Court File and Parties

Regina v. Glenn St. John

Notice of Application and Constitutional Issue

Sections 7, 11(d) & 24 of the Canadian Charter of Rights and Freedoms

Hearing Date: December 12, 2013, B2 @ 9:00am

Oral Judgement: January 29, 2014, B2 @ 9:00am

Respondent: Miss Nora Isak

Applicant: Glenn St. John, Represented by Mr. Gary Lewin

Introduction

[1] In the matter of the defendant, Glenn St. John, herein described as the "Applicant", the Court received and reviewed the defendant's Notice of Application and Constitutional Question, with respect to Sections 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms, herein referred to as the "Charter" and determined it was properly before the Court on December 11, 2013. The application was heard on that date following which the Court reserved its decision until January 29, 2014 at 9:00am.

The Applicant was represented by his legal representative, Mr. G. Lewin. The Respondent (Crown) was represented by Ms. Nora Isak.

Statutory Provisions and Case Law

[2] The Applicant's Notice of Application and Constitutional Question relied upon the statutory provisions in Sections 7, 11(d) & 24, of the Canadian Charter of Rights and Freedoms, Section 54 of the Provincial Offences Act and Section 789(2) of the Criminal Code of Canada which state the following:

Canadian Charter of Rights and Freedoms

Section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 11. Any person charged with an offence has the right

(d) To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Section 24(1). Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Section 54(1). Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may,

(a) proceed to hear and determine the proceeding in the absence of the defendant; or

(b) adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant. 2009, c. 33, Sched. 4, s. 1(43).

Proceeding arising from failure to appear

(2) Where the court proceeds under clause (1)(a) or adjourns the hearing under clause (1)(b) without issuing a summons or warrant, no proceeding arising out of the failure of the defendant to appear at the time and place appointed for the hearing or for the resumption of the hearing shall be instituted, or if instituted shall be proceeded with, except with the consent of the Attorney General or his or her agent. 2009, c. 33, Sched. 4, s. 1(43).

Criminal Code of Canada

Section 789(2). No information in respect of an offence for which, by reason of previous convictions, a great punishment may be imposed shall contain any reference to previous convictions.

[3] The Applicant and Respondent also presented to the Court relevant case law to assist in its analysis of the constitutional question; the cases included:

• The 1993 Ontario Court of Justice decision, Regina v. Walcot
• The 1995 British Columbia Court of Appeal decision, Regina v. Novak
• The 2003 Ontario Superior Court decision, Regina v. Kinnear
• The 2010 Ontario Court of Appeal decision, Regina v. Jenkins

The Constitutional Issue

[4] The Applicant submits the endorsement "Jenkins Caution given" on the reverse side of the subject Information impairs his ability to receive an impartial trial. He argues that the presence of the endorsement effectively puts the trier of fact on notice of the likelihood that the Applicant has a record of previous convictions for the offence of driving while under suspension, prior to the commencement of the trial proceedings. He goes on to submit that viewing of the Jenkins Caution endorsement by the trier of fact during the course of the trial proceedings would serve to bring the administration of justice into disrepute.

Furthermore, the Applicant submits that since an amendment to the Information as to the subject endorsement may not be made without his consent, the Information must be declared a nullity. He suggests that the existing prejudice in these circumstances cannot be remedied by any means other than a stay of proceedings.

The Grounds for the Application

[5] In the Court's analysis of this constitutional question, it carefully considered the accepted chronology of events pertaining to the subject case. That chronology is summarized as follows:

On October 12, 2012 at 2:58pm, the Applicant was charged and arrested by members of the Ontario Provincial Police with the offence of Driving while under Suspension, pursuant to Section 53(1) of the Highway Traffic Act of Ontario. The Applicant was released from custody and served with a Form 104 Summons, charging him with Driving While Suspended, requesting him to attend Court on November 13, 2012 at 1:30pm, courtroom 2 at 2051 Plains Road East Burlington, to answer to the said charge.

