Court of Appeal for Ontario

Citation: R. v. Rattray, 2008 ONCA 74 Date: 2008-02-06 Docket: C46096

Before: Rosenberg, Gillese and MacFarland JJ.A.

Between: Her Majesty the Queen (Respondent) and Conrad Rattray (Appellant)

Counsel: Paul Calarco for the appellant Andrew Cappell for the respondent

Heard: September 20, 2007

On appeal from the conviction entered by Justice John D. Smith of the Ontario Court of Justice dated March 21, 2006.

Reasons for Decision

MacFARLAND J.A.:

[1] The appellant appeals his convictions for breaching three court orders:

a) possession of a firearm while prohibited by an order made pursuant to s. 110 of the Criminal Code contrary to s. 117.01(1) of the Criminal Code;

b) possession of a firearm in breach of a probation order contrary to s. 733.1 of the Criminal Code; and

c) breach of recognizance contrary to section 145(3) of the Criminal Code.

OVERVIEW

[2] All three charges arise out of the same event. On July 9, 2005 the appellant purchased a 45 calibre Beretta Storm assault rifle from a licensed gun dealer at a gun show held in the state of Michigan.

[3] At the time of the purchase, the appellant was prohibited from having a firearm in his possession by the terms of the two orders and the recognizance referenced above.

[4] For present purposes, it is accepted that the appellant’s acquisition of the firearm in Michigan was not contrary to any of the laws of Michigan at the time.

THE FACTS

[5] The gun was located in Oakville, Ontario on September 14, 2005 by a trespasser who was looking about an abandoned barn for any property he might be able to salvage. The trespasser noticed a loose board on the back of a small garage on the property. He removed the board and looked inside and noticed “a black case maybe 16 inches by two and a half feet.” He took the gun home and contacted the police.

[6] The police investigation revealed that the gun had been purchased by the appellant on July 9, 2005 at the gun show referenced above.

[7] The appellant was arrested on November 1, 2005 and charged with the offences which are the subject of this appeal. He was convicted of those offences on March 21, 2006 by Smith J. of the Ontario Court of Justice.

THE APPEAL

[8] The appellant raises two main grounds of appeal.

[9] The first ground of appeal is that the charge, when initially read out in the oral arraignment, differed from the charge as stated in the written information, thereby failing to comply with s. 536(2) of the Criminal Code. The appellant argues that the oral arraignment governs and because the evidence establishes possession of the gun in Michigan only, and there is no evidence that possession occurred in Oakville as particularized in the oral arraignment, the accused must be acquitted on the first count.

[10] The second ground of appeal is that the court did not have jurisdiction over the offences, since possession of a gun in Michigan does not constitute an offence in Canada. Section 6(2) of the Criminal Code provides that no person shall be convicted of an offence outside Canada. On this ground, the appellant maintains he should have been acquitted on all three counts.

Section 536(2) was substantially complied with

[11] The appellant says that his conviction on the first count must be set aside and an acquittal entered in its place because when he was arraigned on this count the clerk of the court, in reading the information, neglected to say the words “and/or elsewhere”. The transcript records the clerk as arraigning the appellant on the following charge:

…that Conrad Rattray… on or about the 9th day of July 2005, at the Town of Oakville in the said region did have in his possession a firearm while he was prohibited….”

[12] The information itself included after the word “region” the words “and/or elsewhere” in relation to all three charges. The clerk simply omitted to read those three words in relation to count one.

[13] The appellant argues that it is the reading of the information at arraignment that governs and because the only evidence of his whereabouts on July 9, 2005 was that he was in the state of Michigan, the Crown has failed to make out the offence. No amendment, clarification or re-arraignment was sought.

[14] Section 536(2) of the Criminal Code requires that where an accused is charged with an indictable offence, as was the case here, the information must be read to the accused before he is put to his election as to mode of trial.

