2018 BCCA 284 R. v. Joseph

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	R. v. Joseph,
	2018 BCCA 284

Date: 20180713

Docket: CA44621

Between:

Regina

Respondent

And

Lucas Geronimo Phillip Joseph

Appellant

Restriction on publication: A publication ban has been imposed under s. 486.4(2) restricting the publication, broadcasting, or transmission in any way of evidence that could identify the complainants, referred to as L.W. and V.T. This publication ban applies indefinitely unless otherwise ordered.

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Garson

The Honourable Madam Justice Fisher

On appeal from: An order of the Supreme Court of British Columbia,
dated July 19, 2017 (R. v. Joseph, 2017 BCSC 1398,
Victoria Docket No. 167290-1).

	Counsel for the Appellant:	T.J. Russell
	Counsel for the Respondent:	C.J. Tobias, Q.C.
	Place and Date of Hearing:	Victoria, British Columbia April 19, 2018
	Place and Date of Judgment:	Vancouver, British Columbia July 13, 2018
Written Reasons by:
The Honourable Madam Justice Garson
Concurred in by:
The Honourable Madam Justice Saunders The Honourable Madam Justice Fisher

Summary:

The appellant appeals an order of the Supreme Court dismissing his application for prerogative relief. He applied for certiorari after a Provincial Court judge purported to hold a “Vukelich hearing” on the appellant’s application to withdraw his guilty plea. The judge proceeded to dismiss the application without a full hearing. The appellant says a trial judge lacked jurisdiction to summarily dismiss an application to withdraw a guilty plea. He also says the courts below gave inadequate reasons and breached his Charter rights by failing to consider his Aboriginal status. Held: Appeal dismissed. Any error in the summary dismissal of the appellant’s application to withdraw his guilty plea was an error of law made within the judge’s jurisdiction. Since prerogative relief is only available to remedy jurisdictional errors, the Supreme Court judge did not err in dismissing the appellant’s application for certiorari.

Reasons for Judgment of the Honourable Madam Justice Garson:

Introduction

[1] Lucas Geronimo Phillip Joseph pleaded guilty in Provincial Court to one count of sexual interference. The Crown stayed two other sexual offence charges. The charge carried a mandatory minimum custodial sentence of 12 months. When he appeared for sentencing, Mr. Joseph advised the court he wished to withdraw his plea. Exercising her case management powers, a Provincial Court judge directed what she referred to as a “Vukelich hearing”, in order to establish whether there were any grounds upon which Mr. Joseph could succeed on his application to withdraw his plea. Having examined the affidavit evidence that Mr. Joseph proposed to tender, a different Provincial Court judge declined to permit the application to be set down for a full hearing, and dismissed it. Mr. Joseph applied to the Supreme Court for an order for certiorari with mandamus in aid to quash the decision of the Provincial Court judge. A Supreme Court judge dismissed the application. On appeal of the Supreme Court judge’s dismissal of the application for certiorari, Mr. Joseph argues that the judge erred in refusing to grant his application.

Grounds of Appeal

[2] The first issue that arises on this appeal is whether the Provincial Court judge’s alleged error is a jurisdictional error, reviewable on an application for certiorari, or whether it is a question of law reviewable only on appeal. Mr. Joseph says that the Supreme Court judge erred in dismissing his application for certiorari with mandamus in aid. The Crown relies on the Supreme Court of Canada’s admonition to trial courts, in R. v. Cody, 2017 SCC 31 at para. 38, that they should use their case management powers to minimize delay. The Crown contends that the Provincial Court judge properly exercised his jurisdiction in viewing the evidence, determining that it was inadequate to meet the criteria necessary to withdraw a guilty plea, and refusing to hear the full application. The Crown says the evidence reveals that Mr. Joseph simply changed his mind and that could not have satisfied the criteria to withdraw a plea. In any event, the Crown says this is not a jurisdictional error and certiorari is not therefore available.

