The powers of a Preliminary Inquiry Judge are conferred in the Canadian Criminal Code (sections 535-551). Those are mandatory provisions.
The Code does not authorize an inquiry at large into not only the offence specifically charged but also all areas in which the Crown may choose to lead evidence.
Parliament does not authorize an inquisition. Rather, Parliament restricts the power of inquiry to “any other indictable offence in respect of the same transaction.”
A transaction may encompass more than one event. Those events must be closely linked in time and place; and the other event must be inextricably woven with the main count on the Information (part of the res gestae).
When a case is well-founded, the Crown takes care to follow the rules, and loses nothing by doing so. The converse is a red flag: If the Crown plays fast and loose with the rules, you should suspect the case is tainted. If the police lie or manufacture evidence, then denying the rights of the accused is one way to obscure this.
A fair trial is impossible if it grows out of a Preliminary Inquiry riddled with jurisdictional errors.
A Certiorari Application is a request for judicial review. Certiorari is the traditional way to challenge a Preliminary Inquiry decision when: (1) the Judge lacked initial jurisdiction, or (2) the Judge lost jurisdiction by failing to observe mandatory provisions of the Criminal Code, or (3) the Crown failed to introduce any evidence of an essential element of the charges, or (4) there was denial of natural justice.
In short, Certiorari permits review where a tribunal acts in excess of its assigned statutory jurisdiction or breaches the principles of natural justice. Certiorari alone may review the outcome of a Preliminary Inquiry, when the grounds of complaint relate solely to jurisdiction. The Certiorari Application is heard in Q.B. Chambers before the trial begins.
The jurisdiction of a Preliminary Inquiry is conferred exclusively by statute, specifically sections 535 to 551 of the Canadian Criminal Code. Those are mandatory provisions. Jurisdictional error occurs when any one of those provisions is not followed. There is no jurisdiction to act arbitrarily.
|1967||Robert Laing obtained an LL.B. degree from the University of Saskatchewan.|
|1970||Laing articled with the McKercher Law Firm in Saskatoon, Saskatchewan. This firm was (and still is) intensely loyal to the Canadian Medical Protective Association (CMPA). They represent Defendant doctors in both civil and criminal court.|
|Laing became a partner in the McKercher Law Firm, which was subsequently renamed McKercher McKercher Stack Korchin & Laing. Later the firm changed its name again due to mergers. But through it all, as shown by periodic profiles in Canadian Lawyer Magazine, the McKercher firm listed the CMPA as their topmost key client.|
|1970 - 1994||Laing worked at McKercher for 24 years, at which point he was elevated to the bench. Another star alumni of the McKercher firm was Gordon Wyant, currently the Justice Minister (Attorney General) of Saskatchewan. Both retain ingrained loyalty to the CMPA.|
|1994||Laing was appointed to the Saskatchewan Court of Queen's Bench – he became a judge, but did not leave his CMPA loyalties behind.|
|1989 - 1994||Laing cultivated political connections: Among other things he was Chairperson of the Saskatchewan Police Commission during this period.|
|2006||Laing was appointed the Chief Justice of Queen's Bench Court in Saskatchewan.|
|2012||Laing stepped down as Chief Justice and elected supernumerary status with the Court of Queen's Bench.|
At a Preliminary Inquiry held in Saskatoon, the Crown submitted into evidence a set of letters (called the Cline letters) which fell brazenly outside the charges and counts listed on the Information. These letters constituted half of the entire body of evidence taken at the Preliminary Inquiry, and had a substantial impact on the outcome.
The Crown was advised of the discrepancy over a period of two years. But the police and Crown made no effort to amend the Information or submit a new charging document.
Judge Barry Singer presided over that Preliminary Inquiry. In accepting the letters, Judge Singer breached the same transaction rule of CCC s 535. That means Judge Singer breached a mandatory statutory provision. This is a serious error, and is properly characterized as jurisdictional.
In 2009 Judge Robert D. Laing presided over my Certiorari Application which asked for review of eight distinct, and major, jurisdictional errors committed by Judge Singer at the Preliminary Inquiry. As an example, one error is cited here, viz. the Cline letters improperly taken into evidence.
In reply to my application, Judge Laing composed a fiat that was confused, vague, and manipulative. When he addressed himself to the Cline letters, Laing wrote: “If the evidence was wrongly admitted, and I am not saying it was, it was an error of law made within the jurisdiction of the Preliminary Inquiry judge, and is not a jurisdictional error. The merits of the position should be left to the trial judge.”
Judge Laing was flat wrong.
|Jurisdiction||–||refers to the substance, content, and subject matter of the evidence|
|Admissibility||–||refers to the physical format, source, or credibility of the evidence|
The court deals with each differently:
Regarding the Cline letters: When Judge Singer accepted and acted on this evidence, he failed to comply with a mandatory provision of the Criminal Code. That provision is CCC section 535 which defines which evidence may be collected at a Preliminary Inquiry. A Judge cannot take evidence just because it gratifies his need for drama, or makes him feel dominant, or gives a Judge who is himself an abuser the opportunity to side with the predator and disparage the victim.
