Court File and Parties
COURT FILE NO.: CR-16-00006638-00MO DATE: 20180731 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – NEIL DAVIS Applicant
Counsel: A. Ghosh, Counsel for the Crown M. Moon, Counsel for the Applicant
HEARD: July 20, 2018
Reasons for Decision
DI LUCA J. :
[1] This is an application for writs of prohibition and procedendo, with certiorari in aid. The Applicant argues that the trial judge, Justice D. Rose of the Ontario Court of Justice, exceeded his jurisdiction in commencing trial proceedings against the Applicant.
[2] In particular, the Applicant argues that Justice Rose did not have jurisdiction to try the offences in this case because the trial was being held in the Central East Region and there was neither a sufficient geographical connection between the location of the alleged offence and the Central East Region, nor was there an order under the Courts of Justice Act by the Chief Justice transferring the trial from the Central West Region to the Central East Region.
[3] According to the Applicant, in the absence of either a sufficient geographical connection or an order under the Courts of Justice Act, the trial judge lacked jurisdiction to try the offence. The Applicant maintains this position despite acknowledging that a justice of the Ontario Court of Justice has general jurisdiction to try an offence occurring anywhere in Ontario. In effect, the Applicant argues that upon a proper construction of the Criminal Code provisions and the Courts of Justice Act, the jurisdiction of the justice to try an offence committed anywhere in Ontario is in potentia. In other words, the jurisdiction is potential and contingent upon the existence of requisite circumstances.
[4] In terms of remedy, the Applicant does not seek a quashing of the information. Indeed, he agrees that the information is valid on its face. Instead, he seeks an order prohibiting Justice Rose from continuing with the trial and an order causing the matter to proceed to trial in the Ontario Court of Justice in Brampton.
[5] For the reasons that follow, I am satisfied that Justice Rose had jurisdiction to hear the trial in this case. As such, there is no jurisdictional error to correct and the application must be dismissed.
[6] I reach this conclusion notwithstanding my concerns about why this matter is being tried in the Central East Region. Simply stated, apart from the fact that the Applicant was investigated by members of the York Regional Police, there is no connection between the alleged commission of this offence and the Central East Region. Indeed, the Applicant was arrested in Mississauga where he was observed engaged in an alleged drug transaction. Following his arrest, the York Regional Police took the Applicant to their “home” jurisdiction for processing. Rather than initiating process in the Central West Region, the police initiated court process in their “home” jurisdiction and the Crown, for reasons that are not clear on the record, has decided to maintain the prosecution in this jurisdiction. In my view, this raises potential concerns about forum shopping. While these concerns do not amount to a jurisdictional problem, they may suffice to warrant a change of venue or other administrative action. Depending on the circumstances of the case, they may also amount to an abuse of process.
[7] As I have determined that this does not affect the court’s jurisdiction, I need not decide this issue. However, the defence is free, in my view, to pursue a change of venue application before the trial judge when the matter resumes. The defence is also free to seek an administrative transfer of the trial to the Central West Region.
Background
[8] On August 31, 2016, the Applicant was arrested by members of the York Regional Police. There is no issue that the arrest took place in Mississauga and related to offences allegedly occurring entirely in Mississauga. Following the arrest, the police transported the Applicant back to York Region, where he was processed and taken to court for a show cause hearing. The sworn information erroneously alleges that the Applicant committed the offences in the “Region of Peel, in the Central East Region”.
[9] To state the obvious, the Region of Peel is in the Central West Region. In the ordinary course, offences alleged to have occurred in Peel are tried in the Central West Region, in this case, Brampton.
[10] A three-day trial was scheduled to commence before the Ontario Court of Justice in Newmarket, starting on April 9, 2018. At the outset of trial, the defence raised the jurisdictional issue and argued that the trial judge did not have jurisdiction to hear the trial. To be clear, the defence did not seek to quash the information, as the information was valid apart from incorrectly noting the locus of the alleged offence as being in the Central East Region. Rather, the defence simply asked the trial judge to decline to hear the case. Presumably the Crown could have applied for a change of venue, or perhaps simply withdrawn the information and commenced afresh in the Central West Region.