[3] The second issue relates to the Supreme Court judge’s alternative finding that regardless of whether the judge erred in dismissing the application on a summary basis, he would not exercise his discretion to grant certiorari because the application was premature. Mr. Joseph contends that the Supreme Court judge erred in finding that because Mr. Joseph could renew the application prior to sentencing, or use it as a basis for an appeal of his conviction later on, the certiorari application was premature. Mr. Joseph says that it is highly unlikely the same court would entertain a renewed application, therefore the Supreme Court judge erred in telling him he could simply go back and try again. He also says that he would be prejudiced if, as the Supreme Court judge said, he could appeal his conviction and then argue that he ought to have been permitted to withdraw his plea. Mr. Joseph says he would be prejudiced because his sentencing would inevitably be followed by incarceration because of the one-year mandatory minimum custodial sentence applicable to his conviction. Moreover, he says there is no certainty he would be released on bail and, in any event, he would be incarcerated pending bail.

[4] The third issue raised by Mr. Joseph flows from his Charter rights as an Indigenous person.

Proceedings in Provincial Court

[5] I shall begin by outlining the proceedings that lead to the Provincial Court judge’s decision to hold what was called a “Vukelich hearing”.

[6] On November 17, 2016, Mr. Joseph’s case was set for trial on three charges:

Count 1

Lucas Geronimo Phillip JOSEPH, from the 15th day of August, 2015 to the 1st day of September, 2015, inclusive, at or near Saanich, in the Province of British Columbia, did sexually assault L.W., contrary to Section 271 of the Criminal Code.

Count 2

Lucas Geronimo Phillip JOSEPH, from the 15th day of August, 2015 to the 1st day of September, 2015, inclusive, at or near Saanich, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of L.W., a person under the age of sixteen years, contrary to Section 151 of the Criminal Code.

Count 3

Lucas Geronimo Phillip JOSEPH, from the 15th day of August, 2015 to the 1st day of September, 2015, inclusive, at or near Saanich, in the Province of British Columbia, did sexually assault V.T., contrary to Section 271 of the Criminal Code.

[7] Mr. Joseph’s trial counsel and the Crown agreed that, if Mr. Joseph pleaded to the second count, the remaining charges would be stayed. Mr. Joseph’s trial counsel waived reading of the charges and entered a plea to the second count before Rogers P.C.J. Crown counsel then informed the court that a presentence report would be prepared and that he would briefly outline the facts underlying the charge so that “this gentleman knows exactly what he’s pleading to and for the purpose of the [presentence report]”.The judge then instructed Mr. Joseph to listen carefully to the Crown’s description of the facts of the offence. The Crown then outlined the offence:

MR. WEIR: Yes, Your Honour. The complainant, L.W., was at the requisite time a person under the age of 16 years, in fact she was 14 years. And the facts that underpin this guilty plea, as I understand it, which I’m putting on the record hopefully to confirm with Mr. Joseph, is that on the night in question -- and there is a range because nobody’s exactly sure, but during that range of time L.W. and the person referred to in Count 3, [V.T.]., were over at Mr. Joseph’s house. They all ended up sleeping on the same bed and during the course of the evening or night, Mr. Joseph placed his hands under the clothing of L.W. and fondled her groin area, her genitals, and those are the facts that the Crown is proceeding on.

THE COURT: Okay. So Mr. Joseph, the -- the matter that you -- counsel says you want to plead to is Count 2 on this information and it says that from some time -- and from what Mr. Weir said, I understand it’s on one night some time between the 15th of August and the 1st of September, 2015, that you:

. . . did for a sexual purpose, touch, directly or indirectly, with a part of [your] . . . body or with an object, the body of L.W., a person under the age of sixteen years, contrary to Section 151 of the Criminal Code.

Specifically, what the Crown’s alleging is that on that night, that you were sleeping in the same bed with the complainant, L.W., and that you at some time that night placed your hands under her clothes and fondled her genital area. Do you understand what you’re charged with?

THE ACCUSED: Yes.

THE COURT: And how do you plead?

THE ACCUSED: Guilty.

