Gagnon, Gagné, Cournoyer

Appeal from a judgment of the Superior Court dismissing a proceeding by way of a writ of prohibition and certiorari in aid, as well as an application for the Superior Court to exercise its concurrent jurisdiction to grant remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I). Motions for leave to adduce fresh evidence. Dismissed.

The trial of the appellant, an Inuit living in Quaqtaq, was scheduled to take place before the itinerant court sitting at that location. A week before the trial, the regional coordinating judge decided to cancel all travel by the Court of Québec to Quaqtaq, and asked the stakeholders to do what was needed to ensure that all individuals to come before the court were transported from Quaqtaq to Kuujjuaq. The day before the trial, the respondent filed a motion seeking an order for the victim to testify by videoconference. The appellant contested this motion and claimed he had the right to be tried in Quaqtaq, invoking para. 20.0.5 of the James Bay and Northern Quebec Agreement (November 11, 1975). The judge of the Court of Québec found that she was not required to rule on this last issue and granted the respondent’s motion, thereby implying that the trial would be held in Kuujjuaq. The appellant filed a proceeding by way of a writ of prohibition and certiorari in aid. He also asked the Superior Court to exercise its concurrent jurisdiction to grant remedies under s. 24(1) of the Charter. The Superior Court judge dismissed this proceeding, finding that the Court of Québec judge had not exceeded her jurisdiction in deciding that the trial would take place in Kuujjuaq instead of Quaqtaq.

Coordinating judges of the Court of Québec have the power to administratively transfer files within the judicial district for which they are responsible. The appellant was therefore entitled to have the trial judge rule on his right to be tried in Quaqtaq.

However, the judge could not order the victim to testify by videoconference and thereby imply that the trial would be held in Kuujjuaq without ruling on the issue of the venue of the trial and the appellant’s right to be tried in his community. In this case, the Court is not convinced that the judge decided the venue of the trial. In her judgment on the respondent’s motion, she considered only the circumstances listed in s. 714.1 of the Criminal Code (R.S.C. 1985, c. C-46).

Moreover, in his proceeding by way of a writ of prohibition and certiorari in aid, the appellant does not allege that the judge exceeded her jurisdiction by not deciding the venue of the trial. He faults her for failing to consider elements he did not enter in evidence before her, and he has asked the Superior Court, and now the Court of Appeal, to conduct an adversarial proceeding to settle the issue of his right to be tried in Quaqtaq.  

The trial judge was justified in dismissing the appellant’s proceeding. In so doing, he followed the general rule that criminal proceedings should not be fragmented by interlocutory proceedings that take on a life of their own. Certiorari is available to the parties in criminal proceedings only for a jurisdictional error by a provincial court judge. Generally, a change of the venue of a trial is not a jurisdictional issue. The same must be said of the order to go to Kuujjuaq for the trial.

Text of the decision: http://citoyens.soquij.qc.ca