[15] In my view, provided the trial court had jurisdiction over the offence with which the appellant was charged, this court’s decision in R. v. Mitchell (1997), 1997 CanLII 6321 (ON CA), 121 C.C.C. (3d) 139, is dispositive of this ground of appeal. In Mitchell, the accused had appeared before the court a number of times before his trial commenced. On one of those earlier occasions the accused had, through counsel, indicated his desire to be tried by a provincial court judge and the information had been endorsed accordingly. When his case came on for trial, the trial judge assumed the accused had already been arraigned. The trial judge was wrong; the accused had not been arraigned on the earlier occasion when his desired method of trial was noted. The failure to read the charges to the accused was one of the grounds of appeal raised by Mr. Mitchell. Speaking for this court at paras. 25-27 of the judgment, Doherty J.A. said:

[25] The information was not read to the appellant as required by s. 536(2) and nothing approaching substantial compliance with that section occurred. The failure to properly arraign the appellant was a procedural error. Section 686(1)(b)(iv) of the Criminal Code provides that the court may dismiss an appeal where:

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby.

[26] It has been authoritatively established that the failure to arraign an accused is a “procedural irregularity” which can be cured by s. 686(1)(b)(iv) in the appropriate circumstances [citations omitted]. The application of s. 686 (1)(b)(iv) in these cases is consistent with the careful analysis of the scope of that section provided by Goodman J.A. in R. v. Cloutier (1988), 1988 CanLII 199 (ON CA), 43 C.C.C. (3d) 35 (Ont. C.A.) at 46-51, in which he held that serious procedural errors going to jurisdiction are within the curative reach of s. 686(1)(b)(iv) as long as those errors do not go to the court’s jurisdiction over the type of offence charged. Section 686(1)(b)(iv) can be applied in this case if the failure to read the charges to the appellant did not cause him any prejudice.

[27] Arraignment is intended to ensure that an accused is aware of the exact charges when he or she elects and pleads. Arraignment also ensures that all parties to the proceedings have a common understanding of the charges which are to be the subject-matter of the proceedings which follow. The appellant was told in summary form of the charges against him on his first appearance. More importantly, he made numerous appearances between his first appearance and his purported election on February 28, 1995; and several more before his trial started in August 1995. He was represented by the same counsel throughout. Disclosure had been made by the Crown and in some of the appearances before August 1995 there was reference to the substance of the charges. I have no doubt that the appellant and his counsel were well aware of the exact charges in February when counsel was asked to elect a mode of trial and in August when the trial actually commenced. There is no reason to think that the proceeding would have gone any differently had the charges been read to the appellant in February or August. The failure to read the charges to the appellant as required by s. 536(2) did not cause the appellant any prejudice and should not vitiate the convictions.

[16] In Mitchell, the accused was never arraigned before his trial. In the case before this court the accused was properly arraigned on two of the three charges and on the third charge, but for the omission of the three words “and or elsewhere”.

[17] I agree with the Crown’s submission that the failure to read the three words is of no moment on the facts of this case and accept the following submissions of the Crown:

• It is clear on the record that the Crown’s position was that the appellant violated the orders at the time he purchased the gun in Michigan; the information alleged that the offences were committed on July 9, 2005 the date that the appellant acquired the gun in Michigan.
• In furtherance of that position, at the conclusion of the evidence the Crown stated:

  But the purpose of the case itself is that the fact that he purchased it and that the signature is his. The fact that he purchased it in the United States is sufficient for the purposes of the Crown proving the case.

• It was also clear that defence counsel understood that the Crown was alleging that the offences were committed when the appellant purchased and possessed the gun in Michigan. In his closing submissions counsel stated:

  Now, I appreciate my friend’s position that once possession takes place and if possession takes place in Michigan, if the court finds that, then that amounts to making out the charges before the court.

• The defence took no issue at trial with the discrepancy between the information and the clerk’s reading at the arraignment or that the reading required the Crown to prove the appellant’s presence in Oakville on July 9, 2005 in order to convict on count one. The defence position at trial was that the charges were not made out because the Crown had failed to prove that the appellant had taken possession of the gun in Michigan.

[18] These factors are sufficient to demonstrate that the defence was in no way misled by the misreading of the information. It is clear that everyone understood that all three offences alleged in the information arose from the same conduct: the possession of the gun in Michigan.

[19] In my view, s. 536(2) of the Criminal Code was substantially complied with on these facts. I would dismiss this ground of appeal.

