R v JI, 2023 NUCA 1

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d’appel du Nunavut Citation: R v JI, 2023 NUCA 1 Date: 20230120 Docket: 15-22-015-CAS Registry: Iqaluit Between: His Majesty the King Respondent - and - J.I. Applicant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Oral Reasons for Decision of The Honourable Justice Jack Watson _______________________________________________________

Application to Quash Committal _______________________________________________________ Oral Reasons for Decision of The Honourable Justice Jack Watson _______________________________________________________ I. Introduction [ 1 ] This is an application for what might be characterized as statutory certiorari [1] . The reason I say it is statutory certiorari is not a matter of just attempting to do a semantical exercise.

There is a significant difference, it seems to me -- and I’ll discuss it a little further later -- between the structure of s 573.1 of the Criminal Code which deals with review of the single judges of the Nunavut Court of Justice, who are conducting preliminary inquiries, amongst other things, and the common law concept of certiorari in review of such things as preliminary inquiries under the Criminal Code in other parts of the country and that includes, of course, where I am right now, Alberta [2] . [ 2 ] The logical way in which to try and explain how this works is that I should probably start with, in a sense, a bit of structure relative to how we get here, and that will cause me to go a little bit you might say backwards in time. [ 3 ] The specific provision that governs the role that I play in this instance is, as mentioned, s 573.1 of the Criminal Code .

It allows a single judge of the Court of Appeal, Nunavut Court of Appeal, to deal with a number of legal questions which are specified by Parliament in some considerable detail. [ 4 ] In a decision called Komoartok [3] , I talked about the common law relationship to this type of action.

Because there it had to do with whether or not certiorari was even available at all as against a particular judge of the same court, Nunavut Court of Justice, and because that the type of review that was presented there was not listed in s 573.1 of the Criminal Code , I came to a certain conclusion, which I don’t need to elaborate on at this point. [ 5 ] In any event, the nature of the application before me is to review the decision of Charlesworth J, firstly, and then through it the decision of Tulloch J in connection with an order to stand trial following a preliminary inquiry. II.

Decisions under Review [ 6 ] To set that stage then, I should perhaps refer to some of the content of the rulings made by Charlesworth J and by Tulloch J. [ 7 ] Charlesworth J’s opinion was quite brief, and it reads as follows: One, a preliminary inquiry was held before me in the matter of R. v. J.I. on the Baker Lake circuit at the end of July 2022.

Two, although counsel argued that credibility or reliability of the statement, which was filed under Section 540(7), it has occurred to me that Justice Tulloch had already decided that issue when she ordered that cross-examination of the complainant would not be allowed at the preliminary inquiry. Paragraph 3, the statement that was filed is marked as Exhibit 1. It provides evidence upon which a properly instructed jury acting reasonably could convict. Four, J.I. is committed to stand trial on the charges and Information number -- and I won’t read the number.

The matter will remain on the August 29 Assignment Court docket for the purpose of setting a date for trial. [ 8 ] Those reasons given by Charlesworth J followed upon, as she mentioned, a more detailed discussion which was provided by Tulloch J after a very able argument put forward to her by counsel respecting, firstly, an application under s 540(7) of the Crown to introduce a statement of the complainant -- as opposed to the live evidence of the complainant -- as against which the defence counsel wished to have the opportunity to cross-examine under s 540(9) of the Criminal Code .

The test, I might mention parenthetically, for that

has to do whether it’s appropriate to do so, and I’ll get to that perhaps a little bit later. [ 9 ] The other alternative position taken by the defence in this matter, though, was that the defence wished to, in fact , itself get authority for subpoenas to be issued to -- for a considerable list of witnesses that covered a sort of a wide area of topics, allegedly prior and inconsistent statements and things of that sort but also, as Mr.

