CITATION: R. v. Oliveira, 2009 ONCA 219
DATE: 20090312
DOCKET: C47415
COURT OF APPEAL FOR ONTARIO
Doherty, Simmons and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Applicant (Appellant)
and
Alfredo Oliveira
Respondent
Kim Crosbie, for the applicant (appellant)
Paul Slocombe, for the respondent
Heard: February 2, 2009
An application for leave to appeal and, if leave is granted, an appeal from the judgment of Justice Alexander Sosna of the Superior Court of Justice dated June 18, 2007, with reasons reported at 2007 2267 (ON S.C.), affirming the acquittal entered by Justice Glenn D. Krelove of the Ontario Court of Justice on August 18, 2006, in Barrie, Ontario.
Doherty J.A.:
I. THE ISSUE
[1] The question of law is this: When a promise to appear is rendered a nullity by non-compliance with the requirement in s. 505 of the Criminal Code that an information be laid “as soon as practicable”, is the undertaking relating to that promise to appear also a nullity?
II. OVERVIEW
[2] Part XVI of the Criminal Code sets out a detailed procedural scheme governing the laying of criminal charges and the arrest, detention and release of persons charged with criminal offences. Among other purposes, Part XVI seeks to minimize, to the extent consistent with the public interest, the pre-trial incarceration of persons charged with criminal offences. To achieve that goal, several provisions of Part XVI permit a peace officer to release an individual, thereby avoiding the need to hold that person in custody pending appearance before a judicial officer: see Criminal Code, ss. 496, 498, 499, 503(2).
[3] A peace officer who arrests an accused may release that person on a promise to appear.[^1] That document compels the named person to appear in court on a specified date in answer to the charge set out in the promise to appear: Criminal Code, s. 501. Failure to appear as required is a criminal offence: Criminal Code, s. 145(5).[^2]
[4] If an accused is released on a promise to appear, two steps are necessary to bring the criminal charges before the court. First, an information alleging the offence(s) must be laid before a justice “as soon as practicable” and “in any event before the time stated in the … promise to appear”: Criminal Code, s. 505. Failure to lay the information “as soon as practicable” renders the promise to appear ineffective and provides a defence to a charge of failure to appear as directed by the promise to appear: R. v. Naylor (1978), 1978 2371 (ON CA), 42 C.C.C. (2d) 12 (Ont. C.A.), at p. 19; R. v. Gougeon (1980), 1980 2842 (ON CA), 55 C.C.C. (2d) 218 (Ont. C.A.), at pp. 230-31, leave to appeal to S.C.C. refused 35 N.R. 83n; R. v. Markovic (2005), 2005 36251 (ON CA), 77 O.R. (3d) 752 (C.A.), at paras. 23-25, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 530.
[5] The second step necessary to move the criminal charges forward also takes place when the information is laid before the justice of the peace. The justice of the peace must decide whether to confirm or cancel the promise to appear. If he or she cancels the promise to appear, it is of no force and effect, the accused is not required to appear at the time and place set out in the promise to appear, and failure to appear is not a criminal offence. A justice of the peace may cancel a promise to appear for various reasons. For example, the justice of the peace may conclude that the criminal charge(s) should not have been brought against the accused, or that some other process should be used to compel the attendance of the accused: Criminal Code, s. 508.
[6] Although the promise to appear and other similar mechanisms for release by the police introduced into the Criminal Code by the Bail Reform Act, S.C. 1970-72 c. 37, gave the police broad powers of release, those powers were deficient in that they did not permit the police to impose conditions as a term of the release. Unless the police were satisfied that the arrested person should be released without any conditions, they had to detain that person pending appearance before a justice of the peace. The justice of the peace could then release that individual on the appropriate bail conditions. This shortcoming was eventually cured by amendments that gave a peace officer who released the person on a promise to appear, the power to require that person to enter into an undertaking before being released: Criminal Code, s. 503(2). That undertaking could contain one or more of the conditions set out in s. 503(2.1) of the Criminal Code and is aptly described as “police bail”: see Gary T. Trotter, The Law of Bail in Canada, 2nd ed. (Scarborough, ON: Carswell, 1999), at pp. 94-100.
