R. v. King, 2011 ABQB 162

Court of Queen ’ s Bench of Alberta Citation: R. v. King, 2011 ABQB 162 Date: 20110406 Docket: 0614444048Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Ricco King, Farhan Sattar, Kamran Sattar, and Melissa Diane King Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J. Strekaf _______________________________________________________ I. Introduction [ 1 ] This is an application in the nature of certiorari brought by Ricco King, Melissa King, Farhan Sattar and Kamran Sattar to quash their committals to stand trial.

The preliminary hearing was conducted over 17 days before Judge Veldhuis between September 8, 2009 and June 18, 2010. At the conclusion of the preliminary inquiry, Ricco King, Farhan Sattar and Kamran Sattar were committed to stand trial for conspiring to traffic in cocaine and Melissa King was committed to stand trial for possessing cash knowing it was obtained by the commission of an indictable offence.

[ 2 ] The test to be applied on an application to quash a committal is well established. A preliminary inquiry judge has jurisdiction to conduct the inquiry according to the rules of evidence. An error with respect to the application of those rules (that does not rise to the level of a denial of natural justice which goes to jurisdiction) constitutes an error of law. Errors of jurisdiction are reviewable by certiorari , while errors of law are not: R v. Deschamplain , 2004 SCC 76 , [2004] 3 S.C.R., 601, per Major J. at para. 17. II.

Background [ 3 ] Sergeant Stapleton, a member of the RCMP, was called by the prosecution to testify at the preliminary inquiry on September 17, 2010 as an expert on various matters including the

interpretation of language and the jargon of telephone calls that had been intercepted pursuant to a wiretap that had been obtained. A voir dire was conducted to determine if he was qualified to testify as an expert in this area and whether his evidence was admissible. In the course of the voir dire, the Applicants argued that Sergeant Stapleton’s evidence should not be admitted on the basis that its prejudicial effect outweighed its probative value as his

interpretation was based on a limited review of the intercepted calls and started with the assumption that the conversations were about drug trafficking. Sergeant Stapleton had not reviewed all of the intercepted telephone calls, only those calls that had been identified for him by the lead investigator. [ 4 ] After hearing submissions on the admissibility of Sergeant Stapleton’s evidence, the preliminary inquiry judge stated on February 24, 2010 that she was not prepared to admit his evidence with respect to the

interpretation of the calls as she was not satisfied that he had adequate information before him to form a proper foundation for his opinion. [ 5 ] The preliminary inquiry judge agreed to provide written reasons for her decision, which were delivered on April 30, 2010. In her written decision, the preliminary inquiry judge changed her mind and admitted Sergeant Stapleton’s evidence.

She stated that she believed her previous comment that Sergeant Stapleton’s evidence should be excluded due to concerns about the sufficiency of materials he reviewed was an error, that she did not believe she had the jurisdiction as a preliminary inquiry judge to make that finding and that concerns about the sufficiency of the foundation for his opinion go to weight. [ 6 ] The Applicants filed written submissions on June 10, 2010 requesting that the preliminary inquiry judge’s initial ruling on the admissibility of Sergeant Stapleton’s evidence be restored.

On June 18, 2010, the preliminary inquiry judge advised that she was maintaining the ruling issued April 30, 2010. III. Parties’ Positions [ 7 ] The Applicants’ position is that the rules of evidence are to be applied at a preliminary inquiry and that a preliminary inquiry judge has the jurisdiction and the responsibility to rule on the admissibility of evidence.

They argue that the preliminary inquiry judge’s approach constituted a failure to exercise her jurisdiction in determining the admissibility of Sergeant Stapleton’s evidence which constituted a jurisdictional error that deprived them of their right to natural justice.

