R. v. MacIntosh

R. v. MacIntosh Court Court of Appeal Date 2008-08-07 Citation 2008 NSCA 73 Docket CAC 298018 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - R. v. MacIntosh - 2008 NSCA 73 - 2008-08-07 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacIntosh, 2008 NSCA 73 Date: 20080807 Docket: CAC 298018 Registry: Halifax Between: Ernest Fenwick MacIntosh Appellant v. Her Majesty the Queen Respondent Restriction on publication: pursuant to s. 486.4 (1)of the Criminal Code of Canada Judge: The Honourable Justice Bateman in Chambers Application Heard: July 31, 2008, in Halifax, Nova Scotia Held: Application dismissed Counsel: Brian P. Casey, for the appellant Peter Rosinski, for the respondent Publishers of this case please take note that Section 486.4 (1) of the Criminal Code applies and may require editing of this judgment or its heading before publication. They provide: 486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: . . . Decision: [1] This is an application for a stay pending the hearing of an appeal from the dismissal of the appellant’s application for an order in the nature of prohibition. The proceeding on appeal is reported as R. v. MacIntosh, 2008 NSSC 194; [2008] N.S.J. No. 258 (Q.L.)(S.C.). [2] In his reasons for judgment, dismissing the application, Edwards, J. sets out the background to the proceeding before him: [2] . . . The Accused (MacIntosh) is charged on 3 Informations containing a total of 43 counts alleging sexual offences against 9 complainants in the 1970s. The first of these Informations was laid in 1995 and the remaining two in 2001. [3] At the time the first Information was laid, MacIntosh was living and working in India. Eventually the Crown sought extradition in relation to MacIntosh pursuant to an Extradition Treaty between the Government of Canada and the Government of India. On April 5, 2007, the Accused was arrested in India and returned to Canada by the Royal Canadian Mounted Police on June 6, 2007. [4] Article 14 of the Extradition Treaty provides: 1. A person extradited under this Treaty shall not be detained, tried or punished in the requesting State for an offence committed prior to his surrender other than that for which he was extradited, . . . . . . [5] The Accused's position is that the Crown is now attempting to prosecute him for alleged offences other than those for which he was extradited. . . . . . [7] The Certificate of Authentication dated July 6, 2006, seeks MacIntosh's extradition on a total of 43 counts. [8] The request for extradition dated July 14, 2005 (Diplomatic Note No. 0329 issued by the Canadian High Commission) specifically requests extradition on the 43 counts now before this Court. The 43 counts are clearly referenced by the Indian Court at page 23 of its decision granting extradition: "The serial violations committed by the fugitive criminal in as many as 43 different reported counts are not isolated incidents between two individuals but have a definite impact on the society for which he has to be suitably dealt with. The courts are under a legal obligation to protect the innocence of the childhood and to ensure that no person is allowed to exploit the same. Hence in so far the application of fugitive criminal for discharge u/s. 7(3) of the Extradition Act on the ground that the alleged offences are not extradition offences, I do not find any merit in the same. The application is hereby dismissed." [9] The final page of that decision indicates that MacIntosh consented to his extradition in exchange for time to wind up his affairs in India prior to his surrender. This is not the written waiver required by Article 16 of the Extradition Treaty. In the circumstances, I do not think the written waiver is required. MacIntosh was represented by Counsel before the Indian Court and, therefore, presumably gave his consent on the advice of counsel. [10] MacIntosh submits that it is necessary to determine what evidence was put before the Indian Court. Only in this way, he argues, can I make a determination of which charges formed the basis of his extradition. Despite the very able argument of counsel, I have concluded that I am really being asked to assess the sufficiency of that evidence. Any challenge to the sufficiency of the evidence in support of the extradition request was for the court in India to adjudicate. (Emphasis added) [3] Mr. MacIntosh challenges this country’s jurisdiction to try him on any of 43 charges. [4] In dismissing the application for prohibition, Edwards, J. found that he could not delve into the sufficiency of the evidence before the Extradition Court in India and that there was no uncertainty about the charges for which Mr. MacIntosh was extradited. He did not accept Mr. MacIntosh’s submission that the evidence submitted to the Indian Extradition Court must