[7] The respondent in the present case was released on a promise to appear issued in respect of a charge of assaulting a police officer and a charge of refusing to provide a roadside breath sample. At the time of his release, he entered into an undertaking. One condition of that undertaking required him to abstain from the consumption of alcohol.
[8] The prosecution failed to lay an information containing the charges set out in the promise to appear “as soon as practicable”, thereby rendering the promise to appear ineffective. The respondent, however, appeared on the date set out in the promise to appear and on subsequent dates as ordered by the court. Subsequent to his first appearance, the police encountered the respondent, concluded he had been drinking, and charged him with breaching the term of his undertaking that required him to abstain from the consumption of alcohol.[^3]
[9] At trial, the respondent argued that just as with the promise to appear, the undertaking was rendered a nullity when the prosecution failed to lay an information “as soon as practicable” as required by s. 505. The respondent submitted that because of the failure to comply with s. 505, the undertaking was not in effect on the date he was alleged to have breached it. This was the only defence advanced at trial. Crown and defence agreed that if the respondent’s argument carried the day, he should be acquitted and if the argument failed, he should be convicted. The trial judge accepted the argument and acquitted the respondent.
[10] The Crown appealed. The summary conviction appeal court dismissed the appeal and affirmed the acquittal.
[11] The Crown seeks leave to appeal. In keeping with this court’s current practice, the leave application and the merits of the appeal were addressed in a single hearing. I would grant leave to appeal and allow the appeal. I will address the appropriate order at the end of these reasons.
III. SHOULD LEAVE BE GRANTED?
[12] This is an appropriate case in which to grant leave to appeal in a summary conviction proceeding. The issue raised by the Crown involves a question of law and raises a matter of criminal procedure of general importance to the day-to-day administration of criminal justice. Counsel for the respondent did not suggest that the Crown’s position was not arguable. For the reasons I will develop, I think it is much more than arguable: R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641 (C.A.).
[13] I would grant leave to appeal.
IV. THE FACTS
[14] The facts are straightforward. On July 22, 2004, the respondent was arrested on charges of assaulting a police officer and failing to provide a roadside breath sample. He was released that night by a peace officer on a promise to appear. The promise to appear required him to attend court in answer to the charges on August 26, 2004. At the time of his release, the respondent entered into an undertaking. That undertaking included the condition that the respondent abstain from the consumption of alcohol.
[15] On August 23, 2004, three days before the respondent’s scheduled first court appearance, a police officer swore an information alleging the two offences for which the respondent had been arrested and released about a month earlier. It would appear from the face of the information that the promise to appear was confirmed on that date.[^4]
[16] The respondent made his first court appearance on August 26, 2004, as directed by the promise to appear. The Crown elected to proceed summarily and the matter was adjourned to September 10, 2004.
[17] On September 9, 2004, a police officer stopped the respondent as he was walking down the street. The officer believed that the respondent had been drinking. He arrested the respondent and charged him with breaching the term of his undertaking that required him to refrain from consuming alcohol.
[18] On September 10, the day after he was charged with breaching his undertaking, the respondent made his second court appearance on the initial charges of assault and refusing to provide a breath sample. Those proceedings were adjourned to September 23, 2004, and adjourned several times after that date.
[19] At the respondent’s trial on the charge of breaching his undertaking, the Crown accepted that the information containing the initial charges of assault and refusing to provide a breath sample had not been laid “as soon as practicable”. The Crown agreed that on the authorities, that failure rendered the promise to appear of no force and effect. The Crown submitted, however, that the undertaking remained valid as long as the charges on which the respondent had been released on that undertaking were before the court.
V. THE REASONS IN THE COURTS BELOW
[20] The core of the trial judge’s reasoning is found in this passage from his reasons:
The scheme of Part XVI of the Code illustrates clearly that the Promise to Appear and the Undertaking are in essence a single release document – one setting out the attendance requirements and the other setting out the conditions or restrictions. It makes sense that the Undertaking can only remain in existence as long as the Promise to Appear remains valid.
