COURT FILE No.: Windsor 12-20255

DATE: 2012·09·12

Citation: R. v. Wallace, 2012 ONCJ 577

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Scott Edison Wallace

Before Justice of the Peace A. Renaud

Heard on August 15, 2012 and September 12, 2012

Written Submissions provided September 7, 2012

Written Reasons for Judgment released on September 12, 2012

Craig Houle for the Crown

Alyssa Silvaggi, Student-at-Law ........................................... for the defendant Scott Edison Wallace

No appearance by Scott Edison Wallace, even though notified of time and place

JUSTICE OF THE PEACE RENAUD:

On May 25, 2012, an application was brought seeking a recognizance to keep the peace be issued against Scott Wallace. Mr. Wallace retained the services of Community Legal Aid to represent him in this matter. Community Legal Aid (CLA) is a community-based organization of law students, supervised by a licensed lawyer. CLA students provide legal representation to persons of limited means and to University students on various matters, including summary criminal matters for which a person faces a maximum 6 months imprisonment. On August 15, 2012, this matter appeared before me for a hearing scheduled to last several hours.

1: ISSUES BEFORE THE COURT

Several issues arose when it became apparent that the accused, Scott Wallace, would not be in attendance as he had moved to Alberta and lacked the financial means to return and address the matter personally. The questions on which the court sought direction were as follows:

1. Could this matter proceed with the agent acting on behalf of Mr. Wallace and in his absence?
2. If so, was the student properly instructed to do so bearing in mind that the consequence of any failure to enter into a recognizance, should one be ordered, would be that a warrant of committal would issue and that Mr. Wallace might then be subject to a term of imprisonment of up to 12 months?
3. Given that there is the potential for up to 12 months imprisonment, can a law student appear given the limitations of section 802.1 CC on appearances by agents?
4. Should an order be made against the respondent, can the agent enter into the recognizance on behalf of the defendant? Alternatively can the court direct that the accused enter into the agreement in another jurisdiction?

I requested and received written factums from both parties on these issues and thank them for their assistance.

2: CASE LAW AND RELEVANT LEGISLATIVE PROVISIONS

The cases presented for my consideration were R. v. Correa, 2011 ONCJ 409 [2011] OJ No 3980; Riche v. Brown, 2010 NFLD 37, [2010] NJ No. 66; R. v. Toor, 2000 ABQB 983, [2000] AJ No 1244; R. v. Drabinsky, 2008 CanLII 40225 (ON SC), [2008] OJ No 3136, 235 CCC (3d) 350; R. v. Sterner, 1982 CanLII 160 (SCC), [1982] 1 SCR 173 (SCC); R. v. Wheeler, [1984] 50 Nfld & PEIR 62, 149 APR62 and R. v. Romanowicz, 1999 CanLII 1315 (ON CA), [1999] OJ No 3191. I will also make reference to and provide to counsel R. v. Mousseau [2011] OJ No. 1963, 2011 ONCJ 222. As well, Crown counsel was kind enough to provide relevant excerpts from the Law Society Act governing the authority of a student to act as legal representative before the summary convictions court. The relevant sections of the Criminal Code under consideration are ss. 800(2), 802.1, 803, 806(2), 810, 528, 731 and 703 which I have reproduced.

800. (1) Where the prosecutor and defendant appear for the trial, the summary conviction court shall proceed to hold the trial.

(2) A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.

802.1 Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.

2002, c. 13, s. 79.

803. (1) The summary conviction court may, in its discretion, before or during the trial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsel or agents.

(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1), the summary conviction court

(a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or

(b) may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant.

(3) If the summary conviction court proceeds in the manner described in paragraph (2)(a), no proceedings under section 145 arising out of the defendant’s failure to appear at the time and place appointed for the trial or for the resumption of the trial shall, without the consent of the Attorney General, be instituted or be proceeded with.