[8] The presentence report was completed on February 7, 2017. In it, the probation officer noted that Mr. Joseph did not admit his guilt, rather he recounted a different version of events than had been outlined by Crown counsel and to which he had pleaded guilty. Instead, he told the probation officer:

Attitude and Understanding Regarding Offence:

Mr. Joseph disagrees with the circumstances of the offence as outlined in the police report. Mr. Joseph states he had come home that night and went to bed. Mr. Joseph reports that [V.T.] had keys to his apartment as she was temporarily staying at the residence. On the date of the index offence, Mr. Joseph reports he awoke to both [V.T.] and [L.W.] kissing and touching each other in his bed. Mr. Joseph states he asked them to stop, but they did not comply. Mr. Joseph states, [V.T.] and [L.W.] then tried to kiss him, but he refused, and then asked them to leave, for the second time. Mr. Joseph claims a ... (roommate) then entered the bedroom and helped remove [V.T.] and [L.W.] from the bedroom. Mr. Joseph states that at no time during this was he sexually aroused or seeking to have a sexual experience with either of the females. Mr. Joseph states he did not touch either [V.T.] or [L.W.] in a sexual manner, and nor did he invite any sexual touching between them. Mr. [Joseph] states that he did not have sexual intercourse with [L.W.]

[9] In support of his application to withdraw his plea, Mr. Joseph filed an affidavit in which he deposed, at para. 7:

Consequently, I agreed to the allegations that were submitted by the Crown and entered a guilty plea to a charge of sexually touching someone under the age of 16. It was never my intention to admit what I now understand as necessary to plead guilty to the count that I was charged with.

[10] He also deposed in his affidavit that he had denied the allegations from the outset because he was innocent of all the charges. He nevertheless agreed to a plea bargain because he was told by counsel that he would likely be convicted and face a penitentiary sentence, as opposed to a 12-month sentence on a guilty plea to one of the charges.

[11] The Crown, upon obtaining an order waiving privilege, obtained an affidavit from trial counsel. Trial counsel deposed in his affidavit:

1. That from the outset, when Mr. Joseph and I discussed the facts and circumstances surrounding the allegations, Lucas Joseph admitted the allegations of sexually touching a person he knew to be under the age of 16 but that he denied the allegation of intercourse.

2. That I prepared to defend against the allegations of intercourse pursuant to my instructions.

3. That in early November, 2016 the crown prosecutor Mr. Weir and I had a number of discussions resulting in a proposal that the matter be resolved by Mr. Lucas pleading guilty to a single count of sexually touching a person he knew to be under the age of 16.

4. That I telephoned my client and after carefully explaining the proposed guilty plea resolution Mr. Lucas instructed me to advise Mr. Weir to cancel witnesses as he will plead guilty to the single count on the scheduled trial date.

…

6. That on November 17, 2016 the day of trial, Mr. Joseph entered the guilty plea on his own behalf.

7. That after entering the guilty plea Mr. Joseph asked me to explain, to a person he identified as his girlfriend, what had transpired. In his presence, I explained to his girlfriend what had transpired and what it meant. At no time during this explanation did he object or disagree with anything I said.

8. That it is my practice to always tell my clients that I can not and will not plead guilty to something they did not do. I am confident that the plea of guilty was entered with the full knowledge and understanding of Lucas Joseph and that I was unambiguously instructed to do so.

[12] The matter eventually came on before Rogers P.C.J. on May 19, 2017. Judge Rogers advised counsel that first she would set a date for a pre-hearing in order to determine if the materials disclosed the “necessary basis” for the application. She said:

THE COURT: So this comes out of some discussions that have taken place that it’s been -- it’s often difficult for the judicial case managers in these matters to determine what’s an appropriate amount of time for these matters, and so what we’re asking because there seem to be more and more of these applications to withdraw, is that they come before a judge to determine first of all if there’s a basis for the application, and in this case I think the necessary basis has been prepared in terms of application materials, but I think the courts are wanting to have a bit of oversight as to whether there’s actually a triable issue and if so how long that triable issue might take, and so that’s the reason that it’s been pulled out of the JCM office to come before the court.

...

