R. v. Kenny, 2003 CanLII 5917 (ON CA)

DATE: 20030424

DOCKET: C37559

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., CARTHY and MACPHERSON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Ian D. Scott for the appellant

Appellant

• and -

DONNA KENNY

Richard Litkowski for the respondent

Respondent

Heard: February 13, 2003

On appeal from the acquittals entered by Justice Bruce C. Hawkins, dated December 13, 2001, sitting as a summary conviction appeal judge, allowing an appeal from the convictions entered on February 4, 2000 by Justice Joseph W. Bovard.

MACPHERSON J.A.:

A. OVERVIEW

1On August 1, 1998, Donna Kenny was charged with criminal harassment. The date of the offence set out in the Information was January 1, 1990. However, the criminal harassment provisions under which Kenny was charged did not come into force until 1993.

2On the same day she was charged, Kenny was released on a recognizance of bail with a condition prohibiting her from communicating with the complainant.

3On June 17, 1999, Kenny was charged with five counts of failing to comply with the non‑communication condition of her recognizance. On December 9, 1999, she was charged with failure to appear in court on August 30, 1999, a return date for the failure to comply charges. On December 21, 1999, Kenny was charged with another count of failing to comply with the non‑communication condition of her recognizance.

4On February 4, 2000, Kenny was convicted of five of the six counts of failing to comply with the recognizance order and with one count of failing to appear in court by Justice Joseph W. Bovard of the Ontario Court of Justice.

5Kenny appealed her convictions. On December 13, 2001, Justice Bruce C. Hawkins, sitting as a summary conviction appeal judge, allowed the appeal and set aside the convictions on the basis that because the original information charging Kenny was a nullity, it followed that the release order made pursuant to it was also a nullity. Hence Kenny had no obligation to obey it and could not be convicted for failing to comply with it or not appearing in court to deal with it.

6The Crown seeks leave to appeal Hawkins J.’s order. The appeal raises the issue of whether a person has a legal obligation to obey a release order made pursuant to a criminal charge even though it turns out that the underlying criminal charge was a nullity.

B. FACTS

(1) The parties and the events

7In 1986, the respondent, Donna Kenny, was a student at the Thunderbird School of Management in Arizona. She met James Kiernan, an executive with Goldman Sachs, when Kiernan made a business recruiting trip to Arizona.

8In 1987, Kiernan was transferred to Goldman Sachs Canada Ltd. in Toronto. He became its President in 1988.

9In 1988, Kenny moved to Toronto. She contacted Kiernan with a view to ‘networking’ in the Toronto business community. Kenny began contacting Kiernan on a regular basis and showed up unannounced at his office. This conduct went on for several years.

10On August 1, 1998, Kenny was charged with one count of criminal harassment “on or about the 1st day of January in the year 1990”.¹ On the same day, she was released on bail. Two of the conditions of the release order prohibited her from communicating, directly or indirectly, with Kiernan or being within 500 meters of his office or residence.

11Less than a year later, on June 17, 1999, an Information was laid, alleging five counts of failure to comply with the condition of Kenny’s recognizance that she not communicate, directly or indirectly, with Kiernan.² The Crown alleged that Kenny had violated this condition of her recognizance by making telephone calls and writing letters to Kiernan and some of his associates at Goldman Sachs on five occasions between May 7 and June 11, 1999.

12On December 9, 1999, Kenny was charged with failing to appear in court on August 30, 1999 for a scheduled hearing on the information relating to the breach of recognizance charges.

13On December 21, 1999, another Information was laid, alleging a further failure to comply with the non‑communication condition in the release order. This charge related to two voice‑mail messages Kenny left on Kiernan’s home telephone on November 7, 1999.

14The trial on these three informations took place before Justice Bovard in January and February 2000. Kenny represented herself at the trial. She raised no issue concerning the validity of the release order. She was convicted of five of the six counts of failing to comply with a condition of her recognizance and of the one count of failing to appear in court. She received a sentence of six months incarceration and probation for three years.

(2) The summary conviction appeal proceedings

15Kenny appealed her convictions and sentence to the Summary Conviction Appeal Court. She retained counsel for the appeal. Counsel argued that the Information laid on August 1, 1998 charging Kenny with criminal harassment was a nullity because it specified an offence date of January 1, 1990. Counsel pointed out that the criminal harassment provision, which was the foundation for the charge against Kenny, was not in force until August 1993. It followed, contended counsel, that the release order, also made on August 1, 1998, was a nullity because it was explicitly linked to the information.