[21] The trial judge accepted the Crown’s contention that the failure to swear the information “as soon as practicable” as required by s. 505 did not affect jurisdiction over the offence, but led only to a loss of jurisdiction over the accused. He reasoned, however, that the respondent’s subsequent attendance in court, while sufficient to restore jurisdiction over the person on the charges, could not breathe life back into what had become a void undertaking.
[22] The trial judge also rejected the Crown’s argument that in advancing the contention that the undertaking was not in force on the day of the alleged breach, the respondent was making an improper collateral attack on that undertaking.
[23] The Crown renewed its arguments before the summary conviction appeal court. The summary conviction appeal court judge rejected the submission that the defence advanced at trial constituted an improper collateral attack on the undertaking (para. 15). He also rejected the Crown’s argument that the undertaking was not invalidated by the failure to comply with s. 505. Although the summary conviction appeal court judge expressed substantial agreement with the trial judge, he did hold, contrary to the trial judge, that the failure to comply with the “as soon as practicable” requirement in s. 505 resulted in a loss of jurisdiction over the offences (para. 13). The summary conviction appeal court judge erred in law in so holding. As the trial judge correctly pointed out, this court’s jurisprudence makes it clear that failure to comply with the “as soon as practicable” requirement results only in a loss of jurisdiction over the person: see, for example, Naylor.
[24] Counsel for the respondent acknowledges that the summary conviction appeal court judge erred in law in describing the effect of non-compliance with s. 505. He submits, however, that the error is not determinative of the outcome of this appeal. I agree. Whether jurisdiction was lost over the offences or not, this appeal depends on whether the courts below properly concluded that the promise to appear and the undertaking are so bound together that an action rendering the promise to appear a nullity must have the same effect on the undertaking.
VI. ANALYSIS
1. The Collateral Attack Rule
[25] Generally speaking, the validity of a court order can only be challenged in the proceeding in which it is made or on an appeal or judicial review from that proceeding: R. v. Wilson, 1983 35 (SCC), [1983] 2 S.C.R. 594, at p. 599; R. v. Domm (1996), 1996 1331 (ON CA), 31 O.R. (3d) 540 (C.A.), at p. 545, leave to appeal to S.C.C. refused (1997), 43 C.R.R. (2d) 188. For the purpose of these reasons, I will assume that the rule against collateral attack, or some legal equivalent, applies to challenges to the validity of an undertaking issued by a police officer: see R. v. J.S., 2007 44356 (ON S.C.).
[26] The defence raised by the respondent to the charge of breaching his undertaking is not a collateral attack on that undertaking. The respondent does not challenge the validity of the undertaking or the propriety of any of its terms. He does not suggest that the order was improper when made or that he was not bound to comply with that order. The respondent argues that by virtue of subsequent events, the operative Criminal Code provisions, and jurisprudence from this court interpreting those provisions, the undertaking was not in force on the date of the alleged breach.
[27] Where the prosecution charges the crime of breaching an undertaking, it must prove beyond a reasonable doubt that the undertaking was in force on the date of the alleged breach: Trotter, The Law of Bail in Canada, 2nd ed., at p. 440. The respondent’s defence does not collaterally attack the validity of any order, but takes issue with an essential component of the actus reus of the crime charged by the prosecution.
[28] The respondent’s defence is no different than a defence advanced by an accused who is charged with breaching an undertaking the day after his acquittal on the charges that gave rise to the undertaking. Clearly, that accused would be entitled to defend on the basis that the undertaking was not in effect on the date of the alleged breach. This respondent’s defence is the same. I also see no distinction between the respondent’s defence and a defence to a charge of failure to appear based on the contention that the promise to appear was invalidated by the failure to swear the information “as soon as practicable”. That defence has been repeatedly acknowledged by this court: see, for example, Markovic at paras. 15, 24. The rule against collateral attack is not engaged by the defence put forward on behalf of the respondent.
2. Was the Undertaking in Force on the Date of the Alleged Breach?
[29] The promise to appear and the undertaking given to a peace officer are closely related documents. Taken together, they are an integral part of the “police bail” provisions in Part XVI of the Criminal Code. I cannot, however, agree with the trial judge that the two documents are “in essence a single release document”. The documents serve two very different purposes.