be in accordance with the Canadian Charter or Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [5] Mr. MacIntosh seeks a “stay” pending the hearing of the appeal, not of the order of Edwards, J., dismissing the application for prohibition, but of the preliminary inquiry into the 43 charges, which is set to commence on October 7, 2008 in the Provincial Court. Seven days have been set aside at that time, anticipating that a further five days will be needed to complete the inquiry into all charges. In effect, Mr. MacIntosh is asking this Court to impose an adjournment of the inquiry by temporarily granting the same relief that was refused by Edwards, J. [6] Mr. MacIntosh advises that, before election, he sought to challenge the validity of the charges in the Provincial Court but that the presiding judge determined that s/he had no jurisdiction to decide that issue. That disposition was not directly challenged, but led to the application for prohibition. An order in the nature of Prohibition having been refused in the Supreme Court, Mr. MacIntosh determined that it would be futile to return to the Provincial Court to seek an adjournment of the inquiry. [7] The first issue is whether I have the authority to grant the relief sought. Mr. MacIntosh submits: Pursuant to Rules 65.03 and 62.10, this Court has jurisdiction to grant a stay in this case: R. v. Dempsey (1995), 138 N.S.R. (2d) 110 (C.A.).... For the reasons argued in that case, a stay is required for the relief sought to be effective. The Criminal Code gives the Court of Appeal power to make rules respecting appeals: Rules of Court Power to make rules 482. (1) Every superior court of criminal jurisdiction and every court of appeal may make rules of court not inconsistent with this or any other Act of Parliament, and any rules so made apply to any prosecution, proceeding, action or appeal, as the case may be, within the jurisdiction of that court, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, action or appeal. In addition, Part XXI of the Criminal Code (the provisions of which are adopted for appeals in prohibition by s. 784 (2)), provides in part as follows: Procedure on Appeals Other powers 683(3) A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court, but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings preliminary or incidental thereto. The Court of Appeal has accordingly made the following rules: Stay of execution 62.10. (1) The filing of a notice of appeal shall not operate as a stay of execution of the judgment appealed from. (2) A Judge on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution of any judgment appealed from or of any judgment or proceedings of or before a magistrate or tribunal which is being reviewed on an appeal under Rules 56 or 58 or otherwise. (3) An order under rule 62.10(2) may be granted on such terms as the Judge deems just. ¼ 65.03 [Criminal Appeal Rules]. (1) The Civil Procedure Rules and Related Rules and practice of the Supreme Court shall apply with any necessary modifications to this Rule in all matters not herein provided for and when not inconsistent with this Rule; (2) Without restricting the generality of rule 65.03, Rule 62 when not inconsistent with this Rule shall apply to this Rule and all appeals and applications thereunder. The Appellant primarily relies on the language of Rule 62.10 (2) as authority for staying the preliminary hearings pending the appeal. That Rule is incorporated by the provisions of 65.03 and by the provisions of s. 683 (3) of the Criminal Code: (2) A Judge on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution of any judgment appealed from or of any ¼ proceedings of or before a magistrate or tribunal which is being reviewed on an appeal under Rules 56 or 58 or otherwise. The application for prohibition which is being appealed was brought pursuant to Rule 58 and part XXVI of the Criminal Code. The leading case on jurisdiction is the decision of Chief Justice Clarke of this Court in Dempsey .... After reviewing Civil Procedure Rules 62.10 and 65.03, he concluded the Court had jurisdiction to stay the pending trial on an appeal from an unsuccessful application for Certiorari: 21. For the reasons given and especially the persuasive authority and analysis in Keating [R. v. Keating, [1991] N.S.J. No. 356 (Q.L.)], I conclude that a chambers judge in the Nova Scotia Court of Appeal has the jurisdiction to hear and determine the present application. This is to say that when s. 482(1) of the Criminal Code is read in conjunction with Civil Procedure Rules 65.03 and 62.10(2), the Court of Appeal has the jurisdiction to deal with this application. As a consequence I have the discretion in chambers to determine whether a stay will be granted. It is submitted that the jurisdiction of the Court on an unsuccessful application