WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2016-03-30

Court File No.: Brampton 15-2934

Between:

Her Majesty the Queen

— and —

Sachinkumar Patel

Before: Justice J. M. Copeland

Heard on: January 27, 28 and February 12, 2016

Reasons for Judgment released on: March 30, 2016

COPELAND J.:

[1] Charge and Jurisdiction

[1] Sachinkumar Patel is charged with one count of sexual assault. It is alleged that Mr. Patel groped the complainant's thigh on a flight from Minneapolis, Minnesota to Toronto, on February 12, 2015, shortly after take-off.

[2] Crown counsel sought to ground the court's jurisdiction to hear the trial of this matter, which is alleged to have occurred outside of Canada, in s. 7(1)(b) of the Criminal Code, which provides as follows:

Every one who . . . on any aircraft, while the aircraft is in flight if the flight terminated in Canada, commits and act or omission in or outside of Canada that if committed in Canada would be an offence punishable by indictment shall be deemed to have committed that act or omission in Canada.

[3] Ultimately, for reasons that I will outline, Crown counsel conceded that the court was without jurisdiction. Mr. Patel is not a Canadian citizen. The Crown did not obtain the consent of the Attorney General of Canada, required under s. 7(7) of the Criminal Code, to continue a prosecution of a person who is not a Canadian citizen where jurisdiction is grounded in one of the extra-territorial provisions of s. 7 of the Criminal Code. The fact that Mr. Patel was not a Canadian citizen and the relevance of that fact does not appear to have been discovered by the police or Crown counsel in a timely way.

[4] Surprisingly, given that Peel region houses the largest airport in Canada, I can find almost no Ontario jurisprudence addressing the jurisdictional issues created by s. 7(1)(b) of the Criminal Code. As issues relating to offences alleged to have been committed on flights terminating in Canada are likely to recur in this jurisdiction, I think it is helpful to review the issues that arose in this case as a result of the fact that Mr. Patel is not a Canadian citizen.

[5] Before turning to the facts of this case, I should underline that I only heard the Crown case prior to this jurisdictional issue arising. Mr. Patel is presumed innocent, like any defendant. Because I have found that the court is without jurisdiction, the charge against Mr. Patel was not adjudicated on the merits, and will not be. Mr. Patel retains the presumption of innocence.

The Trial Proceedings

[6] The trial in this matter was scheduled for two days, January 27 and 28, 2016. The complainant is a resident of Minnesota. Because of a problem with the arrangements to transport the complainant from Minnesota to Peel region, the court began hearing her evidence on the afternoon of January 27. She testified for the better part of one day, with her cross-examination ending mid-afternoon on January 28.

[7] Because the complainant was from out of town, counsel and the court wanted to complete her evidence before dealing with any other issues, so as not to require her to re-attend.

[8] At the end of the first day of trial, before the cross-examination of the complainant was completed, I raised with counsel that I would like to hear from them at some stage in the proceedings about a jurisdictional issue related to the Crown's summary election. However, in order to complete the complainant's evidence, I suggested that we address the issue at the end of her evidence. Counsel agreed to proceeding in this manner.

[9] The complainant's evidence was completed mid-afternoon on January 28, 2016. After her evidence was completed, having reviewed s. 7(7) of the Criminal Code, I asked counsel whether the defendant was a Canadian citizen, and if not, whether the Crown had obtained the consent of the Attorney General of Canada as required by s. 7(7).

[10] Counsel for Mr. Patel advised that he was a permanent resident of Canada. Crown counsel advised that he did not have the consent of the Attorney General of Canada pursuant to s. 7(7), and that he had thought that the defendant was a Canadian citizen. After some discussion, I gave counsel time to make inquiries, so that the Crown could formally confirm Mr. Patel's status in Canada with the Canadian Border Services Agency, and counsel could consider their positions. The matter was adjourned for two weeks.

[11] Counsel and Mr. Patel re-attended on February 12. At that point, Crown counsel advised that he had confirmed with the CBSA that Mr. Patel is a permanent resident of Canada and not a Canadian citizen. He also advised that he had consulted with counsel at the Crown Law Office Criminal, who had consulted with the designate of the Attorney General of Canada who is responsible in Ontario for considering requests to continue proceedings against non-citizens under s. 7(7) of the Criminal Code. In light of those consultations, the Crown took the position that the court was without jurisdiction to continue the proceedings because Mr. Patel was not a Canadian citizen, and the consent of the Attorney General of Canada had not been obtained within 8 days of the commencement of proceedings. Crown counsel conceded that the reference to the commencement of proceedings in s. 7(7) means the laying of the Information.