The Applicant retained the services of Mary Plant, para-legal licensee who attended court on November 13, 2012 on behalf of the Applicant. She received disclosure from the provincial prosecutor, Mr. C. Gelbard at that time. During this appearance, the prosecutor stated for the purposes of the record, that the Applicant met the test for a "Jenkins" caution, making reference to the 2010 decision of the Ontario Court of Appeal, Regina v. Jenkins. The words "Jenkins Caution given" were written on the reverse side of the charging information by the presiding justice of the peace. A trial date in this matter was set for March 13, 2013 at that time.

On February 12, 2013 at 9:00 a.m., the Applicant applied to adjourn the date of the subject trial. The said application was granted and the subject trial proceeding was rescheduled for June 26, 2013 at 1:30 p.m. On that date, the Applicant's current representative, Mr. G. Lewin attended on behalf of the Applicant and sought a further adjournment of the trial proceeding in order to prepare, serve and file the Charter application therein.

The Applicant's Submissions

[6] The Applicant began his submissions by advising the Court of the history of appearances with the Court, as a result of a Driving Suspended Offence charge on October 12, 2012, contrary to Section 53(1) of the Highway Traffic Act. The Applicant presented numerous submissions and relevant case law in support of his assertion that the endorsement, "Jenkins Caution given" on the reverse side of the charging Information of Glenn St. John, on November 13, 2012, was an infringement of his Charter rights, pursuant to sections 7 & 11(d). He argued that he was accordingly prejudiced from receiving an impartial trial on the basis that in such circumstances the trier of fact would be aware that he had a previous conviction for Driving While Suspended.

[7] This Court summarized the submissions of the Applicant as being two-fold:

(1) The 2010 Ontario Court of Appeal decision, R. v. Jenkins, enunciated guidelines to minimize any potential miscarriages of justice occasioned by trial proceedings, especially in ex parte circumstances. In the case at bar, the defendant, Glenn St. John, was not an ex parte situation as he was present, in and through his para-legal, Mary Plant on November 13, 2012, when the prosecution advised the Court of the Jenkins Caution, which was subsequently endorsed by the presiding Justice of the Peace. In an ex parte setting, the Applicant asserts that the prosecution's verbal acknowledgement of the Jenkins Caution would have fulfilled the obligations as set forth by the appellate court, that is, the prosecution must advise the Court of its intention for a custodial sentence if the Applicant is convicted of the subject charge. The Applicant further argues that the subsequent endorsement of the Jenkins Caution by the Justice of the Peace red flags the trier of fact as to the existence of a previous conviction of the defendant and the Court could take judicial notice that when the Jenkins Caution is raised by the prosecutor, it immediately communicates to the Court that a previous conviction exists. Thus, the Applicant's first argument in support of their application is as follows: the Jenkins Caution is only applicable to ex parte circumstances and considering that Glenn St. John was not an ex parte setting, the Applicant asserts that the submission of a screening form by the prosecutor to the defendant would have been more appropriate in his situation.

(2) Secondly, the Applicant invited the Court to turn its mind to the issue of a remedy, if the Court were to find that the Applicant's section 7 and 11(d) Charter rights had been infringed. In particular, the Court was presented with two pertinent court decisions which addressed the issue of severing offending charges in a multiple count Information. The Court was invited to carefully review the 1993 Ontario Court of Justice decision, R. v. Walcot and the 2003 Ontario Court of Appeal decision, R. v. Kinnear. Both decisions supported the argument that certain offences under the Criminal Code of Canada imply the presence of a previous conviction and in multiple count information, a simple remedy of severance can address the concerns that Section 789(2) of the Code raises. In the case at bar, Glenn St. John's Information is a single count information of Driving Suspended, contrary to Section 53(1) of the Highway Traffic Act, thus it cannot be severed. Because the applicant's charging information is a single count information and severance is not a remedy, the Court, if satisfied that Glenn St. John's section 7 & 11(d) Charter rights were infringed, the Court was invited by the Applicant to stay the proceedings.

