Her Majesty the Queen v. 1283499 Ontario Inc., operating as Wired Nightclub

[Indexed as: R. v. 1283499 Ontario Inc.]

65 O.R. (3d) 763

[2003] O.J. No. 2630

Docket No. C39710

Court of Appeal for Ontario,

Doherty, MacPherson and Sharpe JJ.A.

June 30, 2003

Criminal law -- Provincial offences -- Jurisdiction -- Justices of the peace -- Senior Regional Justice of the Peace not having power to delegate jurisdiction to Clerk of the Court to adjourn cases which were set for plea and disposition -- Clerk appearing in open court and adjourning [page764] defendant's case on record -- Jurisdiction over offence not lost by virtue of s. 31 of Provincial Offences Act -- If jurisdiction over person lost, it was subsequently regained when counsel for defendant appeared on new date -- Provincial Offences Act, R.S.O. 1990, c. P.33, s. 31.

Due to the sudden unavailability of a justice of the peace for three days, the Regional Senior Justice of the Peace directed the Clerk of the Court to appear in court to adjourn matters that were to be heard on those days. Counsel for the defendant appeared in Provincial Offences Court on one of those days. The case was adjourned by the Clerk. Counsel for the defendant appeared on the new date to contest the jurisdiction of the court. The Justice of the Peace held that she had jurisdiction. The defendant brought an application for an order prohibiting any further proceedings in the Provincial Offences Court. The application was granted. The Crown appealed.

Held, the appeal should be allowed.

The Regional Senior Justice of the Peace did not have the power to delegate jurisdiction to the Clerk to appear in court to adjourn matters. There is nothing in the Provincial Offences Act comparable to s. 474(2) of the Criminal Code, R.S.C. 1985, c. C-46, authorizing such a procedure. The court, meaning the presiding judicial officer, not a member of the court staff designated by the court or by a Regional Senior Justice of the Peace, has the jurisdiction to adjourn a proceeding. Section 146 of the Courts of Justice Act, R.S.O. 1990, c. C.43, does not create jurisdiction. However, s. 31 of the Provincial Offences Act, which provides that the court retains jurisdiction over the information or certificate even if the court fails to exercise its jurisdiction at any particular time, has direct application. The phrase "fails to exercise its jurisdiction" contemplates a case where the court does nothing. The fact that another entity, in this case the Clerk of the Court, purported to act in the place of the court did not change the fact that the court failed to exercise its jurisdiction. In this case, then, jurisdiction over the offence with which the defendant was charged was not lost by virtue of s. 31 of the Provincial Offences Act. If jurisdiction over the person was lost, it was regained when counsel appeared on the new date or alternatively, it could be regained by the issuance of a summons.

R. v. Chisan (1988), 1988 ABCA 323, 62 Alta. L.R. (2d) 359 (C.A.); R. v. Fogarty (1988), 1988 7155 (NS CA), 87 N.S.R. (2d) 422, 222 A.P.R. 422, 46 C.C.C. (3d) 289 (C.A.); R. v. Jarvis (1986), 1986 7011 (NS CA), 76 N.S.R. (2d) 268, 189 A.P.R. 268, [1986] N.S.J. No. 429 (QL) (C.A.); R. v. Okemaysim (1989), 1989 4687 (SK QB), 77 Sask. R. 247 (Q.B.); R. v. Sztuke (1993), 1993 8494 (ON CA), 16 O.R. (3d) 559, 87 C.C.C. (3d) 50 (C.A.)

APPEAL from an order of prohibition. [page765]

R. v. Krannenburg, 1980 179 (SCC), [1980] 1 S.C.R. 1053, 51 C.C.C. (2d) 205, consd Other cases referred to Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 146 Criminal Code, R.S.C. 1985, c. C-46, ss. 474(2), 485(1) Liquor Licence Act, R.S.O. 1990, c. L.19 Provincial Offences Act, R.S.O. 1990, c. P.33, s. 31 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Robert Kelly and Leanne Salel, for appellant. Gino Morga, for respondent.

The judgment of the court was delivered by

[1] DOHERTY J.A.: - The respondent (Wired Nightclub) was charged under the Liquor Licence Act, R.S.O. 1990, c. L.19, in the Provincial Offences Court. The proceedings were adjourned from time to time until July 29, 2002.

[2] On July 26, 2002, the Regional Senior Justice of the Peace issued the following written direction:

Due to bereavement leave resulting from the passing of Her Worship Brode's father last evening, the P.O.A. court scheduled for Friday, July 26, 2002, Monday, July 29, 2002 and Tuesday, July 30, 2002 are directed closed due to insufficient judicial resources. The clerk of the court is hereby directed to adjourn all matters . . .

[3] On July 29, 2002, counsel for the respondent appeared in Provincial Offences Court. The court clerk was present, but there was no justice of the peace in the courtroom. A court reporter kept a record of the proceedings. After some discussion with counsel, the clerk suggested a date of September 16, 2002. Counsel agreed and the matter was adjourned to that date.