for prohibition is the same as the jurisdiction of the Court on an unsuccessful application for certiorari, as both arise under the same sections of the Criminal Code and the Civil Procedure Rules. [8] The Crown expresses doubt that I have jurisdiction to stay the preliminary inquiry pending appeal. The Crown says this Court does not have such jurisdiction absent express statutory authority and that R. v. Dempsey (1995), 138 N.S.R. (2d) 110 (C.A.) is distinguishable in that it involved the stay of a trial in Supreme Court while here I am asked to stay a preliminary inquiry. In my view that appears to be a distinction without a difference. Courts in some other provinces have held that no such power exists (see, for example, R. v. Bugden (1992), 99 Nfld. & P.E.I.R. 102 (Nfld. C.A.)) and have expressed reservation, albeit in a different context, as to the correctness of Dempsey, supra (see R. v. Zurowski, [2003] A.J. No. 693 (Q.L.) per Russell, J.A. for the majority at paras. 22 and 23). Dempsey, supra, and its predecessor, R. v. Keating, supra, have, however, continued as good authority in this Court. For example, in R. v. Wood, 1999 NSCA 124 (Chambers), [1999] N.S.J. No. 347 (Q.L.) Cromwell, J.A. wrote, again in a different context: ¶ 16 It has been held that the Rules of Court supplement the powers specifically granted by the Criminal Code to help ensure that an appeal does not become pointless as a result of the passage of time. Freeman, J.A. of this Court held in Re Keating and The Queen (1991), 66 C.C.C. (3d) 530 (N.S.C.A., Chambers) that a judge of the Court of Appeal, in addition to the power conferred by the Criminal Code, has discretion pursuant to the Rules of Court to stay (i.e., temporarily halt) the enforcement of any order being appealed: at 535. The specific provisions in the Criminal Code and the authority conferred by the Rules of Court have the same objective: to prevent the risk that injustice may result from the enforcement of a sentence before an appeal can be heard. [9] I am satisfied that the combination of ss. 482 and 683(3) of the Criminal Code together with Civil Procedure Rule 62.10(2) provide the underlying authority to extend the use of stays in criminal proceedings to situations not specifically enumerated by Parliament. Accordingly, I have the power to stay the preliminary inquiry pending the hearing of the appeal. [10] Counsel agree that the relevant test on an application for a stay of execution pending appeal is that set out in Fulton Insurance Agency Ltd. v. Purdy (1991), 100 N.S.R. (2d) 341 (C.A.), at para. 28 per Hallett, J.A. ‑ a stay may be granted if the applicant shows either: (1) an arguable issue for the appeal and that there would be irreparable harm from denial of the stay and that the balance of convenience favours the applicant; or (2) there are exceptional circumstances warranting a stay. [11] The Crown says Mr. MacIntosh has not raised an arguable issue on the appeal. An arguable issue is as addressed by Freeman, J.A. in Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R. (2d) 170 at p. 174: [11] "An arguable issue" would be raised by any ground of appeal which, if successfully demonstrated by the appellant, could result in the appeal being allowed. That is, it must be relevant to the outcome of the appeal; and not be based on an erroneous principle of law. It must be a ground available to the applicant; if a right to appeal is limited to a question of law alone, there could be no arguable issue based merely on alleged errors of fact. An arguable issue must be reasonably specific as to the errors it alleges on the part of the trial judge; a general allegation of error may not suffice. But if a notice of appeal contains realistic grounds which, if established, appear of sufficient substance to be capable of convincing a panel of the court to allow the appeal, the Chambers judge hearing the application should not speculate as to the outcome nor look further into the merits. Neither evidence nor arguments relevant to the outcome of the appeal should be considered. Once the grounds of appeal are shown to contain an arguable issue, the working assumption of the Chambers judge is that the outcome of the appeal is in doubt: either side could be successful. [12] The threshold necessary to demonstrate a serious or arguable issue is not high. The Court said in RJR‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at pp. 337‑338: What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. . . . Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable. [13] I am satisfied that Mr. MacIntosh has met this low threshold in that the issues raised on the appeal are not vexatious or frivolous. That said, I am entitled to take into account, in weighting the additional Fulton factors, my assessment of the relative strength of Mr. MacIntosh’s case on appeal. Robert J. Sharpe, Injunctions and Specific Performance, looseleaf (Canada Law Book Inc.: Aurora, updated to November, 2007) wrote, speaking in the context of an injunction sought before trial (at 2.370): The weight to be placed upon the preliminary assessment of the relative strength of the plaintiff’s case is a delicate matter which will vary depending upon the context and circumstances. As the likely result at trial is clearly a relevant factor, the judge’s preliminary assessment of the merits should, as a general rule, play an important part in the process. However, the weight to be attached to the preliminary assessment should depend upon the degree of predictability which the factual and legal issues allow. If the judge is of the view that the plaintiff is unlikely to succeed, but cannot say that the claim is frivolous or vexatious, he or she should still go on to consider the other factors, rather than dismiss the application at the threshold. This is a positive and helpful aspect of the Cyanamid case which should not be forgotten. However, the judge’s negative impression of the plaintiff’s chances of ultimate success should be taken into account, along with all other considerations. By the same token, even if the plaintiff’s case looks very strong – a factor which should definitely weigh in his or her favour – the other factors should still be considered. . . . [14] Moving to the second factor in the Fulton test, citing R. v. Dempsey, supra, Mr. MacIntosh says that should he undergo a preliminary inquiry into the charges which, on appeal, may be found to be not properly before the court he will suffer irreparable harm. In Dempsey, Clarke, C.J.N.S. said: [24] There can be little doubt that if Mr. Dempsey is to be put to his trial, if arising from an improper committal, he will suffer irreparable harm. [15] There is no detail in the reasons for judgment as to what harm Mr. Dempsey alleged. I am not persuaded that this acknowledgement of irreparable harm is other than a factual one based upon Mr. Dempsey’s particular circumstances. [16] Should this Court conclude on the appeal that Mr. MacIntosh was not extradited for all or a significant portion of the 43 charges against Mr. MacIntosh and, therefore, pursuant to Article 14 of the Treaty those charges are not properly before the court, he will have been put through an unnecessary proceeding and subjected to significant costs. He will not be entitled to reimbursement for his expenses. This is the harm he alleges. There is no evidence that Mr. MacIntosh will personally suffer unique effects which would not be experienced by any accused facing a preliminary inquiry, where he is ultimately not committed to stand trial. [17] On the other hand, if the preliminary inquiry is completed and Mr. MacIntosh is committed to stand trial on some or all of the charges which are ultimately found not to be properly before the Court, he will have lost his chance to obtain an order in the nature of prohibition to halt the preliminary inquiry, but he will not be without relief. His opportunity to apply to stay the trial or quash the charges or for Charter relief will remain. In that sense, the denial of the stay would not render the appeal moot. [18] The assessment of irreparable harm in the context of a criminal matter such as this is difficult. Any time a criminal proceeding occurs and the accused is not committed to stand trial or is acquitted of the offence, s/he will have endured a seemingly unnecessary process with no redress for the inconvenience and cost. That is a part of our criminal process and a consequence that society has accepted. As Sharpe, J.A. writes (at 2.430): Some cases involve interests which are obviously difficult to evaluate in money terms and yet the court may still be reluctant to grant injunctive relief. Where the public interest is at stake, the calculation of irreparable harm becomes more difficult, as interests in addition to those of the immediate parties must be considered. In many cases, consideration of the public interest may be a powerful influence, depending on the circumstances, either in favour of or against an interlocutory injunction. It is exceptionally difficult to define irreparable harm precisely. Courts regularly and routinely assess monetary awards for non-pecuniary injuries where this is necessary. On the other hand, the courts have sometimes been prepared to view what otherwise seem readily calculable losses as “irreparable” for the purposes of interlocutory relief. In the context of preliminary relief, the test is a relative and flexible one which, it is submitted, necessarily involves an evaluation of the other factors. Indeed, it has been held that an interlocutory injunction may be granted even where “irreparable” harm has not been