They seek the quashing of their committal and a direction that the matter be remitted back to the preliminary hearing judge to reconsider the issue of committal after exercising her jurisdiction in relation to the admissibility of the expert’s evidence. [ 8 ] The Crown opposes the application on the grounds: - that the Applicants mischaracterized the preliminary inquiry judge’s ruling and that she simply ruled that the objections advanced by the Applicants did not engage the general exclusionary rules but were only matters of weight; - that a decision concerning the admissibility of evidence does not affect jurisdiction and that certiorari is not available, even if wrong in law; and - that even if the decision to admit the evidence was jurisdictional that the discretionary remedy of certiorari should not be granted because committal of the Applicants was inevitable as the evidence was unquestionably admissible.

IV. Issues [9] There are three main issues to be determined on this application: 1. Did the preliminary inquiry judge err in determining that concerns about the sufficiency of the foundation for SergeantStapleton’s report did not go to its admissibility? 2. If so, was that determination an error of law or an error of jurisdiction? 3. What, if any, remedy should be granted? V. Analysis 1.

Did the preliminary inquiry judge err in determining that concerns about the sufficiency of the foundation for SergeantStapleton’s report did not go to its admissibility? [10] The well recognized test to be applied to determine whether expert evidence is admissible depends upon the application offour criteria: relevance; necessity; absence of any exclusionary rule; and a properly qualified expert, as outlined by the Supreme Court ofCanada in R. v.

Mohan, (SCC), [1994] 2 S.C.R. 9. [11] The Court in Mohan described the balancing exercise or cost benefit analysis that is to be performed when determining theadmissibility of expert evidence; at pp. 20-21: Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decidedby a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not endthe inquiry. This merely determines the logical relevance of the evidence.

Other considerations enter into the decision as to admissibility.This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs." See McCormick onEvidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on thetrial process.

Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by itsprejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in thesense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as anaspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a generalexclusionary rule (see Morris v. The Queen, (S.C.C.), [1983] 2 S.C.R. 190).

Whether it is treated as an aspect ofrelevance or an exclusionary rule, the effect is the same. The reliability versus effect factor has special significance in assessing theadmissibility of expert evidence. (emphasis added) [12] The concerns initially expressed by the preliminary inquiry judge at the hearing on February 24, 2010 go to the reliability ofSergeant Stapleton’s evidence. She initially stated that she was excluding portions of his evidence because she was concerned that he didnot have adequate material to form a proper foundation for his opinion.

The preliminary inquiry judge subsequently concluded thatdespite her concerns about the sufficiency of the foundation for the opinion evidence that she erred in stating that the evidence wasinadmissible because she did not believe that she had “jurisdiction as a preliminary inquiry judge to make that finding” and that “(to) theextent that any opinion Sergeant Stapleton provides is based on insufficient foundation facts, hearsay, or exposes deficiencies in hisexpertise, these matters go to weight.” [13] The Applicants argue that the preliminary inquiry judge failed to perform the balancing exercise required by Mohan and takethe general exclusionary rule into account when determining whether Sergeant Stapleton’s evidence was admissible.

They characterizethe preliminary inquiry judge as determining that she was not required to decide whether the probative value of the opinion evidence

outweighed its prejudicial effect. I find it helpful in this case to characterize the issue as whether the preliminary inquiry judgedetermined that she was not required to consider whether the potential effect of the expert opinion evidence was out of proportion to itsreliability.

Both of these aspects of the general exclusionary rule were expressly recognized in Mohan as considerations to be taken intoaccount in appropriate circumstances when determining whether expert opinion evidence is admissible. [14] The Mohan test is to be applied whenever a court is considering whether expert evidence should be admitted, whether it be ata preliminary inquiry or at a trial. In such circumstances, the court is required to perform the balancing exercise described in Mohan,having regard to the evidence before it.

I am satisfied that concerns about the sufficiency of the foundation for Sergeant Stapleton’sopinion is one of the considerations that the preliminary inquiry judge was required to take into account when performing this balancingexercise and determining whether the potential effect of the opinion evidence was out of proportion to its reliability. [15] The language used in Mohan to describe this aspect of the tradeoff was whether the evidence was “misleading in the sensethat its effect on the trier of fact, particularly a jury, is out of proportion to its reliability.” In my view, it is not relevant that a judge on apreliminary inquiry will not be weighing the evidence nor that there is no jury involved.

