Her Majesty the Queen v. Markovic [Indexed as: R. v. Markovic]

77 O.R. (3d) 752

[2005] O.J. No. 4286

Docket: C42755

Court of Appeal for Ontario,

Cronk, Lang and Juriansz JJ.A.

October 11, 2005

*Application for leave to appeal to the Supreme Court of Canada was filed December 8, 2005, and submitted to court January 30, 2006.

Criminal law -- Jurisdiction -- Information not laid before justice by time set out in promise to appear as required by s. 505(b) of Code -- Failure to comply with time requirements of s. 505(b) not invalidating information and not resulting in loss of jurisdiction over offence -- Criminal Code, R.S.C. 1985, c. C-46, s. 505(b).

The accused was charged with impaired driving and refusing to provide a breath sample and was released on a promise to appear requiring him to attend court on [page753] May 2, 2003 at 10:00 a.m. An articling student appeared in court at the specified time on May 2 and filed a designation of appointment of counsel. No information was before the court at that time. Later that afternoon, an information was sworn before a justice of the peace, the promise to appear was purportedly confirmed and the information was endorsed pursuant to s. 508(1) of the Criminal Code. An articling student appeared for the accused on May 6 and took the position that the court lacked jurisdiction over the accused because no information was filed with the court by the time stated in the promise to appear. The justice of the peace adjourned the case, holding that he had jurisdiction to do so because there was a valid information before the court on May 6 and the accused had appeared through counsel pursuant to the designation of counsel previously filed.

The accused subsequently brought an application to quash the information for non-compliance with the time requirements of s. 505(b) of the Code, which provides that where an accused has been released from custody under s. 497 or 498, an information "shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the ... promise to appear" for the accused's attendance in court. The application was granted and the information was quashed. The Crown's application for certiorari to quash that decision and mandamus directing that the matter proceed to trial on the information was granted. The accused appealed.

Held, the appeal should be dismissed.

The time requirements contemplated by s. 505(b) are steps in the process designed to bring an accused before the court on a timely basis and without the necessity of prior detention. They are not preconditions to the jurisdiction of the court to try the offence charged. Failure to comply with s. 505 results in loss of jurisdiction over the person of the accused but does not invalidate the information or result in loss of jurisdiction over the offence. There was no suggestion that the accused was prejudiced by the acknowledged breaches of s. 505(b). The breaches were technical only.

APPEAL by the accused from the order of Epstein J., 2004 46656 (ON SC), [2004] O.J. No. 5026, 191 C.C.C. (3d) 379 (S.C.J.) allowing an appeal from the order of Marin J. of the Ontario Court of Justice, dated March 9, 2004.

R. v. Gougeon (1980), 1980 2842 (ON CA), 55 C.C.C. (2d) 218, 5 W.C.B. 152 (C.A.) (sub nom. R. v. Gray); R. v. Naylor (1978), 1978 2371 (ON CA), 42 C.C.C. (2d) 12, 2 W.C.B. 535 (C.A.), consd Other cases referred to R. v. Hrankowski, 1980 ABCA 196, [1980] A.J. No. 865, [1980] 5 W.W.R. 684, 54 C.C.C. (2d) 174 (C.A.); R. v. Morton (1993), 1993 8575 (ON CA), 15 O.R. (3d) 320, [1993] O.J. No. 4105, 83 C.C.C. (3d) 95n (C.A.), affg (1992), 1992 12800 (ON SC), 7 O.R. (3d) 625, [1992] O.J. No. 179, 70 C.C.C. (3d) 244 (Gen. Div.); R. v. Powers, 1973 1567 (NB SC), [1973] N.B.J. No. 147, 8 N.B.R. (2d) 22, 10 C.C.C. (2d) 395, 21 C.R.N.S. 116 (Q.B.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 485(1), 504, 505, 508 [as am.], 650.01 [as am.] Criminal Code, R.S.C. 1970, c. C-34, s. 455.1 [as am.]