demonstrated. Similarly, attempts to make irreparable harm a condition precedent, and hence a threshold test, had been rejected. These cases suggest that the “irreparable harm” requirement can only be defined in the context of the risk-balancing exercise. If the plaintiff’s case looks very strong, harm may appear to be more “irreparable” than where the plaintiff has only an even chance of success. While judges seldom explicitly acknowledge that there is an “overflow” effect produced by strength or weakness of other factors, it cannot be doubted that, as a practical matter, it exists. The important point is that irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case. However it is defined, failure to establish irreparable harm is commonly cited as the primary reason for refusing injunctive relief. [19] I will consider the potential harm to Mr. MacIntosh along with the other Fulton factors. [20] Moving to the “balance of convenience”, this situation does not easily lend itself to the usual benefit/burden analysis. [21] Mr. MacIntosh submits that he is seeking a delay of just a few months, until the appeal judgment is rendered. The appeal will be heard on December 10, 2008. Assuming judgment is reserved, the decision might be expected within a month or two from that date. The Crown counters that there may be a further appeal should Mr. MacIntosh not succeed in this Court which would substantially prolong the delay. In addition to the delay to await the outcome of the appeal there will likely be a further delay inherent in scheduling new dates in Provincial Court for the preliminary inquiry. [22] The offences are alleged to have occurred in the 1970's, at a time when the complainants were under the age of majority. The charges were laid in 1995 and 2001. By that time Mr. MacIntosh was residing in India. The complainants have been awaiting the commencement of the judicial proceedings for, at least, several years. The Crown submits that the nine complainants are expecting and preparing for this matter to commence in just two months. It is against their interests to countenance further indeterminate delays. Society, not just the accused, has an interest in the expeditious conduct of criminal proceedings. Generally, the trial process should not be interrupted by appeals or by prerogative writ applications save in exceptional circumstances. (R. v. Corbeil, [1986] O.J. No. 175 (Q.L.), 27 C.C.C. (3d) 245 (C.A.)) [23] In R. v. Corbeil, supra, the appellant, alleging infringement of his right to be tried within a reasonable time, applied for prerogative relief to quash an indictment before trial. On appeal from a dismissal of the application, Lacourcière, J.A., writing for the Court, rejected the proposition that the avoidance of the expense of a lengthy trial was necessarily a special circumstance warranting the granting of relief where a Charter infringement was alleged: With due respect, if the opinion expressed in that case [Re Kendall and The Queen (1982), 2 C.C.C. (3d) 224] is taken to mean that the avoidance of the expense of a lengthy trial or an alleged continuing infringement of a right, necessarily and per se, constitutes a special circumstance making it appropriate to grant the extraordinary remedy, then I would disagree. When the question of infringement and the allegation of continuing infringement have been decided by a court of competent jurisdiction, the appropriate remedy is by way of appeal in due course. The assertion that the expense of a lengthy trial can be avoided can only succeed where the denial of a constitutional right is palpable and clearly established. See also Re Baptiste and The Queen (1982), 65 C.C.C. (2d) 510 at 511... Important policy considerations underly the restrictive approach to pre‑trial motions based on alleged constitutional violations in criminal cases. These same policy reasons militate against interrupting the trial process with appeals to the Court of Appeal. See R. v. Morgentaler, Smoling and Scott (1984), 16 C.C.C. (3d) 1 at p. 9. ... [24] I recognize that in Corbeil the court is addressing an alleged loss of jurisdiction through error of law while it is Mr. MacIntosh’s submission that the preliminary inquiry justice has no original jurisdiction over the charges due to the operation of Article 14 of the Treaty. Although the comments of Lacourcière, J.A. are not directly applicable here, they highlight the general reluctance to interfere with the trial process and the caution to be applied where prerogative relief is sought. [25] Having considered the three factors under the first branch of the Fulton test, I have determined that I should not force the adjournment of the preliminary inquiry. I reach this conclusion for the following reasons: • While it is not for me to pronounce conclusively on the merits of the