THE COURT: Well, Vukelich is a case that applies I think across the board, and I think the courts have every right to ask some questions before we set aside a day of valuable court time. So I understand you’re not prepared, but I think the matter then needs to come back before we fix a date so that [Mr. Joseph’s counsel] can answer those questions, and I think he needs to establish the threshold basis for an application, that is that there’s some likelihood or possibility of success so --

[13] Judge Rogers then set the pre-hearing for 20 minutes.

[14] The pre-hearing came on before Higinbotham P.C.J. on June 13, 2017. Crown advised the Court that the parties had been directed by Rogers P.C.J. “that a Vukelich-style hearing be ordered so that [Mr. Joseph] … can convince the court that there is sufficient evidence upon which to proceed.” The Crown proceeded to make a brief submission outlining its position that there was an insufficient evidentiary basis for the application. Mr. Joseph’s counsel objected to the Court conducting a “Vukelich hearing”, indicating that he did not know of any legal authority for the procedure being followed. He then briefly outlined the evidence in support of his application.

[15] As I have already outlined, the Provincial Court judge declined to hold a full hearing in order to inquire into these facts. He rejected Mr. Joseph’s contention that a preliminary type hearing to determine if “the threshold has been met in this case” (at para. 7) was unauthorized by law. He found there was “scant evidence” to support the proposition that Mr. Joseph did not understand the facts upon which the Crown relied or the implication of his plea (at para. 14). The judge then dismissed the application at the preliminary stage.

Discussion

[16] The first issue on appeal is whether the alleged error is one of law or jurisdiction. As I will explain below, this distinction is central to determining whether the Supreme Court, or this Court, can grant certiorari to Mr. Joseph. That remedy is only available if the Provincial Court judge committed a jurisdictional error.

[17] As already noted, Higinbotham P.C.J. concluded that he was entitled to hold a Vukelich-style threshold hearing to determine whether to schedule a full hearing of the appellant’s application to withdraw his guilty plea. Judge Higinbotham acknowledged that, unlike Vukelich, this case did not involve an application to exclude evidence on Charter grounds. However, he held that “the same principles that underlie the decision in Vukelich inform the process involved in an application to withdraw a guilty plea” (at para. 3). Judge Higinbotham found that holding a “threshold” hearing in this case “is an example of the court controlling its own process in order to ensure that its scarce resources are utilized in a manner that best serves the public” (at para. 5).

[18] On the appellant’s application for certiorari, Johnston J. noted that the Provincial Court judge “had jurisdiction to inquire into the scheduling of Mr. Joseph’s application to withdraw his guilty plea” (at para. 22). In Johnston J.’s view, any error in Higinbotham P.C.J.’s decision was an error made within his jurisdiction.

[19] There is authority for the proposition that judges do have wide powers to control the course of proceedings and prevent parties from wasting the court’s resources. This power allows trial judges to take steps to ensure the orderly progress of the trial, such as requiring defence counsel to meet a certain threshold before embarking on a lengthy inquiry.

[20] In Cody at para. 38, the Court emphasized the need for trial judges to exercise their case management powers to minimize delay. Cody was a case about delay in reaching trial, following on and applying R. v. Jordan, 2016 SCC 27. At para. 38 of Cody, the Court highlighted the “important role trial judges play in curtailing unnecessary delay and ‘changing courtroom culture’”, citing R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.) as an example:

[38] … [T]rial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). [Emphasis added.]

[21] An example of the courts’ power to control the course of the proceedings is provided by the threshold leave requirement established in R. v. Garofoli, [1990] 2 S.C.R. 1421. In Garofoli, the Court held that defence counsel wishing to cross-examine on affidavits used to obtain a search warrant or wiretap authorization must show some basis for the view that the cross-examination will elicit testimony tending to undermine a precondition for the authorization. The Garofoli leave requirement provides trial judges with a “means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues”: R. v. Pires; R. v. Lising, 2005 SCC 66 at para. 40.

[22] In R. v. Felderhof (2003), 68 O.R. (3d) 481 at para. 41 (C.A.), the Court concluded that the power to control the course of proceedings applies to statutory courts, like the Provincial Court, as well.