Alan D. Gold and Vanessa Arsenault, for appellant. Kim Crosbie, for respondent. [page754]

The judgment of the court was delivered by

CRONK J.A.:--

I. Overview

[1] This appeal concerns the jurisdictional consequences of failing to lay an information before a justice of the peace in accordance with s. 505(b) of the Criminal Code, R.S.C. 1985, c. C-46. We are required to consider the decisions of this court in R. v. Naylor (1978), 1978 2371 (ON CA), 42 C.C.C. (2d) 12, 2 W.C.B. 535 (C.A.), R. v. Gougeon (1980), 1980 2842 (ON CA), 55 C.C.C. (2d) 218, 5 W.C.B. 152 (C.A.) and related jurisprudence.

[2] The appellant was arrested and charged on March 29, 2003 with impaired driving and refusing to provide a breath sample. He was released on a promise to appear that required him to attend court on May 2, 2003 at 10:00 a.m. On May 2, an articling student from the office of the appellant's counsel appeared in court for the appellant at 10:00 a.m. and filed a designation of appointment of counsel pursuant to s. 650.01 of the Code. However, there was no information before the court and the case was not listed on the court's docket. Accordingly, the articling student was excused.

[3] Later that afternoon, at 2:00 p.m., an information was sworn before a justice of the peace, the promise to appear was purportedly confirmed and the information was endorsed pursuant to s. 508(1) of the Code. At the end of the day, the information was presented in court. The case was adjourned and, at the request of duty counsel, a discretionary bench warrant for the appellant was issued, returnable on May 6, 2003. Duty counsel then informed the appellant's counsel of the adjournment, the issuance of the bench warrant and the return date.

[4] On May 6, 2003, an articling student made a further appearance in court for the appellant. On this occasion, the student took the position that the court lacked jurisdiction over the appellant because no information was filed with the court by the time stated in the promise to appear. The presiding justice of the peace made no ruling on this issue. However, he concluded that he had jurisdiction to further adjourn the case because there was a valid information before the court on May 6 and the appellant had appeared through counsel pursuant to the designation of counsel previously filed. The case was adjourned again.

[5] Eventually, after numerous additional court appearances, the appellant's trial was scheduled for March 9, 2004. On that date, his counsel brought an application before Marin J. of the Ontario Court of Justice to quash the information sworn on [page755] May 2, 2003 for non-compliance with the time requirements set out in s. 505(b) of the Code. Section 505(b) provides:

505. Where

(b) an accused has been released from custody under section 497 or 498,

an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court.

(Emphasis added)

[6] Justice Marin granted the appellant's application and quashed the information. She held that non-compliance with the requirement in s. 505(b) that an information be laid before a justice of the peace, "in any event before the time stated in the ... promise to appear" rendered the information in this case a nullity, thereby depriving the court of jurisdiction.

[7] The Crown then sought an order for certiorari to quash the decision of Marin J. and mandamus directing that the matter proceed to trial on the information. On December 8, 2004, Epstein J. of the Superior Court of Justice granted the Crown's application. She held that any breach of the s. 505(b) time requirements affected only the court's jurisdiction over the person of the appellant and not its jurisdiction over the offences charged; that the defect in process in this case occasioned no prejudice to the appellant and was cured by the appearance in court of the appellant's designated counsel on May 6, 2003; and that no loss of jurisdiction over the offences charged resulted from the non-compliance with s. 505(b). Accordingly, she concluded that the information before the court on May 6, 2003 was valid and a trial should proceed.

[8] The appellant appeals to this court. For the reasons that follow, I agree that the challenged information is valid. Accordingly, I would dismiss the appeal.

II. Issues

[9] There are three issues on this appeal:

(1) Was the information sworn on May 2, 2003 invalid by reason of non-compliance with s. 505(b) of the Code?

(2) If the court lacked jurisdiction to try the offences charged against the appellant, is this jurisdictional defect curable under s. 485(1) of the Code? [page756]

(3) If the information was invalid, should costs against the Crown be awarded in this case?

III. Analysis

[10] The Crown concedes that there was non-compliance in this case with the time requirements of s. 505(b) of the Code because the information at issue was sworn after the time stated in the promise to appear. The Crown also concedes that the justice of the peace lacked jurisdiction to confirm the promise to appear. Thus, the discretionary bench warrant of May 2, 2003 was issued improperly because no valid process was then before the court compelling the appellant's attendance. However, the Crown argues that the information was valid notwithstanding the technical breach of s. 505(b) of the Code because the breach did not result in the loss of the court's jurisdiction to try the offences of which the appellant stood accused and any defect in the process occasioned by the breach was cured when the appellant appeared before the court, through counsel, on May 6, 2003. In the alternative, the Crown submits that any defect in process occasioned by breach of s. 505(b) is curable under s. 485(1) of the Code.