That does not relieve the judge on a preliminaryinquiry of the obligation to apply the Mohan test and perform the reliability versus effect tradeoff when exercising the gatekeepingfunction that determining admissibility involves. Otherwise, the result would be that a different test would be applied to determine theadmissibility of expert evidence in the course of a preliminary inquiry than at trial.

I see no legal or practical reason for that to be thecase. [16] Moreover, applying a different test for admissibility that did not require the performance of this balancing exercise wouldmean that a preliminary inquiry judge who was faced with expert opinion evidence that she considered inherently unreliable would berequired to admit it. An accused could then be committed to trial on the basis of inherently unreliable expert evidence that would not beadmissible at trial. This is not consistent with the comments in R. v.

Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, per the Chief Justice atpara. 21: The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judgeconsidering a defence motion for a directed verdict, namely, "whether or not there is any evidence upon which a reasonable jury properlyinstructed could return a verdict of guilty": Shephard, supra, at p. 1080; see also R. v. Monteleone, (S.C.C.), [1987] 2S.C.R. 154, at p. 160.

Under this test, a preliminary inquiry judge must commit the accused to trial "in any case in which there isadmissible evidence which could, if it were believed, result in a conviction": Shephard, at p.1080. [17] I am satisfied that the preliminary inquiry judge erred by failing to perform the balancing exercise contemplated in Mohan indetermining the admissibility of Sergeant Stapleton’s evidence. [18] I make no comment about what the result of performing that balancing exercise would have been and whether the evidencewould ultimately have been determined by the preliminary inquiry judge to be admissible or inadmissible.

Further, in the event theevidence met all the other required criteria and was sufficiently reliable to be admissible, it would still be a matter for the triar of fact toultimately determine how much weight should be given to that evidence. 2. If so, was that determination an error of law or an error of jurisdiction? [19] The first aspect of this question involves an examination of the basis for the preliminary inquiry judge’s decision to admit theopinion evidence. The Applicants and the Crown differ as to their

interpretation of how the preliminary inquiry judge reached herdecision.

The Applicants’ position is that she had concluded that she did not have the jurisdiction to exclude the opinion evidence despiteconcerns about its reliability as to whether there was a sufficient foundation as she viewed this exercise to constitute a weighing of theevidence which was not within her jurisdiction on a preliminary inquiry. [20] The Crown’s position is that the preliminary inquiry judge merely decided in the course of preparing her written reasons thatthe concerns expressed regarding the sufficiency of the foundation for the opinion evidence and its reliability did not engage the generalexclusionary rule and were matters that went only to the weight of the evidence, not its admissibility. [21] Determining this issue requires a careful review of the comments made by the preliminary inquiry judge.

At the preliminaryhearing on February 24, 2010, the preliminary inquiry judge initially expressed the view that she was not prepared to admit Sergeant

Stapleton’s evidence because she was not satisfied that he had adequate material before him to form a proper foundation for his opinion. She stated: I haven’t prepared anything formally and I can, if necessary, but here is my view and this information confirms for me that Sergeant Anderson has provided. And I think counsel conceded that the expertise of Sergeant Stapleton was not contested in terms of the general background, the general drug jargon and amounts and quantities and that sort of thing, but I am not prepared to admit his evidence with respect to his

interpretation of the calls for the reason that I am not satisfied that he had adequate material before him to make -- to form a proper foundation for that opinion. In my view, all of the evidence before -- or all of the evidence in the investigation, and all of the calls, should have been put to him for his review rather than the selected package by Sergeant Anderson as the primary investigator. So that’s my view.