[11] After hearing submissions on the issues, Justice Rose ruled as follows:
Mr. Moon argues that I have no jurisdiction to hear this trial, or even receive Mr. Davis’ plea because the allegations are from Peel and this is York Region. Mr. Moon argues that only the Chief Justice has jurisdiction to transfer a charge said to have occurred in Peel to York Region. No prejudice is alleged, although as Mr. Moon said, there need not be in matters of jurisdiction. Mr. Moon argues that only the Chief Justice may transfer a charge for trial from one region such as Central West to another, like Central East. In Mr. Moon’s argument I have no jurisdiction to hear charges arising outside the Central East Region. I take the argument to be that I have no province wide jurisdiction, qua Ontario Court Justice. There is no authority for that proposition. Having read R. v. Ellis 2009 ONCA 483, and ss. 470 of the Criminal Code, as discussed in R. v. Singh 2018 ONSC 1532 at par. 136 I find that there is no merit to the argument.
The Court will now receive Mr. Davis’ plea.
[12] The Applicant then entered not guilty pleas. However, before the trial proper could commence, the Applicant brought this application for an extraordinary remedy and proceedings in the Ontario Court of Justice were stayed pending determination of the application.
Analysis
[13] At common law, it has been long recognized that an accused should stand trial in the “locality” where the alleged offence occurred. The “locality” rule stems from the historical practice of having grand juries summoned to report on crimes in their community. Members of the petit jury, chosen from the grand jury, would then try the very cases they reported on. As such, the courts only heard cases that had occurred within the community. The modern locality rule has not entirely shed these roots. The courts continue to recognize the importance of having trials in the community where the offence occurred. Juries are chosen from the judicial region where the offence occurs and is being tried. Justice is done and seen to be done in the community where the crime occurred. The “locality rule” also often serves witnesses, victims and accused persons, who tend to reside in the vicinity of the offence.
[14] The common law rule has been expanded by statute. Section 470 of the Criminal Code provides as follows:
Jurisdiction over person
• 470 Subject to this Act, every superior court of criminal jurisdiction and every court of criminal jurisdiction that has power to try an indictable offence is competent to try an accused for that offence
(a) if the accused is found, is arrested or is in custody within the territorial jurisdiction of the court; or
(b) if the accused has been ordered to be tried by
(i) that court, or
(ii) any other court, the jurisdiction of which has by lawful authority been transferred to that court.
[15] The purpose of this section has been recently described in Durno J. in R. v. Singh, 2018 ONSC 3055, as follows:
Section 470 was enacted in 1985 to loosen the long-standing common law rule that trials be held in the locality in which it occurred. The section abolished the concept that a crime should be tried in the community where it is alleged to have occurred: R.E. Salhany, Canadian Criminal Procedure, 5th ed., Canada Law Book, pp.29-30.
[16] The phrase “territorial jurisdiction” as found in s. 470 is not specifically defined in the Criminal Code. However, the courts have interpreted that phrase as meaning the entire province where an offence was committed, see R. v. Feige, [1992] O.J. No. 2521 (Ont. Ct. (Gen.Div.)), R. v. Reyat, [1990] B.C.J. No. 1331 (B.C.S.C.) and R. v. Jeffries, 2010 ONSC 772.
[17] In the context of summary conviction offences, the courts have long held that there is no “locality” rule, see Feige, supra, wherein Ferguson J. discusses the combined effect of s. 785 and 798 of the Criminal Code in concert with the definition of “territorial division” found in s. 2 of the Code. See also R. v. Ponnuthurai, [2002] O.J. No. 4741 (O.C.J.).
[18] In relation to s. 504 of the Code, the Court of Appeal has interpreted the phrase “territorial jurisdiction” as being province wide, see R. v. Ellis 2009 ONCA 483. A similar conclusion was reached by Moldaver J. (as he then was) in Re Gentles, [1994] O.J. No. 1409 (Ont.Ct. (Gen.Div.)). See also R. v. Hackett, [2002] O.J. No. 3887 (S.C.J.).