Regel has very fairly pointed out, the topics would include or might have included, if presented in that way, proceedings that would be normally governed by s 278 of the Criminal Code and, therefore, it would be restricted to the jurisdiction of a trial judge as opposed to a preliminary inquiry judge [4] . [ 10 ] That said, though, that is -- that is not capable of being assigned as an

interpretation of all of the list of witnesses that were -- that were identified by counsel for the defence in front of Tulloch J. And she essentially does say, however, that the objective of some of those witnesses at least was in her words — I’m referring now to Tulloch J as read: In oral submissions the applicant admits that some of these witnesses, if not all of them, are for the purpose of building a foundation for an application which he intends to make under

Section 278 of the Criminal Code involving the production of third-party records. [5] She then goes on to say: The purpose of building a foundation for an application under

Section 278 is way beyond the purpose and the scope of the preliminary inquiry. It is, in fact, completely inappropriate. If I were to agree otherwise, it would be like allowing someone to sneak in the back door when they were excluded from using the front door.

The other witnesses requested, if called, would also be beyond the scope of the preliminary inquiry in that the only use that possibly could be made from their testimony goes on to the credibility of [the complainant]. [6] Further, I find that the reasons outlined by the applicant for calling these extra witnesses are not relevant to the applicant’s committal to stand trial. [7] [ 11 ] In that regard — I’m pausing in her reasons for a moment — she is, I think, referring to s 548(1) of the Criminal Code , and I called it up on my screen here, and it just basically says that the role of a judge presiding at a preliminary inquiry ends with the following thing: 548(1) When all the evidence has been taken by the justice, he shall (

a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial, or (

b) discharge the accused if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction. [ 12 ] I read that into her reasoning in part because of the debate with counsel that presaged what she had to say. [ 13 ] I would observe that compliance with s 548 of the Criminal Code has been itself regarded as a matter which may attract jurisdictional review. The Supreme Court of Canada felt that way in a case called R v Dubois [8] quite a number of years ago.

I don’t need to get into that now, because, as I’ll discuss it momentarily, there is this distinction between s 573.1 of the Criminal Code and the common law concept of certiorari to which the Dubois case was concerned . . . with which the Dubois case was concerned. [ 14 ] In any event though, as mentioned, when Charlesworth J was giving her decision (the brief decision I’ve already read out) ordering the applicant, J.I., to stand trial, she was referring back to what Tulloch J had said. And it is worth noting, of course, then that Tulloch J was providing an

interpretation of her function within the meaning of s 540(8) of the Criminal Code , and, in fact, let’s face it, the whole part of the Criminal Code which deals with preliminary inquiries. [ 15 ] I might mention in passing on that point that counsel for the defence here is suggesting that this

interpretation that she provided in that regard is of great importance to the practicing bar in Nunavut because of the rather unusual characteristics of how the -- you might say the administration of criminal justice is structured in that area.

I’ll get to that later; but the point I should move on to, though, is to further deal with how Tulloch J dealt with it, because it does appear that Tulloch J was, in effect, adopted or the reasoning of Tulloch J was adopted by Charlesworth J in terms of the part of her rationale for ordering the applicant to stand trial. [ 16 ] The -- one of the other comments that were made by Tulloch J, which I think embellish or expand upon or clarify the approach she took to the

interpretation of her role under s 540(8) of the Criminal Code , was hear -- reminiscent, shall we say, of the limitations that exist at common law certiorari in connection with preliminary inquiries. [ 17 ] She said, for example, later on in her reasons, she said, quote, “. . . the amendments that I have talked about were intended to expedite the hearing and circumscribe the scope of the preliminary inquiry. ss 540(7) and s 540(9) were added to the Criminal Code for that purpose.

Section 540(9) requires the applicant to demonstrate whether the cross-examination of any witnesses including the complainant are relevant to committal.” [9] [ 18 ] So, in other words, there’s another element of statutory construction in the reasoning of Tulloch J quite apart from her

interpretation of s 540(8) of the Criminal Code . She ventured an

interpretation at the role of these three provisions, s 540(7), subsection (8) and subsection (9) of the Criminal Code . She also mentions in passing the role of s 540(8) relative to the giving a reasonable notice on the part of Crown to introducing a statement of this sort [10] . No challenge has been made to the sufficiency of the reasonable notice in this case before me, so I don’t need to dwell on that. [ 19 ] The bottom line, though, is that she also then referred to authorities which have been presented concerning (you might say) a sea-change in the philosophy about the role of the preliminary inquiry and the administration of criminal justice.