[11] In oral argument before this court, the appellant acknowledged that non-compliance with the directive in s. 505(b) that an information be laid before a justice of the peace "as soon as practicable" does not result in loss of the court's jurisdiction over the offence charged but, rather, over the person of the accused. He also conceded that this type of 'process defect' can be cured, as it was in this case, by the accused's appearance before the court, either personally or through counsel. See Naylor, supra, and Gougeon, supra.

[12] However, the appellant argues that s. 505(b) establishes two significantly different time requirements and that a breach of the second time stipulation set out in the section, which requires that an information be laid before a justice of the peace, "in any event before the time stated in the ... promise to appear", results in loss of the court's jurisdiction over the offence. He submits that when no information is sworn in conformity with this time requirement, s. 505 is "no longer available to a peace officer" and, if an information is still to be laid, this must be done under s. 504 of the Code. Because no 'fresh' information was laid in this case under s. 504 and, instead, a justice of the peace purportedly confirmed the promise to appear and endorsed the information laid before him, the appellant maintains that the court lacked jurisdiction to try the offences charged against him.

[13] I disagree, for the following reasons. [page757]

[14] First, in my opinion, the decision of this court in Gougeon does not support the interpretation of s. 505(b) urged by the appellant.

[15] In Gougeon, this court stated at pp. 230-31 C.C.C.:

Clearly both time-limits [in the predecessor section to s. 505(b)] are mandatory in the sense that they are not permissive or discretionary and also in the sense that failure to comply with them will result in certain legal consequences -- specifically the ineffectiveness of the process for the purposes of ss. 133(5), 456.1(2) and 738(3). However, it does not make sense, in my respectful view, to hold that the "as soon as practicable" time-limit is mandatory for the purposes of considering the validity of the information itself. On this particular issue, to use the traditional terminology, the provision is directory only.

To determine whether the provision respecting the validity of the information is mandatory one has to determine what the purposes of the time requirements in s. 455.1 [now s. 505] are in the scheme of the Bail Reform Act provisions in the Code. I do not think that these purposes are difficult to ascertain. The provision with which we are not concerned, which requires that the information be laid before the time stated in the process, is to ensure that there will be an information before the Court on the return of the process. As I have already indicated, the object of the other requirement, the one with which we are concerned, is to provide, as soon as practicable, for judicial intervention to cancel the process if it should not, in the opinion of the Justice, have issued in the first place. I can see no reason for interpreting it as a special limitation on prosecutions rule -- a rather drastic change in our criminal law -- confined to those cases where the process used, for the benefit of the accused, has issued under the Bail Reform Act provisions of the Code. Apart from failure to comply with what clearly are time-limitations on the commencement of proceedings (e.g., Code, s. 721(2)), or other specific provisions relating to the institution of proceedings, if an information complies with the general requirements of ss. 455 and 455.2, which are equally applicable to informations laid under ss. 455.1 and 455.3 [am. 1972, c. 13, s. 35(2)] I would regard it as a valid information.

[16] Thus, as indicated in Gougeon, the purpose of the time requirement in s. 505(b) with which we are concerned, that is, the requirement that an information be laid before a justice of the peace "in any event before the time stated in the . . . promise to appear", is [at p. 231 C.C.C.] "to ensure that there will be an information before the Court on the return of the process" concerning the accused. The purpose of the other time requirement, which directs that an information be laid before a justice of the peace "as soon as practicable", is to provide an opportunity for [at p. 231 C.C.C.] "judicial intervention to cancel the process if it should not ... have issued in the first place".

