disclosing everything that is not clearly irrelevant. The defence only need to make a single request for disclosure on a case, after that the obligation technically rests with the Crown. In this decision, the NSCA rules in favour of the defence in a manner that makes s.11(b) case law consistent with s.7 disclosure case law. Here, despite late disclosure requests for evidence that was not clearly irrelevant, the delay was the responsibility of the Crown. Although the weakness of the decision is that it leans rather heavily on deference to the trial judge's findings of fact, it is still a useful precent in protecting the s.11(b) rights of the accused.


[1] This Crown appeal concerns whether the trial judge, Judge Alan Tufts, erred in finding a violation of Mr. Ellis’ right to a trial within a reasonable time, and staying the proceedings against him.

[2] In making his ruling, Judge Tufts applied R. v. Jordan, 2016 SCC 27, which established that compliance with s. 11(b) of the Charter of Rights and Freedoms requires the completion of trials in Provincial Court within eighteen months. That outer limit was referred to in Jordan as the “presumptive ceiling”.[1] A delay above this ceiling is presumptively unreasonable.

[4] In reaching the conclusion that Mr. Ellis’ s. 11(b) right had been breached, the trial judge used the framework set out in Jordan for analyzing delay. The Jordan framework for this case was fairly straightforward. The trial judge was asked to determine how much of the delay lay at the feet of defence as a result of defence waiver.

[5] On appeal, the Crown argues the trial judge should have attributed more delay to the defence, including for reasons other than waiver. It is the Crown’s submission that had he done so, the presumptive ceiling would not have been exceeded and a judicial stay of the proceedings would not have been warranted.


[26] In a review of the chronology of the case, the Crown indicated that in April 2018 it was learned that Mr. Manning had forwarded the disclosure to Ray Jacquard who was going to be taking over Mr. Ellis’ representation. (Mr. Manning had been divesting himself of files with court dates past the end of June 2018 because of his plan to retire.) In July, the Crown contacted Mr. Jacquard’s office and discovered that he was not representing Mr. Ellis. The disclosure had not been returned to the Annapolis Royal Legal Aid office. It was still in Mr. Jacquard’s office from which Mr. Brown got it in mid-October, 2018.

[27] Mr. Brown advised he had sent a request to the Crown on January 7, 2019 for additional disclosure. This included CCTV footage from local businesses that had been obtained by the police, photographs of Mr. Ellis’ motor vehicle, email attachments, and the Informations to Obtain (ITO’s) for three search warrants, none of which had been disclosed to the defence. Crown counsel told the trial judge it was “simply not noticed that these items had not been included” in the original disclosure.

[28] Crown counsel opposed the February 6, 2019 adjournment request. He described the disclosure request as late and for “some marginally, possibly relevant material”.

[29] The trial judge proposed that the February 8 trial date be used for a voir dire on the admissibility of the accused’s statement. Mr. Brown said he wanted to view the surveillance videos, one of which no one had been able to open. He had also requested two photographs the Crown was trying to locate. These were photographs of Mr. Ellis downloaded by the complainant from social media and forwarded to police.

[30] It was agreed that Mr. Ellis’ trial would start on February 8 with the statement voir dire. The complainant’s testimony would be heard on February 15.

[31] February 8, 2019 – Defence waived the statement voir dire. Voluntariness was admitted. The video of Mr. Ellis’ statement was played.

[32] Mr. Brown addressed disclosure. Although identity was not in issue, Mr. Brown wanted disclosure of a photo of Mr. Ellis and a screenshot of his Facebook profile which the complainant had provided to police, as “a matter of our due diligence”. Mr. Brown said, “It’s not a hill that we want to die on”. The Crown explained that once they located Mr. Ellis, they did not retain the email from the complainant attaching the photos that were sent to assist in finding him.