[8] Secondly, the Applicant invited the Court to turn its mind to the issue of a remedy, if the Court were to find that the Applicant's section 7 and 11(d) Charter rights had been infringed. In particular, the Court was presented with two pertinent court decisions which addressed the issue of severing offending charges in a multiple count Information. The Court was invited to carefully review the 1993 Ontario Court of Justice decision, R. v. Walcot and the 2003 Ontario Court of Appeal decision, R. v. Kinnear. Both decisions supported the argument that certain offences under the Criminal Code of Canada imply the presence of a previous conviction and in multiple count information, a simple remedy of severance can address the concerns that Section 789(2) of the Code raises. In the case at bar, Glenn St. John's Information is a single count information of Driving Suspended, contrary to Section 53(1) of the Highway Traffic Act, thus it cannot be severed. Because the applicant's charging information is a single count information and severance is not a remedy, the Court, if satisfied that Glenn St. John's section 7 & 11(d) Charter rights were infringed, the Court was invited by the Applicant to stay the proceedings.

The Respondent's Submissions

[9] The Respondent substantially agreed with the facts set out in paragraphs 1-13 of the Applicant's Notice of Application and Constitutional Question and addressed the Applicant's issues surrounding the assertion that his right to a fair trial (as per Section 11(d) of the Canadian Charter of Rights and Freedoms) was compromised when the learned Justice of the Peace endorsed the reverse side of his Information with a Jenkins Caution. The Respondent relied upon the 2010 Ontario Court of Appeal decision of R. v. Jenkins, Section 54(1) of the Provincial Offences Act, the 1993 Ontario Court of Justice decision R. v. Walcot and the 1995 British Columbia Court of Appeal decision, R. v. Novak for its responses. The respondent's responses could be best summarized in the following four arguments:

(a) Jenkins Does Not Equate Previous Convictions with Custodial Sentences

The decision of R. v. Jenkins provided guidelines to prosecutors when addressing matters where a defendant failed to appear at court for their hearing, especially when the intention of the prosecution was to seek a custodial sentence upon conviction. It is the assertion of the Respondent at paragraph 4 of their Response to the Applicant's Notice of Constitutional Question that:

Jenkins does not stand for the proposition that only when previous convictions exist would a prosecutor be seeking a custodial sentence, and only when previous convictions exist would a prosecutor raise the issue of a potential custodial sentence to the Presiding Justice of the Peace.

The Respondent further asserts that custodial sentences are available upon first convictions on a handful of Highway Traffic Act Offences, other than Driving Suspended, pursuant to Section 53(1) of the HTA. Other examples which can warrant a custodial sentence on first time convictions include: Violations as to Number Plates, Section 12(1); Careless Driving, Section 130 HTA and Stunt Driving, Section 172(1) of the HTA. Thus, the Respondent submitted to the Court that the decision of Jenkins and its guidelines for the prosecution to advise the Court when a custodial sentence is being sought upon conviction, it's not synonymous with previous convictions.

(b) Jenkins Caution as a Pro-Active Measure

The Respondent also asserts that although the Applicant was present in Court, through his legal representative and his matter was not proceeding in his absence as was the case in the Jenkins decision, the application of the guidelines enunciated in the said decision, that is, the prosecution's direction to advise the Court of the Jenkins Caution was a good faith and pro-active measure. At paragraph 8 of the Respondent's Response to the Applicant's Notice of Application and Constitutional Question, the Respondent summarizes their reason for the application of the Jenkins Caution, while the defendant was present in the case of Glenn St. John:

it was a well-intentioned attempt by the Prosecutor to ensure the risk of a potential miscarriage of justice was minimized if the defendant did fail to appear at trial, and the matter was to proceed in his absence at some point in the future

