Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Jacek Ladzinski

Before: Justice P. Harris

Motion to Quash Judgment delivered on: April 13, 2012

Counsel

For the Crown: Mihael Cole and Ruth Kleinhenz-Neilson

For the Defence: Jonathan Rosenthal

Decision

HARRIS J.:

[1] Charges and Application

The Applicant, Jacek Ladzinski is charged that on November 19th, 2010, he did commit the offences of operating a motor vehicle while his ability was impaired by alcohol or a drug, and while the concentration of alcohol in his blood exceeded 80 mgs. of alcohol in 100 mls. of blood. At the commencement of the trial on these charges the defence brought an application to quash the information on the grounds that it is a nullity. Submissions have been made by the Defence and the Crown and the matter is now before me for a ruling.

[2] Procedural History

The Applicant was arrested and released from custody on a Promise to Appear by the officer in charge and that document required that he appear on December 21, 2010 at Old City Hall, Toronto. An information in this case was sworn on December 7, 2010 before a Justice of the Peace and instead of the P.T.O. being confirmed, the Justice did not confirm the P. To A. And instead issued a summons to the Applicant returnable on December 21, 2010. The defence argues that the issuance of a summons was not permitted under s. 507 of the Code because s. 507 expressly excludes situations where an accused "has already been arrested with or without a warrant".

[3] Defence Argument

It is argued that the only other procedure available in the Code for the receipt of an information is s. 507.1 which requires, inter alia, that the Justice may issue a summons only if (a) the Justice has heard and considered the allegations of the informant and witnesses; (b) the Justice is satisfied that the Attorney General has received a copy of the information; (c) the Justice is satisfied that the Attorney General has been given reasonable notice of the hearing; (d) the Justice has given the Attorney General an opportunity to attend the hearing and cross examine and call witnesses etc. That section also requires a transcribed record of the proceedings and following a lengthy delay in this case it was established that no transcription of the proceedings before the Justice was ever made. Accordingly, since there is no evidence that these statutory steps were undertaken by the Justice, the Defence position is that a summons could not have issued. Under s. 507.1(5) if a summons does not issue, the information is deemed never to have been laid. Even though a summons did issue in this case, because the procedures in the section were not followed, a summons could not have issued and it is therefore argued that the summons was unlawful and the result is the same as if a summons had not issued ─ the information is deemed never to have been laid. Consequently, it is argued that there is no jurisdiction upon which a court can proceed and there can be no voluntary attornment.

[4] Crown Argument

The Crown argues that the expression "has already been arrested with or without a warrant" in s. 507 refers to an individual who has been arrested and held in custody and not merely arrested and released by police after the investigation. Further the Crown argues that if there has been any defect of process in bringing the Applicant before the Court, any such defect has been cured by the attornment of the Applicant to the Court's jurisdiction.

Analysis

[5] Statutory Framework

The Criminal Code sets out requirements for the swearing of an information and the issuance of process to bring a person before the court. Those provisions are set out in Sections 505, 507, 507.1 of the Criminal Code. Section 505 states as follows:

s. 505. Where

(a) an appearance notice has been issued to an accused under section 496, or

(b) an accused has been released from custody under section 497 or 498,

an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court.

R.S., c. 2 (2nd Supp.), s. 5

s. 507(1)

... [A] justice who receives an information laid under section 504 by a peace officer ... other than an information laid before the justice under section 505, shall, except if an accused has already been arrested with or without a warrant,

(a) hear and consider, ex parte,

(i) the allegations of the informant, and

(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and

(b) where he considers that a case for so doing is made out, issue ... a summons ... to compel the Accused to attend before him or some other justice ... to answer to a charge of an offence.

s. 507.1

(1) A justice who receives an information laid under section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge ... or to a designated justice, to consider whether to compel the appearance of the accused on the information.

(2) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information.

(3) The judge or designated justice may issue a summons or warrant only if he or she

(a) has heard and considered the allegations of the informant and the evidence of witnesses;

(b) is satisfied that the Attorney General has received a copy of the information;

(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and

(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing;

(4) The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the proceeding.

(5) If the judge or designated justice does not issue a summons or warrant under subsection (2), he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to have been laid.

(6) If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.

(7) If a hearing in respect of an offence has been held under paragraph (3)(a) and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held.

(8) Subsections 507(2) to (8) apply to proceedings under this section.

(9) Subsections (1) to (8) do not apply in respect of an information laid under section 810 or 810.1.

(10) In this section, "designated justice" means a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec.

(11) In this section, "Attorney General" includes the Attorney General of Canada and his or her lawful deputy in respect of proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of that Government.

[6] Defence Position Summary

The essence of the defence argument is that the Applicant had already been arrested without a warrant and consequently the procedure set out in that section 507 is unavailable. He further submits that where this particular procedure is unavailable, then the only remaining means of compelling his attendance in this case is set out in section 507.1 of the Criminal Code. However, he argues, that pursuant to section 507.1, the summons was issued without compliance with an extensive set of statutory duties. Therefore, the Applicant submits that the summons was not properly issued resulting in an information that has been statutorily deemed never to have been laid (s. 507.1(5)) and a jurisdiction that has been lost with the necessary result that the information should be quashed.

