R v Mavros, 2016 ABQB 139

Court of Queen’s Bench of Alberta Citation: R v Mavros, 2016 ABQB 139 Date: 20160309 Docket: 140594847U1 Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Chris George Mavros Applicant (Accused) Restriction on Publication NOTE: This decision is available from the court file. It may be published after the end of the trial. Editorial Notice : The restriction on publication ended January 12, 2017. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [1] Alleging an apprehension of bias as a result of the Provincial Court judge who is seized with these proceedings learningabout Mr. Mavros’ criminal record, Mr. Mavros asks the court to prevent that judge from continuing as the trial judge. [2] As a preliminary matter the Crown asks the court to exercise its discretion not to hear the application and to issue an order inprocedendo on the basis that that the application is a mere delay tactic. [3] The application is denied; the court will hear the application. [4] The court acknowledges that the writ of procedendo is notionally available in Alberta.

However, the court declines toconsider the potential issuance of that writ in light of the lack of certainty around the contemporary parameters of that process. [5] On the issue of the court’s inherent jurisdiction to decline to hear an application, because of time constraints, it is notpossible for me to determine whether this court does, in fact, have the jurisdiction to refuse to hear the application; the court may havesuch jurisdiction since prerogative writs are discretionary.

However, for the purposes of this preliminary application, I will assume that Ido have the jurisdiction to decline to hear the application. [6] This is not a situation where the court should exercise its discretion to refuse to hear the application. The basis of theapplication arose on December 15, 2015; there has not been a long delay from that date to the hearing of the application.

Nor is this anapplication which is made solely for the purposes of delay: the accused has presented a brief and evidence in support of the applicationand counsel for the accused asserts that he is ready to proceed to trial on March 11, 2016. Cases and authority cited [7] By the Crown: Frankel v R (1969), (AB CA), 68 W.W.R 201 (ABCA); R v Dick (1978), (ON SC), 40 CCC (2d) 270 (ONHC); R v Whitmore (1989) 35 OAC 373 (ONCA); Canada v Taylor, (SCC),[1990] 3 SCR 892 (SCC); [8] By the court: On the issue of procedendo: R. v Y.D. [1985] N.B.J. No. 347 (Q,.B. Fam. Ct.); R. v Murray [2000] O.J.

No.1365; R. v Alltrans Express Ltd. [1984] A.J. No. 829 (P.Ct.); R. v Domstad 2001 ABQB 179 [9] On the issue of delay and delay tactics: Alberta (Attorney General) v Alberta (Provincial Court) 2015 ABQB 728; R. vBatchelor [1977] S.C.J. No. 126 1. Background [10] Mr. Mavros is charged with five serious crimes, i.e. that he did, on or about April 11, 2009, at Edmonton, Alberta, attempt tochoke , assault, confine, sexually assault and threaten a female complainant. Moreover, in light of his record, the Crown acknowledgesthat, if Mr.

Mavros is convicted, he will likely be the subject of a dangerous offender application. [11] Mr Mavros was originally charged with these offences in November, 2011. There has been a complicated procedural historysince then. However, for the purposes of this preliminary application, it is sufficient to note the following: on December 15, 2015, theProvincial Court Judge denied Mr. Mavros’ application for recusal; the complainant has given a K.G.B. statement to the police. 2.

Bail-review-type publication ban [12] On its own motion, because of the reference in this decision to a potential dangerous offender application prior to thecommencement of an actual trial, the court has exercised its discretion to issue a publication ban with respect to this decision; the banwill expire at the conclusion of Mr. Mavros’ trial. 3. The court should not exercise its discretion to refuse to hear this application and issue procedendo

a) The writ of procedendo is notionally available in Alberta [13] The writ of procedendo is described as follows in Y.D.: 42 The prerogative writs (certiorari, habeas corpus, mandamus, prohibition, and writ of procedendo) are common law writs whichwere introduced in Canada at the same time as the laws of England. 43 More recently, the Supreme Court of Canada had occasion to discuss the subject in Skogman v. The Queen, (SCC),[1984] 2 S.C.R. 2; (SCC), 54 N.R. 34.

Estey, J., speaking for the highest court, stated at pp. 98-99: "This calls into question the reach of the writ of certiorari as a tool for the review of committals for trial at preliminary hearings.[Underlining start]In its earliest application by the courts, the prerogative or royal writs, including certiorari, were a mechanism wherebythe Royal Courts of Justice maintained a surveillance [*page296] over the conduct of the inferior tribunals of the land[Underlining end].Gradually, as the organization of justice and the judiciary developed, these review mechanisms were broadened in their reach and refinedin the degree of control until by 1878, certiorari was available not only for the review of jurisdictional transgressions by statutorytribunals, but also for errors committed by those tribunals in the course of the discharge of their assigned function, where such errorswere apparent on the face of the record.

See William J., in [Bold start]Hodgkinson v. Fernie[Bold end] (1857), 3 C.B. (N.S.) 189."