[17] However, it does not follow that the time requirements of s. 505(b) are to be construed as 'stand-alone' or unrelated requirements. In Naylor, Houlden J.A., writing for the majority, considered the predecessor section to s. 505(b) and stated at p. 18 C.C.C.: [page758]

Mr. Gold contended next that s. 455.1 [the predecessor section to s. 505] does not create two alternative time- limits for laying an information, namely: (1) as soon as practicable after an appearance notice has been issued to an accused or after he has been released from custody under ss. 452 or 453, or (2) before the time stated in the appearance notice, promise to appear or recognizance. Rather, he submitted, it requires that the information be laid before a Justice "as soon as practicable" after an appearance notice has been issued or after the accused has been released from custody under ss. 452 or 453; and in any event it must be laid before a Justice before the time stated in the appearance notice, promise to appear or recognizance. I agree with this interpretation of the section.

(Emphasis added)

[18] Justice Houlden then concluded, at p. 19 C.C.C.:

In order for the appellant to be obligated to attend Court, the provisions of s. 455.1 had to be followed; but the failure to follow that procedure did not, in my opinion, invalidate the information or result in loss of jurisdiction over the offence: see R. v. Pottle (1978), 1978 2294 (NL SC), 39 C.C.C. (2d) 484 at pp. 495-6. I agree with the decision in R. v. Halyk (1972), 1972 747 (SK QB), 9 C.C.C. (2d) 105, 21 C.R.N.S. 244, [1972] 6 W.W.R. 506, that non-compliance with s. 455.1 does not make the information a nullity.

Since the information was still valid and since jurisdiction over the offence had not been lost, the presence of the appellant was sufficient to confer jurisdiction on the Court.

(Citations omitted and emphasis added)

[19] The appellant correctly points out that in Naylor and, as relevant to this appeal, in Gougeon and various subsequent cases, the courts were concerned with the first time requirement in the predecessor section to s. 505, namely, the requirement that an information be laid before a justice of the peace "as soon as practicable". In this case, the second time stipulation is engaged.

[20] But, in my view, the reasoning in Naylor is not restricted to only the first time requirement in s. 505(b). In Naylor [at p. 19 C.C.C.], in concluding that the failure to follow the procedure set out in s. 455.1 did not "invalidate the information or result in loss of jurisdiction over the offence", Houlden J.A. referred to the need to comply with the "provisions" of s. 455.1 in order for an accused to be obligated to attend court and to "the procedure" contemplated by that section. His use of this language indicates that the court's holding in Naylor was not restricted to only instances of non-compliance with the first time requirement set out in s. 455.1, and that the court regarded s. 455.1 as establishing a single procedure for securing the attendance in court of an accused.

[21] Nor, in my view, does the decision in Gougeon overrule or otherwise displace the reasoning in Naylor. To the contrary, although the central issue in Gougeon (as relevant to this appeal) concerned the first time requirement in s. 455.1 (now s. 505), that [page759] is, the requirement that an information be laid "as soon as practicable", in Gougeon the court specifically affirmed the decision in Naylor.

[22] I conclude that there is no principled basis upon which to confine the reasoning in Naylor to only those cases where non-compliance with the "as soon as practicable" time requirement of s. 505(b) is demonstrated. The language of Naylor does not contemplate this; nor does Gougeon require it.

[23] In view of Naylor and Gougeon, I read s. 505(b) of the Code as requiring an information to be laid before a justice of the peace "as soon as practicable" and, even where this is not accomplished, at the latest "before the time stated in the ... promise to appear". The time requirements in s. 505(b) are related and, in combination, establish a finite time within which an information must be laid in order to ensure that an accused whose attendance in court is required by a promise to appear does not face an indefinite period of jeopardy.

[24] In R. v. Morton (1992), 1992 12800 (ON SC), 7 O.R. (3d) 625, [1992] O.J. No. 179 (Gen. Div.), at p. 631 O.R., affd (1993), 1993 8575 (ON CA), 15 O.R. (3d) 320, [1993] O.J. No. 4105 (C.A.), Then J. correctly outlined the applicable principles:

[T]he failure to comply with s. 505 of the Code will obviate any charge of failure to appear under s. 145(5) of the Code nor will the court be empowered to issue a warrant under s. 512(2). However, the validity of the information will remain unaffected and there will be no loss of jurisdiction over the offence nor will there be a loss of jurisdiction over the person if the accused appears for his trial.

[25] Thus, although a failure to adhere to the time requirements set out in s. 505(b) has legal consequences, it does not invalidate the information or result in loss of jurisdiction over the offence.