806. (1) Where a defendant is convicted or an order is made in relation to the defendant, a minute or memorandum of the conviction or order shall be made by the summary conviction court indicating that the matter was dealt with under this Part and, on request by the defendant, the prosecutor or any other person, the court shall cause a conviction or order in Form 35 or 36, as the case may be, and a certified copy of the conviction or order to be drawn up and shall deliver the certified copy to the person making the request.

(2) Where a defendant is convicted or an order is made against him, the summary conviction court shall issue a warrant of committal in Form 21 or 22, and section 528 applies in respect of a warrant of committal issued under this subsection.

(3) Where a warrant of committal in Form 21 is issued by a clerk of a court, a copy of the warrant of committal, certified by the clerk, is admissible in evidence in any proceeding.

R.S., 1985, c. C-46, s. 806;

R.S., 1985, c. 27 (1st Supp.), s. 185(F);

1994, c. 44, s. 80.

528. (1) Where a warrant for the arrest or committal of an accused, in any form set out in Part XXVIII in relation thereto, cannot be executed in accordance with section 514 or 703, a justice within whose jurisdiction the accused is or is believed to be shall, on application and proof on oath or by affidavit of the signature of the justice who issued the warrant, authorize the arrest of the accused within his jurisdiction by making an endorsement, which may be in Form 28, on the warrant.

(1.1) A copy of an affidavit or warrant submitted by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of subsection (1).

(2) An endorsement that is made on a warrant pursuant to subsection (1) is sufficient authority to the peace officers to whom it was originally directed, and to all peace officers within the territorial jurisdiction of the justice by whom it is endorsed, to execute the warrant and to take the accused before the justice who issued the warrant or before any other justice for the same territorial division.

R.S., 1985, c. C-46, s. 528;

R.S., 1985, c. 27 (1st Supp.), s. 93;

1994, c. 44, s. 51.

703. (1) Notwithstanding any other provision of this Act, a warrant of arrest or committal that is issued out of a superior court of criminal jurisdiction, a court of appeal, an appeal court within the meaning of section 812 or a court of criminal jurisdiction other than a provincial court judge acting under Part XIX may be executed anywhere in Canada.

(2) Despite any other provision of this Act but subject to subsections 487.0551(2) and 705(3), a warrant of arrest or committal that is issued by a justice or provincial court judge may be executed anywhere in the province in which it is issued.

R.S., 1985, c. C-46, s. 703;

R.S., 1985, c. 27 (1st Supp.), s. 149;

2007, c. 22, s. 22.

731. (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or

(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.

810. (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.

(2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division.

(3) The justice or the summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for his or her fears,

(a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or

(b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance.

(3.1) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the defendant or of any other person, to include as a condition of the recognizance that the defendant be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for any period specified in the recognizance and, where the justice or summary conviction court decides that it is so desirable, the justice or summary conviction court shall add such a condition to the recognizance.

(3.11) Where the justice or summary conviction court adds a condition described in subsection (3.1) to a recognizance order, the justice or summary conviction court shall specify in the order the manner and method by which

(a) the things referred to in that subsection that are in the possession of the accused shall be surrendered, disposed of, detained, stored or dealt with; and

(b) the authorizations, licences and registration certificates held by the person shall be surrendered.

(3.12) Where the justice or summary conviction court does not add a condition described in subsection (3.1) to a recognizance order, the justice or summary conviction court shall include in the record a statement of the reasons for not adding the condition.

(3.2) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the informant, of the person on whose behalf the information was laid or of that person’s spouse or common-law partner or child, as the case may be, to add either or both of the following conditions to the recognizance, namely, a condition

(a) prohibiting the defendant from being at, or within a distance specified in the recognizance from, a place specified in the recognizance where the person on whose behalf the information was laid or that person’s spouse or common-law partner or child, as the case may be, is regularly found; and

(b) prohibiting the defendant from communicating, in whole or in part, directly or indirectly, with the person on whose behalf the information was laid or that person’s spouse or common-law partner or child, as the case may be.

(4) A recognizance and committal to prison in default of recognizance under subsection (3) may be in Forms 32 and 23, respectively.