(Emphasis added) 44 The availability of these writs is variously illustrated in older cases. They were first called "prerogative writs" in R. v. Cowle(1759), 2 Burr. 855; 97 E.R. 587, at p. 599. According to Lord Mansfield, "they are supposed to issue on the part of the King". However,their origin go back much earlier. For example, certiorari was known to the common law as early as 1252; see S.A. de Smith, JudicialReview of Administrative Action (2nd Ed.) 1968), p. 384. See also, de Smith, The Prerogative Writs, [1951] Camb.

L.J. 40, 49. 45 Blackstone defined mandamus as "A command issuing in the King's name from the court of King's Bench and directed to anyperson, corporation or inferior court of judicature within the King's dominions requiring them to do some particular thing thereinspecified"; 3 Blackstone, Commentaries on the Laws of England (7th Ed. 1775), p. 110. See also the view of Taschereau, J., in Re FredStorgoff, (SCC), [1945] S.C.R. 526, at p. 568. An appropriate example where prohibition applies is found in Tremblayv. R. and Att.

Gen. of B.C. [*page297] (1981), (BC SC), 25 C.R.(3d) 320 (B.C.S.C.). 46 The writ of procedendo is not included in the review mechanism provided for in the Criminal Code. Nevertheless, it is still afeature of Canadian criminal law. It is defined in W.

Byrne, A Dictionary of English Law (1923), p. 704 as: "a prerogative writ which issues: 1. when the judge of an inferior court delays the parties to a proceedings before him, by not giving judgment for one side or the other,when he ought to do so, or 2. when a cause has been removed from an inferior court to a superior court improperly or on insufficient grounds, and the superior courtthinks fit to remit or remove it back to the inferior court." 47 For further reference, see Bronlow v. Cox and Michil (1615), 3 Buls. 32; 81 E.R. 27; R. v. Neville (1830-34), 2B & Ad. 299; 109E.R. 1154; Wilson v.

Atkinson (1847), 1847 CanLII 41 (NB KB), 5 N.B.R. 343, Morisset v. Carrier 1851, 2 L.C.R. 302; R. v. Grimmer(1886), 1886 CanLII 214 (NB KB), 25 N.B.R. 480; and more recently, Frankel v. R. (1969), (AB CA), 68 W.W.R.(N.S.) 201. In Bacon v. Rose (1972), 2 N.S.W.L.R. 793, the court entertained (but dismissed on the merits) an application for adeclaration that criminal proceedings were not constituted according to law because they were not instituted with the Minister's approval,as required by the relevant Act. See a recent example in Kennedy v.

McGeechan (1974), A.C.L.D. 128. [14] In 1984, in Alltrans Express Ltd., the Alberta Provincial Court described procedendo in this way: 46 Counsel for the Crown made reference to an Ontario High Court decision where procedendo was issued in connection with aprohibition application.

Counsel also referred to the definition in Jowitt's Legal Dictionary of procedendo as being a "remedy available toget the record back before the inferior court where extraordinary remedies have not been successful." [15] I note that Black’s Law Dictionary, 10th edition, defines procedendo as “A higher court’s order directing a lower court todetermine and enter a judgment in a previously removed case.” [16] In addition, I note that in our province, Watson J. invoked “a form of” procedendo to send a matter back to the ProvincialCourt: Domstad. [17] Alberta has not passed any procedendo rules pursuant to the provisions of s. 482(3) of the Criminal Code.

Indeed, in 2000, thevery remedy of procedendo was referred to in Murray as “somewhat arcane”. [18] In 1921, in Yee Fong, our Court of Appeal made the following comment about procedendo: 22 I am quite conscious that there is perhaps a growing feeling that the Court is interfering too frequently by certiorari withconvictions in the magistrate's Courts and I am not an entire stranger to that feeling myself. But all one can do here is to act on thematerial before one.

That material and the nature of the case, being one of a charge where there is a maximum penalty of $1,000 and oneyear's imprisonment and where the accused requires an interpreter and has no counsel representing him, lead me to suggest, with theutmost respect, that it is usual in such a case, at any rate at the criminal sittings of the Supreme Court, to make careful enquiries byrepeated questions so as to put it beyond all doubt that such an accused does really mean and intend to admit the truth of the charge madeagainst him.

No doubt with vagrants and drunken persons, who are to be given small penalties, expedition and rapidity of work is bothnecessary and safe, but with serious crimes. I venture again, with all respect, to suggest that due caution requires the necessary andproper consumption of a reasonable time.

I do not regret, therefore in this case quashing the conviction, not on account of the accusedwith whose guilt or innocence we really have nothing to do and who undoubtedly may have no real defence and be entirely guilty, but onaccount of the principle involved as applied to the facts stated in the affidavit of the accused upon which, alone we can act. 23 On the other hand. I am not content, in this case, with a mere quashing of the conviction and discharge of the accused. I think itwould be quite improper on the bald statement of the accused, after this lapse of time, to order his final discharge.

