Her Majesty the Queen v. Ladouceur

[Indexed as: R. v. Ladouceur]

Ontario Reports

Court of Appeal for Ontario,

Simmons, Hoy JJ.A. and Speyer J. (ad hoc)

May 21, 2013

116 O.R. (3d) 64 | 2013 ONCA 328

Case Summary

Criminal law — Indictment and information — Accused released on promise to appear that listed non-juridical date — Justice of the peace issuing summons for corrected date but failing to cancel appearance notice — Accused appearing several times and then successfully quashing information on basis that non-compliance with confirmation process in s. 508 of Criminal Code depriving court of jurisdiction over offence — Crown appeal allowed — Failure to comply with confirmation process not affecting validity of properly laid information — Non-compliance resulting in loss of jurisdiction over person but not in loss of jurisdiction over offence — Criminal Code, R.S.C. 1985, c. C-46, s. 508.

The accused was charged with care or control over 80 and was released on a promise to appear. A justice of the peace did not confirm the promise to appear, presumably because the return date fell on a non-juridical day, and instead substituted a summons to compel the accused to attend court on a different date. The justice failed to endorse on the summons that the original promise to appear was cancelled, as required by s. 508(1)(b)(ii) of the Criminal Code. The accused appeared in accordance with the summons. The case was remanded a number of times. Prior to arraignment, the accused moved successfully to quash the information on the basis that the non-compliance with s. 508 deprived the court of jurisdiction over the offence. That decision was affirmed on appeal. The Crown appealed.

Held, the appeal should be allowed.

Non-compliance with s. 508 of the Code does not affect the validity of a properly laid information and does not cause the court to lose jurisdiction over the offence. Rather, it results in a defect in process that causes a loss of jurisdiction over the person, which can be regained if the accused attends in court.

R. v. Gougeon, 1980 2842 (ON CA), [1980] O.J. No. 1342, 55 C.C.C. (2d) 218, 5 W.C.B. 152 (C.A.), not folld

R. v. Duran, [2011] O.J. No. 5664, 2011 ONSC 7346, 285 C.C.C. (3d) 46, 98 W.C.B. (2d) 217 (S.C.J.); R. v. Markovic (2005), 2005 36251 (ON CA), 77 O.R. (3d) 752, [2005] O.J. No. 4286, 204 O.A.C. 35, 200 C.C.C. (3d) 449, 22 M.V.R. (5th) 213, 67 W.C.B. (2d) 816 (C.A.); R. v. Oliveira, [2009] O.J. No. 1002, 2009 ONCA 219, 247 O.A.C. 156, 243 C.C.C. (3d) 217, consd

Other cases referred to

R. v. Allen, 1974 1451 (ON CA), [1974] O.J. No. 998, 20 C.C.C. (2d) 447 (C.A.); R. v. Millar, [2012] O.J. No. 1276, 2012 ONSC 1809, 285 C.C.C. (3d) 208, 101 W.C.B. (2d) 40 (S.C.J.); R. v. Naylor, 1978 2371 (ON CA), [1978] O.J. No. 1131, 42 C.C.C. (2d) 12, 2 W.C.B. 535 (C.A.); R. v. Sandoval, [2000] O.J. No. 5591 (S.C.J.); R. v. Smith, [2008] O.J. No. 381, 77 W.C.B. (2d) 185 (S.C.J.); R. v. Whitmore, 1987 6783 (ON SC), [1987] O.J. No. 102, 41 C.C.C. (3d) 555, 1 W.C.B. (2d) 384 (H.C.J.) [page65 ]

Statutes referred to

Bail Reform Act, S.C. 1970-71-72, c. 37

Criminal Code, R.S.C. 1985, c. C-46, ss. 485, 505, 507 [as am.], 508, (1)(b)(i), (ii), (c)

APPEAL from the judgment of Edwards J., [2011] O.J. No. 6138, 2011 ONSC 8018 (S.C.J.) affirming the order of N. Dawson J., [2010] O.J. No. 5281, 2010 ONCJ 587 (C.J.) quashing an information.

David Finley, for appellant.

Philip B. Norton, for respondent.

