r v. HER MAJESTY THE QUEEN, 2022 QCCA 446

Azubuike c. R. 2022 QCCA 446 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007591-215 (500-36-009910-210) DATE: March 31, 2022 CORAM: THE HONOURABLE GENEVIÈVE COTNAM, J.A. STÉPHANE SANSFAÇON, J.A. MICHEL BEAUPRÉ, J.A. EKENS AZUBUIKE APPELLANT – Petitioner v.

HER MAJESTY THE QUEEN RESPONDENT – Respondent JUDGMENT [ 1 ] The appellant is charged with six counts alleging various criminal offences [1] involving fraudulent conduct related to stolen cars or stolen car parts. [ 2 ] He sought disclosure orders from different judges of the Court of Québec in anticipation of the preliminary inquiry which, after having been postponed twice at his request, is now scheduled to proceed on April 4 and 5, 2022.

In support of his numerous applications, he raised issues which he characterized as constitutional ones. [ 3 ] For our purposes, it is unnecessary to describe them. [ 4 ] The appellant then sought to obtain relief from the Superior Court. On May 17, 2021, The Superior Court issued the following decision: [2] The Superior Court declines jurisdictions on the Charter applications filed by Mr. Azubuike. The proper Court to deal with this kind of application is the Trial Court.

The case is returned to the Court of Quebec for the continuation of the preliminary hearing. [ 5 ] The appellant has appealed against that decision and is now seeking a stay of the preliminary inquiry pending the hearing of the appeal. [ 6 ] In order to determine whether such a stay should be granted, it is important to identify the court of competent jurisdiction under s. 24 of the Charter to provide the remedies sought by the appellant. [ 7 ] The judge presiding over a preliminary inquiry is not a competent court to order disclosure. [3] The trial judge (or the case management judge under s. 551.1 Cr.C . ) is the competent court to decide disclosure issues and motions. [4] [ 8 ] While the Superior Court has concurrent jurisdiction to hear such matters [5] , it should “decline jurisdiction to issue Charter relief, unless it is more suited than the trial court to assess and grant the remedy that is just and appropriate”. [6] [ 9 ] These principles are not controversial. [ 10 ] The forthcoming appeal will determine whether the Superior Court properly exercised its discretion to decline to hear the Charter applications submitted by the appellant. [ 11 ] In the interim, should the preliminary inquiry be stayed pending this Court’s decision on the appellant’s appeal? [ 12 ] The applicable criteria to decide whether a stay of proceedings should be granted were set out in Manitoba (Attorney General) v.

Metropolitan Stores Ltd. , [7] namely: (1) whether there is a serious question to be tried; (2) whether the appellant might suffer irreparable harm if the stay were denied; and (3) which party would suffer greater harm from the granting or refusal of the stay, pending a decision on the merits.

[ 13 ] This test was adopted by our Court in R. c. Boutin , [8] where the accused was seeking a stay of his trial pending an appeal from the dismissal of his certiorari application challenging his committal to trial.

The test should also be applied in the case at bar. [ 14 ] The application of the Metropolitan Stores test favors the dismissal of the appellant’s motion. [ 15 ] First, while under the Metropolitan Stores test an extremely limited review of the case on its merits should ordinarily be conducted, in the present matter one must acknowledge that the decision of the Superior Court to decline jurisdiction to hear the disclosure applications is entitled to deference from our Court given that the Supreme Court’s approach strongly favours trial courts adjudicating Charter remedies, such as disclosure motions. [ 16 ] Second, assuming that there is a serious issue to be decided, namely the proper exercise of the Superior Court’s discretion to decline concurrent jurisdiction to hear a Charter application, the appellant will not suffer any irreparable harm. [ 17 ] The preliminary inquiry “is a screening mechanism for the purpose of determining whether the Crown has sufficient evidence to commit the accused to trial” [9] and “not the stage at which the guilt of the accused or the appropriate sanction is determined”. [10] [ 18 ] Since an accused’s right to “the disclosure of all relevant information […] is distinct from the right to a preliminary inquiry”, [11] the appellant will be able to seek an order for disclosure before the trial judge (or the case management judge [12] ). [ 19 ] Therefore, the appellant will not suffer irreparable harm. [ 20 ] Finally, under the balance of convenience prong of the test, granting a stay would only contribute to the fragmentation of the criminal proceedings by permitting interlocutory appeals which would result in a significant source of delay and an inefficient use of judicial resources. [13] [ 21 ] Thus, the application to stay the preliminary inquiry must be denied.

FOR THESE REASONS, THE COURT: [ 22 ] DENIES the application to stay the preliminary inquiry pending the hearing of the appeal. GENEVIÈVE COTNAM, J.A. STÉPHANE SANSFAÇON, J.A. MICHEL BEAUPRÉ, J.A. Ekens Azubuike UNREPRESENTED For the appellant Mtre Denis Trottier DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: March 25, 2022