(4.1) The justice or the summary conviction court may, on application of the informant or the defendant, vary the conditions fixed in the recognizance.

(5) The provisions of this Part apply, with such modifications as the circumstances require, to proceedings under this section.

3. Questions Raised

3.1.a Question 1 - Can this matter proceed with the agent acting on behalf of Mr. Wallace and in his absence?

Section 800(2) provides that a defendant may appear personally or by counsel or agent. Section 803 allows the summary conviction court, in its discretion, to adjourn the trial to a time and place to be appointed and so long as the parties or their counsel or agents are made aware of the trial date. Where a defendant does not appear at the time and place appointed for the trial, the court has two options. It may either proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant.

Defence counsel provided three cases, Riche v. Brown (supra), R. v. Toor (supra) and R. v. Drabinsky (supra) which speak to the ability of the court to proceed in the absence of the defendant. The Crown concurs with the position advanced by the defence, i.e. that the hearing may proceed ex parte that is, in the presence of his counsel and in his absence. In this case, as in Drabinsky, the defendant has retained and instructed someone to examine and cross-examine witnesses and to make arguments before the court on his behalf. Given a careful review of the relevant legal provisions, and the cases presented, I am satisfied that an ex parte trial is in the best interests of all. Given the agent’s instructions, it is clear that the defendant understands he is forfeiting his right to appear personally and to give testimony in this matter. I am therefore satisfied in this case that the defendant can appear by agent and need not appear personally.

3.1.b Question 2 – Is the defendant aware that failure to enter into a recognizance would result in a warrant for committal being issued and that he might then be subject to a term of imprisonment of up to 12 months?

The applicant in this matter has in her factum, at paragraph 17, confirmed that her client fully understands all of the consequences of this hearing being conducted in his absence. Crown counsel raised in his factum the question of whether or not the court should be questioning the agent about whether the client was apprised of the potential for a twelve month period of incarceration. While I fully agree that the court must take care not to interfere in the relationship between client and solicitor, the court also has a duty to ensure the fairness of any proceedings, a duty that higher courts have reiterated frequently. As here, where a defendant is not represented by experienced counsel and indeed is being represented by an agent, where the defendant is asking the court to proceed in his absence, the court has a duty to reassure itself that the defendant is fully aware of all of the implications of such an action. Asking counsel whether they have full apprised a client of all of potential penalties a client may be facing and of whether counsel has specific instructions to proceed in light of those potential consequences does not infringe upon the solicitor-client relationship, but falls into the courts role to ensure procedural fairness.

3.1.c Question 3 - Given that there is the potential for up to 12 months imprisonment, can a law student appear given the limitations of section 802.1 CC on appearances by agents?

In raising question 1, the issue arose as to whether an agent could in fact appear given that should the defendant fail to enter into a recognizance he could be liable for a term of imprisonment of up to 12 months. Section 802.1 states that:

despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.

Both Crown and defence agree that the consequence flowing from an 810 hearing is that the court determines neither guilt nor innocence and that, therefore, there is no sentence as contemplated in section 802.1. They argue that pursuant to section 810, the court may only, if satisfied grounds exist, order the accused enter into a recognizance to keep the peace for a term and with such conditions as the court deems appropriate based on its findings.

There being no “summary conviction,” leading to a term of imprisonment, I agree with counsel that an agent can indeed appear on these matters. It is the actions of the accused after the order is made that will determine whether and for how long he would be imprisoned as any warrant for committal issued subsequent to an 810 hearing is in force only until the accused enters into the recognizance or is discharged according to law. (see Appendix A)

3.1.d Question 4 - Should an order be made against the respondent, can the agent enter into the recognizance on behalf of the defendant? Alternatively can the court direct that the accused enter into the agreement in another jurisdiction?

The defence submits that a recognizance to keep the peace is analogous to a probation order since both can result in criminal liability if breached and both are founded on the concept that the person bound by a probation order and person ordered into an 810 peace bond are required to “keep the peace and be of good behaviour.” She also relied on R. v. Sterner 1982 CanLII 160 (SCC), [1982] 1 SCR 173 (SCC), to stand for the proposition that explaining the conditions of a probation order is a delegable task.