The judgment of the court was delivered by

[1] SPEYER J. (ad hoc): — What effect does non-compliance with s. 508 of the Criminal Code, R.S.C. 1985, c. C-46 have on the validity of an information? Is the information a nullity, resulting in loss of jurisdiction over the offence, or does non-compliance with s. 508 simply result in a loss of jurisdiction over the person? These questions of law are at the heart of this appeal.

[2] There has been a significant lack of judicial consensus on the effect of non-compliance with s. 508, illustrated by multiple conflicting decisions in both the Superior Court of Justice and the Ontario Court of Justice. The issues of law in this appeal are matters of general importance to the administration of criminal law and require clarification. Leave to appeal is granted.

Facts

[3] On October 30, 2009, the respondent was stopped by police and charged with "care and control over 80". He was released from the police station on a promise to appear that required him to attend court at the Ontario Court of Justice in Barrie on Monday, December 28, 2009. The officer who issued the promise to appear did not foresee that court was not scheduled to sit that day: Monday, December 28 was a non-juridical day due to Christmas falling on Friday the 25 and Boxing Day on Saturday the 26.

[4] On December 4, 2009, 24 days before the respondent was required to appear in court, the information was sworn by a police officer before a justice of the peace. The same day, the same justice issued a summons that required the respondent to appear in court on a new return date of December 21, 2009. While it is not entirely clear from the record, it is reasonable to infer that the justice was alert to the fact that court was not [page66 ]scheduled to sit on December 28, 2009. Accordingly, rather than confirm the promise to appear, the justice decided to substitute a summons to compel the respondent to attend court on a different date.

[5] Where an accused is released on a promise to appear prior to the laying of the information, s. 508 of the Criminal Code provides for judicial screening of the promise to appear before the accused is required to attend at his or her first court appearance. Once the information is sworn, s. 508 provides the justice of the peace with the following statutory options:

(i) to confirm the promise to appear issued by the police, by so endorsing the information (which includes ticking off the appropriate box on the face of the information) (s. 508(1)(b)(i));

(ii) to cancel the promise to appear and issue a summons or warrant compelling the citizen to attend court and endorse on the warrant or summons that the promise to appear has been cancelled (s. 508(1)(b)(ii)); or

(iii) where the judicial officer considers that the case is not made out, to cancel the promise to appear altogether and cause the citizen to be notified forthwith of the cancellation (s. 508(1)(c)).

[6] In the instant case, the justice did not confirm the promise to appear, presumably because the return date on the promise to appear fell on a non-juridical day. Accordingly, the specific box on the front page of the information indicating that the process is confirmed is blank and that part of the information which provides for the signature of the justice is also blank.

[7] Instead, the justice sought to substitute a summons with a new return date to compel the respondent's first appearance in court. The flaw in the confirmation process stems from the justice's failure to endorse on the summons that the original promise to appear was cancelled (see s. 508(1)(b)(ii)).

[8] On December 21, 2009, in accordance with his summons, the respondent personally appeared in the Ontario Court of Justice. Although the respondent had retained counsel, counsel was unable to attend at the first appearance; instead, duty counsel spoke to the matter on behalf of the respondent. The transcript of the respondent's first appearance discloses that the Crown elected to proceed by way of summary conviction and that Crown disclosure had been provided. Not surprisingly, with the respondent's counsel not in attendance, there was no mention of jurisdictional issues. [page67 ]

[9] The case was remanded on four further occasions before the trial date of November 9, 2010. The first complaint concerning the failure to comply with the confirmation process took place at trial. Prior to arraignment, the respondent's counsel brought a "Gougeon" motion before Dawson J. arguing, successfully, that the failure to adhere to the statutory options set out in s. 508 deprived the court of jurisdiction over the offence. Dawson J., alive to the conflicting authorities, ruled that the obiter dicta of Morden J.A. in R. v. Gougeon, 1980 2842 (ON CA), [1980] O.J. No. 1342, 55 C.C.C. (2d) 218 (C.A.), indicating that a failure to confirm process results in loss of jurisdiction over the offence, is the authoritative statement of the law in Ontario, and quashed the information for want of compliance with the confirmation process.

[10] The Crown appealed. Edwards J. dismissed the appeal, concluding [at para. 23]:

The learned justice was quite correct in my view to follow Gougeon. If Gougeon is not to be followed in the future, it will require a decision of our Court of Appeal or an amendment to the Criminal Code.