[ 20 ] She refers, for example, to a decision called Martin [11] , which is a decision of the Manitoba Court of Appeal, and which was, in fact, given out -- given alongside a case called Canadian Broadcasting Corporation v Morrison [12] and dealt with the general

interpretation of ss 540(7) to (9) of the Criminal Code .

The essential position that was taken in the Martin case was that Parliament’s intent in enacting ss 540(7) and (9) of the Criminal Code was: To, without abolishing the preliminary inquiry altogether, streamline its use, reduce pretrial delay, minimize inappropriate questioning of witnesses particularly sexual assault complainants, and provide the Crown with an alternative method of presenting its case than by ordinary course of calling viva voce evidence. [13] I don’t think it’s unfair of me to, in a sense, incorporate those references to what Tulloch J was giving by way also of an oral judgment in this instance. [ 21 ] So essentially, as I said, in

summary what she was doing was she was interpreting the function of s 540 of the Criminal Code relative to (7) and (9) and also implicitly, if not directly, her role as a preliminary inquiry judge under s 540(8) of the Criminal Code .

That, as I said, then further in a sense percolates through Justice -- to Charlesworth J’s decision. [ 22 ] Before moving on to the further discussion of the, you might say, the legal structure in which we’re operating here, I think it seems convenient to address right now one point which has been put forward respecting the validity of the decisions made by Charlesworth J and Tulloch J, and that is the position offered by the defence to the effect that neither one of the judges had actually expressly said that the content of the statement given by the complainant was credible and trustworthy.

I observed that the concept of something being credible and trustworthy is not unfamiliar one and it exists in other parts of the Criminal Code , notably in relation to judicial interim release [14] , and is a fairly low bar relative to the administration of justice. [ 23 ] But the argument that’s being put forward by defence, and quite ably so I might say, is that, although both judges have, in effect, incorporated a statutory construction analysis in addressing this, they ought to have at least expressly that -- that they found that the content of that statement was credible and trustworthy, or else it goes to jurisdiction according to Mr.

Regel that for the committal to stand trial. In the absence of a finding of that sort, Mr. Regel contends that that is a legal error which would go fundamentally to jurisdiction on the part of Charlesworth J to order the appellant to stand trial. [ 24 ] I credit the inventiveness of that argument, but I must say that it does seem to me that it’s almost a “reasons for judgment” argument over an argument as to substance.

And I don’t wish to trivialize it in any way by saying that, because it does seem to me that if one reads the judgment of Tulloch J in particular, which obviously Charlesworth J did, you’re left with the impression that Tulloch J was quite satisfied that the evidence was, indeed, credible and trustworthy within the meaning of that low bar. [ 25 ] Charlesworth J’s comments where she says, “it provides evidence upon which a properly instructed jury acting reasonably could convict” connotes to me an implicit determination of credible -- credibility and trustworthiness for the purpose of that -- the application of s 540(7) of the Criminal Code . [ 26 ] And I might say that in there is something reminiscent of other arguments which have been made in the past relative to interpreting reasons for judgment made by criminal judges on the frontlines, one of them being in a case called Vuradin [15] , where the Supreme Court had no great difficulty in concluding that one could read into the decision made by a trial judge what they might in relation to the respective balancing of the defence and the Crown’s case. [ 27 ] So I don’t think, in my view, that the error of jurisdiction, which it is suggested that arises under the argument respecting s 540(7) of the Criminal Code is, in fact, an error of jurisdiction on the part of Tulloch J.

It seems to me that she had implicitly said, and so did Charlesworth J, that, in fact, the evidence was credible and trustworthy. [ 28 ] That doesn’t answer all the points, of course, but it does deal with that one, when I say preliminary question as to whether that on the face of it there was a jurisdiction error on the part of Charlesworth J in ordering J.I. to stand in trial. III.

Statutory Framework [ 29 ] I go back then now to my jurisdiction which has to do with s 573.1 and sub (1) and, in fact, the very substantial, structural design that Parliament has chosen to deal with questions of challenges by way of judicial review of decisions made by the Nunavut Court of justice.