[23] A Vukelich hearing, which addresses whether the court should embark on a full voir dire to determine the admissibility of evidence, is an example of a trial judge’s power to control the course of the proceedings. In Vukelich, the Court referred to this general trial management power in discussing the rationale for a threshold hearing:

[26] … [I]t does not follow that an accused is always entitled as of right to a voir dire in the course of a criminal trial in order to challenge the constitutionality of a search. The trial judge must control the course of the proceedings, and he or she need not embark upon an enquiry that will not assist the proper trial of the real issues. [Emphasis added.]

[24] In R. v. Armstrong, 2012 BCCA 242, leave to appeal ref’d [2012] S.C.C.A. No. 352, the defendants argued that they were entitled to a judicial stay of the charges against them on the basis of various constitutional violations. The Provincial Court judge refused to hold an evidentiary hearing to explore the constitutional issues raised by the defendants. Based on the facts alleged by the defendants, it was apparent that their constitutional arguments were bound to fail. On an appeal of the defendants’ convictions, this Court agreed with the trial judge, explaining, at para. 22, that “the court retained the authority to decline to hold an evidentiary hearing in accordance with Vukelich.” See also R. v. Simmonds, 2018 BCCA 205 at para. 104.

[25] I conclude from my review of these authorities, particularly Cody, that trial judges have the authority to summarily dismiss some applications in a criminal proceeding if the applicant is unable to demonstrate on the material filed that there is a prospect of success on the application. The appellant argues on this appeal that this power, while valid in the context of evidentiary determinations, does not extend to applications to withdraw guilty pleas. He contends that the judge’s summary dismissal of his application is a jurisdictional error and not an error of law. The Crown submits that the language in Cody supports the proposition that the trial courts may use their case management powers to curtail an application to withdraw a guilty plea, where doing so “is simply a means of weeding out [an] unnecessary [proceeding]” (Pires at para. 40).

[26] I turn to the question of whether certiorari is available to correct this alleged error.

[27] In R. v. M.P.S., 2014 BCCA 338, Groberman J.A. canvassed the appropriate use of prerogative remedies in the criminal context. In M.P.S., the accused applied for prerogative relief to compel a preliminary inquiry judge to hold a hearing to determine whether he could cross-examine a complainant on her prior sexual conduct pursuant to s. 276 of the Criminal Code, R.S.C. 1985, c. C-46. He also sought to quash his committal, arguing that the preliminary inquiry judge exceeded his jurisdiction in refusing to hold the hearing. Justice Groberman noted that applications for certiorari in a criminal context are relatively rare (at para. 44). He noted that certiorari is only available where it is alleged the tribunal has acted outside its jurisdiction or in breach of the principles of natural justice (at para. 46). It is not available for mere errors of law (at para. 56).

[28] Justice Groberman canvassed the distinction between a jurisdictional error and an error of law:

[46] … In a criminal matter, … it is still necessary to explicitly identify jurisdictional error before an order for certiorari will be made. In R. v. Russell, 2001 SCC 53, McLachlin C.J.C., for the Court, described the scope of certiorari as follows:

[19] The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100 (citing Forsythe v. The Queen, [1980] 2 S.C.R. 268).

…

[47] In Dubois [v. The Queen, [1986] 1 S.C.R. 366], at 377, Estey J. summarized the law as follows:

In summary, it is clear enough that no jurisdictional error is committed where the justice incorrectly rules on the admissibility of evidence or incorrectly decides that a particular question or line of questioning cannot be pursued at the preliminary inquiry. This is, of course, subject to the important condition that rulings in the course of a preliminary hearing on evidentiary questions as to the extent of limitation on the basic right to cross-examine or to call witnesses, may develop into a violation of natural justice and fall within the condemnation of Forsythe, supra, and hence be subject to judicial review. See also Re Martin, Simard and Desjardins and The Queen, [(1977), 20 O.R. (2d) 455 (C.A.)], at p. 488. Jurisdictional error is committed where “mandatory provisions” of the Criminal Code are not followed, and in the context of s. 475 [now s. 548(1)], this means at least that there must be some basis in the evidence proffered for the justice’s decision to commit. There is no jurisdiction to act “arbitrarily”. However, where there is some evidence, it is clearly within the justice’s jurisdiction to come to a decision as to whether that evidence is of sufficient weight to commit.

