Court File and Parties

CITATION: R. v. Holowaychuk, 2009 ONCA 458

DATE: 20090604

DOCKET: C49962

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Sharpe and Rouleau JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Stefan Holowaychuk

Appellant

Counsel: John Bilton, for the appellant Peter Scrutton, for the respondent

Heard and orally released: May 29, 2009

On appeal from the order of Justice P. Smith of the Ontario Court of Justice dated November 26, 2008.

ENDORSEMENT

[1] We assume, without deciding, that there is a right of appeal to this court. We dismiss the appeal. In our view, the Superior Court had jurisdiction over the appellant and the offence at the time the appellant applied to be released from custody on November 24, 2008. Section 470 of the Criminal Code provides the Superior Court with that jurisdiction. It reads as follows:

470. Subject to this Act, every superior court of criminal jurisdiction and every court of criminal jurisdiction that has power to try an indictable offence is competent to try an accused for that offence

(a) if the accused is found, is arrested or is in custody within the territorial jurisdiction of the court; or

(b) if the accused has been ordered to be tried by

(i) that court, or

(ii) any other court, the jurisdiction of which has by lawful authority been transferred to that court.

[2] The appellant had been committed for trial in the Superior Court by the Ontario Court of Justice and an indictment had been preferred in that court. There is no challenge to the validity of the committal for trial. In addition, the appellant had appeared in the Superior Court on the indictment two months prior to the application for release and had waived arraignment. In our view, these circumstances bring this case within the provisions of s. 470.

[3] The appellant argues, however, that the Superior Court lost jurisdiction by virtue of the operation of s. 485(3) of the Criminal Code. We disagree. Section 485(3) only applies to situations where a summons or warrant under s. 485(2) was not issued within the three-month period stipulated therein. Section 485(2), however, only applies to situations where jurisdiction has been lost over an accused person.

[4] In our view, the Superior Court did not lose jurisdiction over the appellant in this case. In this respect, we agree with the reasoning of the courts in the cases of R. v. Larabie, [1986] B.C.J. No. 2441 (B.C.S.C.) and R. v. Smith, [2008] O.J. No. 739 (S.C.J.). Accordingly, we see no basis to interfere with the decision of the judge below in refusing to release the appellant.

[5] The appellant also appeals the order of the judge below dismissing his application to quash the information charging him with failing to appear. Without accepting that there is merit to this argument, we are of the view that, in the circumstances of this case, the argument should more properly be raised as a defence at trial rather than by way of motion to quash.

[6] In the result, the appeal is dismissed.

“D. O’Connor A.C.J.O.”

“Robert J. Sharpe J.A.”

“Paul Rouleau J.A.”