[19] A central theme in these cases is that as a matter of jurisdiction the modern trend is to recognize a single jurisdictional unit, usually the province in which an offence occurs, see Ellis, supra, at paras. 38-44. In this regard, the courts have also recognized that the division of the province of Ontario into regions is a matter of administrative significance but not jurisdiction, see Ellis, supra, at para. 41 and Ponnuthurai, supra.
[20] These cases also draw a distinction between the concept of jurisdiction and the concept of venue. While these concepts overlap, they are not the same. In this regard, “jurisdiction” relates to two matters. First, it relates to the court’s legal authority to try the charge before it. Second, it also deals with who has the authority to decide where a case is to be heard. On the other hand, “venue” deals with the ordinary location of a trial, see Singh, supra, at para. 144.
[21] In R. v. Jeffries, supra, Gauthier J. conducted a detailed analysis of this issue. A useful summary of her decision is found in R. v. Garbera, 2011 ONSC 4871, where Howden J. explains as follows at paras. 17 and 18:
Justice Gauthier’s analysis is instructive. Importantly, she distinguishes between the venue of trial and the jurisdiction to determine the place of trial. Venue refers to the “where” of the trial. Jurisdiction is the “who” – the person or tribunal possessing the authority to select the venue.
Justice Gauthier used the following reasoning:
i) the common-law rule going back to at least the 18th century is that a trial should take place in the district in which the offences are alleged to have occurred;
ii) in modern times, legislative changes have altered the common-law rule and broadened the courts territorial jurisdiction from a local district to the limits of the province in which the court operates (section 470, C.C.): Canadian Criminal Procedure, 5th ed., by R. Salhany, (Aurora: Canada Law Book), 1989, at page 29; R. v. Feige [1992] O.J. No. 2521 (O.G.D.);
iii) Ontario is now divided for judicial administrative purposes, not by counties, but by eight judicial regions; Central East and Central West are two of those eight regions;
iv) the normal venue for a trial is within the judicial region and not the particular county where the offence occurred – Timmins and Sudbury are in the same North East Region;
v) the crown no longer has the sole discretion to determine the venue of trial, because legislative intervention now places the authority to select the venue with the courts in the person of the RSJ, or a judge of the court on a section 599 application;
vi) furthermore, by R. v. Reyat, supra, the crown has no authority to direct a place of trial that has no connection to the charge;
vii) venue is a question of procedure and an administrative decision, to be made for the better administration of justice in the province or judicial region; authority to make that administrative decision is in the Chief Justice and the Regional Senior Justice for the region over which that RSJ presides: Courts of Justice Act, s. 14 and 75(1) …
[22] Justice Gauthier held that the “locality” rule had been expanded by s. 470 of the Code and by the case law. She concluded that “locality” now meant the judicial region as opposed to the specific district within the region where the offence occurred. She then turned to assessing whether the decision to determine the venue of trial within a region rested with the Crown or the court. She concluded that in view of the powers granted to the Regional Senior Justice under the Courts of Justice Act, the authority to choose a venue within a region rested with the Regional Senior Justice and not the Crown.
[23] In this regard, Justice Gauthier referred to a number of sections of the Courts of Justice Act. As they relate to matters before the Ontario Court of Justice, the relevant sections are ss. 36 and 75. I do not read these sections as requiring the Chief Justice or the Regional Senior Judge to specifically assign each trial to a geographical location. These sections are permissive. They grant the authority to the Chief Justice and to the Regional Senior Judges to assign trials to certain locations, when and as required. As well, s. 79.1 of the Courts of Justice Act makes clear that the province is divided into regions for “administrative purposes”. In my view, the wording of this section makes clear that the regional divisions are not a matter of jurisdiction, but rather relate to the effective and efficient administration of justice.
[24] While the common law “locality” rule has been supplanted by statute and the related case law, it is clear that the Crown nonetheless retains some discretion to decide where a prosecution will take place. I do not read the decisions in Jeffries and Singh as stating otherwise. Those decisions merely recognize that the Crown does not have the sole or exclusive authority to determine the location of a prosecution.