The Crown took no real position with respect to these arguments.

I had, during the discussion leading to the request for written submissions, likened a peace bond to a contract. Although counsel took some exception to that position, I would direct both counsel to the case of R. v. Mousseau (supra). Although that case deals more particularly with common law peace bonds and how they may be enforced, it also provides an excellent overview and summary of the nature of a recognizance in general, whether pursuant to the common law or the Criminal Code. Specifically, at paragraphs 29 and 30, Justice Fairgrieve cites numerous cases that stand for the proposition that a recognizance is in fact the acknowledgement of a debt owed upon non-compliance with the agreement either by performing or failing to perform certain acts. It is only the existence of section 811 (or section 145 in the case of recognizances relating to interim release) that creates a criminal offence. At paragraph 35, he holds that an order to enter into a peace bond constitutes “an order for the payment of money.” In other words, while I agree that there is no “consideration” such that a contract is created, it is an agreement that the person may chose to be bound by and it is only by chosing to be so bound that the conditions come into force.

It is for this reason that I strongly disagree that a probation order and recognizance are analogous and the case law presented does not persuade me otherwise. An accused has the right to refuse to enter into a peace bond. The consequence thereof is that he will be committed to prison for a term not exceeding twelve months. However, an accused cannot refuse to enter into a probation order any more than he can refuse to serve a term of imprisonment. A probation order is binding on an accused whether he agrees to it or not although the conditions must be reviewed with him. A recognizance on the other hand can be reviewed with an accused, but he may still refuse to sign it. It is for that reason that a warrant for committal must issue where an accused fails or refuses to enter into the bond.

I agree with defence counsel that the conditions of the peace bond need not be entered into by the accused at the time the order is made. In other words, it can be reviewed with someone other than the justice making the order. However, simply reviewing and acknowledging the order is not enough. The accused must enter into the bond either verbally before the court, in which case the justice may sign the recognizance stating that the accused came before him and acknowledged himself liable should he fail to perform the bond, or in writing to the same effect and witnessed by another party. In fact, when an order for committal is issued, the actual order for recognizance is attached to the Form and upon arrest, the accused need only enter into the recognizance to be released from custody. In other words, the bond can be acknowledged in writing before the arresting officer.

The Criminal Code is explicit in its direction to the court with regard to the procedure to be followed where a court is satisfied by the evidence that the order sought under section 810 should be made.

810 (3) The justice or the summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for his or her fears,

(a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or [emphasis added]

(b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance.

In other words, where an order is made, if the accused wither refuses to enter into it, or fails to enter into it, the court must commit the defendant to prison in form 32 (See Appendix A). Refusal is a positive action where failure is a passive action. That both words are included implies that the intent was that one or the other should result in the same effect.

Neither legal authority nor case law has been presented to me that satisfies me that counsel may enter into the recognizance on behalf of the accused.

As to whether or not the court can order the accused enter into the recognizance in another province. I am not persuaded that I may do so as there is nothing explicit in the Criminal Code nor any case law to support that contention. Indeed, under section 703(2), any warrant of arrest or committal I, as a justice, issue is executable only within the province in which it is issued, subject to (relating to orders for DNA or similar samples) and 705(3) (relating to witnesses).

Subsections 487.0551(2) and 705 (3) specifically provide that a warrant issued for arrest of a witness under those provisions is executable anywhere in Canada.

Further section 803 (2) provides that:

where a defendant is convicted or an order is made against him, the summary conviction court shall issue a warrant of committal in form 21 or 22 , and section 528 applies in respect of a warrant of committal made under this section.

Section 528 would permit execution of the order in another province should it be properly backed in that province. It appears therefore that Parliament may, where it chooses, provide for extra-provincial execution of such orders. It has however, limited that ability only to warrants of committal in form 21 or 22, thus leaving any form 23 issued subsequent to a peace bond hearing subject to the limitations of subsection 703 (2) as previously stated.

