Court File and Parties
Court File No.: Toronto Date: 2014-07-03 Ontario Court of Justice
Between: Her Majesty the Queen — and — Priscilla Ferreira
Before: Justice Mara Greene
Reasons for Judgment released: July 3, 2014
Counsel: M. Newhouse for the Crown J. Dos Santos for P. Ferreira
Background
[1] On the second day of trial, Ms. Ferreira brought an application to have the charges against her dismissed. She argued that the Crown was barred by statute from proceeding against her in the absence of the consent of the Attorney General or the Deputy Attorney General.
[2] The facts in the case at bar are not in dispute. Ms. Ferreira was charged in February of 2011 with the offences of impaired driving and driving while having over 80mg of alcohol in 100ml of blood. She was released on a Promise to Appear and given a court date in March of 2011. Ms. Ferreira attended Court as required, but no Information was before the Court.
[3] Ms. Ferreira heard nothing more about this matter until one year later, in February 2012, when she received a Summons to attend Court on these charges. Ms. Ferreira attended Court as required by the Summons, and ultimately a trial date was set. Ms. Ferreira was arraigned and her trial started in February, 2014, but was not completed. The Application to dismiss the charges was heard on April 24, 2014.
Relevant Sections of the Criminal Code
[4] Section 485(1) of the Criminal Code outlines those procedural irregularities which do not lead to a loss of jurisdiction over the offence. The section states:
Jurisdiction over an offence is not lost by reason of the failure of any court, judge, provincial court judge or justice to act in the exercise of that jurisdiction at any particular time, or by reason of a failure to comply with any of the provisions of this Act respecting adjournments or remands.
[5] Section 485(1.1) of the Criminal Code sets out when jurisdiction over a person charged with a criminal offence is maintained, despite the failure of the accused to appear personally:
Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as subsection 515(2.2), paragraph 537(1)(j), (j.1) or (k), subsection 650(1.1) or (1.2), paragraph 650 (2)(b) or 650.01(3)(a), subsection 683(2.1) or a rule of court made under section 482 or 482.1 applies.
[6] Section 485(2) of the Criminal Code states:
Where jurisdiction over an accused or a defendant is lost and has not been regained, a court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue a summons, or if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant.
[7] Section 485(3) of the Criminal Code states:
Where no summons or warrant is issued under subsection (2) within the period provided therein, the proceedings shall be deemed to be dismissed for want of prosecution and shall not be recommenced except in accordance with section 485.1
[8] Section 485.1 states:
Where an indictment in respect of a transaction is dismissed or deemed by any provision of this act to be dismissed for want of prosecution, a new information shall not be laid and a new indictment shall not be preferred before any court in respect of the same transaction without
a) The personal consent in writing of the Attorney General or Deputy Attorney General, in any prosecution conducted by the Attorney General or in which the Attorney General intervenes; or
b) The written order of a judge of that court, in any prosecution conducted by a prosecutor other than the Attorney general and in which the Attorney General does not intervene.
Position of Counsel
[8] Counsel for Ms. Ferreira argued that jurisdiction over the person and offence was lost in March 2011 when the Information was not before the Court. A new Information was not laid within three months, and, as such, the charges were deemed dismissed and could not be activated without the consent of the Attorney General or Deputy Attorney General. As no consent was obtained, the information is invalid, and the Crown is barred from proceeding any further against Ms. Ferreira.
[9] Counsel for the Crown argued that Ms. Ferreira has attorned to the jurisdiction of the Court, thereby giving the Court jurisdiction over Ms. Ferreira. The Crown further argued that that there is no time limitation for returning a person to Court when jurisdiction is lost over the offence as such, by relaying the information, the court regained jurisdiction over Ms. Ferreira's charges.
Analysis
[10] Sections 485(1) and 485(1.1) of the Criminal Code allow for the maintenance of jurisdiction over the person and the offence in certain circumstances. These circumstances do not extend to situations in which the court date has come and gone and nothing was done because there was no Information before the court (see Alberta v. Krannenburg, [1980] S.C.J. No. 26; Trenholm v. Attorney General of Ontario, [1940] S.C.R. 301; and, R. v. O'Malley, [1996] O.J. No. 5585 (Gen. Div.)). In O'Malley, supra, Justice Ewaschuck noted as follows:
…Section 485(2) must be interpreted in conjunction with section 485(1), which contemplates loss of jurisdiction by reason of the failure of a court to act in the exercise of its jurisdiction at any particular time or by failure to comply with statutory provisions respecting adjournments or remands.