The Ontario Court of Justice properly exercised jurisdiction

[20] The second ground of appeal relates to whether the trial judge properly interpreted this court’s decision in R. v. Greco (2001), 2001 CanLII 8608 (ON CA), 159 C.C.C. (3d) 146, leave to appeal to S.C.C. ref’d [2001] S.C.C.A. No. 656, to determine that the Ontario Court of Justice had jurisdiction to try and convict the appellant on the three charges.

[21] The appellant relies on s. 6(2) of the Criminal Code, which provides:

Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada.

[22] In this court the appellant does not dispute that he had possession of a firearm in Michigan but says that is not a crime in Ontario and therefore he ought to have been acquitted of all charges. The argument is that the law of Canada does not reach beyond its borders. The appellant relies on the Supreme Court of Canada’s decision in R. v. Cook (1998), 1998 CanLII 802 (SCC), 128 C.C.C. (3d) 1, beginning at para. 26:

[26] The analysis is further conditioned by the accepted principle of international law that “since states are sovereign and equal, it follows that one state may not exercise jurisdiction in a way that interferes with the rights of other states” [citation omitted]. In essence, the principle of the sovereign equality of states generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state’s territorial limits would constitute an interference under international law with the exclusive territorial jurisdiction of another state.

[23] However, broad general statements of the law are of limited assistance. In Cook it is also noted at para. 27:

In our view, although territory is clearly a critical element in determining the scope of a state’s jurisdiction, territory alone is not determinative of jurisdictional competence under international law.

[24] It is important to consider the substantive nature of the charges. The appellant was not charged with possession of a firearm, an activity which was perfectly lawful in the state of Michigan. He was charged with breach of three orders of Canadian courts, orders made in Canada and orders which the Crown alleges governed his conduct worldwide. When the appellant came into possession of the assault rifle, he was in breach of specific terms of each of a court order, a probation order and a recognizance, all of which required that he not possess any firearm.

[25] The appellant concedes that since the Greco decision, this court has determined that, at least in respect of a probation order, a person may be convicted in Ontario of breaching a domestic court order by committing an offence beyond the borders of Canada.

[26] The appellant here seeks to distinguish the conduct on his part which gives rise to these offences and the nature of the conduct with which the court was concerned in Greco. He emphasizes the violent nature of the underlying assault in Greco compared to the mere possession of a rifle, a perfectly lawful activity in the jurisdiction where it took place. He emphasizes that the underlying conduct in Greco was also unlawful under Cuban law where the assault took place.

[27] The appellant submits in his factum:

Thus, Greco must be read so as not to interfere with the right of another state to enact and apply laws in its own territory or to create the extra-territorial application of Canadian law. Canadian law cannot criminalize conduct which is perfectly legal in another state. That would violate international law. The way in which both the right of Canadian courts to enforce their orders for acts committed abroad and the sovereignty of states can be recognized is to distinguish between acts which are mala in se (wrong in themselves, such as murder) or prohibited by the law of nations or international suppression conventions (such as piracy or drug trafficking) and those which are mala prohibita (wrong because they are prohibited by human law). The principle of malum in se and mala prohibita has been recognized by this court and in the Supreme Court of Canada [citations omitted]….

Our courts must be cognizant of the fact that conduct which may be prohibited under Canadian law, and even punished by significant terms of imprisonment, may be quite lawful elsewhere and vice versa. It is not an answer to say that Canadian law sees a matter as a serious offence and thus no matter where in the world that act takes place nor how unlawful it may be in the host state, if a person is bound by a Canadian court order he or she will be subject to prosecution in Canada for that act.

An assault, such as the grievous one which took place in Greco, is an act malum in se. The mere possession of a firearm is an act which may be perfectly legal or subject to varying degrees of regulation. It is not wrong by its very nature.

Greco must be limited in its scope. To permit the widest application could lead to unintended results such as a person who is required to keep the peace and be of good behaviour being prosecuted in Canada for failing to follow a municipal building code or not remitting sales tax forms in another jurisdiction. Unless the subject of the order is committing a malum in se or similar offence, and not an act which is lawful in the other jurisdiction or a simple breach of a regulation in that place, that person should not be subject to prosecution in Canada.