See also R. v. P.M., 2007 QCCA 414 at para. 27, and R. v. Earhart, 2007 BCCA 614 at para. 25.

…

[59] In my view, an error in interpreting s. 276(2) is a mere error of law. It is a ruling on the admissibility of evidence, and not a failure to abide by a mandatory statutory provision. The mandatory requirement was only for the judge to consider the evidence and decide whether he was satisfied that it was capable of being admissible.

[60] It is clear that a mistaken ruling on admissibility of evidence will not ground an application for certiorari: Attorney General for Quebec v. Cohen, [1979] 2 S.C.R. 305; Forsythe v. The Queen, [1980] 2 S.C.R. 268.

[Emphasis added.]

[29] In R. v. Flanders, 2015 BCCA 33 at para. 20, Harris J.A., put the distinction this way:

It follows that if a judge refuses or neglects to follow a mandatory statutory provision, the judge will commit a “jurisdictional error” and therefore be amenable to certiorari. By contrast, if a judge commits an error of judgment in following a statutory provision, the judge will have made a “mere error of law” and will not be amenable to prerogative relief.

[30] He also explained, at para. 24, that a jurisdictional error exists when a Provincial Court judge acts in violation of his or her statutory jurisdiction “by exceeding it or declining to exercise it” or when “instead of performing the function assigned to him, he [does] something quite different”.

[31] In Skogman v. The Queen, [1984] 2 S.C.R. 93 at 100, Estey J., writing for the majority of the Court, explained the limits on certiorari review in this way:

[C]ertiorari review does not authorize a superior court to reach inside the functioning of the statutory tribunal for the purpose of challenging a decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached a conclusion different from that which the reviewing tribunal might have reached.

[32] In this case, the Provincial Court judge applied the decision in Vukelich, the principles of which were subsequently endorsed in Cody, in deciding that he could set down and hear Mr. Joseph’s application on a summary basis. He equated the application before him to applications about the admissibility of evidence, in the exercise of his case management powers. He may have done so erroneously but in my view that is an alleged error of law to be decided on an appeal, not on a certiorari application.

[33] Many cases in which courts have found jurisdictional errors and granted certiorari in the context of Provincial Court proceedings involved instances where the Provincial Court judge failed to abide by a mandatory statutory provision. For example, in Russell, it was a jurisdictional error for a Provincial Court judge to commit an accused to trial after a preliminary inquiry where there was “no evidence” on an essential element of the offence, despite the clear, mandatory requirement for “sufficient evidence” in s. 548 of the Criminal Code. That is clearly not the case here. Neither the Criminal Code nor any other statute requires judges to hold a particular type of hearing when considering whether to allow an accused to withdraw a guilty plea. There is no mandatory statutory provision setting out the amount of time that such a hearing must take or the type of evidence that the judge must consider. Thus, in determining the application on a summary basis in this case, the Provincial Court judge was not failing to follow obligatory statutory mandates.

[34] Further, Provincial Court judges clearly have the jurisdiction to dismiss applications to withdraw guilty pleas. Section 606(1.1) of the Criminal Code provides that a court may accept a guilty plea only if satisfied that the accused makes the plea voluntarily and understands the nature and consequences of the plea. In R. v. Alec, 2016 BCCA 282, Fitch J.A., speaking for the Court, stated:

[74] A trial judge has the discretion to accept or refuse a guilty plea. Until sentence is imposed, a trial judge also has the discretion to permit an accused person to withdraw a guilty plea.

[35] Ultimately, the order of the Provincial Court judge was to dismiss Mr. Joseph’s application to withdraw his plea. This decision is something that the judge had the jurisdiction to determine. Mr. Joseph submits that the Provincial Court judge erred in selecting the procedure to apply in coming to this determination. At its highest, such a procedural error, absent a statutory provision mandating a particular procedure or a breach of natural justice, is an error of law made within the judge’s jurisdiction. It is therefore not subject to review on an application for certiorari.