[33] Of more significance to the defence was the disclosure of photographs taken three weeks after the incident during a search of Mr. Ellis’ Honda Civic. Mr. Brown said the photos were the best evidence of what the interior of the car looked like. There was no dispute that sexual contact had occurred in the front seats. Crown counsel said it was likely the defence wanted to use the photographs to cross-examine the complainant on the improbability of non-consensual sex in such a confined space.

[34] Crown counsel advised he did not have the photographs. He had asked the police investigator in charge of the file to find them or explain why they weren’t available.

[37] The trial judge agreed with Mr. Brown that he should at least have the opportunity to look at the photographs. Crown counsel was to speak to the complainant about coming back for her testimony another day. Mr. Brown said the defence took, “no position” on the trial going over to another day for the direct and cross-examination of the complainant.

[38] The trial judge granted an adjournment to February 28 to accommodate the complainant’s preference of having direct and cross-examination dealt with on the same day.

[39] February 28, 2019 – The complainant testified. Mr. Brown had her look at the car photographs during cross-examination. The Crown closed its case. The defence elected not to call any evidence.

[40] The trial judge ordered a transcript of the evidence and set April 4 for final submissions. He scheduled May 10, 2019 to render his decision.

[41] On March 10, Mr. Brown requested disclosure of the SANE (Sexual Assault Nurse Examiner) kit from the Crown, in particular, photographs taken during the complainant’s examination.

[42] On March 27, 2019, Mr. Brown requested the Crown provide him with a copy of the documentary components of the SANE kit.

[43] On April 1, 2019, Crown counsel and Mr. Brown had a telephone appearance with the trial judge. Mr. Brown advised he was seeking disclosure of the SANE kit. The complainant had testified on February 28 there were photographs taken in the course of the SANE examination at the hospital. The Crown said no photographs were taken and undertook to obtain an itemized list of the contents of the kit.

[44] Mr. Brown indicated that he required an adjournment so he could look at the SANE disclosure before final submissions. He said he “would be very loath [sic] to go ahead with final submissions without having seen these documents”.

[45] The trial judge granted the adjournment request. He expressed concern about delay. He said Mr. Ellis should have:

…every opportunity to pursue all the evidence against him…What I don’t want to do is be looking at some kind of a delay request as a result of this, okay?

[46] Mr. Brown responded by saying:

…we’re not looking at making a Jordan application. I mean, assuming that we’re able to find some new dates within…you know, sort of the general timeframe you’ve mentioned…of May, possibly a little later than that, I don’t think it’ll be an issue”.

[48] May 6, 2019 – This was the date scheduled by the court for final submissions. Mr. Brown advised the trial judge he was not satisfied with the SANE disclosure he had received, entitled: “Itemized List from Sexual-Assault Kit”. There were 7 items listed, 6 of which were biological samples. The 7 th item on the list was a document labelled “Forensic Evidence Record Form 4”.

[49] Crown counsel informed the trial judge he had contacted the police about photographs the complainant had mentioned in her testimony and was told there were no such photos. When he asked police what was in the SANE kit, he received the itemized list and forwarded it to Mr. Brown.

[50] At this point, Mr. Brown observed the case was five months over the Jordan deadline for provincial court trials. He said: “We can’t tolerate any further delay”. He indicated the defence was not looking for another adjournment. He complained about the incomplete disclosure:

But it is our position that we’re going into final submissions without having received complete disclosure from the Crown, that the Defence is going into final submissions and had to cross-examine the complainant really with one hand tied behind its back because of this failure on the Crown’s part to make full disclosure.

[51] Notwithstanding the outstanding disclosure, Mr. Brown agreed to proceed with submissions. He said he could follow up with the Crown about his disclosure request for the documentary (paper) components of the SANE kit.

[53] June 12, 2019 – Mr. Brown brought related applications seeking a judicial stay on the basis of: (1) a breach of the Crown’s disclosure obligations under s. 7 of the Charter, and (2) s. 11(b) delay based on the proceedings being prolonged by non-disclosure.

[54] Crown counsel arrived at court on June 12 with the disclosure Mr. Brown had been requesting: the complainant’s authorization (Form 2) and the photographs of the complainant taken during the SANE examination at the hospital. He advised that Form 4 had never been forwarded to the Crown despite a number of requests to the police.