The Nunavut Court of Justice having been made a superior court would not be normally subject to judicial review by another judge who is basically in the same or similar position albeit having a slightly different you might say title, as I discussed in Kormoartok . [ 30 ] The role of -- the decision of Parliament to do that, though, has to be respected, and, of course, it is also my obligation to read those provisions of the Criminal Code accurately.

And I could be, therefore, reviewed, as I said in Kormoartok at some later time, for saying that I misread s 573.1 of the Criminal Code . [ 31 ] But before getting into those provisions of the Criminal Code , first I should turn to the other point which I may made -- mentioned during argument.

Let me find my notes here, concerning the question of the difference between s 573.1 of the Criminal Code which sets out a long list of various forms of jurisdiction of a part of a single judge to review a decision of the Nunavut Court of Justice and the decision of the Supreme Court of Canada in Awashish [16] , which has to do with common law certiorari you might say. [ 32 ] It’s quite clear that in that decision the Supreme Court of Canada was reinforcing the policy basis upon which one should construe the provisions of the Criminal Code relative to preliminary inquiries.

As I mentioned before, Tulloch J referred to the Martin decision from the Manitoba Court of Appeal related to the -- you might say the scope and objectives of the amended preliminary inquiry provisions. [ 33 ] And I might say that this, the limitation of the role of the preliminary inquiry in Canadian law, has, of course, since September

of 2019 been even more dramatically you might say reduced by virtue of the elimination of preliminary inquiries entirely in connectionwith a variety of types of things.

That communicates to me as some indication that the Parliament of Canada is satisfied in some way thatthe administration of justice can be duly served for defence purposes and for accused persons by alternative measures which may exist inthe legal system as opposed to taking place within the scope of a preliminary inquiry. [34] Certainly, in the older cases which I might mention momentarily, the concern did exist for a long time that a preliminaryinquiry might turn into a trial of its own and develop all the -- all the nuances and details that a trial would have.

And that was one of thereasons why I think one can reasonably infer at least, that Parliament decided to start cutting back on -- on the use of preliminaryinquiries and in this instance cutting back on how they operate and what kind of evidence can be used. [35] Anyway, returning, though, to the question of what Awashish says about the role of certiorari in common law senses, I wouldrefer to a couple of paragraphs — I’ve got some quotes here from them — that speak to this question you might say a philosophy relativeto the utility of preliminary inquiries.

They refer to the concern at Paragraph 10 of the judgment in Awashish, which is incidentally at2018 SCC 45, Justice Rowe I believe was the author. He said that: . . . extraordinary remedies, notably certiorari, provide relief in narrow circumstances.

The general rule is that “criminal proceedingsshould not be fragmented by interlocutory proceedings which take on a life of their own . . . [36] That is one of the philosophical statements which I think is consistent with what I had mentioned referred to in relation toMartin and, indeed, consistent with what Crown counsel today referred to respecting cases, the line of authority, such as Arcuri[17] andothers which talk about the -- you might say the sort of a narrowing or the focus of what a preliminary inquiry is for.

And in any eventJustice Rowe in Awashish went on to say that in preliminary inquiries jurisdictional error must be shown for certiorari to be granted.That, of course, that position emanated from earlier decisions of the Supreme Court, notably R v Patterson, (SCC),[1970] SCR 409[18]; Québec (Attorney General) v Cohen and Brunet, (SCC), [1979] 2 SCR 305[19]. [37] Being essentially a sentimentalist in some respects, I would observe that a part of that goes back to narrow the decision of orthe scope of certiorari as was mentioned by Lord Sumner in a case called Rex v Nat Bell Liquors and in (UK JCPC),[1922] 2 AC 128.

I think I’ll probably put a footnote in my written reason -- version of these reasons to refer counsel to a decision -- to anarticle, I should say that I wrote respecting Nat Bell Liquors which is a classic decision on law and a fascinating actually a segment ofour you might say the history of our -- of our legal system in Canada as well as elsewhere[20]. [38] It became a watershed decision in many respects, but the one that Nat Bell Liquors did say or suggest that, in fact, thesupervision -- supervisory jurisdiction being exercised by the superior courts included not just errors of jurisdiction by the inferiortribunal, but also in a sense error of law on the face of the record.