[30] The purpose of the promise to appear is to secure the initial attendance of the accused in court.[^5] Subsequent court attendances are pursuant to court orders. A defect in the promise to appear, or the process required to confirm a promise to appear, will not affect the validity of the information charging the offences referred to in the promise to appear. Nor will those defects affect the Crown’s ability to proceed on the charges referred to in the promise to appear, or the ultimate disposition of those charges: see Criminal Code, ss. 485(2), (3). In short, after the first appearance of an accused, the promise to appear is largely irrelevant to the criminal process.
[31] The undertaking serves a very different purpose. It constitutes a promise by the accused to comply with certain conditions in exchange for his release from custody pending the resolution of the charges. The conditions in the undertaking are put in place to protect the public by providing some measure of control over an accused’s conduct while the criminal proceedings are extant. Subject to variation of the undertaking through the review procedures set out in the Criminal Code (see ss. 503(2.2), (2.3)), the terms of the undertaking, like the terms of most forms of judicial bail, remain in full force and effect until the accused is tried and, if convicted, sentenced: Criminal Code, s. 523(1)(b).
[32] The purpose of an undertaking, and the rationale underlying the peace officer’s power to release on an undertaking, link that document, not to the initial attendance in court of the accused, but to the criminal charges on which the accused was released as those charges progress to disposition. Viewed purposively, the life of the undertaking should be tied to the life of the charges giving rise to the undertaking. The language of s. 523(1)(b) makes that link.
[33] In the present case, the charges on which the respondent was released on his undertaking were before the court on September 9, 2004, the date of the alleged breach of his undertaking. As of September 9, the court had both jurisdiction over the offences on which the respondent had been released on his undertaking and jurisdiction over the respondent. The allegations were making their way through the process presumably to an adjudication on their merits. The justification for the undertaking in the first place – to secure the respondent’s good behaviour pending the outcome of the charges against him – remained as valid on September 9 as it had been on the day he was released on his undertaking.
[34] During argument, counsel submitted that if the undertaking survived after the promise to appear was rendered invalid, an accused could remain subject to an undertaking issued by a peace officer for an indefinite period of time when there were no longer any charges against that accused. I disagree. The undertaking cannot survive if the charges giving rise to the undertaking are no longer before the court. As indicated above, no one suggests that the charges on which the respondent was released on his undertaking were not properly before the court as of September 9. There may be cases where non-compliance with a provision or provisions in Part XVI of the Criminal Code raises a genuine question as to whether a charge on which a person was released on an undertaking was still before the courts as of the date of the alleged breach of the undertaking. That is not this case. It would not be helpful to speculate on the potential outcome of other hypothetical cases involving different factual scenarios.
[35] Not only does a purposive examination of the promise to appear and the undertaking tell me that the two documents should not share a common lifespan, the relevant provisions of the Criminal Code support the same conclusion. The promise to appear is ineffective unless an information is laid in compliance with s. 505 and the promise to appear is confirmed by a justice of the peace pursuant to s. 508. These requirements reflect the policy that no person should be compelled to attend court in answer to a criminal charge unless the judicial officer has reviewed that charge and determined that the accused should be required to come to court. The legal enforceability of the promise to appear depends on placing an information before a justice of the peace in compliance with s. 505 and the confirmation of the appearance notice in compliance with s. 508. The accused’s legal obligation to attend court in compliance with the promise to appear, therefore, does not crystallize until some time between the date on which the accused is released on the promise to appear, and the date on which he is actually required to appear.
[36] The language of s. 145(5) makes the delayed enforceability of the promise to appear clear. The offence created by that section provides that the promise to appear must have been “confirmed by a justice under section 508” before failure to appear as required by that document will constitute an offence.
[37] In contrast to the delayed enforceability of the promise to appear, an undertaking issued by a peace officer is effective immediately.[^6] The undertaking is in full force and effect even before the information relating to the charges in the undertaking is laid pursuant to s. 505 and the appearance notice is confirmed pursuant to s. 508. Non-compliance with an undertaking at any time after it is issued is a criminal offence.