So that aspect I don’t think should properly be admitted because I don’t think there was sufficient foundation for the basis of his opinion. [emphasis added] [ 22 ] She came to the opposite conclusion in her written decision of April 30, 2010. She expressly recognized that the duty of a judge presiding at a preliminary inquiry was “to decide whether evidence proposed for reception is relevant, material and admissible” and acknowledged that the test to determine the admissibility of expert evidence is that set forth in Mohan .

The preliminary inquiry judge was apparently alive to the requirement to perform the balancing exercise contemplated in Mohan as she stated at paragraphs 17- 19 of her written decision: 17. The expert opinion is being tendered to assist the trier of fact understand the various intracies (sic) of the drug trafficking milieu. There is a logical relevance of the expert opinion - it is prima facie admissible. 18. However, this does not end the inquiry. The further inquiry to be made may be described as a cost-benefit analysis - that is, whether its value is worth what it costs.

This is not cost in the context of economics, but rather in terms of its impact on the trial process. Is the probative value outweighed by the prejudicial effect? 19. While frequently considered an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule. Whether it is treated as an aspect of relevance or an exclusionary rule, the effect is the same.

The reliability versus effect factor has special significance in assessing the admissibility of expert evidence. [ 23 ] She described the positions being advanced by the Applicants and by the Crown. Defence counsel were arguing that the proposed opinion evidence failed on a cost benefit analysis because the probative value was very low as Sergeant Stapleton only reviewed a small portion of the calls.

The Crown contended that issues respecting the basis or foundation for the opinion and its objectivity went to weight rather than admissibility. [ 24 ] The preliminary inquiry judge went on to state at paragraphs 24-31 of her written reasons: 24. At the conclusion of the voir dire , on February 24, 2010, I commented to all counsel that I was leaning toward not admitting certain aspects of Sgt. Stapleton’s opinion evidence based on the fact that a sufficient evidentiary foundation was not put before the court with respect to the extent of the material that Sgt.

Stapleton relied upon to assess the jargon and provide an

interpretation of the wiretap intercepts before the court during the preliminary inquiry. 25. Despite my dismay about the review of what I believe to be insufficient materials undertaken by Sgt. Stapleton in arriving at his opinion in such a massive investigation, I believe I am in error in making my comment regarding exclusion of certain evidence. I do not believe I have jurisdiction as a preliminary inquiry judge to make that finding. 26.

In carefully reviewing an extensive number of cases, none of which consider this precise point in the context of a preliminary inquiry , I believe that both issues raised by defence counsel are matters that must be left for the trier of fact to weigh. (emphasis in original)

27. To the extent that any opinion Sgt. Stapleton provides is based on insufficient foundation facts, hearsay, or exposes deficiencies in his expertise, these matters go to weight. (emphasis added) ... 30. After reviewing the Mohan principles and extensively reviewing the case list attached, I find the issues regarding the admissibility of Sgt. Stapleton’s opinion on the intercepted calls and the

interpretation of the jargon and coded language arising from the conversations and text messages are matters of weight . (emphasis in original) 31. The weight to be given to the expert opinion is a determination to be made by the trier of fact and not for the court at a preliminary inquiry. (emphasis added) [ 25 ] The Applicants requested the preliminary inquiry judge to review her decision.

On June 18, 2010 she stated: On February 25 th , 2010, at the conclusion of the preliminary inquiry, counsel asked for my ruling on the voir dire respecting admissibility of the expert evidence prior to making final argument on committal. It had been at the commencement of the voir dire, I think, the intention that my decision would be rendered at the conclusion of the entire preliminary inquiry; but, as a result of the evidence of Sergeant Stapleton, as I understand it, counsel had wanted that earlier ruling from me.

So, I agreed to that request, and I commented at that time that I was leaning toward excluding portions of Sergeant Stapleton’s opinion evidence because I was concerned about the factual foundation upon which it was based. Counsel then, in response to those comments, asked for a written decision on that point. Dates were set. I then reviewed the case law extensively, and I concluded that I do not have jurisdiction, sitting as a preliminary inquiry judge, to do what I was leaning to do.