appeal, there is no obvious error in Edwards, J.’s exercise of discretion to dismiss the application; • Mr. MacIntosh’s arguments are creative but, at first blush, run counter to the accepted law that the Canadian court will not go behind a warrant to enquire whether the surrender was valid under the foreign law (R. v. Hall (1918), 30 C.C.C. 129 (N.S.S.C.)); • The request for the stay requires, albeit on a temporary basis, the granting of exactly the same relief that was considered and denied by Edwards, J.; • Courts are reluctant to interrupt the trial process; • The preliminary inquiry may not be completed before determination of the appeal in which case Mr. MacIntosh, if successful on appeal, may again apply to end the inquiry; • In any event, should Mr. MacIntosh be committed to stand trial on any or all of the charges, he will not be without relief if successful on appeal; • In a criminal law context, the claim of irreparable harm is tenuous in that, should the appeal succeed, Mr. MacIntosh is in a similar position to any accused who is not committed to stand trial after a preliminary inquiry; • Both prohibition and a stay of proceedings are discretionary remedies to be used with restraint. [26] Moving to the second branch of the Fulton test, I am not satisfied there are exceptional circumstances here requiring the granting of a stay. In W. Eric Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd., 2006 NSCA 129; [2006] N.S.J. No. 481 (Q.L.) Cromwell, J.A. discussed “exceptional circumstances”, explaining that this aspect of the Fulton test is rarely satisfied: ¶ 11 Very few cases have been decided on the basis of the secondary test in Fulton. Freeman, J.A. in Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R. (2d) 171 (C.A., in Chambers) at para. 13 offered as an example of exceptional circumstances a case in which the judgment appealed from contains errors so egregious that it is clearly wrong on its face. As Fichaud, J.A. observed in Brett v. Amica Material Lifestyles Inc. (2004), 225 N.S.R. (2d) 175 (C.A., in Chambers), there is no comprehensive definition of "exceptional circumstances" for Fulton's secondary test. It applies only when required in the interests of justice and it is exceptional in the sense that it permits the court to avoid an injustice in circumstances which escape the attention of the primary test. ¶ 12 While there is no comprehensive definition of what may constitute "exceptional circumstances" which may justify a stay even if the applicant cannot meet the primary test, those exceptional circumstances must show that it is unjust to permit the immediate enforcement of an order obtained after trial. So, for example, in Fulton itself, Hallett, J.A. found that exceptional circumstances consisted of three factors in combination: first, that the judgment was obtained in a summary proceeding rather than after trial; second, that on the face of the pleadings the appellant raised what appeared to be an arguable issue and, thus, was likely to be successful on appeal; and third, the appellant had a counterclaim and claim to a set off that had not been adjudicated making it premature to execute on the summary judgment. ¶ 13 While there can be no comprehensive definition of what constitutes special circumstances, they must be circumstances which show that it would be unjust to permit immediate enforcement of the judgment. This is because a stay of execution, in common with interim injunctive relief, must justly apportion the risk of uncertainty about the ultimate outcome of the case. There are arguable issues raised on appeal, but one cannot at this stage speculate about what the outcome of the appeal will be. The risk created by this uncertainty is shared by both the appellant and the respondents. If a stay is granted and the appeal ultimately fails, the respondents will have been kept out of their money needlessly. If, on the other hand, the stay is denied and the appeal ultimately succeeds, the appellant will have been required to pay the judgment needlessly. [27] Mr. MacIntosh is now on bail having served a year in custody. He argues that even if convicted of all of the charges before the Court it is arguable that he will not be sentenced to any further period of imprisonment. The fact that he may have already served the custodial time he might receive if convicted, he says, mitigates any public policy in favour of proceeding with the preliminary inquiry. I am not prepared to speculate on what the sentence could be on these 43 charges. In any event, society and the nine complainants have an interest in having the criminal process proceed, whatever sentence may result. There are no exceptional circumstances here. [28] The application is dismissed. I commend counsel for their helpful and able submissions in this matter. Bateman, J.A.