As a result, I must conclude that Parliament’s clear intention was to make warrants of committal issued under section 810 executable only within the province in which they are issued. Frankly, given the nature of the remedy being sought, such an interpretation is a sensible one since the absence of the accused from the province in which the fear exists should reduce any risk that the feared injury to person or damage to property would come to pass and should the accused return to the province while the order is in effect, he can then be arrested and either enter into the bond or remain in custody for whatever period remains on the order.

As a result, I must conclude that Parliament’s clear intention was to make warrants of committal issued under section 810 executable only within the province in which they are issued. Frankly, given the nature of the remedy being sought, such an interpretation is a sensible one since the absence of the accused from the province in which the fear exists should reduce any risk that the feared injury to person or damage to property would come to pass and should the accused return to the province while the order is in effect, he can then be arrested and either enter into the bond or remain in custody for whatever period remains on the order.

4. DECISION

This hearing may be held ex parte, with Ms. Silvaggi, student-at-law, appearing as agent for Mr. Wallace and I do so order unless the accused should chose at the time scheduled for hearing attend. Should this court make a finding that a recognizance should issue pursuant to section 810 and should Mr. Wallace either fail or refuse to enter into the order, then a warrant of committal shall be issued. That warrant may be executed anywhere within the Province of Ontario and terminates upon Mr. Wallace either entering into the recognizance or until he is otherwise discharged according to law.

Having found that the hearing may be conducted ex parte, it remains only to find an appropriate date.

Released: September 12, 2012

Signed: “Justice of the Peace A. Renaud”

APPENDIX A

FORM 23

(Sections 810 and 810.1)

WARRANT OF COMMITTAL FOR FAILURE TO FURNISH RECOGNIZANCE TO KEEP THE PEACE

Canada,

Province of ................,

(territorial division).

To the peace officers in the (territorial division) and to the keeper of the (prison) at ....................:

Whereas A.B., hereinafter called the accused, has been ordered to enter into a recognizance to keep the peace and be of good behaviour, and has (refused or failed) to enter into a recognizance accordingly;

You are hereby commanded, in Her Majesty’s name, to arrest, if necessary, and take the accused and convey him safely to the (prison) at ................ and deliver him to the keeper thereof, together with the following precept:

You, the said keeper, are hereby commanded to receive the accused into your custody in the said prison and imprison him there until he enters into a recognizance as aforesaid or until he is discharged in due course of law.

Dated this ................ day of ................ A.D. ........, at ................ .

Clerk of the Court, Justice or Provincial Court Judge

(Seal, if required)

APPENDIX B

FORM 32

(Sections 493, 550, 679, 706, 707, 810, 810.1 and 817)

RECOGNIZANCE

Canada,

Province of ................,

(territorial division).

Be it remembered that on this day the persons named in the following schedule personally came before me and severally acknowledged themselves to owe to Her Majesty the Queen the several amounts set opposite their respective names, namely,

Name

Address

Occupation

Amount

A.B.

C.D.

to be made and levied of their several goods and chattels, lands and tenements, respectively, to the use of Her Majesty the Queen, if the said A.B. fails in any of the conditions hereunder written.

Schedule of Conditions

(a) reports at (state times) to (name of peace officer or other person designated);

(b) remains within (designated territorial jurisdiction);

(c) notifies (name of peace officer or other person designated) of any change in his address, employment or occupation;

(d) abstains from communicating, directly or indirectly, with (identification of victim, witness or other person) except in accordance with the following conditions: (as the justice or judge specifies);

(e) deposits his passport (as the justice or judge directs); and

(f) (any other reasonable conditions).

Taken and acknowledged before me on the ................ day of ................ A.D. ........, at ................ .

Judge, Clerk of the Court, Provincial Court Judge or Justice

The condition of the above written recognizance is that if A.B. keeps the peace and is of good behaviour for the term of ...... commencing on ......, the said recognizance is void, otherwise it stands in full force and effect [810 and 810.1].