[12] I invited counsel's submissions on the appropriate remedy to formally bring an end to the proceedings against Mr. Patel. In particular, I asked whether it would be appropriate for the Crown to enter a stay of proceedings pursuant to s. 579 of the Criminal Code, or whether it would be more appropriate to endorse the information that the proceedings were a nullity, since the effect of s. 7(7) is that the proceedings could not continue once 8 days had passed from the laying of the charge and the consent of the Attorney General of Canada had not been obtained. Both counsel agreed that it was not appropriate at this stage for the Crown to enter a stay of proceedings, essentially because there was nothing left to stay, as the proceedings were already concluded by virtue of s. 7(7).

[13] I agree with this position. The effect of s. 7(7) is that if the consent of the Attorney General of Canada is not obtained to continue the prosecution within 8 days after the proceedings are commenced, then the proceedings are from that point onward a nullity. In the result, I endorsed the Information as follows: "The charge is a nullity. No further proceedings may continue, pursuant to s. 7(7) of the Criminal Code."

Section 7, Extra-Territorial Offences, and the Requirement of the Consent of the Attorney General of Canada to Continue a Prosecution against a Person Who is Not a Canadian Citizen

[14] In general, Canadian courts only have jurisdiction to hear criminal proceedings involving offences committed in Canada: see s. 6 of the Criminal Code; R. v. Libman, [1985] 2 S.C.R. 178; Davidson v. British Columbia (Attorney General), 2006 BCCA 447 at para. 5; Criminal Procedure in Canada, S. Penney, V. Rondinelli, J. Stribopoulos (Lexis Nexis Canada Inc., 2011) at §12.2-§12.5. This general rule is grounded in concerns about state sovereignty and international comity.

[15] Section 7 of the Criminal Code creates a number of exceptions to the general rule that Canadian courts do not have jurisdiction over extra-territorial offences: Davidson, supra at para. 6.

[16] As noted above, this case involves s. 7(1)(b), which gives Canadian courts jurisdiction over offences alleged to have been committed on airline flights which terminate in Canada, where if the offence had been committed in Canada, it would be punishable by indictment.

[17] Other subsections of s. 7 create jurisdiction to prosecute offences committed outside Canada in a variety of circumstances, provided that the requirements set out in the different subsections are met. Examples from the other subsections of s. 7 include: offences against fixed platforms or international maritime navigation; nuclear terrorism; offences committed on the International Space Station by or against Canadian crew members; offences against internationally protected persons; hostage taking; offences against United Nations or associated personnel; terrorism and terrorism financing offences; and offences involving the trafficking of persons or sexual offences against children: see ss. 7(2.1), (2.2), (2.21), (2.3)-(2.34), (3), (3.1), (3.71), (3.73)-(3.75), (4.1), and (4.11).

[18] Section 7(7) contains a requirement that applies to all of the jurisdiction-creating provisions of s. 7. Section 7(7) provides as follows:

If the accused is not a Canadian citizen, no proceedings in respect of which courts have jurisdiction by virtue of this section shall be continued unless the consent of the Attorney General of Canada is obtained not later than eight days after the proceedings are commenced.

[19] The purpose of s. 7(7) of the Criminal Code is to allow the Attorney General of Canada, as a representative of the federal government, to consider the possible international relations implications of the prosecution of a person who is not a Canadian citizen for an offence committed outside of Canada: Davidson, supra at paras. 24-29. Potential international relations implications could involve either the country where the offence is alleged to have occurred, or the country of which the defendant is a citizen, or both. Section 7(7) provides a mechanism for the Attorney General of Canada to consider those possible international relations implications at an early stage of proceedings.

[20] Crown counsel conceded in this case that a permanent resident of Canada is not a "Canadian citizen" as that term is used in s. 7(7). I agree with this concession. It is quite clear that the Criminal Code, like the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the Canadian Citizenship Act, R.S.C. 1985, c. C-29, uses the terms "Canadian citizen" and "permanent resident of Canada" to mean different things: see for example, ss. 7(2.01), 7(2.1), 7(3.1), 7(3.7), 7(3.71), 7(3.72), 7(3.73), 7(3.74), 7(3.75), 7(4.1), 7(4.11), 46(3), 83.01(1), 290(1)(b), 477.1, and 477.2 Criminal Code. In using only the term "Canadian citizen" in s. 7(7), Parliament clearly intended not to include "permanent residents of Canada" in the group for whom consent of the Attorney General of Canada is not required.