An example of a failure of a court to act occurs when a matter is not spoken to in court where an information is mislaid.
[11] In light of this, when there was no Information before the Court on the date set for Ms. Ferreira's first appearance because the Information was either not sworn or mislaid, and when no step was taken on that day to address her matter, jurisdiction over Ms. Ferreira and her charges was lost. That is the Court lost jurisdiction over both the person and the offence. Jurisdiction is not saved by virtue of sections 485(1) and 485(1.1).
[12] Pursuant to Doyle v. the Queen, [1977] 1 S.C.R. 597, where jurisdiction over the offence is lost, the Information is treated as if it had never been laid. Jurisdiction over the offence can no doubt be regained by filing a new Information. To regain jurisdiction over the person, the court may, within three months after the loss of jurisdiction, issue a summons for the defendant to attend Court.
[13] This opportunity to regain jurisdiction over the person, however, is limited by section 485(3). This section states that the proceedings against any person over whom the Court has not regained jurisdiction by issuing a summons within three months, or by some other lawful means, are deemed to be dismissed for want of prosecution and can only be recommenced if the Crown complies with the requirements outlined in section 485.1. In other words, if steps have not been taken to regain jurisdiction over the person within three months, the charges are deemed to be dismissed.
[14] In the case at bar, having lost jurisdiction over Ms. Ferreira, the Crown had three months to summons Ms. Ferreira to Court. When the Crown failed to do so, the charges against Ms. Ferreira were deemed to be dismissed. By virtue of s.485.1 of the Criminal Code, the Crown was not permitted to lay a new information without the consent of the Attorney General or the Deputy Attorney General. As no consent was obtained in the case at bar, the Information should not have been laid.
[15] Crown counsel argued that because Ms. Ferreira attorned to the jurisdiction, the Court regained jurisdiction over her. As there is no time limitation for regaining jurisdiction over the offence, by attending court in response to the summons the Court has lawfully regained jurisdiction over both the person and the offence and therefore the consent of the Attorney General or the Deputy Attorney General was not required. I respectfully disagree. Firstly, in my view, this interpretation is at odds with the plain reading of sections 485(3) and 485.1 of the Criminal Code. Section 485.1 clearly applies to all cases in which the charges are deemed to be dismissed for want of prosecution. Once a charge is deemed to be dismissed, the distinction between loss of jurisdiction over the offence or the person is no longer meaningful. The section does not include an exception for when a defendant has attorned to the jurisdiction. The only exception provided is where the consent of the Attorney General or the Deputy Attorney General is obtained.
[16] Secondly, in my view, the interpretation as advocated by the Crown would give no force and effect to the legislation. Having been summoned to Court, Ms. Ferreira, not being legally trained, attended court in response to the summons. If her mere attendance were to be sufficient to allow the proceedings to continue, then Parliament's rationale for creating a three-month limitation period, and the requirement of the consent of the Attorney General or Deputy Attorney General thereafter, would be difficult to discern. If the Crown's interpretation is correct, then once a person, whose charges were deemed to be dismissed, attended court pursuant to a Summons (as he or she is in most cases would unless given legal advice to not attend court) jurisdiction would always be regained making the consent of the Attorney General unnecessary.
[17] Thirdly, this Court must apply a purposive approach to the interpretation of the legislation. It seems likely that in requiring the consent of the Attorney General to re-initiate proceedings against someone where jurisdiction is lost for more than three months, Parliament has implemented a procedural protection to ensure that a) defendants do not have to worry indefinitely that an old Information will resurface; and, b) the state only prosecutes cases in which jurisdiction has been lost for an extended period of time but there remains sufficient public interest in the prosecution.
[18] In summary, in the case at bar, the Court lost jurisdiction over the person and the offence when the Information did not make its way into court on Ms. Ferreira's first appearance date. While jurisdiction over the offence can be regained by relaying an information, pursuant to section 485(3), jurisdiction over the person could only be regained if a Summons was issued within three months of the loss of jurisdiction. As this was not done, the charges were deemed to be dismissed for want of prosecution, and the Crown required the consent of the Attorney General or the Deputy Attorney General to re-lay the information. As this was not done, the charges are not properly before the Court, and therefore the charges against Ms. Ferreira are dismissed.
Released: July 3, 2014
Justice Mara Greene