(c) Validity of the Information

Further, the Respondent in response to the Applicant's argument that the Jenkins Caution endorsement on the reverse side of the Information prejudices their case and cannot be remedied by any means, but only a Stay in proceedings, the Court was directed to paragraphs 19 & 36-39 of the 1995 Ontario Court of Justice decision of Regina v. Walcot. In R. v. Walcot, the Court was invited to quash or stay the information as a similar argument was raised by the defendant as to the validity of the information. In Walcot, the defendant, Jason Walcot, made an application to quash the information on the ground that it was void as it violated Section 664 of the Criminal Code. The applicant was charged with failing to stop at the scene of accident, impaired driving, driving while alcohol blood content was over .08 and with driving while disqualified. The applicant submitted that the charge of driving while disqualified necessarily implied a previous conviction leading to the disqualification and that the reference violated section 664 of the Code in that it could result in increased punishment to him. The application made by Andy Walcot was eventually dismissed by the appellate court, on the basis of its interpretation of Section 664 of the Criminal Code of Canada, it concluded that:

Section 664 required that a reference be made to a previous conviction by virtue of which a higher punishment may be imposed on the accused if convicted of any of the offences listed on the information. While the count four referred to disqualification and therefore indirectly to a previous conviction, there was no reference to an increased penalty. It was not apparent on the face of the information that a higher penalty might be imposed as a result of a previous conviction.

(d) Duty of Trial Judges to Disabuse Their Minds

Finally, the Respondent invited the Court, in its analysis of the Applicant's Notice of Constitutional Question, to turn its mind to the 1995 British Columbia Court of Appeal decision of Regina v. Novak, in particular, paragraph 8, which addresses the duty of trial judges to disabuse their minds of any prejudicial information which might arise during the proceedings and their responsibility to determine their findings on the admissible evidence placed before them:

Judges are routinely called upon to disabuse their minds of evidence which they have heard but which as a matter of law, is not admissible in the trial before them. It is fundamental to their role to decide the case only on the evidence properly admissible in that case.

The Analysis of the Application

[10] In any Charter application, it is the defendant's onus to establish on a balance of probabilities that their rights have been breached. In a section 11(d) and 7 Charter application, the defendant must establish to the Court that their rights to a fair and impartial trial would be infringed. Reaching a decision and applying the correct case law that supports both sides of the issue fairly is a difficult task. The paramount guideline in assessing each Charter motion is that each case must be tried on its merits. Thus, the purpose of sections 7, 11(d) & 24(1) applications exists to protect the defendant's right to a fair and impartial trial versus avoiding a trial on its merits. In other words, Charter rights should be viewed as a shield and not as a sword.

[11] Although the Applicant asserts that the Jenkins Caution was not applicable to his case, since he was represented by counsel on the date of November 13, 2012, when the caution was submitted to the Court. The Applicant submitted that the subsequent endorsement of such a caution on the reverse side of the charging Information breached his Charter rights, contrary to sections 7 & 11(d). The Court's response to this constitutional question will be two-fold in its assessment. Firstly, the Court must determine as to the constitutionality of such an endorsement in an ex parte setting and secondly, if this Court determines that the Applicant's circumstance did not warrant a Jenkins caution, did such an endorsement breach their Charter rights?

[12] The Court begins its analysis by turning its mind to the 2010 Ontario Court of Appeal decision, Regina v. Jenkins. Here the appellate court outlines in paragraph 3 the three crucial questions surrounding the Jenkins case:

1. Does s. 54(1)(a) of the Provincial Offences Act, which permits ex parte trials even in circumstances where there is a possibility of incarceration, violate s. 7 or s. 11(d) of the Charter?

2. Did the appeal judge err in law in dismissing the appellant's appeal from conviction either by requiring him to demonstrate a defence on the merits or by failing to give him a fair opportunity to present his case?

3. Did the appeal judge err in failing to consider the appellant's sentence appeal and, if so, was the fine imposed harsh and excessive in the circumstances?