[26] Second, I agree with the Crown's submission that the appellant's urged interpretation of s. 505(b) is tantamount to treating s. 505(b) as establishing a statutory limitation period concerning the court's jurisdiction to try an accused for an offence charged. To accede to the appellant's view of s. 505(b) would immunize an accused from prosecution for a criminal offence due only to technical non-compliance with the time requirements of s. 505(b). I do not accept that this is the intent of s. 505(b). As observed by Stevenson J. of the New Brunswick Supreme Court, Queen's Bench Division, in R. v. Powers, 1973 1567 (NB SC), [1973] N.B.J. No. 147, 10 C.C.C. (2d) 395 (Q.B.), at p. 397 C.C.C.:

Such argument attributes to Parliament an intention to delegate to a peace officer, every time he issues an appearance notice, the authority to create an arbitrary limitation period for the offence alleged. Except for a very few specific offences limitation periods are not found in Canadian criminal law. I [page760] cannot accept that Parliament intended to vest such arbitrary authority in peace officers nor do I think Parliament intended that prosecution should be barred by the administrative failure of a peace officer to swear an information within the time prescribed by s. 455.1.

See also R. v. Hrankowski, 1980 ABCA 196, [1980] A.J. No. 865, 54 C.C.C. (2d) 174 (C.A.), at pp. 180-81 C.C.C.

[27] The purpose of the promise to appear in this case was to avoid unnecessary arrest and detention prior to the appellant's initial court appearance and to bring the appellant before the court on the day and at the time of his initial court appearance. As I have said, the intent of s. 505(b), in this context, is to provide certainty concerning the time within which an information must be laid following arrest and a promise to appear. From a policy perspective, the administration of justice and fundamental fairness are advanced by such certainty. The time requirements contemplated by s. 505(b), therefore, are steps in the process designed to bring an accused before the court on a timely basis and without the necessity of prior detention. They are not pre-conditions to the jurisdiction of the court to try the offence charged nor, as this court indicated in Gougeon at p. 231 C.C.C. concerning the first time requirement now set out in s. 505(b), do they constitute a "special limitation on prosecutions rule".

[28] Third, there is no suggestion here that the appellant was prejudiced by the acknowledged breaches of s. 505(b). The breaches were technical only. Justice Epstein held, at paras. 34 and 38 of her reasons:

[F]ailure to comply with the time requirements of s. 505 [does] not affect the court's jurisdiction over the offence. A subsequently sworn information is valid. All that a failure to comply with the time requirements affects is any process purportedly confirmed under s. 508.

Mr. Markovic was arrested on March 29, 2003. An information sworn on May 2, 2003 is arguably not sworn "as soon as practicable". If, however, the information had been sworn under s. 508 at 9:59 on May 2, 2003, it would nonetheless be valid. The same must be true for an information sworn under s. 508 at 10:01 a.m. If the process under s. 508 is available despite failure to meet the s. 505 requirement of swearing an information "as soon as practicable" it must also be available where the information is not sworn "as soon as practicable and in any event before the time specified in the appearance notice". However the timing contemplated in s. 505 is breached, the breach affects only the process.

(Emphasis in original)

I agree.

[29] Finally, although the promise to appear was purportedly confirmed and the information sworn on May 2, 2003 was [page761] endorsed by a justice of the peace on the same day under the confirmation provisions of s. 508 of the Code, the confirmation hearing is distinct from the swearing of the information itself. As I have indicated, the non-compliance with s. 505(b) did not invalidate the information that was before the justice of the peace. Accordingly, the subsequent flawed confirmation of the promise to appear did not operate to vitiate what, in the circumstances, was a valid information.

IV. Other Issues

[30] Given my conclusion that the information in this case is valid and that the court has jurisdiction to try the appellant on the offences of which he stands accused, it is unnecessary to consider the Crown's alternative argument under s. 485(1) of the Code. In addition, the appellant's request for a costs award against the Crown was premised on his success on this appeal. Given my view of the proper disposition of this appeal, this issue is moot.

V. Disposition

[31] Accordingly, for the reasons given, I would dismiss the appeal.

Appeal dismissed.