R. v. Linamar Holdings Inc., 2007 ONCA 873

CITATION: R. v. Linamar Holdings Inc., 2007 ONCA 873

DATE: 20071213

DOCKET: C47355

COURT OF APPEAL FOR ONTARIO

ROSENBERG, LANG and MacFARLAND JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

and

LINAMAR HOLDINGS INC., c.o.b. AS CAMTAC MANUFACTURING and NICK BARNES

Respondents (Defendants)

Daniel Kleiman for the appellant

Scott G. Thompson for the respondent Linamar Holdings Inc. S. Margot Blight for the respondent Nick Barnes

Heard: November 27, 2007

On appeal from the decision of Justice Casimir N. Herold of the Superior Court of Justice dated June 11, 2007.

BY THE COURT:

[1] At the conclusion of oral argument in this appeal, we allowed the appeal and indicated that written reasons would be released a short time later. These are those reasons.

[2] On April 5, 2007, a Health and Safety inspector laid an information before a justice of the peace charging the respondents with offences contrary to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. At the same time the justice of the peace issued summonses returnable on May 2, 2007. On May 2, no justice of the peace was available and nothing was done. On May 17, 2007, a justice of the peace issued new summonses returnable on June 13, 2007. The respondents brought an application for certiorari and prohibition to quash the summonses and prevent the Provincial Offences Court from taking any further proceedings in relation to the charges in the April 5 information.

[3] Herold J. heard the application on June 11, 2007 and granted the application. He was of the view that jurisdiction over the information and the respondents was lost when nothing was done on May 2, 2007 and that the Provincial Offences Act provides no mechanism for issuing successive summonses on the same information. He did not follow the decision of this court in R. v. 1283499 Ontario Inc. (2003), 2003 33934 (ON CA), 65 O.R. (3d) 763, which appears to stand for the proposition that s. 31 of the Provincial Offences Act preserves jurisdiction over the information in circumstances such as this and that jurisdiction over the person can be regained by issuing new summonses. The application judge was of the view that s. 31 does not preserve jurisdiction over the person and that the part of the reasons in R. v. 1283499 Ontario Inc. that sanctions issuing new summonses to regain jurisdiction over the person was obiter and said per incuriam, because Doherty J.A. did not refer to certain provisions of the Criminal Code.

[4] In our view, the application judge erred. In fairness to the application judge, while we do not agree with his conclusion, it must be said that he did a commendable job in providing comprehensive reasons in the context of the very tight time frame.

[5] However, in our view, the decisions in R. v. 1283499 Ontario Inc. and the companion case of R. v. Colarossi (2003), 2003 44111 (ON CA), 65 O.R. (3d) 767 (C.A.) are dispositive of this aspect of the case. Section 31 of the Act preserves jurisdiction over the offence and there is nothing in the Act that precludes a justice of the peace from issuing a new summons under s. 24 in circumstances such as occurred here. As the Crown rightly points out, any other interpretation of the Act would render s. 31 nugatory except in the unlikely circumstance that a defendant voluntarily returned to court so that jurisdiction could be regained in that fashion.

[6] That Parliament has enacted provisions in s. 485 of the Criminal Code specifically permitting the issuing of successive summonses but also placing limits on the time within which those summonses may be issued does not affect the interpretation of a different piece of legislation enacted by a different legislative body. Finally, the fact that other provisions of the Provincial Offences Act, such as ss. 54 and 98, provide additional authority, in entirely different circumstances, for bringing a defendant before the court by means of a summons or warrant, does not impact on the interpretation of ss. 24 and 31 of the Act.

[7] The respondents argue that issuing of new summonses was precluded in any event because the one year limitation period under s. 69 of the Occupational Health and Safety Act had expired prior to May 17 when the new summonses were issued. Section 69 provides that no “prosecution … shall be instituted” more than a year after the last act upon which the prosecution is based occurred.

[8] The respondents argue that a prosecution is not instituted until an information is laid and a summons or warrant issued. There are two answers to this argument. First, an information was laid and summonses were issued prior to expiration of the limitation period. The fact that nothing was done on the return date does not mean that the prosecution had not been instituted. Second, a prosecution is instituted within the meaning of s. 69 once the information is laid before a justice of the peace.

[9] The respondents rely upon Dowson v. The Queen, 1983 59 (SCC), [1983] 2 S.C.R. 144 as authority for the view that a prosecution is not instituted until a summons is issued. However, Dowson involved the quite different language of former s. 508 and concerned the power of the Attorney General to stay an information. Section 508 only gave the Attorney General this power “after an indictment has been found”. The difficulty faced in Dowson was in determining when an information is “found”, since the term “found” is not one usually associated with an information. For policy and other reasons the court held that an information is found only after process has been issued. No similar considerations encumber the interpretation of the phrase “prosecution … shall be instituted” and we see no reason not to give this phrase the well-accepted meaning that a prosecution is instituted when the information is laid.

[10] The respondents also rely upon language in Southam Inc. v. Coulter (1990), 1990 6963 (ON CA), 75 O.R. (2d) 1 (C.A.) where the court, referring to passages from Dowson, held at p. 7 that “a prosecution commences only after a justice of the peace has decided to issue process”. It may be that in some contexts a prosecution only commences with the issue of process but that does not answer the question of when a prosecution is instituted. The laying of the information before a justice of the peace is the first formal step taken in the proceedings before the Provincial Offences Court and in our view constitutes the institution of the proceedings.

[11] Accordingly, the appeal is allowed, the orders of certioriari and prohibition are set aside and the matter is remitted to the Provincial Offences Court for trial. If necessary, summonses may issue compelling the attendance of the respondents.

Signed: “M. Rosenberg J.A.”

“S.E. Lang J.A.”

“J. MacFarland J.A.”

RELEASED: “MR” December 13, 2007