16The summary conviction appeal judge, Hawkins J., accepted this submission. In brief oral reasons, he held:

The Appellant was charged in an Information alleging that she from on or about January 1, 1990 to August 1, 1998 did harass James Kiernan. The offence of criminal harassment was not enacted until August 1993 so there was no offence known to law in January, 1990. The Information was subsequently amended to take it to August 1, 1998. The Appellant was convicted of that offence and it is under appeal. I can assume the problem was not raised at trial. The Appellant’s position is there was no offence known to law, therefore the recognizance entered into was a nullity. I was referred to a decision of McDermid J. which supports the view the Information was a nullity and cannot be revived. This is not a question of a collateral attack in my view. For these reasons I allow the appeal. All convictions are quashed.

17The Crown seeks leave to appeal the decision of the summary conviction appeal judge.

C. ISSUE

18The sole issue on this appeal is, even if the underlying Information (relating to the criminal harassment charge) was a nullity, did the summary conviction appeal judge err in concluding that the convictions for fail to comply and fail to attend court could not stand?

D. ANALYSIS

19I begin with a crucial preliminary point. For purposes of this appeal, the Crown concedes that the underlying information for criminal harassment was a nullity. When Kenny was charged with the offence of criminal harassment on August 1, 1998, there was a provision relating to the offence in the Criminal Code. However, it had been added to the Code in August 1993. The Information charging Kenny with the offence specified January 1, 1990 as the date of the offence. There was no offence of criminal harassment on that date. Accordingly, the information was a nullity.

20Kenny contends that since the underlying information was a nullity, the release order relating to the offence charged in the information must also be a nullity. She points out that the release order specifically incorporates the very defect that renders the underlying information a nullity – namely, reference to the date of the alleged offence as January 1, 1990. Kenny also relies on R. v. Cameron, [1992] O.J. No. 1134 (Gen. Div.), which was referred to by the summary conviction appeal judge in the present case. In Cameron, McDermid J. stated, at p. 3:

In this case, the applicant was released on a recognizance . . . under a defective information.

Until the information was resworn it was defective and incapable of founding jurisdiction. No retroactive effect can be given to validate, after the fact, actions taken pursuant to a defective information. In my opinion, in so far as this case is concerned, s. 523(1) of the Code contemplates the entering into of a recognizance pursuant to a valid information. Here, at the time the recognizance was entered into, the information was defective and could not support the recognizance.

21The Crown acknowledges that Cameron is directly on point. However, the Crown contends that Cameron was wrongly decided because it is inconsistent, at the level of general principle, with a leading decision of the Supreme Court of Canada. The Crown also contends that Cameron is inconsistent with a decision of the Quebec Court of Appeal that is directly on point and contains a preferable analysis and conclusion.

22In Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, Taylor was convicted of contempt of court for having violated a court order issued pursuant to a provision of a federal statute. Taylor challenged the statutory provision on Charter grounds. The majority of the court upheld the provision. However, the minority would have struck down the provision. This result required the minority to consider whether a conviction for contempt for violating a court order made pursuant to an unconstitutional provision could stand. The minority concluded that it should stand. McLachlin J. stated, at pp. 972 and 974:

This leaves for consideration the question of the effect of the unconstitutionality of s. 13(1) of the Canadian Human Rights Act on the contempt proceeding in the Federal Court.

In my opinion, the 1979 order of the Tribunal, entered in the judgment and order book of the Federal Court in this case, continues to stand unaffected by the Charter violation until set aside. This result is as it should be. If people are free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be far behind. The citizens’ safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them.

23Although the majority did not have to deal with this issue because it affirmed the constitutionality of the challenged provision, Dickson C.J.C. expressly approved, at p. 942, of a passage from Mahoney J.A.’s reasons in the Federal Court of Appeal:

The duty of a person bound by an order of a court is to obey that order while it remains in force regardless of how flawed he may consider it or how flawed it may, in fact, be. Public order demands that it be negated by due process of the law, not by disobedience.

24Taylor was considered and applied by the Quebec Court of Appeal in R. v. Gaudreault (1995), 105 C.C.C. (3d) 270, a case very similar to the present appeal. In Gaudreault, the appellant’s conviction for disobeying a court order was quashed because the charge did not come within the ambit of the relevant provision of the Criminal Code. The Quebec Court of Appeal then had to face the issue of whether the release order, including a condition that the appellant keep a distance of at least 100 meters from his ex‑wife, was also a nullity. Nuss J.A. carefully reviewed Taylor and concluded, at pp. 279‑80:

In my opinion, the same principles as those enunciated above by the Supreme Court in the Taylor case apply to a condition in an undertaking given pursuant to the directions of a judge such as we have in the matter before us. They too must be complied with while they remain in force regardless of how flawed they may be.