[13] In addressing the first of the three questions posed in R. v. Jenkins, with respect to the constitutionality of ex parte trials, as per section 54 of the Provincial Offences Act, which is applicable to the Glenn St. John analysis, the appellate Court concluded at paragraph 31 that:

In upholding the constitutionality of ex parte trials under the Act, I do not suggest that they are or should become the norm. Clearly, there is a risk of a miscarriage of justice inherent in an ex parte proceeding that does not exist where the defendant is present. This risk exists despite the significant legislative and administrative safeguards in place to facilitate a defendant's appearance at trial personally, by counsel or through an agent. For example, a defendant can, with a simple phone call to the location identified in the summons, find out when his or her trial is scheduled even if the defendant has missed the return date on the summons. In addition, some, but not all, miscarriages occasioned by ex parte proceedings can be rectified on appeal. To acknowledge that an ex parte proceeding can result in a miscarriage of justice does not, however, advance the constitutional analysis. A procedure need not be foolproof to be constitutional.

[14] Further, at paragraphs 32 and 33, the appellate court in Jenkins stressed the roles and guidelines to be embraced by prosecutors and judges in minimizing the potential for miscarriages of justice in ex parte proceedings, especially when incarceration is sought by prosecution upon conviction:

32 Prosecutors and judges have a role to play in minimizing the risk of miscarriages of justice through ex parte proceedings. An ex parte trial is not automatic when a defendant fails to appear in answer to a charge under Part III of the Act. The prosecutor must request an ex parte trial and the trial judge has the discretion to proceed ex parte or to take other steps, usually the issuance of a warrant, to compel the attendance of the defendant.

33 The court was told in oral argument that there are no formal guidelines in place to assist prosecutors in deciding when to request an ex parte trial. In every case where the prosecutor will seek a custodial sentence upon conviction, the prosecutor would be well-advised to consider whether an ex parte proceeding is appropriate. The longer the period of imprisonment sought, the less inclined the prosecutor should be to request an ex parte trial. If the prosecutor ultimately decides that it would be proper to proceed ex parte, he or she should advise the trial judge, before the trial begins, of their intention to seek a custodial sentence and the range of sentence that they anticipate will be appropriate. The trial judge can use this information to decide whether to proceed with the trial or take other action, such as adjourn the hearing and issue a warrant for the defendant's arrest.

[15] At paragraph 35, the appellate court in R. v. Jenkins summarizes its analysis of the constitutionality of s. 54(1) of the Provincial Offences Act:

I would uphold the constitutionality of s. 54(1)(a) of the Act. The court has jurisdiction to proceed with an ex parte trial when the conditions precedent under the statute are met. Whether the court should do so, will depend on the circumstances. The exercise of that discretion in a specific case is reviewable on appeal.

Besides re-iterating the constitutionality of ex parte trials, the appellate court in Jenkins cautions both prosecutors and trial judges to be careful to minimize the risk of miscarriages of justice through ex parte proceedings, which are not always automatic. In the absence of the defendant and before proceeding with an ex parte trial, the appellate court stressed the duty of the prosecution to carefully present submissions to the trier of fact, which can include the prosecution's intent for a period of a custodial sentence upon conviction. This intention of the prosecution assists the court in its determination on whether to proceed with an ex parte hearing or the issuing of a bench summons or bench warrant. Thus, the decision of R. v. Jenkins predicates and dictates to the presiding jurist how he/she will proceed with respect to an ex parte hearing.

[16] Overall, it is this Court's opinion that the decision of R. v. Jenkins attempted to alleviate any miscarriages of justice when faced with absent defendants at ex parte trials, especially when the prosecution was seeking a custodial sentence upon conviction. In the case at bar, the defendant, Glenn St. John was present through his para-legal, Mary Plant on November 13, 2012, when the Prosecutor, Claude Gelbard made submissions with respect to a Jenkins Caution, which was eventually endorsed on the reverse side of the Information by the presiding Justice of the Peace. The endorsement of the information as to a Jenkins Caution has a two-fold purpose:

(1) It is a means of keeping record of the prosecution's obligation to the Court when seeking a custodial sentence, as directed in R. v. Jenkins, at par. 33:

If the prosecutor ultimately decides that it would be proper to proceed ex parte, he or she should advise the trial judge, before the trial begins, of their intention to seek a custodial sentence and the range of sentence that they anticipate will be appropriate.