[56] After a recess to examine the new disclosure, Mr. Brown advised the trial judge that the content of Form 2 “would have been useful in cross-examining the complainant”. He indicated he was looking at the possibility of asking to have the complainant recalled for cross-examination on the document.

[57] The trial judge set August 22, 2019 to hear the defence application for a judicial stay based on s. 11(b) delay. Counsel were given dates for filing written submissions. On July 18, the complainant returned for further cross-examination. Mr. Brown advised he would not be making any use of Form 4 and was not proceeding with the s. 7 Charter application.

[59] August 22, 2019 – In the course of argument on the stay application, Crown counsel agreed there had been no frivolous defence applications. The issue was whether the defence had waived any of the delay.

[60] In his reply submissions, Crown counsel explained that the SANE photographs were located in the Middleton RCMP exhibit locker “simply floating around”…“and nobody knew what file they belonged to”. He said neither the Crown nor the police had any knowledge there were photographs taken at the hospital during the SANE examination. This only came to light when the complainant testified about them.

Standard of Review

[79] The Ontario Court of Appeal has adopted the standard of correctness as the lens through which all aspects of the s. 11(b) analysis are to be viewed. In R. v. Jurkus, 2018 ONCA 489, the court held that a trial judge’s characterization of periods of delay is not subject to deference. Jurkus viewed those characterizations and the ultimate decision as to whether there has been unreasonable delay as subject to review on a standard of correctness (at para. 25). Jurkus was cited by this Court in Potter.

[80] On reflection, we have concluded that the view taken by the British Columbia Court of Appeal in R. v. Pipping, 2020 BCCA 104, is preferable to the Jurkus approach. That said, the ultimate determination of the issue of whether there has been unreasonable delay is subject to a correctness standard, as this Court has held previously. However, a trial judge’s categorization of each period of delay, and findings of underlying facts, should not be subject to a correctness standard. These determinations are to be afforded deference.

[81] In Pipping the court held:

[92]  The post‑Jordan s. 11(b) framework invokes different standards of review at three different stages: (1) findings of fact relevant to defence conduct; (2) the characterization of delay and the attribution of responsibility; and (3) the determination of whether the total delay is unreasonable and the decision to impose a stay.

[93]  At the first stage, the findings of fact of a trial judge that are relevant to defence conduct are afforded deference on review, and subject to a standard of palpable and overriding error: R. v. Horner, 2012 BCCA 7 at para. 70; R. v. K.N., 2018 BCCA 246 at para. 13.

[94]  At the second stage, first instance judges are uniquely positioned to gauge responsibility for delay: Jordan at para. 65. The determination of whether defence conduct is legitimate or illegitimate is highly discretionary, and appellate courts must show a high level of deference on review: Cody at para. 31; R. v. S.C.W., 2018 BCCA 346, leave ref’d (2019) SCC Docket 38403, at para. 38.

[95]  At the third stage, the ultimate determination of whether the total delay is unreasonable and the decision to impose a stay is a question of law subject to a correctness standard: K.N. at para. 13; R. v. Christhurajah, 2019 BCCA 210 at para. 113.

[82] I am satisfied the application of a correctness standard only to the ultimate determination of whether there has been a s. 11(b) violation is the appropriate approach. The first stage – findings of fact relevant to defence conduct being entitled to deference – is in keeping with the approach taken in Brown. The second stage – recognizing the unique qualifications of trial judges to assess responsibility for delay – acknowledges the high degree of deference Jordan and Cody have directed appellate courts to show (see, Jordan, at paras. 65, 79, and 91; Cody, at para. 31).

Disclosure-related Delay

[96] Appellate Crown is pinning the disclosure delays on the defence by invoking the long-standing duty of defence to diligently pursue disclosure. The Crown notes this is one aspect of the obligation on defence to “avoid causing unreasonable delay” (Cody, at para. 33) and “proactively prevent unreasonable delay” (Potter, at para. 274).