[7] Promise to Appear Argument

A related argument is that the Code requires that the Justice cancel the Promise to Appear before a summons can be issued. The P. to A. in this case was neither cancelled nor confirmed. The confirmation or the cancellation of the P. To A. is, it is submitted, a prerequisite for the use of process as set out in s. 508 of the Criminal Code and the failure to do so renders the s. 508 process unavailable as a basis for the establishment of jurisdiction for the information. Once again, since ss. 507 and 508 are unavailable in support of jurisdiction for the information, by default, it is argued that the only available foundation for the court's jurisdiction over these charges must built on s. 507.1. Section 508 provides:

s. 508. (1) A justice who receives an information laid before him under section 505 shall

(a) hear and consider, ex parte,

(i) the allegations of the informant, and

(ii) the evidence of witnesses, where he considers it desirable or necessary to do so;

(b) where he considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearance notice, promise to appear or recognizance or to an included or other offence,

(i) confirm the appearance notice, promise to appear or recognizance, as the case may be, and endorse the information accordingly, or

(ii) cancel the appearance notice, promise to appear or recognizance, as the case may be, and issue, in accordance with section 507, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice, promise to appear or recognizance, as the case may be, has been cancelled; and

(c) where he considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice, promise to appear or recognizance, as the case may be, and cause the accused to be notified forthwith of the cancellation.

Statutory Interpretation

[8] Principles of Statutory Interpretation

Statutory interpretation is concerned with doctrines that direct how courts should interpret legislative will. The leading decision in this area of law is Re: Rizzo and Rizzo Shoes Ltd., [1998] 1 SCR 27. The Supreme Court held that:

... today there is only one principle or approach ─ namely that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

[9] Court's Analysis

The linchpin of the defence position is that s. 507 and s. 508, for the reasons stated, cannot provide the Crown with a jurisdictional foundation for a valid information in this case and s. 507.1 has not been complied with resulting in an information that is statutorily "deemed never to have been laid". I have concluded that this interpretation of the Code gives rise to an absurd result and cannot be consistent with the intention of Parliament for the following reasons:

(1) Statutory Scheme and Police Procedures

In my view the police could not have used section 507.1 to issue process to secure the Applicant's attendance because the section is exclusively restricted to an "information... other than an information referred to in section 507(1)". In other words it precludes the option of a police-laid information. The Code sections operate together as a cohesive system that permits the policing authorities to have process issued on an information (s. 507), that provides for a procedure to have process issued on a private complaint (s. 507.1) and provides for a procedure to permit a peace officer to apply to a Justice to confirm or cancel process that has already been issued by a peace officer or officer in charge (s. 508). Logic dictates that the information in the instant case was laid under s. 504 and a summons was issued under s. 507 because it could not have been presented by a police officer under s. 507.1 because the latter section only applies to "private prosecutions" and it could not have been laid under s. 505 with a summons issuing under s. section 508 because that procedure provides for the confirmation or cancellation of process that has already issued and in this case the P. To A. was neither confirmed nor cancelled as that section requires. Section 507.1 clearly relates to private informations that must be subjected to a pre-enquette. The statutory purpose of section 507.1 is to screen out potentially vexatious private prosecutions, which is why the section has such elaborate protections involving notice to the Attorney General etc. It would be absurd to expect police officers to undertake such time-consuming and complicated procedures in order to bring an accused before the court to face charges. Such a protracted process could hardly have been Parliament's intention.

(2) Interpretation of "Has Already Been Arrested"

I agree with the interpretation of s. 507 helpfully articulated by Swarzl J. in R. v. Drozd [2011] O.J. No. 616 (OCJ) who concluded that the phrase "except if an accused has already been arrested with or without a warrant" in section 507(1) "refers to someone who is currently under arrest when the Information is laid". I would add the implied phrase after the word "arrested": "and detained at the time the information is laid". Any other interpretation would render the police procedure under s. 507 a purposeless anomaly reserved for only the most minor offences where there has been no arrest whatsoever. For example, virtually every accused facing drinking and driving charges is arrested and detained at least briefly for the purpose of an investigation of blood alcohol levels, and if the defence interpretation were correct the unencumbered process in s. 507 would hardly ever be available to police authorities intending to bring an impaired driver to justice. If an accused is still in detention after arrest when an information is laid, he or she will likely proceed to a bail hearing and accordingly, the issuance of process is unnecessary and s. 507 should properly be excluded for an accused for whom s. 507 does not apply. He or she is a person who "has already been arrested with or without a warrant" (and is still detained). Any other interpretation would be illogical and render section 507 pointless and ineffectual.

(3) Attornment and Procedural Defects

The battle continues as to whether the Gougeon line of authority or the Oliveira line of authority will prevail. (See: R. v. Gougeon, Haesler and Gray, 55 C.C.C. (2d) 218 (Ont. C.A.); R. v. Oliveira 2009 ONCA 219, (2009), 243 C.C.C. (3d) 217 (Ont. C.A.)). In my view the body of case authorities that support the quashing of charges for procedural irregularities is currently on life support, particularly where there has been a subsequent attornment to the court's jurisdiction. I am of the view that the Ontario court of appeal in Oliveira has decided the issue correctly in its finding that, (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.

If I am incorrect in my view that there has been no procedural irregularity in this case, on the authority of Oliviera, the defendant's subsequent attornment to the jurisdiction of the court over the course of some three appearances before this Application was brought, has the effect of curing any defective procedure and as the Ontario Court of appeal in Oliveira stated: the procedure involving the laying of the charge and the issuance of process is largely irrelevant at the trial stage of proceedings. To give effect to an application to quash at this stage would constitute a triumph of form over substance: R. v. Jennifer Millar 2012 ONSC 1809 (Ont S.C.).

[10] Disposition

Accordingly, as a result of the above conclusions, the motion to quash is dismissed.

Released: April 13, 2012

P. A. Harris J.