On April 30 th , 2010, I provided brief and simple reasons why I believed the correct position in law is that the evidence of Sergeant Stapleton is admissible at preliminary inquiry, and the matter of weight to be given to that evidence is not within my jurisdiction as a preliminary inquiry judge. On June 10 th , 2010, Mr. James filed an application asking me to reverse my decision on the voir dire and, in essence, go with my original leaning. In response to Mr.

James’ application, my written ruling issued April 30 th , 2010, stands as my decision because I believe that to be the correct application of the legal principles regarding the admissibility of expert evidence pursuant to Mohan , and Abbey , and the other cases that were appended to my decision. This decision also answers paragraph 9 of Mr.

Wolch’s submission filed June 16 th , 2010. (emphasis added) [ 26 ] The language used by the preliminary inquiry judge suggests that she concluded that she lacked the jurisdiction as a preliminary inquiry judge to take the concerns expressed about the sufficiency of the foundation for Sergeant Stapleton’s evidence into account in determining whether the evidence was admissible. Instead, she simply concluded that such concerns were matters that went to weight rather than the admissibility of the evidence.

Her statement at paragraph 25 of her written reasons that she does not believe that she has jurisdiction as a preliminary inquiry judge to make a finding to exclude Sergeant Stapleton’s evidence suggests that she viewed her jurisdiction to admit evidence to be more limited at a preliminary inquiry than at trial, otherwise there would be no purpose in referring to her jurisdiction. She could simply have stated that, upon reflection, such concerns are matters of weight not admissibility.

She uses similar language on June 10, 2010 when she states that she concluded that she did not have jurisdiction sitting as a preliminary inquiry judge to do what she had been leaning to do.

[27] The preliminary inquiry judge was mindful of the requirement in Mohan to perform a balancing exercise, however, she neverstates that she performed such an exercise in the course of reaching her decision.

Rather, her statements that the reliability concerns go toweight rather than admissibility suggest that she determined that it was inappropriate for her to perform the balancing exercise indetermining the admissibility of the evidence in view of what she viewed to be the nature of her mandate as a preliminary inquiry judge. [28] I now turn to considering whether the error in failing to perform the required balancing exercise constituted an error of law oran error of jurisdiction.

The Applicants acknowledge in their written brief that “had the preliminary inquiry Judge exercised herjurisdiction in relation to the admissibility of the expert evidence and decided that the probative value of Stapleton’s evidence did notoutweigh its prejudicial effect and admitted it in its entirety, she would not have committed a jurisdictional error, but rather would havecommitted an error of law which would not be reviewable by way of certiorari.” I agree.

Further, if the preliminary inquiry judge hadsimply misinterpreted the Mohan test and determined that it did not require the balancing exercise to be performed when determiningadmissibility, such an error would be an error made in the application of a rule of evidence and would constitute an error of law ratherthan an error of jurisdiction. [29] The Applicants argue that the error made by the preliminary inquiry judge went beyond a mere error of law and constituted afailure to exercise jurisdiction.

Errors of jurisdiction can be committed by an inferior tribunal either by deciding matters that go beyondits mandate or by declining to exercise jurisdiction on matters within its mandate. Examples of the types of conduct that some courtshave found to constitute jurisdictional error in the context of a preliminary inquiry were outlined in R. v.

LeBlanc and Steeves, 2009NBCA 84, 250 C.C.C. (3d) 29, per Richard JA. at para.10: Instances in the jurisprudence where jurisdictional error has been found include the refusal of the justice to allow an accused to makesubmissions on a material issue, the failure to give an accused the caution required by s. 541(2), the failure to consider the whole of theevidence as required by s. 548(1)(b), usurping the functions of the trial judge by applying the test of reasonable doubt or by weighingcredibility, discharging an accused where there is some evidence upon which a reasonable jury properly instructed could return a verdictof guilty and weighing competing inferences: E.G.

Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed. looseleaf (Aurora,Ont: Canada Law Book, 2009), at 13:1210, 13:2005, and 26:2090, and the cases referred to therein. To these instances, I would add thefailure of the justice presiding at the preliminary inquiry to allow defence witnesses and a justice's erroneous ruling that he or she waswithout jurisdiction to order the production of certain evidence: R. v. Ward (1976), (ON SC), 31 C.C.C. (2d) 466(O.H.C.), [1976] O.J. No. 807 (QL), aff'd (1977), 31 C.C.C. (2d) 466n (O. C.A.), and R. v. L.R . (ON C.A..), (1995), 127 D.L.R. (4th) 170 (O.C.A.), [1995] O.J.

No. 1381 (QL). (emphasis added) [30] The difference between an error of law and an error of jurisdiction can be a fine distinction, particularly in the context of analleged failure to exercise jurisdiction. In Re Ontario Labour Relations Board, (SCC), [1953] 2 S.C.R. 18, the SupremeCourt of Canada upheld an order of certiorari quashing a decision of the Ontario Labour Relations Board for declining to exercise itsjurisdiction.

In the majority decision, the Court stated, at pp. 23-24: We start with the proposition that when an administrative tribunal has been set up by a paramount legislative body it is the intention thatsuch tribunal keep within the powers conferred upon it. In England and in Canada the decisions have been uniform that a Superior Courtis invested with the power and duty of seeing that such a tribunal as the Ontario Labour Relations Board does not act without jurisdiction. Although a case of mandamus, the decision and reasoning in The Queen v. Marsham [[1892] 1 Q.B. 371.], is instructive.

The clerk to theLewisham Board of Works having been called before a magistrate to prove the execution of certain works and the amount of anapportionment, the applicants desired to cross-examine him as to whether the whole sum expended was paving expenses. The magistrateagreed with the contention of the Board that the apportionment of their surveyor could not be questioned, and refused to allow the clerkto be cross-examined or substantive evidence to be given by the applicants upon the point.

An ex parte application for an order nisi for amandamus had been refused by a Divisional Court but was subsequently granted by the Court of Appeal. Upon cause being shown, theCourt consisting of Lord Halsbury L.C., Lord Esher M.R. and Fry and Lopes L.JJ., made the rule absolute. At page 375 Lord Halsburystated that the act of the magistrate was not a mere rejection of evidence but amounted to a declining to enter upon an inquiry on whichhe was bound to enter.

Lord Esher, at 378, having stated that the application for a mandamus was made upon the ground that themagistrate declined to exercise the jurisdiction given him by law, continues:-- Now, the form in which he is said to have declined jurisdiction is, that he refused to hear certain evidence which was tenderedbefore him, and it is suggested on behalf of the board that such refusal, at the most, only amounted to wrongful refusal to receiveevidence, and not to a declining of jurisdiction. The distinction between the two is sometimes rather nice; but it is plain that a

judge may wrongly refuse to hear evidence upon either of two grounds: one, that even if received the evidence would not provethe subject-matter which the judge was bound to inquire into; the other, that whether the evidence would prove thesubject-matter or not, the subject-matter itself was one into which he had no jurisdiction to inquire. In the former case the judgewould be wrongly refusing to receive evidence, but would not be refusing jurisdiction, as he would in the latter.

Here themagistrate does not say that the evidence tendered would not prove the fact that the claim of the board included matters outsidethe statute; he has refused to hear the evidence, even though it would prove that fact; he has, therefore, declined jurisdiction. The other two members of the Court concurred. (emphasis added) [31] Lord Esher’s judgment in Marsham was also referred to in Spence J’s dissenting judgment in R. v.

Patterson, (SCC), [1970] S.C.R. 409, which involved an application for certiorari to quash a committal for trial. [32] I am of the view that the error made by the preliminary inquiry judge was analogous to the latter type of error described inMarsham. The error was not simply an error made in the application of a rule of evidence at the preliminary inquiry, but represented arefusal or failure to apply a rule of evidence at the preliminary inquiry.