Two divergent lines of authority

(i) The Gougeon line of cases

[11] Many judges in this province have felt bound by, and have followed, the obiter dicta expressed in Gougeon, at pp. 227-28 C.C.C.:

Accepting the principle that process is not essential to the jurisdiction of the Court (although with respect to some aspects of process this statement is probably too broad, as I shall indicate) and that its purpose, as far as we are concerned in these matters, is to bring the accused before the Court, I am not able to accept the submissions made on behalf of the accused persons. The situation would be otherwise, of course, if the objections related to defects of a jurisdictional nature -- depending on the nature of the defect and when the objection is made.

While this is not intended to be an exhaustive list of jurisdictional defects respecting process to which a valid objection may be made, I would also include a failure to obtain prior judicial sanction under ss. 455.3(1) [now s. 507][^1] or 455.4(1) [now s. 508] of the Code, where the Crown purports to rely upon the kinds of process referred to in those provisions to bring the accused before the Court. I appreciate that there is not judicial unanimity on this point but it appears to me that the fundamental purpose of these provisions, which is to protect persons from having to appear in Court [page68 ]to answer charges where a judicial officer does not consider that a case for the issuing of process has been made out, would be thwarted if the law did not allow their breach to be raised on a timely objection to the Court's jurisdiction. In my view, the legislative policy underlying these provisions overrides the principle of acquisition of jurisdiction by mere appearance.

[12] For example, in R. v. Smith, [2008] O.J. No. 381, 77 W.C.B. (2d) 185 (S.C.J.), Belobaba J. of the Superior Court of Justice, following Gougeon, agreed that the failure to confirm the form of release on the information as required by s. 508(1)(b)(i) resulted in a loss of jurisdiction over the offence, and accordingly ruled that the information was properly quashed for jurisdictional defect. In arriving at his conclusion, Belobaba J. recognized but distinguished a competing line of cases arriving at a contrary conclusion. He found the authority of Gougeon to be strong and compelling, "no doubt because of the thoroughness of Justice Morden's analysis in Gougeon and because of the composition of the Court"[^2] (at para. 8). Moreover, like Edwards J. in the present case, Belobaba J. was of the view that a departure from the Gougeon dicta would require a decision from this court to change the law.

[13] Similarly, A. Campbell J. in R. v. Sandoval, [2000] O.J. No. 5591 (S.C.J.), at para. 1, citing Gougeon, was not persuaded that it was open to him "to set aside the settled judicial understanding in this province that noncompliance with Code s. 508 . . . is capable of affecting the jurisdiction of the trial judge to enter upon a trial".

[14] Smith, Sandoval and the present appeal are but a small sample of cases that illustrate the important pedigree accorded to the Gougeon dicta and its influence in determining much of the s. 508 jurisprudence of this province where courts have found that a deficiency in the confirmation process does affect the validity of an information.

(2) The Oliveira line of authority

[15] A second body of authority has confronted and rejected the view that a defect in the confirmation process affects the validity of an otherwise valid information. Two recent decisions declining to follow the Gougeon line of cases are Code J.'s decision in R. v. Millar, [2012] O.J. No. 1276, 2012 ONSC 1809, 285 C.C.C. (3d) 208 (S.C.J.), and Trotter J.'s decision in R. v. Duran, [2011] O.J. No. 5664, 2011 ONSC 7346, 285 C.C.C. (3d) 46 (S.C.J.). These decisions draw upon the dicta of Doherty J.A. in [page69 ]R. v. Oliveira, [2009] O.J. No. 1002, 2009 ONCA 219, 243 C.C.C. (3d) 217, at para. 30:

The purpose of the promise to appear is to secure the initial attendance of the accused in court. 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.

(Emphasis added; footnotes omitted)

Analysis

[16] More than four decades ago, Parliament enacted the Bail Reform Act, S.C. 1970-71-72, c. 37, which conferred upon police, in appropriate circumstances, the power to release a citizen following his arrest and to compel his attendance in court. A promise to appear, like an appearance notice, is a form of "process" that gives discretionary powers to the police to release a citizen in advance of any judicial scrutiny.