[36] In support of this conclusion, I would refer to the decision of this Court in Ambrosi v. British Columbia (Attorney General), 2014 BCCA 123, leave to appeal ref’d [2014] S.C.C.A. No. 320. The appellant in that case sought an order of certiorari in respect of a Provincial Court judge’s refusal to issue process in a private prosecution after holding a pre-inquiry hearing. He asserted that the judge committed a jurisdictional error by not holding the pre-inquiry hearing in camera. On appeal, Bennett J.A. assumed that the judge erred by holding the hearing in open court. However, she held, at para. 34, that such an error did not go to jurisdiction. Since the Provincial Court judge had the jurisdiction to refuse to issue process after a pre-inquiry hearing, an error regarding the procedure adopted for that hearing was, at most, an error of law.

[37] This approach is also consistent with the long-held principle in administrative law that statutory tribunals are “masters in their own house” and have the authority to determine their own procedures, subject to specific statutory requirements and the rules of natural justice: Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560 at 568–69; Seaspan Ferries Corporation v. British Columbia Ferry Services Inc., 2013 BCCA 55.

[38] To allow certiorari review in this circumstance would be “reach[ing] inside the functioning” of the Provincial Court to challenge a decision made within that court’s assigned jurisdiction.

[39] Further, many of Mr. Joseph’s arguments on this appeal relate to the manner in which the Provincial Court judge considered the evidence on the preliminary hearing and the standard of proof that he applied. He alleges that the material before the judge was sufficient to merit a full hearing of the matter. These arguments relate to the appropriate legal test to be applied on a summary hearing and, if correct, are errors of law, not jurisdictional errors. They are properly challenged on an appeal.

[40] On this appeal, the appellant also briefly alleged that the Provincial Court judge exceeded his jurisdiction because he acted in breach of the principles of natural justice. Since this argument was not raised or argued before the Supreme Court, it is not appropriate for me to address it fully here. I would only note that Mr. Joseph was given an opportunity to have counsel make submissions on his application to withdraw his guilty plea and establish that his application had some meritorious foundation.

[41] In conclusion, certiorari is unavailable in these circumstances. I am of the view that the alleged error is at most an error of law. The Provincial Court judge did not exceed or decline to exercise his statutory jurisdiction, nor can it be said that instead of performing the function assigned to him, he did something quite different.

[42] Based on my finding that certiorari is unavailable, it is unnecessary for me to consider the Supreme Court judge’s alternative holding, exercising his discretion not to grant certiorari because the application was premature.

[43] I turn briefly to the third ground of appeal raised by Mr. Joseph:

Did either Justice Johnston or Judge [Higinbotham] violate the appellant’s section 7 and 15 Charter rights by failing to consider his aboriginal status as a relevant factor? Were the reasons of either court below sufficient to allow meaningful appellate review?

[44] There is no merit at all to the contention that the reasons of either judge below are inadequate. It will be clear from these reasons that there is no difficulty in discerning the basis of either judgment.

[45] As for the alleged breach of Mr. Joseph’s Charter rights, if Mr. Joseph chooses to renew his application to withdraw his plea, or appeals his conviction, he would be then in a position to introduce cultural evidence relating to his Aboriginal status, if that were appropriate and relevant to his approach to the guilty plea and subsequent efforts to withdraw it.

[46] Last, I note that s. 776(b) of the Criminal Code may preclude the granting of certiorari where an applicant can appeal his or her conviction, particularly where no leave to appeal is required. Neither party contended this section was applicable to this appeal.

Disposition

[47] In the result, I agree with Johnston J. that the Provincial Court judge did not exceed his jurisdiction. I make no further comment on the correctness of the manner in which the Provincial Court judge proceeded. Mr. Joseph could of course renew his application or, at the conclusion of the proceeding, appeal a conviction on the ground that his plea was invalid: see Alec at para. 75.

[48] I would dismiss the appeal.

“The Honourable Madam Justice Garson”

I agree:

“The Honourable Madam Justice Saunders”

I agree:

“The Honourable Madam Justice Fisher”