The preliminary inquiry judge determined that the concernsexpressed about the foundation and reliability of Sergeant Stapleton’s evidence were matters that she lacked the jurisdiction to take intoaccount when determining the admissibility of the evidence. In doing so, she declined or failed to exercise her jurisdiction, therebycommitting a error of jurisdiction, reviewable by certiorari. 3.

What, if any, remedy should be granted? [33] The Crown argues that even if the preliminary inquiry judge’s ruling on admissibility constituted jurisdictional error thatcertiorari is a discretionary remedy that ought to be refused in this case. [34] The Court’s discretion in such circumstances was discussed in R. v. LeBlanc and Steeves, supra, at para. 13: 13. Even when jurisdictional error is found, certiorari is a discretionary remedy that may be refused. The law in this regard is aptlysummarized in R. v. Papadopoulos (ON C.A.), (2005), 196 O.A.C. 335, [2005] O.J.

No. 1121 (QL): The decision whether to grant or not to grant a prerogative remedy is ultimately a matter of discretion, exercised by the superior court aspart of its general and inherent jurisdiction: R. v. Nat Bell Liquors Ltd. (1922), (UK JCPC), 37 C.C.C. 129 (S.C.C.); R.v. Workmen's Compensation Board Ex parte Kuzyk, (ON CA), [1968] 2 O.R. 337 (C.A.); and Re Krawkowski and theQueen reflex, (1983), (ON CA), 4 C.C.C. (3d) 188 (S.C.C.).

While this authority must be exercised in accordancewith established principles, there are cases where the court has exercised its jurisdiction not to award the remedy whether or not therewas jurisdictional error -- e.g., where there has been unnecessary delay in applying for the writ, or where the applicant has not acted ingood faith in seeking the order: see for example, Young v. Attorney-General of Manitoba, Boxall and Fryer (1960), (MB CA), 129 C.C.C. 110 (Man. C.A.) and Krawkowski, supra. In general, where the legal grounds for quashing a committal are madeout, the writ will issue.

This is so, "unless", as Sir Wilfred Greene M.R. noted in R. v.

Stafford Justices Ex parte Stafford Corp., [1940]2 K.B. 33 at 44, "there is something in the circumstances of the case which make it right to refuse the relief sought." We see no reason in principle why, if the discretion may be exercised to refuse a prerogative remedy in the face of jurisdictional error insome circumstances -- such as those referred to above -- it may not be exercised likewise in appropriate circumstances where there hasbeen no prejudice to the applicant whether or not there was a denial of natural justice leading to jurisdictional error because thecommittal would otherwise have been inevitable... [paras. 20-21] [35] I see no reason to exercise my discretion not to grant certiorari in the circumstances of this case.

The legal grounds forquashing the committal have been established. Moreover, the error of jurisdiction did result in a denial of natural justice to theApplicants. The opinion evidence was significant and, having regard to the comments made by the preliminary inquiry judge at thehearing, may well have been excluded by her if she had not declined to perform the balancing exercise contemplated by Mohan.

[ 36 ] The relief sought by the Applicants is an order quashing the committal and remitting the matter back to the preliminary inquiry judge for her to reconsider the issue of committal after properly exercising her jurisdiction in relation to the admissibility of the expert evidence. The Crown has agreed that this is the appropriate remedy if certiorari was granted. That order is granted. Delivered orally on the 16 th day of February, 2011. Dated at the City of Calgary, Alberta this 6 th day of April, 2011. J. Strekaf J.C.Q.B.A. Appearances: Ronald C.

Reimer Public Prosecution Service of Canada for the Crown John D. James for the Accused, Ricco King and Melissa Diane King Hersh Wolch Wolch, Ogle, Wilson, Hursh & deWit Silverberg & Watts for the Accused, Kamran Sattar Simon J. Lord Lord Russell for the Accused, Farhan Sattar