(2) Such an endorsement would be valuable information for the trial judge when determining whether to proceed with the ex parte trial or take alternative action as set forth in par. 33:

The trial judge can use this information to decide whether to proceed with the trial or take other action, such as adjourn the hearing and issue a warrant for the defendant's arrest.

[17] Overall, this court finds that such an endorsement is a pro-active and good faith measure on behalf of the prosecutor, whose intention is to alleviate any miscarriages of justice. When in the absence of transcripts, the endorsement serves as a record for defendants, prosecutors and jurists that the obligations enunciated in Jenkins have been met. Since the decision of R. v. Jenkins, it is this Court's opinion that such an administrative practice of endorsing the Jenkins Caution on the reverse side of the Information originated and evolved as a result of the prosecution's interpretation and understanding of the guidelines of the appellate court in Jenkins, which directs prosecutors to advise the court if an ex parte trial is appropriate as set out in paragraph 33:

If the prosecutor ultimately decides that it would be proper to proceed ex parte, he or she should advise the trial judge, before the trial begins, of their intention to seek a custodial sentence and the range of sentence that they anticipate will be appropriate.

[18] It is this endorsement of Jenkins Caution that the Applicant asserts prejudices his case, by alerting the trier of fact to the reality of previous convictions. Thus, the Applicant argues that such an endorsement of the Jenkins Caution is synonymous with previous convictions and therefore prejudices his case, thus breaching his constitutional rights under section 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The Applicant further asserts that such an endorsement disrespects Section 789(2) of the Criminal Code of Canada which states:

No information in respect of an offence for which, by reason of previous convictions, a great punishment may be imposed shall contain any reference to previous convictions.

Thus, in the mind of the Applicant, such an endorsement is prejudicial and warrants the Information be declared a nullity and a Stay of Proceedings be entered by the Court.

[19] After careful review of the appellate court's decision in R. v. Jenkins, this Court finds that the assertion made by the Applicant that the endorsement of the Jenkins Caution is synonymous with previous convictions is not founded in the said decision. This Court found no mention or discussion of previous convictions in the appellate's decision when proceeding with an ex parte trial. It is this Court's opinion that the guidelines of Jenkins directs prosecutors and jurists at paragraphs 32 & 33 "to minimize the risk of miscarriages of justice" and its direction is not limited in its application to defendants where previous convictions exist or when previous convictions do exist that the prosecution's intent for custodial sentence is implied. Thus, this Court would conclude that the decision of Jenkins is not synonymous with previous convictions and thus the nexus cannot be established to the court at trial that previous convictions are implied with the Jenkins Caution and the subsequent administrative practice of endorsing the reverse side of the Information.

[20] Although the appellate court in R. v. Jenkins was not presented with any oral arguments with respect to formal guidelines which would assist prosecutors in deciding when to request an ex parte trial, the appellate Court does compel prosecutors at paragraph 33 that when intending to seek a custodial sentence upon conviction to consider whether an ex parte trial is appropriate. This Court would acknowledge that the proposed actions on behalf of prosecution to proceed or not proceed with an ex parte trial is predicated upon a number of factors placed before the trier of fact, one possibility could be the intention of the prosecution to seek a custodial sentence and what length of sentence would be appropriate.