[17] Where a promise to appear is issued before the swearing of an information, as occurred in this case, two requirements must be met before the accused is legally compelled to attend at his or her first court appearance. First, s. 505 of the Code requires that an information be laid "as soon as practicable" and, "in any event before the time stated in the . . . promise to appear". Second, the issuance of process must be properly confirmed by a justice of the peace under s. 508 of the Code.

[18] In the event of a failure to comply with the time limit for laying an information under s. 505, the law is well settled that the promise to appear is defective and non-compliance with s. 505 provides a complete defence to a charge of failure to appear as directed by the promise to appear. However, the defect does not affect the validity of the information. In a nutshell, jurisdiction is lost over the person, but not over the offence; that is, the validity of the information survives a defect in the process: see R. v. Naylor, 1978 2371 (ON CA), [1978] O.J. No. 1131, 42 C.C.C. (2d) 12 (C.A.) and R. v. Markovic (2005), 2005 36251 (ON CA), 77 O.R. (3d) 752, [2005] O.J. No. 4286, 200 C.C.C. (3d) 449 (C.A.).

[19] So, if an information survives a defect in the time limit imposed by s. 505, the crucial issue raised in this appeal is whether there is any reason, based in logic or policy, why a deficiency in the confirmation process set forth in s. 508 ought to operate differently so as to nullify a valid information. I am of [page70 ]the view that a defect in the confirmation process does not affect the validity of an information. The legal consequence of a deficiency in the confirmation process set forth in s. 508 is to provide a complete defence to a charge of failing to appear as directed by the promise to appear and to prohibit a warrant from issuing for the accused's arrest. A failure to conform to the requirements of s. 508 results in a defect in the process and a loss of jurisdiction over the person; it does not result in loss of jurisdiction over the offence. I come to this conclusion for several reasons.

[20] First, I agree with Trotter J. in Duran, at para. 11, as to the harmonious relationship between ss. 505 and 508. In view of the close connection between these two sections, he reasoned that a flaw in the confirmation process in s. 508 should not produce a different result than that flowing from a deficiency in respect to s. 505. Trotter J. put it this way:

[T]hese sections must be considered together, hand-in-hand. Section 505 imposes a temporal requirement for swearing informations, not for its own sake, but for the purpose of ensuring that the confirmation process takes place in a timely fashion. Practically speaking, the swearing of the information (s. 505) and the confirmation process (s. 508) take place virtually simultaneously. Deficiencies touching on either aspect of this procedure should not lead to different results in terms of whether the state should be prohibited from continuing with a prosecution.

[21] Moreover, just as ss. 505 and 508 should be considered together, "hand-in-hand", there is also a significant overlap between ss. 507 and 508. Both sections govern the issuance of process in the case of police-laid informations. In the case of s. 507, a justice issues process (a summons or a warrant) after the information has already been laid. With respect to s. 508, the laying of the information and the confirmation process occur subsequent to process having been issued by police. The main difference between the sections is the order in which events take place. In one case, the information is laid prior to the issuance of process; in the other, process is issued and then the information is laid and the process confirmed.

[22] In the case of a s. 507 deficiency, the law is clear that an information is not rendered a nullity for want of process. In R. v. Allen, 1974 1451 (ON CA), [1974] O.J. No. 998, 20 C.C.C. (2d) 447 (C.A.), two informations were laid by a complainant and a hearing was conducted before a justice of the peace. The justice, after hearing the allegations, refused to issue process, specifically, a summons. The justice also purported to cancel the informations.

[23] This court held that even though a justice of the peace, acting judicially, refused to issue a summons, the informations remained valid, and, absent an abuse of process, the complainant [page71 ]was entitled to appear before another justice to request, on evidence presented, the issuance of a summons. It is difficult to rationalize how a valid information can survive a failure of process under s. 507 and yet be considered a nullity for want of confirmation under s. 508.

[24] In sum, s. 508 must be interpreted in light of the court's treatment of ss. 505 and 507. The failure to follow the requirements of either of those provisions does not invalidate the information. I cannot see a reason for treating a failure to follow the requirements of s. 508 any differently.