And the purpose of cases such as Patterson and Cohen, which Imentioned, and then later on up to Awashish was to eliminate that secondary element; in other words, eliminate error of law on the faceof the record out of certiorari and restricts its role to jurisdictional questions. [39] I would pause to mention, though, that jurisdictional questions have also been interpreted to mean or include things like denialof natural justice.

That is a not part of the -- a direct part of the argument made by defence in this instance but is a something hinted — orhinted is a very unfair way of describing it — it is a in a sense built in, shall we say, to the argument of the defence because the defencetakes the position that if, in fact, preliminary inquiries are -- are trimmed down on to such a narrow basis that they really don’t do muchexcept the bare minimum of deciding whether someone is ordered -- to be ordered to stand trial, that process is a denial of natural justice.If I take from what Mr.

Regel was saying that in part that is one of the things he puts forward. [40] That is not irrelevant because, indeed, s 573.1 of the Criminal Code includes that as one of the areas which the court shouldbe referring to in making a determination about the sufficiency of a decision on to review as to whether or not, in fact, the, quote, thejudge, quote, “failed to observe a principle of natural justice or failed or refused to exercise the judge’s jurisdiction,” unquote[21]. [41] I will not delve into that too much further but except to point out that it is interesting that when Parliament enacted s 573.1they were obviously cognizant of the -- how the evolving law, common law relative to certiorari had accepted those two types ofsituations as being reviewable under a judicial process by statute[22]. [42] In any event, to be more specific about what counsel for the defence is putting forward here, and in that respect referring backsomewhat to what Tulloch J was talking about, the relevant provisions of s 573.1(1) of the Criminal Code that are mentioned by defencecounsel include subsection (1)(

b) which says, relating to the conduct of a preliminary inquiry including an order made under

section --subsection 548(1) which, of course, is the

section which has to do with orders to stand trial. [43] Subsection (

c) is also mentioned by the defence, and that is a

section which reads that the review may include, quote,“relating to a subpoena”, unquote[23]. We do not have the opportunity here to delve into whether that part of the language of that sectionrefers only to trial judges as opposed to preliminary inquiry judges and -- because I think it is sufficient to say that certainly Parliamenthas included there that type of thing as being subject to review.

But I do not offer an opinion, though, however, as to whether thatreferring to “a subpoena” is something which is reviewable via the preliminary inquiry route. [44] As mentioned, the grounds of review that are set out in subsection 3 which I quoted part of which was it had to do withnatural justice, it says: The judge of the Court of Appeal of Nunavut may grant relief only if the judge is satisfied that . . . And thereafter what -- one of those things in the list there -- and one of those things includes (

d) which says, in the case of a decision ororder mentioned in subparagraph (1)(c), which is the

section dealing with subpoenas, or (d), that the judge of the Nunavut Court ofAppeal -- sorry, Court of Justice erred in law. [45] So this kind of circles backwards you might say almost to the idea of whether or not s 540(7) was misinterpreted or, morespecifically in the context of what Mr. Regel was arguing for the defence, 540(9) which is the

section which has to do with ordering a

witness to be produced anyway, even if a statement has been provided pursuant to s 540(7). [46] So it does seem to me that structurally speaking I’m authorized as a single judge to examine whether or not there was an errorunder s 540(9) of the Criminal Code and the

interpretation given thereto by Tulloch J. That’s assuming, however, that the question of asubpoena under subsection (c), (1)(c), is, in fact, a subpoena issued in relation to a preliminary inquiry. So for the sake of argument, I’llassume that that subsection (

c) does apply, in fact, to the operations inside a preliminary inquiry. [47] Now before I leave s 573.1, I should also refer to a couple of provisions which are mentioned by Crown counsel and that isthat in the event, it goes on to say that the powers of a judge like myself can do a lot -- quite a number of things, however, likeprohibitions and declare it invalid and unlawful and so if I quash things; but also it goes on to say that the judge like myself can “refuseto grant any relief if the judge is of the opinion that no substantial wrong or miscarriage of justice has occurred or that the subject matterof the application should be determined at trial or on appeal.” [48] That is I think a very pertinent piece of the legislative structure here, because that is given considerable emphasis by Crowncounsel in his response to the argument made here.