[4] The same counsel appeared for the respondent on September 16, 2002. He indicated that he was present only to contest the jurisdiction of the court. He argued that jurisdiction was lost on July 29, 2002, when the matter was adjourned by a clerk of the court. The justice of the peace held that she had jurisdiction.

[5] On October 11, 2002, the respondent moved for an order in the Superior Court in the nature of prohibition seeking an order prohibiting any further proceedings in the Provincial Offences Court. In February 2003, the Superior Court judge allowed the application and issued an order prohibiting further proceedings in the matter.

[6] The Crown appealed. The court allowed the appeal with reasons to follow. I agree with the application judge that there is no authority for the procedure followed in Provincial Offences Court on July 29, 2002. There is nothing in the Provincial Offences Act, R.S.O. 1990, c. P.33 ["P.O.A."] comparable to s. 474(2) of the Criminal Code, R.S.C. 1985, c. C-46 authorizing such a procedure. The court, meaning the presiding judicial officer, not a member of the court staff designated by the court or by a Regional Senior Justice of the Peace, has the jurisdiction to adjourn a proceeding. Section 146 of the Courts of Justice Act, R.S.O. 1990, c. C.43, does not create jurisdiction: R. v. Sztuke (1993), 1993 8494 (ON CA), 16 O.R. (3d) 559, 87 C.C.C. (3d) 50 (C.A.). [page766]

[7] Although I am satisfied that the procedure followed on July 29, 2002, was not authorized by law, the events of July 29 constitute a failure by the Provincial Offences Court to exercise its jurisdiction over the offence and the offender on that day. Section 31 of the P.O.A. has direct application. It reads in part:

31. The court retains jurisdiction over the information or certificate even if the court fails to exercise its jurisdiction at any particular time . . .

[8] The application judge held that s. 31 did not apply because the clerk of the court and not the court had purported to act on July 29, 2002. He said:

Section 31 speaks of the "court" doing or not doing something, to wit, a judge or justice of the peace making an active judicial determination in open court on the record. There must be an active judicial hearing or trial where the court is represented by a judge or justice of the peace. The section does not speak about a clerk doing the work of a judicial officer. If the judge or justice of the peace fails to exercise his or her jurisdiction or does not comply with the Provincial Offences Act respecting adjournments, then this section acts to prevent a loss of jurisdiction.

[9] With respect, the application judge's reasoning is inconsistent with the language of s. 31. Section 31 does not require "an active judicial determination in open court" or "an active judicial hearing". To the contrary, s. 31 specifically contemplates a failure to act. In my view, the phrase "fails to exercise its jurisdiction" contemplates a case where the court does nothing. The fact that another entity, in this case the clerk of the court, purported to act in the place of the court does not change the fact that the court failed to exercise its jurisdiction.

[10] In concluding that s. 31 of the P.O.A. did not address a situation like that which occurred on July 29, 2002, the application judge relied heavily on R. v. Krannenburg, 1980 179 (SCC), [1980] 1 S.C.R. 1053, 51 C.C.C. (2d) 205. As Crown counsel points out, Krannenburg, supra, interpreted a jurisdictional curative provision in the Criminal Code that was much more limited than s. 31 of the P.O.A.

[11] The Criminal Code has now been amended and the present curative jurisdictional provision may be found in s. 485(1):

485(1) Jurisdiction over an offence is not lost by reason of the failure of any court, judge, provincial court judge or justice to act in the exercise of that jurisdiction at any particular time . . .

[12] Section 485(1) of the Criminal Code cannot be distinguished from s. 31 of the P.O.A. Several courts have held that s. 485(1) preserves the jurisdiction over the offence where a court fails to act on a remand date: R. v. Jarvis, 1986 7011 (NS CA), [1986] N.S.J. No. 429 (QL), 76 N.S.R. (2d) 268 (C.A.); R. v. Fogarty (1988), 1988 7155 (NS CA), 46 C.C.C. (3d) 289, 222 A.P.R. 422 (N.S.C.A.); [page767] R. v. Chisan, 1988 ABCA 323, [1988] A.J. No. 935 (QL), 92 A.R. 270, 62 Alta. L.R. (2d) 359 (C.A.), leave to appeal to S.C.C. refused (1989), 100 N.R. 239; R. v. Okemaysim (1989), 1989 4687 (SK QB), 77 Sask. R. 247 (Q.B.). I agree with those authorities.

[13] Jurisdiction over the offence with which the respondent was charged was not lost by virtue of s. 31 of the P.O.A. If jurisdiction over the person was lost, it was regained when counsel appeared on September 16 or, alternatively, it could be, and still can be, regained by the issuance of a summons.

[14] The appeal is allowed, the order prohibiting further proceedings in the Provincial Offences Court is set aside and the matter is remitted to the Provincial Offences Court. In doing so, it should be made clear that the practice of having a non-judicial officer adjourn the court on any given day is not authorized by law and should not continue. It may be that the practice makes administrative sense, but unless and until the relevant legislation is amended, it is improper.

Appeal allowed.