[25] Second, s. 508 has an important but limited purpose. Until the confirmation process is complete, a promise to appear does not bind an accused person. The judicial screening under s. 508 is aimed at protecting an accused from an unwarranted court appearance: Gougeon, at p. 227 C.C.C.; Millar, at para. 48. In this way, the provision is a "key accountability-enhancing feature" of the police bail powers: Duran, at para. 5. For example, in appropriate circumstances, a justice may cancel the promise to appear altogether. Or, as in the present case, cancel the promise to appear and substitute a summons because no court was scheduled to sit on the return date on the promise to appear. What a justice scrutinizing the confirmation process does not have is the power to dismiss the charge.

[26] If an accused is arrested and held for a bail hearing, no jurisdiction exists for the justice presiding at the bail hearing to inquire into the sufficiency of the allegations and quash the information or dismiss the charge. In such circumstances, there is no need to confirm process because the accused is already before the court: R. v. Whitmore, 1987 6783 (ON SC), [1987] O.J. No. 102, 41 C.C.C. (3d) 555 (H.C.J.), at p. 561 C.C.C. As Crown counsel argues in this appeal, it would be an incongruous situation that a flawed confirmation process could invalidate an information for want of jurisdiction, thereby terminating a criminal proceeding, yet, in the circumstances of an accused held for a bail hearing, a review of an informant's allegations by the presiding justice would not be permitted.

[27] Moreover, rational criminal law policy supports the finding that a justice should not have the power to dismiss charges under s. 508. At the time of the s. 508 confirmation process, there is little evidence before the justice and the accused is not present. Furthermore, as Code J. pointed out at para. 52 of Millar:

[I]f there is truly no case to answer, or if the case is simply too weak to convict, the remedies available at trial are far more potent. . . . Failure to confirm process under s. 508, or to issue process under s. 507, simply means the [page72 ]authorities can gather further and better evidence and then return and try again before a different Justice of the Peace.

[28] Third, as noted, leave to appeal in the present case is granted to remove conflicts and uncertainty in the law as it pertains to the consequences of non-compliance with s. 508. Recent jurisprudence from this court, by way of clear obiter dicta, indicates that a flaw in the confirmation process will result in a loss of jurisdiction over the person, but not a loss of jurisdiction over the offence. Both Cronk J.A. in Markovic and Doherty J.A. in Oliveira held that despite deficiencies of process, the informations remain valid. The key passages in each case are the following:

"Accordingly, the subsequent flawed confirmation of the promise to appear did not operate to vitiate what, in the circumstances, was valid information" (Markovic, at para. 29).

"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" (Oliveira, at para. 30).

[29] In considering this dicta, it is important to acknowledge that the jurisdictional consequences of a failure to conform to the statutory requirements of s. 508 was not the issue requiring determination in either case, though a flaw in the promise to appear existed on the facts of both.

[30] That said, I find the dicta in Markovic and Oliveira compelling and difficult to reconcile with the dicta in Gougeon. Interestingly, in Millar, at paras. 29-41, Code J., in a scholarly analysis of the jurisprudence at the time of the Gougeon decision, explains that a state of confusion in the law existed with respect to jurisdiction over the person and jurisdiction over the offence. Subsequent developments in the law emanating from the Supreme Court of Canada, as well as Parliament's enactment of s. 485 of the Code, had the effect, in Code J.'s view, of reversing the Gougeon dicta. I find considerable merit in Code J.'s analysis.

[31] In the result, I am persuaded that there is no principled reason why non-compliance with the confirmation process in s. 508 should affect the validity of a properly laid information. It results in a defect in process that causes a loss of jurisdiction over the person. This loss of jurisdiction over the person can be regained if the accused attends in court. There is no reason to depart here from that well-established principle: see Naylor, at p. 19 C.C.C., and Markovic, at para. 24. [page73 ]

[32] The appeal is allowed. A new trial is ordered. In this case, the respondent has been obligated to retain counsel on two Crown appeals. This factor might be considered in the Crown's decision as to whether to pursue a new trial.

Appeal allowed.

Notes

[^1]: As discussed below, s. 507 sets out the procedure for issuing process after the information is laid. Section 508 governs the procedure for confirming process where the police issue process before the information is laid.

[^2]: The panel in Gougeon was composed of Brooke, Martin and Morden JJ.A.

End of Document