He suggests that, even if Tulloch J perhaps erred as a matter of evidentiary law inrestricting the scope of which -- of evidence that the defence might have offered at the time of the preliminary inquiry based on herinterpretation of the purpose of s 540(8) of the Criminal Code, these things can be considered curable because the subject matter of theapplication should be determined at a trial. [49] You may -- it will be recalled that very early on I mentioned the fact that s 278 decisions are things which are supposed to bedetermined at a trial and not at a preliminary inquiry; and that being so, Crown counsel says, ‘Well, the only two objectives of all thedozen or so witnesses that the defence wished to call at the preliminary inquiry was to either address the underpinnings of an argumentunder s 278 of the Criminal Code or to address the question of the credibility or reliability of the evidence substantively given by thecomplainant at the trial’. [50] It does appear to be assumed that the trial -- the complainant, in fact, will be testifying at the trial although nobody actuallysaid that specifically to me; but my impression was from counsel that, in fact, that is likely to happen.

If that’s so, then the position of theCrown is that, ‘Well, these issues that are very ably raised by Mr. Regel will be dealt with at a trial and it’s not, therefore, something thatshould permeate through to make Tulloch J’s decision that I read from before judicially unfair or a denial of natural justice or for thatmatter wrong’. [51] Because as I say, the question that you might say is a starting point for analysis of Tulloch J’s decision as to whether she iswrong about the

interpretation of the narrow scope and purpose of s 540(8)(

i) of the Criminal Code. In that regard, I might mention thatthe -- you might say the goal of s 540(8) and the goal of a preliminary inquiry has been, you know, dealt with by numerous decisions. Imentioned Arcuri which is -- I’ve got the cite here for it, 2001 SCC 54. There’re cases such as the companion case that came out at thesame time, R v Russell, 2001 SCC 53[24].

And there’s some -- the follow-up decisions which actually dealt with the question of whetherthere was a Charter jurisdiction on the part of preliminary inquiry judges -- such as R v Deschamplain, 2004 SCC 76 , [2004] 3SCR 601[25], and other decisions of that sort[26]. [52] The basic idea that seems to have been put forward by the Supreme Court of Canada and fairly repeatedly and it underscored Ibelieve by Awashish as well, is that there’s only one statutory purpose to a preliminary inquiry, namely, determining whether theaccused should be committed to stand trial or discharged.

Judges, therefore, are not outside the boundaries of that provision to focus onthat, as Tulloch J did, in determining whether or not there should be a committal to stand trial by saying as she did, and I believe I quoted-- read it out earlier, that the nature of the inquiries that are -- were proposed by the defence here, went to the matters which weresubstantively issues that a trial judge would have to -- or a jury would have to deal with, namely, credibility and reliability of thecomplainant and s 278 screening you might say. IV. Discussion [53] So that I get back to then what am I doing here?

Well, it does seem to me that, you know, having thought about this andlistened very carefully to the -- to the positions of the counsel that I have some difficulty seeing how the decision of Tulloch J, and thedecision of Charlesworth J that was grounded upon that, is a jurisdictional line in either case.

At the best, it is an error of statutoryinterpretation. [54] So to the extent that jurisdiction is an issue that would be raised in support of the motion before me today, I would have to saythat it fails; that there is no jurisdictional error. [55] As far as the question of whether or not it’s a reviewable error of law for the purposes of judicial review under this s 573.1 ofthe Criminal Code, that brings into mind issues such as Vavilov, 2019 SCC 65[27], as to judicial review generally, and even a laterdecision that came out more recently called Music Canada[28] as to the types of situations where the review court is to interfere withlegal decisions: in other words, is not to concede or to defer to them on the basis of reasonability of those decisions but to, in fact, statethere ‘correctness is for me and this is incorrect and, therefore, I’m going to interfere with it’.