[97] The Crown identifies two disclosure requests by defence that led to delay in this case: (1) on January 7, 2019 for email attachments, photographs of the motor vehicle, surveillance video, and ITOs – resolved Feb. 28, 2019, and (2) on March 10 and 27, 2019 for SANE-related disclosure – resolved July 18, 2019.

[103] The trial judge found as a fact that two significant events “contributed to the delay and pushed this proceeding over the Jordan limits”. They were: (1) the double-booking of March 14, 2018 which forced the rescheduling of Mr. Ellis’ trial; and (2) the failure of the Crown to disclose what the trial judge called “very important documents”, the SANE photographs and other documentation from the SANE sexual-assault kit, which he noted had been in the possession of the police all along. He concluded:

…the bottom line is that the failure to disclose important materials contributed to the delay. Again, the explanations for this are all on the record. If either of these events had not occurred this proceeding could have been concluded within the Jordan time frame. In March of 2018, if the trial had have gone ahead at that time, it was less than 12 months out, even the February 2019, approximately 16 months out, could have been completed within the Jordanlimit. It was the combination of both of these events which allowed the time frame to be exceeded.

[104] The record before the trial judge provided ample support for his factual findings. He found it was the Crown, not the defence, who bore responsibility for the late disclosure. His findings are entitled to deference.

[105] Furthermore, the failure to disclose the SANE-related disclosure was not a discrete event. The failure of the police to properly manage the evidence, with the result that it was not located for some time, cannot be characterized as an unforeseeable or unavoidable circumstance that could not have been mitigated.

[117] I find the trial judge made no error in rejecting the Crown’s submission that Mr. Ellis had waived his s. 11(b) rights for the period of February 28 to August 16, 2018. As the trial judge found, there was no waiver. The acceptance of the August 16 trial date did not constitute a clear, unequivocal waiver by Mr. Ellis of his right to a trial within a reasonable time. There was nothing said about Mr. Ellis’ right, his knowledge of it and his understanding of the effect of a waiver on those rights, all features of an effective waiver (Jordan, at para. 61).

[127] As I noted at the start of these reasons, in a s. 11(b) analysis total delay is calculated from the date the accused is charged to the end of evidence and submissions. The endpoint for the calculation was established in R. v. K.G.K, a decision rendered by the Supreme Court of Canada after the trial judge had found Mr. Ellis’ trial had exceeded the Jordan presumptive ceiling by two-and-a-half months. Without the benefit of K.G.K., the trial judge treated the end of the evidence on July 18, 2019 as the end of the trial. Applying K.G.K., the end of Mr. Ellis’ trial was August 22, 2019. The net delay in this case exceeded the presumptive ceiling by three-and-a-half months.

[128] The trial judge’s factual findings, categorization of the periods of delay, and attribution of responsibility are entitled to deference. His determinations are amply supported by the record. He was correct in his conclusion the Jordan presumptive ceiling for Mr. Ellis’ trial had been exceeded, constituting a violation of s. 11(b), and warranting a stay of proceedings. I would dismiss the appeal.

R v JB, 2020 ONSC 7647

[November 20, 2020] Certiorari/Mandamus for the Crown regarding results at Preliminary Hearing [D.E. Harris J.]

AUTHOR’S NOTE: Regular legal error and jurisdictional error are not the same thing. There is a space between the two where a decision at the preliminary hearing may have been in legal error but is not reversible for lack of jurisdiction. This manages to find that fine line and define it with some clarity for others to follow. 


[1] The Applicant Crown applies for certiorari with mandamus in aid to require the preliminary hearing judge to commit the Respondent to trial with respect to robbery and point firearm charges upon which he was discharged at the preliminary inquiry.

[2] In my view, with respect, the preliminary hearing judge erred in not committing the Respondent to trial on the two charges. However, the Crown must go further and demonstrate that the error of the preliminary hearing judge took him outside of his jurisdiction. The Crown, in my view, has failed to do so. The application must therefore be dismissed.