A later judgment setting aside the conviction which gave rise to the undertaking does not justify a violation of the condition of the undertaking which occurred prior to the conviction being set aside.

25There are differences between the present appeal and Taylor and Gaudreault. In Taylor, the underlying statutory provision was, arguably, unconstitutional; in the present appeal, the underlying charge was a nullity. In Gaudreault, the underlying conviction was set aside because of the Court of Appeal’s interpretation of the relevant provision of the Criminal Code; again, in the present appeal the underlying charge was a nullity.

26I do not think these differences are sufficient to overcome the application to this appeal of the broad principle enunciated by both Dickson C.J.C. and McLachlin J. in Taylor. I find it impossible to articulate, in logic, in principle, or in policy, a basis for concluding that breach of a court order made pursuant to an information that is null is permissible, whereas breach of a court order made pursuant to a law that is unconstitutional is prohibited. In my view, the notions of nullity and unconstitutionality are virtually identical; both point to something that is seriously defective.

27My conclusion that the reasoning of Taylor and Gaudreault must be applied in the present appeal is reinforced by some of the specific factors mentioned by the judges in those cases which, in my view, are also present in this appeal.

28First, the release order was made by a justice of the peace with jurisdiction to make release orders of this kind: see Gaudreault at 279. Moreover, the order was made in accordance with the proper process – at the conclusion of a formal show cause hearing at which Kenny was represented by counsel. The order was made in good faith; no one suggests otherwise.

29Second, Kenny did not challenge the validity of the release order at either the show cause hearing or the trial before Bovard J. In R. v. Anderson, [1977] 2 S.C.R. 621 at 621, in a short oral judgment, Laskin C.J.C. stated:

We are all of the opinion that this appeal should be allowed, the judgment of the British Columbia Court of Appeal should be set aside and the conviction restored. Assuming that, as a result of the evidence, the information on which the accused Anderson was tried was vulnerable – and we make no finding on this point – no motion was made to quash the information, and the issue of its alleged nullity was only raised for the first time in the Court of Appeal and by an amendment to the notice of appeal. The trial was conducted and completed upon an information valid on its face to which no objection was taken. We do not think that the validity of the information was open to consideration by the Court of Appeal in these circumstances.

See also: Gaudreault at 280.

30It is possible that Anderson, on its own, is determinative of the present appeal. However, I note that in Anderson and Gaudreault the accused were represented by counsel at all stages of the criminal process. In the present case, Kenny was represented by duty counsel at the bail hearing, but she represented herself at the trial. Accordingly, I am not inclined to apply the full rigour of Anderson to the present appeal. Nevertheless, it is a factor that counts against Kenny’s position, especially when it is recalled that she testified at the bail hearing and promised to obey the conditions of her recognizance:

Q. Okay. Ms. Kenny, are you prepared to have no communication with the named complainant directly or indirectly?

A. Yes, I am.

Q. Okay. You also understand that you have to stay 500 metres away from his place of employment and his place of work?

A. That’s fine with me too.

31Third, in Taylor the court spoke about the need to obey a court order in a situation where the accused regarded the orders as flawed and openly disobeyed it. In the present appeal, both the underlying information and the release order were accepted by everyone, including Kenny, as valid from their inception until the hearing before the summary conviction judge.

32In summary, the rule of law and public order require that court orders be negated through due process of the law, not by disobedience. This general rule applies to a release order in criminal proceedings even if the underlying information giving rise to the release order is a nullity.

E. DISPOSITION

33I would grant leave to appeal, allow the appeal, quash the acquittals, and restore the convictions on, and sentences for, five counts of failing to comply with conditions of recognizance and one count of failing to appear in court.

Footnotes

1. 1Later, at the commencement of the preliminary hearing, the information was amended to cover a time frame of January 1, 1990 to August 1, 1998. Then, on March 29, 2000, Kenny was arraigned before a jury on an indictment asserting a time frame of August 1, 1993 to August 1, 1998. She was convicted and received a sentence of five months incarceration and three years probation.
2. 2A sixth count in the Information alleged a failure to comply with a separate condition of her recognizance relating to Kenny’s place of residence.