That form of

interpretation of s 573.1 of theCriminal Code has been in a sense a structure of appellate review of sort as has been mentioned by me indirectly earlier, and also I thinkis the fair approach to be taken. [56] Indeed, counsel, Mr. Regel, was I believe fair enough to -- or maybe actually Crown counsel -- to say that the federal court hastaken that position as well in its extremely broad language relative to judicial review as well. [57] In any rate, in any event though, I conclude that I do have the ability under this

section as a single judge to decide whether ornot judge Tulloch J and thereby Charlesworth J, was wrong in law, incorrect in law to do what they did in terms of interpreting the roleof their -- themselves as preliminary inquiry judges and relatedly, therefore, to whether or not subpoenas should issue for all thesewitnesses that were itemized and also wrong in law in relation to the

interpretation of ss 540(7) and (9) of the Criminal Code.

[ 58 ] And I have to say that — I believe I’ve indicated before — that I do not believe there was an error of law in relation to s 540(9) because that is exercise of discretion and is not reviewable and it seems to me as a question of law alone. So there was no statutory error in terms of how she implicitly handled that. [ 59 ] As far as the broader question, though, about the subpoenas, and assuming as I said before that, in fact, that subsection (

c) applies to what I’m doing here, the decision of a judge to attempt to make a rational whole out of different pieces of legislation (which is I think the general obligation of judges) and to, therefore, bring into play case law relative to the

interpretation of s 540(8) of the Criminal Code , an

interpretation of what a subpoena is for, in relation to a preliminary inquiry, was not an unreasonable approach to be taken by Tulloch J and in effect ratified by Charlesworth J. [ 60 ] It does seem to me that the signals have been made by Parliament repeatedly now that preliminary inquiries have a very limited -- I wouldn’t say nominal role, but a limited role and that consequently the exploration of the scope of the evidence isn’t one of them.

And certainly counsel for the Crown suggests that if counsel for the defence wants to go further with the preliminary inquiry and not merely explore the evidence but also in fact, to see if he can stimulate the Crown into further investigation. And Crown counsel says that’s contrary -- it’s contrary to a decision called Darwish [29] . I don’t intend to read that counsel --counsel’s mind, either counsel, Crown counsel or defence counsel, and in any event I wouldn’t think that there’s anything unfair about the defence attempting to get as much information as they can. I mean that’s -- I think that’s their job.

So, I wouldn’t -- I’m not going to fault Mr. Regel for that -- that pursuit. [ 61 ] The question, though, is whether or not Tulloch J fundamentally erred in law in saying, ‘no, I do not believe that that’s what I’m supposed to be doing here. I believe I’m only supposed to be deciding whether there is enough evidence’.

As I mentioned earlier on, she and Charlesworth J were entitled to find implicitly that the statement was credible and trustworthy and having done so to rely on it as Charlesworth J did to order the appellant to stand trial. [ 62 ] Consequently, I do not feel that I have a basis upon which to interfere with either decision under s 573.1 of the Criminal Code . I mention, if it’s any consolation, Mr.

Regel, his arguments were excellent in my judgment in that respect it’s reviewable it seems to me, but that’s -- that will be up to a panel I suppose to get into this. [ 63 ] And if a panel does get on it, they may be more inclined to address the social policy issues which are not insignificant I must say that Mr. Regel puts forward in connection with the preliminary inquiry and what appears to be it’s almost moving towards -- I wouldn’t call it zombie status exactly, but it doesn’t seem to have a whole lot of activity that’s ascribed to it. And I don’t wish to be -- I’m not sneering at it in that respect.

I just have a tendency to sometimes be colloquial when I speak. I don’t take the colloquial part of it when I produce it in writing. V. Conclusion [ 64 ] So as a result, then the application is dismissed. I do have, however, to commend both counsel, as I said before, on excellent presentations. This was a very difficult matter to deal with. I was very moved by, actually, what you said. Even though I’m talking right immediately after the hearing, I didn’t know what I was going to do when I came in here. I read all this stuff, and I said, gee, what do I make of this.

And -- but I --as I went through it with counsel’s able assistance, I came to a conclusion that I had to make a decision today, and this was the one I should give. Application heard on October 25, 2022 Reasons filed at Iqaluit, Nunavut this 20th day of January, 2023 Watson J.A. Appearances: G. Lyndon for the Respondent

A.R. Regel for the Applicant