The Evidence

[3] The criminal offences in this case are based on a carjacking allegation. At around midnight on August 25, 2019, Dalia Nayef was sitting in her Kia Soul outside Credit Valley Hospital waiting for a friend. She noticed a black Honda parking close to her vehicle. Soon after, a man pointed a gun at her through her half open driver’s window and forcibly removed her, taking her place in the driver’s seat. Another man entered the front passenger seat. They drove off in the vehicle. The black Honda that had arrived moments before the robbery followed the Kia. Ms. Nayef called the police and told them what had happened.

[4] Ninety minutes later, at 1:33 a.m., Peel Police officers located the stolen vehicle in northeast Brampton. It was next to a black Honda Civic. Police stopped both vehicles and arrested three men on the scene. Hayden Pierce ran from the Kia and allegedly discarded a firearm. He was arrested shortly after.

[5] The Respondent was found in the back seat of the stolen Kia. Next to him was a backpack containing his cell phone and a small, black, loaded .38 handgun. He is charged with possession of the firearm and was committed to trial on consent with respect to it. Anthony Powell was arrested exiting the front passenger seat of the Kia. Also arrested was Shane D’Sousa who was driving the Honda.

[6] Ms. Nayef described the two men she saw but the descriptions were quite general. The gun was black with a barrel of 10-12 inches long. It appeared heavy; she could tell it was metal when it was pushed against her chest. Hayden Pierce’s fingerprint was found on the outside of the Kia driver’s door.

[7] Ms. Nayef’s bank cards and driver’s licence which she had left in the Kia when she was carjacked were found by the police in the Honda post-arrest. Mr. Pierce’s bank card was also found in the Honda as well as a .38 calibre shell casing which fit the gun found in the Respondent’s backpack. Near the scene, in the backyard of one of the houses, a loaded .357 Magnum Blackhawk revolver was found. This is alleged to be the weapon Pierce discarded as he was fleeing.

[8] Cell phone records were tendered at the preliminary inquiry. They show Pierce’s phone calling the Respondent’s phone at 10:23 p.m. on the night of the offence and the Respondent phoning him back at about 10:40 p.m. The Pierce phone, from about 10 p.m. until 11 p.m. was also in contact with both the Powell phone and the D’Sousa phone. The Crown argued that the absence of interaction in the time period around the carjacking showed that all four were together at that time.

Reasons for Discharging the Respondent

[9] The preliminary hearing judge found that the gun used to threaten Ms. Nayef was consistent with the gun discarded by Hayden Pierce, the .357 magnum. On the central question in this application, the judge said at pp. 15-20,

… this court finds that the descriptors given by Ms. Nayef are consistent in some ways with J. B. However, the descriptors are so general, the court finds that they amount to no evidence of the identity of her two assailants. This lack of useful identification evidence prevents the prosecution from bridging the temporal evidentiary gap for the reasonable inference that the prosecution asks the court to make. The court does not see that there is a case of competing inferences.

In this court's view, on the totality of the evidence, including the phone summary, the fact that Mr. B. is arrested in the back seat of the stolen Kia vehicle with a loaded gun in the circumstances noted, nearly an hour-and-a-half after the carjacking does not allow a reasonable inference to be drawn that he was with the culprits at the scene of the crime 90 minutes earlier. One might speculate that he was at the scene but that is not enough…

The passage in time of one hour and 30 minutes does not, in this court's view on the totality of the evidence, allow the court to reasonably infer that Mr. B. was in possession of a firearm at the time of the robbery.  The court has already concluded that there is no evidence for the court to reasonably infer that Mr. B. was at the crime scene.  But, even if the court were to conclude otherwise, as noted by the Supreme Court of Canada in the case of R. v. Dunlop and Sylvester, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881: “...Mere presence at the scene of a crime is not sufficient to ground culpability...”

Was the Preliminary Inquiry Judge in Error?

