R. v. Brun Del Re

R. v. Brun Del Re Collection Decisions of the Court of Appeal Date 2008-05-13 Neutral citation 2008 ONCA 378 Docket numbers C48561 Judges Feldman, Kathryn N.; Sharpe, Robert J.; Armstrong, Robert Patrick Subject Criminal Decision Content WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide 539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (a) may, if application therefor is made by the prosecutor, and (b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (c) he or she is discharged; or (d) if he or she is ordered to stand trial, the trial is ended. (2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1). (3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction. (4) [Repealed, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18. CITATION: R. v. Brun Del Re, 2008 ONCA 378 DATE: 20080513 DOCKET: C48561 COURT OF APPEAL FOR ONTARIO FELDMAN, SHARPE and ARMSTRONG JJ.A. BETWEEN: HER MAJESTY THE QUEEN Respondent and DR. RENATO BRUN DEL RE, GIANCARLO BRUN DEL RE Appellants Peter R. Boushy for the appellants Craig Harper for the respondent Heard and released orally: May 1, 2008 On appeal from the order of Justice N. Borkovich of the Superior Court of Justice dated March 7, 2008. ENDORSEMENT [1] In our view, the application judge did not err in refusing to make an order by way of certiorari in respect of the preliminary hearing judge’s rulings on evidence. The scope of review by way of certiorari in respect of decisions made at a preliminary hearing is very limited. See R. v. Russell (2001), 157 C.C.C. (3d) 1 at para. 30 (S.C.C.). [2] The rulings of the preliminary hearing judge in this case on the relevance of evidence were clearly within his jurisdiction. Certiorari is a jurisdictional remedy. While the line of cross-examination that was shut-down by the preliminary hearing judge may have been proper, that was not a question for the application judge to consider on the application before him. [3] The reasons for judgment of this court in R. B.(E.) (2002), 162 C.C.C. (3d) 451 ( C.A. ) do not apply to this case. [4] In our view, the application judge correctly found that there was no jurisdictional error. Although his endorsement was extremely brief, we do not find that there is a Sheppard error. [5] There is an additional matter that concerns the court. The application was brought prior to the making of an order for committal for trial. In our view, certiorari rarely, if ever, can be brought before a decision on committal. See R. v. George (1991), 69 C.C.C. (3d) 148 at p. 153 ( C.A. ) [6] In the result, the appeal is dismissed. “K. Feldman J.A.” “Robert J. Sharpe J.A.” “Robert P. Armstrong J.A.”