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Criminal law - Private prosecution - Appeal - Adjournment - Whether the justice of the peace exceeded his jurisdiction in refusing to issue process - Whether the lower courts erred in refusing the adjournments and dismissing the application for judicial review and the appeal - Criminal Code, R.S.C. 1985, C-46, s. 507.1.

The Applicant, Mr. Gebremariam, alleges that in 1994, his six-year-old son was physically and sexually assaulted by his school principal and that a teacher also physically assaulted him and was complicit in the sexual assault. He reported this to various authorities (the Catholic Children’s Aid Society and the police), but after several investigations in 1994, 1997 and 1998, no charges were laid. Medical examinations revealed no signs of physical or sexual abuse. In 2005, Mr. Gebremariam laid a private information before a justice of the peace, seeking to have process issued against the principal and the teacher on charges of sexual and physical assault. The information on the common assault charge was refused in light of the expiration of the limitation period. At a pre-inquiry hearing under s. 507.1 of the Criminal Code, a justice of the peace found that there was no prima facie case against either of the proposed accused and refused to issue process on the sexual assault charge.

Mr. Gebremariam sought judicial review of that decision to the Ontario Superior Court of Justice, claiming that the justice of the peace had exceeded his jurisdiction. He sought a writ of mandamus with certiorari in aid directing a justice of the peace to issue process. He requested and obtained three adjournments, but on December 3, 2007, Speyer J. refused an additional adjournment and dismissed the application for judicial review. Mr. Gebremariam appealed the decision. He obtained two adjournments, but Armstrong J.A. refused him a third adjournment brought on the basis of his need to file a supplementary appeal book and his wish to retain counsel. The day before the hearing, Mr. Gebremariam again sought an adjournment, this time on the ground that he was ill and that he wished to retain counsel. The adjournment request was denied the following day, on the grounds that (1) there was no evidence of medical incapacity and (2) in light of the circumstances, it was clear that Mr. Gebremariam had had ample opportunity to retain counsel, had he wished to do so, since he had used this reason to obtain adjournments in the past. The Court of Appeal dismissed the appeal. It found that Speyer J. had not erred in the exercise of his discretion not to allow a further adjournment. Also, it was open to Speyer J. to find that the justice of the peace had not exceeded his jurisdiction in declining to issue process.