The case shouldcertainly be retried unless the evidence for the prosecution has disappeared so as to make it impossible. There are now so manyapplications to quash by certiorari that I think it is time the Court took some slight initiative in suggesting new trials. This is a veryproper case for that course. The writ of procedendo is not with us a familiar proceeding but it is undoubtedly still available. [19] Nothing in the intervening nearly 100 years has increased the knowledge of our courts about the use and effects ofprocedendo.

Indeed, the last reference I could find to the use of this procedure in domestic law in England is in the following 1606decision: And the prince at [8 Coke 23b], the day brought a Procedendo in loquela, dum tamen ad judicium reddendum domino Rege inconsultonullatenus procederetur: and thereupon Margaret made default, and thereupon day is given by the Court to the prince, &c.

At which day the prince brought a [33] Procedendo ad judicium, upon which the Court gave judgment as follows: consideratum est, quod literae praedict' in forma pried' factae revocentur et adnullentur, et quod dictum manerium, &c. in manus domini Regis seisiatur, et eidem Principi tanquam membrum et parcell' ducatus praed' juxta formam et effectum dict' doni, concessionis et unionis praefati avi dicti Regis, habendum et tenendum liberetur. [ 20 ] I do observe, however, that Quebec superior courts have used, and from time to time continue to use, procedendo to order provincial courts to move trials forward. [ 21 ] Although procedendo is notionally available in Alberta, in light of its unclear parameters, I decline to use that writ or procedure to deal with the application.

I observe that, in contemporary practice, once this court disposes of the application, the matter will be returned to the Provincial Court to be dealt with according to the decision; similarly, when, on appeal, this court returns a matter to the Provincial Court, it does not issue a writ of procedendo to effect that return. [ 22 ] I will, therefore, deal with the Crown’s preliminary application on the basis that I have the jurisdiction to refuse to hear the application.

b) This is not a situation in which the court should refuse to hear the application on the basis of delay and/or that this is a mere delay tactic. [ 23 ] With respect, the cases on which the Crown relies do not support the outcome advocated by the Crown. [ 24 ] Frankel is a decision which is of interest in relation to the first procedural issue addressed today with the parties which relates to the appropriate use in prohibition applications in relation to Provincial Court judges of Rule 825 of Alberta’s Rules of Court dealing with the Criminal Code and Rules 3.15 ff dealing with applications for judicial review.

In light of counsels’ agreement that Rule 825 is not an impediment to this court’s hearing of the application, I do not find it necessary here to explain the reasons why I agree with the approach of Read J. in Alberta (Attorney General) : when judicial review is requested of the decision of a Provincial Court Judge, we are dealing with a court of record in relation to whom the notice and record procedural provisions do not apply because they are not necessary.

Nor is there a need for a Provincial Court Judge to be given leave to appear as a litigant to defend the application: an administrative tribunal whose decision is being reviewed does not have jurisdiction to address the merits of a judicial review application. I also note, for the record, that although it does not appear from the style of cause, counsel for Mr.

Mavros asserts that he did serve the Provincial Court Judge in question with notice of this application. [ 25 ] It should also be noted that the Supreme Court of Canada may have disagreed with the substantive approach of our Court of Appeal in Frankel : see Batchelor .. [ 26 ] In any event, however, what our Court of Appeal said in Frankel was: Mindful of the tradition of Canadian courts for prompt disposition of criminal matters this court will deal with the extraordinary remedies and technical objections fully but as promptly as is necessary in its view to maintain this tradition. [Emphasis added] In other words, Frankel is only authority for the proposition that this court should fully hear Mr.

Mavros’ application for an extraordinary remedy. [ 27 ] Dick was a situation where there was no motion for prohibition or for any other relief properly before the court; the court therefore returned the papers which it had received to the Provincial Court. Here, Mr. Mavros has brought an application, together with a brief. The situations are not analogous. [ 28 ] Whitmore was a situation in which the trial judge had apparently exercised his discretion not to hear an application for prohibition and certiorari on the grounds that the decisions of the justice of the peace were interlocutory.

However, the appeal decision goes on to state that the trial judge then “went on to consider the complaints of the appellant outlined above and rejected them all”. In other words, the judge appealed from heard the application on its merits. [ 29 ] Taylor is a decision where the issue of bias was not raised for “almost eight years after the Tribunal released its reasons. As over a period of many years the appellants had made no effort to raise allegations of reasonable apprehension of bias, Mahoney J. found their inaction to constitute waiver”, para.. 89.

It is obvious that, on the facts, this application is clearly distinguishable from the facts of the Taylor decision.

c) Conclusion [ 30 ] In

summary, this is not a case where the court should decline to hear the application; on the contrary, this is a situation where the court should heed the advice in Frankel and hear the application fully and quickly. Heard on the 3 rd and 9 th days of March, 2016. Dated at the City of Edmonton, Alberta this 9 th day of March, 2016. J.B. Veit J.C.Q.B.A. Appearances: Tania Holland and Megan Howery, Crown Prosecutors' Office for the Crown/Respondent Peter J. Royal, Q.C., Royal & Company for the Applicant