[10] It may be useful to approach the Crown’s application in two stages: 1. Did the judge err in finding that there was insufficient evidence to commit on the robbery and point firearm charges?; and, if yes, 2. Was this error of a jurisdictional nature?

[11] On the first question, with respect, I believe the preliminary hearing judge was in error. These are the main primary facts: 1. At least three people were involved in the carjacking—the man with the gun, the person who got into the front passenger seat, and the driver of the Honda. There may have been others in the Honda besides the driver, Ms. Nayef could not tell; 2. Both the Honda and the Kia were discovered by the police together at 1:33 a.m., an hour and a half after the carjacking; 3. Four men were arrested from the Honda and the Kia, including the Respondent; 4. When he was arrested, the Respondent was in the backseat of the Kia and was found in possession of a .38 revolver; 5. The Respondent was in contact with another arrestee, Hayden Pierce, by cell phone an hour and a half before the carjacking. Pierce was also in contact between 10 p.m. and 11 p.m. with the other two men arrested by the police before the offence.

[12] This evidence, in totality, was in my opinion sufficient to infer the Respondent’s guilt with respect to the carjacking. There was association evidence from the cell phone records not too long before the carjacking linking the Respondent to Pierce and Pierce to the other two men. The circle was closed by the arrest of the four men together after the carjacking. They were in contact before the offence and were found together with the stolen car and the black Honda used in the crime after the offence. A line of continuity connected the before with the after. From the contact before the offence to the group association after, in the context of all of the evidence, a reasonable inference could be drawn that the four men, including the Respondent, were together at the time of the carjacking. There was a short time span between the phone contacts, the carjacking and the arrests.

[13] The picture is completed by the discovery of the Respondent in the backseat of the stolen Kia just 90 minutes after the robbery. A permissive inference akin to that generated by the “doctrine of recent possession” would allow a finder of fact to conclude that the Respondent was present during the offences committed against Ms. Nayef.

[14] Justice McIntyre, in the leading case of R. v. Kowlyk, 1988 CanLII 50 (SCC), [1988] 2 S.C.R. 59 (S.C.C.), described the doctrine of recent possession this way,

Upon proof of the unexplained possession of recently stolen property, the trier of fact may — but not must — draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn.

[16] The concept of recency is “relative and incapable of any exact or precise definition”: Farnworth at para. 7.  In this instance, however, there can be no question that occupying the stolen car 90 minutes following its theft was exceedingly recent.  One old case cited with approval in Kowlyk, R. v. Exall (1866), 4 F. & F. 922, 176 E.R. 850 at para. 2 states,

If the interval has been only an hour or two, not half a day, the presumption is so strong, that it almost amounts to proof; because the reasonable inference is, that the person must have stolen the property. In the ordinary affairs of life, it is not probable that the person could have got possession of the property in any other way.

[19] It was argued on appeal that Carrington’s presence, in the absence of positive acts of aiding or abetting, amounted only to passive acquiescence.  Justice Simmons disagreed, holding,

While knowledge of another’s intent to commit a crime and mere presence at the scene do not lead automaticallyto a finding of aiding and abetting, such factors can be evidence of aiding and abetting: R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881 (S.C.C.), at p. 896; R. v. McKay, 2012 ABCA 310, 84 Alta. L.R. (5th) 404 (Alta. C.A.), at paras. 21-22. Here, by getting into the victim’s car, at a minimum, the appellant both abetted, and demonstrated an intention to abet, the other men in robbing the victim of his car. This is not a case where the appellant was a mere bystander. He took an active step of getting into the victim’s car that supported the other men in their endeavor, namely, depriving the victim of his car through the use of threats. To be guilty as an aider or abettor, all that is necessary is that the accused intended the consequences that flowed from his or her aid to the principal offender; it is not necessary to show that he or she desired or approved of the consequences: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, 8 C.R. (5th) 308 (S.C.C.), at para. 37. The fact that the appellant’s conduct would aid the other men in their endeavour was patent; nothing in the evidence rebuts the conclusion that he intended the consequences of his actions.