[38] The immediate enforceability of the undertaking is clear from the language of s. 145(5.1), the section which creates the offence of non-compliance with an undertaking issued by a police officer. In reference to s. 145(5.1), Professor Trotter (now Trotter J.) observes in The Law of Bail in Canada, 2nd ed., at p. 444:
In a previous version of s. 145, breaches of these undertakings were criminalized by s. 145(3). Under this provision, it was unclear whether the underlying process (the promise to appear or recognizance) had to be confirmed as a condition precedent to liability. It is now clear from the wording of s. 145(5.1), particularly when contrasted with s. 145(5), that no process need be confirmed to make the undertaking enforceable through the criminal sanction. For the reasons discussed in Chapter 2 (Police Bail), this is sensible. [Emphasis added.]
[39] Not only do the Criminal Code provisions provide that the undertaking is effective and binding on an accused before a promise to appear is validated, but nothing in the relevant provisions of the Criminal Code ties the enforceability of the undertaking to the validity of the promise to appear. To the contrary, s. 523(1) expressly ties the ongoing enforceability of the undertaking to the continued prosecution of the offence, or a related offence, on which the accused was released on the undertaking: see R. v. LaFontaine (1973), 1973 1478 (ON SC), 13 C.C.C. (2d) 316 (Ont. H.C.).
[40] For the reasons set out above, I would hold that the invalidity of the promise to appear caused by the failure to lay the information “as soon as practicable” does not render the undertaking void or otherwise ineffective. The life of the undertaking is tied to the existence of the ongoing criminal proceedings in respect of the charges that gave rise to the undertaking. Those charges were alive and well on September 9 when the respondent allegedly breached his undertaking.
VII. THE APPROPRIATE ORDER
[41] The respondent was bound by the terms of the undertaking on the day of the alleged breach. The order of the summary conviction appeal court affirming the acquittals must be quashed and in its place an order should go setting aside the acquittals. Given the positions of the parties at trial, all other things being equal, this would be an appropriate case to substitute convictions and remit the matter to the trial court for sentencing.
[42] In the course of argument, however, the court expressed concern about the length of time that these matters had been before the courts. The appellant was arrested on the breach of undertaking charge in September 2004, almost four and a half years ago. He was tried 20 months after his arrest and his first appeal was completed about 13 months later. This Crown appeal has been in this court for about 19 months.
[43] In response to questions from the court, Crown counsel candidly acknowledged that she could offer no explanation that might mitigate the delay. She also stressed that the legal issue was of far more importance to the Crown than the outcome of this particular case. Counsel fairly acknowledged the potential hardship of being sentenced for relatively minor offences so many years after the events.
[44] In the circumstances, I do not think that the interests of justice would be served by remitting this matter for sentencing. I would set aside the acquittals, substitute convictions and stay any further proceedings against the appellant. In the result, the respondent would stand convicted but would suffer no penalty.
RELEASED: “DD” “MAR 12 2009”
“Doherty J.A.”
“I agree J. Simmons J.A.”
“I agree E.E. Gillese J.A.”
[^1]: There are other release documents available to the peace officer under Part XVI, and release may also be effected by a peace officer known as an “officer in charge”. These variations have no impact on the issue in this appeal.
[^2]: The promise to appear may also compel the person to appear at a time and place for the purpose of the Identification of Criminals Act, R.S.C. 1985, c. I-1. Failure to comply with that requirement is also a criminal offence under s. 145(5).
[^3]: The respondent was also charged with resisting arrest. There is no need to give that allegation any separate consideration, however, as counsel agree that it stands or falls with the fail to comply charge.
[^4]: I say it would appear that the promise to appear was confirmed because the notation “cancelled” appears on the promise to appear. That notation is dated September 10, 2004. I do not know what to make of this notation, as the purported cancellation is some two weeks after the scheduled first court appearance.
[^5]: As indicated above, the promise to appear may also require attendance for the purpose of the Identification of Criminals Act. That requirement is not germane to this discussion: Criminal Code, s. 501(3).
[^6]: The summary conviction appeal court judge mistakenly referred to the undertaking as being “confirmed” by a justice of the peace (para. 3). The Criminal Code does not require confirmation of the undertaking.