Interlocutory Motions and Appeals

A judge of the superior court has inherent jurisdiction to consider an application for declaratory relief, either by way of prerogative writ or under s. 24(1) of the Charter. However, the power to consider and grant such an application is discretionary. A Superior Court should not routinely exercise that jurisdiction where the application is brought in the course of ongoing criminal proceedings. Such applications can result in delay, the fragmentation of the criminal process, the determination of issues based on an inadequate record, and the expenditure of judicial time and effort on issues which may not have arisen had the process been left to run its normal course. 

That being said, the Court can and will do so where the interests of justice necessitate the immediate granting of the prerogative or Charter remedy by the superior court. The Court may exercise this power on a habeas corpus application, which "is a crucial remedy for those whose residual liberty has been taken from them by the state and should rarely be subject to restrictions:" R v Codina, 2017 ONCA 93 at paras 23-24