24      Further, and in any event, the trial judge’s conclusion that the appellant acted in concert with the other men in using an imitation firearm while attempting to commit a robbery is supported by the appellant’s presence at the scene prior to the night-time carjacking, the general similarity in dress of the three men, the appellant’s presence at the scene and ability to observe the events as they unfolded, the appellant’s conduct in getting into the victim’s car, driving away with the other men and fleeing with one or more of the other men before splitting up after they abandoned the stolen vehicle.

(Emphasis in Original)

[20] The Carrington facts, for all intents and purposes, are on all fours with the case at hand.  It was an unreasonable verdict argument in that case but nonetheless Justice Simmons’ comments are fully applicable to the present situation. In the end, on the evidence here, it is difficult to accept that the men in the Honda were simply along for the ride and did not share a common intention to aid or abet each other in the offences.

Did the Preliminary Hearing Judge Commit Jurisdictional Error?

[22] A legal error is not necessarily a jurisdictional error: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 (S.C.C.) at paras. 19-21. In a criminal prosecution, only a jurisdictional error is conducive to extraordinary remedies review. The test is the same, whether it is the Crown requesting review of a discharge from the preliminary hearing, as here, or whether it is the accused challenging committal after the preliminary hearing. However, in logic, the application of the test differs depending on whether it is the Crown or the defence applying for review. Applying the test to a positive action (committal for trial) is different than applying it to a negative one (a discharge).

[23]        If the defence is bringing the review, the most common situation argued is that there was an absence of evidence on an essential element of the offence. It is well-settled that this is an error of jurisdictional dimension: R. v. DesChamplain, 2004 SCC 76, [2004] 3 S.C.R. 601(S.C.C.) at para. 23; Russell at para. 21. When it is the Crown reviewing a discharge, the seminal statement also comes from DesChamplain:

23 … it is not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b): see Arcuri , supra, at paras. 21-23; Russell , supra, at para. 26. In that situation, it would be improper for a reviewing court to intervene merely because the preliminary inquiry judge’s conclusion on sufficiency differs from that which the reviewing court would have reached: seeRussell , supra, at para. 19.

(Emphasis Added)

[24] For clarity, it is helpful to examine Chief Justice McLachlin’s reaction to the complaint that the different application of the test for jurisdictional error depending on whether it is a discharge or committal in issue works an unfairness to the prosecution. She wrote in Russell,

29  The discrepancy that troubles the Crown is not, in my view, disturbing. As I note above, the governing principle is the same whether an error is challenged by the Crown or by the accused. While it is true that the effectof this principle is that errors as to the essential elements of the crime will, as a general rule, be reviewable when challenged by the accused but not when challenged by the Crown, this disparity reflects the balance of harms: a wrongful discharge does not raise the possibility of a violation of s. 7 of the Canadian Charter of Rights and Freedoms; by contrast, I think it clear that committing an individual to stand trial on a charge for which there is no evidence on one of the essential elements would violate the principles of fundamental justice. I note, moreover, that in circumstances such as were at issue in Tremblay, supra, the Crown is free, subject to the requirements of s. 577 of the Criminal Code, to lay a new information or prefer an indictment. There is no analogous remedy available to the accused.

(Emphasis in Original)

[25] I cannot, therefore, review the discharges in this case on the simple basis of disagreement on the issue of sufficiency. Discharging where there is direct evidence on each essential element is jurisdictional in nature. In our case, however, the Crown’s case is purely circumstantial. Some judicial discretion is inevitable in cases of circumstantial evidence because a preliminary inquiry judge must perform a limited weighing to determine whether an inference can be drawn from a primary fact: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.) at para. 23.