[25] In the ordinary course, informations alleging criminal offences are sworn by police officers before a justice of the peace. Process is issued and the case commences. By attending at a specific court location, the police initially dictate where a prosecution commences. While at times the Crown may be involved in the pre-charge phase, in most routine cases the Crown simply receives the charges that have been commenced at a specific courthouse, conducts a charge screening function and makes decisions regarding the continuation of the prosecution. In this fashion, the police and the Crown essentially determine the location of prosecutions hundreds if not thousands of times each day across the country.
[26] In terms of the Crown’s discretion, it appears that the spirit and purpose of the common law “locality” rule remains important. As such, the general, though not invariable rule, will be that the Crown should prosecute a case in the geographical location of the alleged offence and that the trial will be held in that location. In R. v. Singh, Durno J. explained this proposition as follows at para. 150, albeit within the context of an administrative transfer of charges:
There remains a presumption that a trial will be held in the place where the offence occurred. Reasons of convenience, court efficiency, and the need for members of the community in which the crime is alleged to have occurred to see justice done all continue to support holding the trial where the indictment was filed. However, in Canada there is no right to have a trial in a particular city, village or town where the offence occurred…
[27] However, the presumption that an offence will be tried in the locality where it is committed is not a fixed rule for a number of reasons. For example, the location of the offence is not always clear cut and there may be more than one “location”. Consider a scenario where an accused plans a murder in one location, commits the murder in a second location and then disposes of the body in a third location. In such a scenario, the Crown would legitimately have a number of locations to choose from in deciding where to start the prosecution. The locations could be within an administrative judicial region or across administrative judicial regions. Another example arises where an accused person commits a string of offences across a number of geographical locations. While each offence could be prosecuted within its respective geographical location, it will often make most sense from all perspectives to have one trial on all charges in one venue. A further example arises where an investigation has cross-border or international dimensions, see s. 477.1 of the Code. Yet another example may be where a specialized police force is conducting a complex investigation that does not involve an easily discernable “location”, for example money laundering or other related e-crimes.
[28] There may also be other legitimate reasons why the Crown might chose to commence a proceeding in a geographical location outside the specific location where an offence took place. In this regard, I adopt the recent comments of my colleague Healey J. in R. v. Lawson, 2018 ONSC 4251 where, at paras. 28-29, she states:
While Jeffries and Singh make the point that jurisdiction to determine the trial venue does not reside in the Crown, the day to day administrative decision of where an indictment should be filed is one that is routinely made by the Crown’s office in each judicial region. Where, for example, an offender commits acts within more than one judicial region, the indictment may include all of those offences and the Crown will make the initial decision about where to lodge the indictment. While the usual administrative practice is to file an indictment in the judicial region in which the offence occurs, there is nothing in the Crown Prosecution Manual, a practice direction or any legislation that makes this a requirement. It is the normal and usual practice based on long-standing principle and tradition, but not one that is absolute.
In Jeffries, Gauthier, J. referenced R. v. Reyat, [1990] B.C.J. No. 1331, which held that the Crown has no authority to issue an indictment and direct a place of trial which has no connection to the charge. I respectfully disagree. While it is preferable for many reasons not to do so, there may be valid reasons, provided that there is no abuse of process or prejudice to an accused, for initiating the trial venue in a judicial region other than the one from which the charges arose. Flexibility must be allowed in special circumstances to accommodate, for example, a situation in which the Crown’s key witness is elderly or infirm and travel to another judicial region would cause hardship or be impossible for that witness, or where other circumstances exist where the orderly administration of justice would be compromised by issuing an indictment in the normal venue.
[29] Balanced against the Crown discretion to choose the venue for a trial, is the principle that the courts generally do not countenance “venue shopping” by any parties to criminal litigation. In Gentles, supra, Moldaver J. explained at paras. 19-24:
Given that the s. 507 determination is judicial in nature, any proposition which would countenance the right of a party to select the presiding judicial officer must not only be discouraged; it must be soundly and unequivocally rejected.
In fairness to the applicant, Mr. Falconer conceded the impropriety of judge shopping. He attempted to counter this concern by submitting that if the receiving s. 504 justice, in this case Downes J.P., were to conclude that the informant was engaged in the abusive purpose of judge shopping, he could simply decline jurisdiction.