A Judge may only take evidence that accords with the ‘Same Transaction’ Rule. Parliament carefully crafted that rule as a procedural safeguard; it is compulsory and binding. The Rule helps Judges stay focused on the purpose of a Preliminary Inquiry, which is is to answer the specific charges laid.
Jurisdictional error results when the transgression, in admitting or acting on evidence, arises from failure to comply with a mandatory statutory provision. The error here does not depend on the application of legal principles: we need not test whether this evidence is credible versus hearsay; whether an oath was sworn properly; or whether the format of the evidence (such as a tape) is admissible. The issue here is that the judge crossed the dividing line which separates mere admissibility rulings, from breaches of the right to gather any of the disputed evidence at all.
On the surface, Judge Laing confused jurisdiction with admissibility. Looking below the surface:
A conflict-of-interest with Judge Laing is likely. The causative event was years ago, but the antagonism never truly ceased. The history: In 1986 I reported Saskatoon rheumatologist Dr. Blocka to the College of Physicians and Surgeons. The issue was medical negligence. In 1987 I expanded that to a civil claim Q.B. #514/87.
Dr. Blocka retained the law firm McKercher, McKercher, Laing and Whitmore for his defence. This firm has a monopoly on Saskatoon MDs: the firm defends all doctors on all matters., civil or criminal. As such, they use tactics sanctioned by the Canadian Medical Protective Association, or CMPA. Media reports say: “The CMPA is driven by protecting the doctor at all costs. There’s been a concerted tactic to drag plaintiffs through as much grief as possible.”
After I reported Dr. Blocka by way of Affidavit to the court, I suffered an abusive backlash. My then-GP Dr. Chernoff explained: “Dr. Blocka wants to find out all your sources of support, so he can turn them into sources of harassment”; he said “if you bash anybody long enough, they are bound to break down”; and added “Dr. Blocka hopes you will break down before he goes to trial.” Because of the backlash, the court ordered Dr. Blocka to sign a Restraining Order.
In 1989 I was forced to abandon my lawsuit when I developed Guillain-Barre Syndrome, a paralytic disease with a long recovery time. When the lawsuit ended, the Restraining Order ceased. The reprisal from Dr. Blocka resurged.
At that time, Robert D. Laing was a founder of, and a senior partner with, the McKercher firm. Laing had full knowledge of, and acquiesced to, the brutal CMPA tactics directed at me. This man is now Q.B. Chief Justice Laing. He resides in the capital city of Regina, as his duties are based there. Laing took the unusual step of traveling 250 kilometers from Regina to Saskatoon to preside over my Certiorari Application.
A Writ of Certiorari is a request for judicial review when a tribunal acts in excess of its assigned statutory jurisdiction or breaches the principles of natural justice.
Certiorari is the traditional way to challenge a Preliminary Inquiry decision when: (1) the Judge lacked initial jurisdiction; or (2) the Judge lost jurisdiction by failing to observe mandatory provisions of the Criminal Code; or (3) the Crown failed to introduce any evidence of an essential element of the charges; or (4) there was denial of natural justice.
When the outcome of a Preliminary Inquiry is biased – due to self-interest of the Judge or Prosecutor – then a denial of natural justice has occurred. This falls in the realm of Certiorari, and in fact that is the only path to resolution. The Certiorari Application is heard in Q.B. Chambers before the trial begins.
The Supreme Court of Canada held: The accused must be reasonably informed of the transaction alleged against him, to allow him a full defence. When the Information recites all the facts and relates them to a definite offence identified by the relevant section of the Code, then the accused will not be misled.
The Criminal Code does not authorize an inquiry at large into not only the specific offence charged but also all areas in which the Crown may choose to lead evidence. An accusation does not exist in latent form. A person is charged or he is not. The charges that a justice may inquire into must exist at the time the Preliminary Inquiry commences.
Logically, the power to commit cannot be larger than the power to inquire. Had Parliament wished to confer on a magistrate the power to commit an accused for any offence disclosed by the evidence, it could easily have done so.
This Supreme Court decision became known as the Golden Rule of a charging document.
This modern precedent and others affirm: If the Crown was aware of the new charges before the beginning of the Preliminary Inquiry, it should have presented a new Information that spelled out the charges on which it sought committal to trial.
If the rationale behind the Crown's conduct is that it wants to lead more evidence so it could be in a position to seek committals over and above the charges on the Information, then that could change the fundamental reasons for the holding of a Preliminary Inquiry.
Canadian Criminal Code
CCC s 774. – Part XXVI of the Criminal Code applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition.
CCC s 780. – Where a motion to quash a conviction, order or other proceeding is refused, the order of the court refusing the application is sufficient authority for the clerk of the court forthwith to return the conviction, order or proceeding to the court from which or the person from whom it was removed, and for proceedings to be taken with respect thereto for the enforcement thereof.
CCC s 784. (1) – An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition.
Tuum Est - It Is Up To You
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