[26] There are several types of jurisdictional errors identified in the jurisprudence when the Crown challenges a discharge, for example:

  1. a)          Failing to consider the “whole of the evidence” when discharging under Section 548(1)(b) of the Code was the jurisdictional error identified in DesChamplain,
  2. b)          In the companion case to DesChamplain, v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 (S.C.C.) the preliminary hearing judge erred in failing to appreciate that the complainant had testified that she had not consented to the sexual activity.  The Court opined that at least one of three errors was evident, each of which was jurisdictional in nature: para. 25. I. The judge may have misunderstood the non-consent element of the offence.  II. He may have preferred an inference favouring the defence over the one favouring the Crown.  III. Or, lastly, the judge could have overlooked the evidence of non-consent and, therefore, failed to consider the whole of the evidence as in DesChamplain,
  3. c)          It is jurisdictional error for a preliminary hearing judge to act arbitrarily: DesChamplain at para. 23.

[27] The Crown attempts to bring the preliminary hearing judge’s decision into the territory of jurisdictional error with three submissions:

  1. By finding no evidence of the identity of the principal;
  2. By ignoring or rejecting inferences available to the Crown; and,
  3. By failing to consider the cumulative effect of the circumstantial evidence as a whole.

[28] In relation to the finding that there was insufficient evidence of the Respondent being the principal in the carjacking--that is the man with the gun who accosted Ms. Nayef—I agree with the preliminary hearing judge in this respect.  The description of the individual and the gun did not fit the Respondent or his .38 revolver. They fit another accused person—Pierce--much more closely. There was sufficient evidence to say that the Respondent was present at the scene but insufficient evidence to say that the Respondent was the person with the gun. As against the Respondent, this was solely a joint intention or party to the offence case.

[29] The second assertion, that there was a preference for inferences benefitting the defence over those benefitting the Crown, fares no better than the first. The preliminary hearing judge’s reasons excerpted above contain no indication that he deviated from his obligation in this manner. Furthermore, he said in his reasons (pp. 15-16),

The court is well aware it is not within the purview of the preliminary inquiry to choose between competing inferences that can reasonably be drawn. The question is after considering the totality of the evidence can a reasonable inference be drawn that Mr. B. was in the company of the people who committed the carjacking at midnight? Or is there an evidentiary gap in the totality of the evidence?

(Emphasis Added)

[30] A perusal of his reasons supports the conclusion that the preliminary hearing judge found that inferences advanced by the Crown to show presence and participation were simply not available. He fully understood that he had to accept the Crown’s inferences over those advocated by the defence. There was no weighing of competing inferences as was the jurisdictional error committed in R. v. C. (A.), 1999 CanLII 2372 (ON CA), [1999] O.J. No. 4041, 140 C.C.C. (3d) 164 (Ont. C.A.) at para. 7. In holding there was insufficient evidence, the preliminary hearing justice was properly performing his mandate.

[31] I also disagree that the preliminary hearing judge did not consider the whole of the evidence. In DesChamplain, the preliminary hearing judge found that there was no evidence that a knife was made of metal. But there was a considerable body of circumstantial evidence on the point. The judge did not refer to any of this circumstantial evidence in her reasons and this failure demonstrated that she did not consider “the whole of the evidence.” There was no analogous omission in this instance. All evidence was considered.

[33] The distinction between regular legal error and jurisdictional error is not a bright line.  It is open to interpretation. The 4:3 split in DesChamplains demonstrates the difficulty of the distinction. It could be argued that in this case, the failure to draw the inference of presence was because the judge did not consider the full import of the cell phone evidence or the inferences available from the Respondent’s presence in the backseat of the vehicle soon after it was stolen. However, it is clear from his reasons that the judge did consider those matters but, after weighing the evidence as required by Arcuri, did not believe a reasonable inference was available. At no time did the judge fail to consider and understand the primary and direct evidence adduced by the Crown.

[34] I conclude that the preliminary hearing judge’s decision revolved around his opinion that the inferences arising from the primary evidence were simply insufficient towards demonstrating guilt to the prima facie threshold. This was a judgment well within his jurisdiction to make: R. v. Turner, 2012 ONCA 570, [2012] O.J. No. 4088 (Ont. C.A.) at para. 30.