While undoubtedly accurate, that submission falls short of the mark. It would still permit judge shopping to the extent that the informant could select the s. 504 justice who would then be required to decide, before embarking on a s. 507 hearing, whether the informant was in fact judge shopping. Additionally, given the ex parte nature of the hearing, it would be difficult, if not unseemly, for the residing justice to enter the fray, as it were, to ferret out the informant's true motives. Given my views about the impermissibility of judge shopping, this alone would have caused me to reject the applicant's proposed interpretation of s. 507.
But there is another sound and compelling reason for doing so. If accepted, the informant would be able to pick and choose the location of the s. 507 hearing, irrespective of any and all concerns regarding the proper and efficient administration of justice in this province. Regardless of the scarcity of judicial resources in a particular area; regardless of the backlog that might exist therein; regardless of the time honoured principle that generally, criminal matters should be dealt with in the locale where the alleged offence is said to have been committed, the applicant would have it that an informant could ignore these considerations and in effect take control over the administration of justice. According to Mr. Falconer, so long as the informant could satisfy the selected justice of the existence of any legitimate reason, such as convenience or possible bias within the locale of the alleged offence, the receiving justice would have no choice but to embark upon the s. 507 hearing. Only, he submitted, if the receiving s. 504 justice were to find that the informant's choice of locale amounted to an abuse of process, could he or she then decline jurisdiction over the s. 507 hearing.
In my opinion, Mr. Falconer's position is a startling one. It runs contrary to the most basic and fundamental principles concerning the administration of justice in this and every other province. Section 92(14) of the Constitution Act, 1867 provides that the provincial legislatures shall have exclusive jurisdiction over the administration of justice. To that end, in this province, the legislature has enacted the Courts of Justice Act, R.S.O. 1990. c. 43 and the Justices of the Peace Act, R.S.O. 1990, c.J.4.
Recognizing the importance of an independent and autonomous judiciary, the legislature has seen fit, for the most part, to place in the hands of the judiciary the tools necessary to ensure the most efficient and effective use of judicial personnel and resources. While it certainly does not lie with the province or the judiciary to incorporate practices which would have the effect of restricting or denying rights afforded to informants (or accused) under the Criminal Code, that is a far cry from suggesting that informants (or accused) should be able to drive the administration of justice as they see fit.
[30] There may also be instances that fall short of “venue shopping”, but nonetheless do not justify a departure from the presumptive locality rule. In this case, an inference arises that the police simply laid the charge in the Central East Region as a matter of convenience. While I need not determine the issue in this instance, it strikes me that in ordinary or routine cases, mere convenience to the police will not be a sufficient basis upon which a decision on venue is made.
[31] In my view, the following principles can be distilled from the above mentioned cases:
a. The historical “locality” rule is no longer a jurisdictional requirement. Section 470 of the Criminal Code extends jurisdiction to try an offence beyond the scope of the historical “locality” rule.
b. The Ontario Court of Justice has jurisdiction to try any non-section 469 offence that occurred anywhere in Ontario.
c. The Crown’s decision to commence a matter in a particular location is a question of venue and not jurisdiction. Put another way, I do not see the Crown’s decision to commence a prosecution in one location as opposed to another as affecting the jurisdiction of the court to try the offence.
d. The Crown is not free, however, to simply commence and/or continue a prosecution wherever it wants. There must be some connection or sufficient other reason why it chooses to commence a prosecution in a specific location. Indeed, the general rule will be that an offence is to be prosecuted where it occurs. The general rule is subject to exceptions, and there may be circumstances where the Crown will determine that it is appropriate to commence and/or continue a prosecution in a jurisdiction other than the one where the offence took place. Where the Crown determines that an information has been laid by police in an inappropriate location, the Crown is free to bring a change of venue application, seek an administrative transfer of the charge or perhaps re-commence proceedings in the appropriate location.
e. Notwithstanding the Crown’s decision to commence a prosecution in a particular location, a Regional Senior Judge or the Chief Justice can, under the Courts of Justice Act, decide to administratively move a trial to a different location. A Regional Senior Judge can move a trial within a judicial region. The Chief Justice can move a trial between regions. Administrative moves of this sort are undertaken with a view to ensuring the efficient and effective administration of justice as discussed in R. v. Singh, supra.
