R. v. R.J. Reynolds Tobacco Co. (Delaware), 2007 ONCA 749

CITATION: R. v. R.J. Reynolds Tobacco Co. (Delaware), 2007 ONCA 749

DATE: 20071105

DOCKET: C41380

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., SIMMONS AND MACFARLAND JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

And

R.J. REYNOLDS TOBACCO CO. (DELAWARE), NORTHERN BRANDS INTERNATIONAL, INC., R.J. REYNOLDS TOBACCO INTERNATIONAL, INC.

Respondents

Christopher Webb for the appellant

W. Niels F. Ortved and Christopher A. Wayland for the respondents R.J. Reynolds Tobacco (Delaware) et al.

Heard and released orally: October 29, 2007

On appeal from an order of Justice Arthur M. Gans of the Superior Court of Justice granting an application for certiorari and for prohibition in aid, dated February 9, 2004, with reasons reported at (2004), 182 C.C.C. (3d) 126.

ENDORSEMENT

[1] The Crown appeals from the order of Gans J. dated February 9, 2004, quashing an order validating service ex juris (in the United States) on the respondents of summonses in relation to charges for fraud and conspiracy to commit fraud and prohibiting any judge of the Ontario Court of Justice from proceeding against them.

[2] In the court below, the Crown agreed that the following proposition set out in Re Shulman and The Queen (1975), 23 C.C.C. (2d) 242 at 247 (B.C. C.A.) is an accurate statement of the law:

… in penal proceedings ... a summons cannot properly be served on a person outside Canada without such service being authorized by a statute, and that in the absence of proper service the Court has no jurisdiction over the person, even though it may have jurisdiction over the subject-matter of the complaint.

However, the Crown now contends in this court for the first time that this proposition is no longer the law.

[3] In our view, the Crown has provided no authority that supports its argument that the above proposition is no longer the law. On the contrary, the cases on which the Crown relies in this court involve either civil cases in which service ex juris of originating process is, in any event, expressly authorized by a legislative scheme (e.g. Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (C.A.)) or criminal cases where jurisdiction over the person was established by means other than assumed jurisdiction (e.g. R. v. Gougeon (1980), 55 C.C.C. (2d) 218 (Ont. C.A.), leave to appeal refused, November 18, 1980 (S.C.C.); R. v. Libman (1985), 21 C.C.C. (3d) 206 (S.C.C.)). In the absence of such authority, we conclude that the principle set out in Re Shulman continues to be an accurate statement of the criminal law.

[4] The Crown's second argument is that, despite the obvious fact that the respondents would have received the summonses in the United States, the respondents were served in Canada because the summonses were mailed in Canada by registered mail. Again we reject the Crown’s submission. The only authority on which the Crown relies is Re French and Law Society of Upper Canada (No. 4) (1976), 69 D.L.R. (3rd) 37 (Ont. Div. Ct.), leave to appeal refused, May 17, 1976 (Ont. C.A.). In our view, rather than addressing the issue of where service is effected, that case deals with the scope of review on certiorari of a decision that service had been effected by virtue of deeming provisions contained in a particular statute.

[5] The Crown also relies on the wording of s. 26(4)[^1] of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”), and claims that this provision deems service to have taken place in Ontario where the summonses were mailed. Again we disagree. In our view, the application judge was correct in holding that the deeming provision in this section deals with the temporal aspects of service as opposed to the geographical or territorial aspects.

[6] Given our conclusion that the proposition set out in Re Shulman is still good law, the remaining issue is whether s. 701.1 of the Criminal Code, when read together with s. 26 of the POA, creates the necessary express statutory authorization for service outside of Canada. In our opinion, it does not. In our view, on a proper reading of ss. 701.1 and 703.1[^2] of the Criminal Code it is clear that the only authority provided in the Criminal Code for service of a summons is authority to serve the summons within Canada. Section 26(4) of the POA provides an additional means of service but it does not in any way expand on the express provisions of the Criminal Code relating to where a summons may be served.

[7] Based on the foregoing reasons, the appeal is dismissed.

[8] While it forms no part of the basis of our decision we are compelled to observe that the Crown has acknowledged that it has no satisfactory explanation for its failure to proceed promptly with this appeal. In this respect we note that the preliminary inquiry against the other accused in this matter commenced in April 2005 (some 14 months after the application judge's decision) and was completed in May of this year. We are at a loss to understand why this appeal was not proceeded with more expeditiously and, in any event, in a manner that would have permitted it to be heard prior to the preliminary inquiry.

“W. Winkler C.J.O.”

“Janet Simmons J.A.”

“J. MacFarland J.A.”

[^1]: 26(4) Service of a summons on a corporation may be effected by delivering the summons personally, (a) in the case of a municipal corporation, to the mayor, warden, reeve or other chief officer of the corporation or to the clerk of the corporation; or (b) in the case of any other corporation, to the manager, secretary or other executive officer of the corporation or person apparently in charge of a branch office thereof, or by mailing the summons by registered mail to the corporation at an address held out by the corporation to be its address, in which case the summons shall be deemed to have been duly served seven days after the day of mailing.

[^2]: 701.1 Notwithstanding section 701, in any province service and proof of service of any subpoena, summons or other document may be made in accordance with the laws of the province relating to offences created by the laws of the province. 703.1 A summons may be served anywhere in Canada and, if served, is effective notwithstanding the territorial jurisdiction of the authority that issued the summons.