[28] This argument, to my mind, misses the point. The appellant is not charged with unlawful possession of a rifle; he is charged with breach of three court orders, orders made in Canada and ultimately enforced in Canada. I see no principled basis on which to distinguish the underlying conduct from that which gives rise to the charge.

[29] In Greco the court was concerned with conduct which, if committed in Canada, would in all likelihood have constituted an aggravated assault and clearly a breach of the peace. As such, that term of the probation order requiring Mr. Greco to keep the peace and be of good behaviour was breached.

[30] Similarly, in this case, the appellant’s possession of the firearm constituted a breach of specific terms of the court orders that he not be in possession of a firearm.

[31] Where specific terms are breached, such as is this case, the risk that people on probation will be charged with such things as failing to follow building code requirements in another jurisdiction do not arise. It is highly unlikely that any probation or similar order would ever contain such a specific term. If prosecution is sought for such conduct on the basis that an accused has thereby breached the peace and not been of good behaviour, it will be for a court to decide on the specific facts of a particular case whether the relevant order has been breached. In every case, the Crown will be obliged to prove the underlying conduct and that it constitutes a breach of the particular order or recognizance.

[32] In Greco, Moldaver J.A. at paras. 23 and 28-29, after reviewing the principle of territoriality and the rules of comity and international law, concluded:

[23] It follows, in my view, that there is no basis in international or domestic law for concluding that a judge of the Ontario or Superior Court of Justice lacks the jurisdiction to issue a probation order, enforceable in Canada, that binds the conduct of probationers both at home and abroad.

[28] For these reasons, I am satisfied that the courts of this province have the authority to make probation orders, enforceable locally, that bind the conduct of probationers both at home and abroad. The only remaining question is whether to be effective abroad, the probation order must contain an express provision to that effect. In my view, it need not.

[29] I think a common sense inference can and should be drawn that, subject to the requirements of comity, probation orders are meant to apply to probationers at all times wherever they might be, absent a specific term to the contrary. In this respect, I agree with Lampkin J. that a probation order is an order made in respect of a particular individual and so long as it remains in force, it attaches to that individual wherever he or she may go.

[33] While possession of an assault rifle may be lawful in the United States it was not for this appellant in Canada. This weapon found its way to Canada and, but for the happenstance curiosity of a trespasser, would in all likelihood have ended up on the streets of one of our cities. The carnage that has resulted in our cities by the use of illegal weapons is well-known and of grave concern to Canadians everywhere.

[34] In the circumstances here, it is only Canada that would have an interest in ensuring that these orders are complied with. The United States has no such comparable interest. As this court noted in Greco at para. 42:

Once it is understood that Canada is the only country that has an interest in ensuring compliance with orders made by Canadian courts, little more need be said in terms of the “real and substantial link” test.[^1] The probation order in the instant case was imposed upon the appellant by an Ontario court. It required him to keep the peace and be of good behaviour both at home and abroad. Importantly, the offence in issue arises out of a breach of that order, a factor which I consider to be crucial in the application of the “real and substantial link” test. To the extent that he breached that order, Canada alone has an interest in bringing him to justice and it may do so. The requirements of international comity do not dictate otherwise.

[35] In my view, it matters not that the underlying conduct did not constitute an offence under the laws of the jurisdiction where it took place. It is not the underlying conduct of possessing a firearm that is the subject of prosecution, but rather the breach of court orders made and enforced in this country.

[36] I have no hesitation in concluding that the offences of breaching court orders were committed in Ontario and that s. 6(2) of the Criminal Code has no application.

CONCLUSION

[37] For these reasons I would dismiss the appeal.

RELEASED: February 6, 2008 “MR”

“J. MacFarland J.A.”

“I agree M. Rosenberg J.A.”

“I agree E.E. Gillese J.A.”

[^1]: The “real and substantial link” test was enunciated by La Forest J. in R. v. Libman (1985), 1985 CanLII 51 (SCC), 21 C.C.C. (3d) 206 (S.C.C.) at 232.