f. In cases where the Crown has chosen to continue a prosecution in a location that has no apparent connection with an alleged offence, a Regional Senior Judge or Chief Justice, as the case may be, can move the case to the appropriate location. However, the administrative role of the Regional Senior Judge and/or Chief Justice does not require a review of each and every individual information before the court to determine whether the specific prosecution has been commenced in the appropriate jurisdiction. Such a task would be so burdensome as to be absurd.
g. The jurisdiction of the court to try an offence committed outside the administrative judicial region does not depend on the existence of an order by the Chief Justice or Regional Senior Judge, as the case may be, nor does it depend on a successful prior change of venue application. A direction by the Chief Justice or Regional Senior Judge and/or a change of venue order is a means of assigning venue, not jurisdiction.
h. Where an accused objects to the location of trial on the basis that it is outside the region or location where the offence allegedly occurred, an application for a change of venue under s. 599 of the Criminal Code can be brought. Traditionally, an application for a change of venue is brought in jury trials where an accused argues that a fair trial is not possible due to the notoriety of the case in the location where it is being tried. While s. 599 is found in Part XX of the Code which deals with procedure in jury trials, Part XX of the Code is applied mutatis mutandis to judge alone trials in indictable matters and in summary conviction trials, see ss. 572 and 795 of the Code. There is a dearth of case law examining a change of venue application in judge alone trials. Indeed, in most cases where there is an issue about a fair trial in a judge alone trial, the usual application is a recusal motion. That said, there is nothing in s. 599 of the Code that limits a change of venue to jury cases where there is a concern about the ability of the jury to fairly try the accused.
i. Where an accused brings a change of venue application the onus will rest on him or her as the applicant. However, where the trial is not being held in the ordinary venue, it may well be that the evidential onus shifts to the Crown to persuade the court that the presumptive venue rule should not apply in the circumstances of the case. I say this for the following reason. The burden on the accused to demonstrate the need for a change of venue is premised on the starting point presumption that cases will be heard in the venue where the alleged crime took place, see R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont.C.A.) at para. 30. Most of the case law dealing with change of venue applications involves cases where the indictment or information was filed in the “correct” location, i.e. where the offence took place. It is in this context that the cases address the high onus on the accused to demonstrate that a change in venue is “expedient to the ends of justice”. However, that is not the case where the police and/or Crown have chosen a location that is not where the trial would ordinarily be held. I pause to note that in R. v. Garbera, supra, at para. 31, Justice Howden found that trial judge’s placement of the onus on the accused in such a scenario was a jurisdictional error sufficient to warrant an extraordinary remedy. With great respect, I disagree. While it may have been an error to place the complete onus on the accused to justify the change of venue in those circumstances, it was, at best, an error in law, subject therefore only to appellate review.
j. The courts are generally reluctant to review the Crown’s exercise of discretion, and the Crown is generally not required to provide reasons for why or how it exercises its discretion. That said, there are cases where the refusal to provide reasons for an exercise of discretion may give rise to certain inferences, see R. v. G.C. 2010 ONSC 115 at paras. 41 and 42. It may be that in a case where an accused is being tried in a location that has no obvious connection to the location of the offence, and the Crown refuses to provide reasons for why it has decided to prosecute the accused in that location, it will be unable to justify the departure from the presumptive rule that matters are to be tried where they occurred. This would support a change of venue to the appropriate location, and in the rare case might establish an abuse of process.
k. Lastly, it would also be open to the accused to seek an administrative transfer from the Regional Senior Judge or Chief Justice as the case may be. Similarly, it would be open to a trial judge when confronted with an information alleging an offence committed in another region, to refer the matter to the Chief Justice or Regional Senior Justice for a transfer under the provision of the Courts of Justice Act, see R. v. Garbera, supra, at para. 32.
[32] In view of the foregoing and despite Mr. Moon’s able submissions, I find that Justice Rose had jurisdiction to try the offence. The application is dismissed. The matter is returned to Justice Rose to continue the trial. The Applicant shall appear before the Ontario Court of Justice on August 15, 2018 to set a date to continue the trial. If needed, a summons or warrant can issue to compel Mr. Davis’ attendance.