[21] It is this Court's opinion, since the 2010 Ontario Court of Appeal decision of R. v. Jenkins, the application of the principles enunciated in Jenkins and the practice of the endorsement of the Jenkins Caution on the reverse side of the Information has come to be misinterpreted as caution for a custodial sentence due to previous convictions. It is this Court's opinion that such a misunderstood evolution of thought associating a Jenkins Caution with previous convictions is the crux of the Applicant's argument with regards to their alleged breach of their rights pursuant to sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. After carefully reviewing the decision of Jenkins and the circumstances surrounding the appellate decision, it is this Court's opinion that such an endorsement of the Jenkins Caution falls under the definition of information that the appellate Court in Jenkins directs the trial judge can use and review in its analysis of whether or not to proceed with an ex parte trial:

The trial judge can use this information to decide whether to proceed with the trial or take other action, such as adjourn the hearing and issue a warrant for the defendant's arrest.

[22] Further, this Court in its analysis of the Applicant's constitutional question acknowledges that a custodial sentence sought by the prosecution is not solely dependent on a defendant's previous convictions or lack thereof. The Court recognizes that there are a number of aggravating factors, other than previous convictions, that can be considered by the prosecution when seeking a custodial sentence and thus a subsequent Jenkins Caution. And considering that there are offences under the Highway Traffic Act that can potentially result in a custodial sentence upon a first conviction, it is my opinion that the direction and guidelines of the appellate court in R. v. Jenkins were intended to minimize any miscarriages of justice, embracing all circumstances of defendants. In other words, the principles directed to both prosecutor and jurist on when to commence with an ex parte trial are equally related to all defendant's circumstances and not simply limited in its application to previous offenders.

[23] Recognizing that the appellate court in R. v. Jenkins primarily addressed ex parte trials and bearing in mind the case of Glenn St. John was not an ex parte situation, the Court in its analysis must answer two questions:

(1) In the case of Glenn St. John, was the Jenkins caution and the subsequent endorsement on the charging Information proper?

(2) If not, did such an endorsement infringe Glenn St. John's Charter rights, by creating a prejudice in the trier of fact's mind as to the existence of a previous conviction?

After carefully examining the totality of the evidence in this case, the relevant case law and the submissions from the Applicant and Respondent, I am of the opinion that the prosecution's verbal caution and the justice of the peace's endorsement of the caution on the reverse side of the charging information in the case at bar was not prejudicial to Glenn St. John. The Court is also of the mind that even if Glenn St. John's case was an ex parte matter, such an endorsement would not have infringed his constitutional rights, contrary to sections 7 & 11(d) of the Canadian Charter of Rights and Freedoms.

[24] On the contrary, this Court found that such an endorsement was an administrative pro-active practice, documenting the prosecution's obligations as set forth in R. v. Jenkins. Thus, confirming to the Court that prosecution's intention for a custodial sentence would be sought upon conviction. The pro-active nature of such an endorsement is further substantiated when contemplating the possibility that if Glenn St. John were to fail to appear at trial at some point in the future, the recorded endorsement would serve as a reminder to the Court that the prosecution's obligation as per Jenkins was met and the Court can proceed accordingly, thus potentially minimizing any miscarriages of justice. Although the Jenkins Caution is specifically applicable to ex parte situations and that a screening form might have been more appropriate in the circumstance, I was not compelled by the Applicant's arguments that the Jenkins Caution and the endorsement on the reverse side of his charging Information infringed his Charter rights, contrary to sections 7 & 11(d).

[25] This Court found that the Applicant's argument that such an endorsement elicits the existence of previous convictions to the trier of fact was not established and such an argument the Court found speculative in nature, thus failing to substantiate a finding of a constitutional breach. The Court also found that Applicant's argument with respect to the requirement of the defendant's consent when endorsing the charging Information for validity lacked any statutory basis or case law to substantiate such an assertion. Therefore, it is this Court's finding that on a balance of probabilities, the applicant, Glenn St. John, did not establish to this honorable court that his constitutional rights contrary to sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms were breached and thus the request for a stay of proceedings, pursuant to Section 24 of the Charter is not justified. The application is dismissed and Glenn St. John's matter will proceed and tried on its merits.

His Worship, Justice of The Peace Mark J. Curtis

January 29, 2014, B2 @ 9:00am, Burlington, Ontario.