[21] The purpose of s. 7(7), allowing the Attorney General of Canada to consider possible international relations implications of the prosecution of a non-citizen for an offence alleged to have been committed outside Canada, also supports interpreting "Canadian citizen" in s. 7(7) not to include permanent residents. The vast majority of people who hold permanent resident status in Canada are citizens of another country. The only exception to this would be a relatively small number of people who are stateless. Interpreting "Canadian citizen" in s. 7(7) as not including "permanent residents of Canada" is consistent with the purpose of the section, because it is possible that the prosecution in Canada of a permanent resident of Canada for an offence committed outside could have international relations implications, since most permanent residents of Canada hold the citizenship of another country.

[22] That said, it may well be the case that possible international relations concerns are lessened when a person is a permanent resident of Canada, since a person who is a permanent resident has a legally recognized connection to Canada. But in light of the clear wording of s. 7(7), consideration of that factor is an issue in the discretion of the Attorney General of Canada in deciding whether or not to give consent to continue proceedings under s. 7(7). I did not hear any evidence or submissions on the types of factors the Attorney General of Canada considers in deciding whether to give consent to continue a proceeding against a non-citizen under s. 7(7). It would not be surprising if she would consider the fact that a defendant, although not a citizen of Canada, is a permanent resident, to be a relevant factor.

[23] In this case, no consent was ever sought from the Attorney General of Canada under s. 7(7) to continue the proceedings. I was advised by Crown counsel that he had thought that Mr. Patel was a Canadian citizen. I was not provided any information as to why Crown counsel thought this, or whether any inquiry was ever made regarding Mr. Patel's citizenship.

[24] It is now too late for the Crown to seek consent of the Attorney General of Canada to continue the proceedings.

[25] Section 7(7) requires that the consent of the Attorney General of Canada be obtained "not later than eight days after the proceedings are commenced". Crown counsel conceded, and I agree, that this means 8 days after the Information was laid. I reach this conclusion for two reasons.

[26] First, I find persuasive the decision of the British Columbia Court of Appeal in Davidson, supra at paras. 30-38, which holds that this language in s. 7(7) means within 8 days after the Information is laid. In particular, I note that the identical language of "proceedings . . . are commenced" in s. 579 of the Criminal Code has been interpreted as referring to the laying of the Information: Davidson, supra at paras. 30-38.

[27] Second, the purpose of s. 7(7) of allowing the Attorney General of Canada to consider the international implications of the prosecution of a non-citizen for an extra-territorial offence requires that the decision whether or not to continue the prosecution be made at an early stage of proceedings in order to avoid possible international relations issues.

Application to this Case

[28] Mr. Patel was arrested on February 12, 2015, and released on a promise to appear. The Information was laid on March 9, 2015. It appears that neither the police nor Crown counsel turned their minds to s. 7(7) of the Criminal Code, and the Attorney General of Canada was not asked to give consent to continue the proceedings.

[29] As usual, there were a number of appearances for set dates as the process of disclosure and pre-trials rolled out prior to the setting of the trial dates.

[30] However, because no consent to continue the proceedings was obtained from the Attorney General of Canada, the court lost jurisdiction once 8 days had passed after the laying of the Information.

[31] I note that the failure of Crown counsel and the police to advert to Mr. Patel's status in Canada and the requirements of s. 7(7) had a number of deleterious effects. I speak to the deleterious effects apparent in this case, and also to those that more generally may occur where Crown counsel and the police do not advert to the requirements of s. 7(7) in a timely way.

[32] First, in this case the proceedings continued for almost 11 months after the time that the court lost jurisdiction. This had impacts on all parties. The complainant was required to testify and be cross-examined for the equivalent of a full day (spread over two days), when the proceedings were already a nullity. The complainant was required to travel from Minnesota to Peel region and stay at least overnight in order to testify. The Attorney General incurred cost of complainant's travel. The defendant was required to appear at multiple court appearances leading up to the trial date, and attend 2 days of trial. The defendant endured the stress of having a criminal charge outstanding against him, which for the last 11 months was a nullity. One and a half days of court time was used for the trial, when the proceedings were already a nullity. Court time is a scarce resource in this region. As is clear, these impacts harm witnesses, the defendant, and the public in terms of resources used.

[33] Second, where neither the police nor Crown counsel consider seeking the consent of the Attorney General of Canada, there will be cases of serious offences for which the Attorney General of Canada may have granted the consent if asked within the required time, which will not be tried on the merits. This is a harm to the public. As I indicated earlier, this defendant is presumed innocent, and I make these comments in general, and not in relation to the charge against him.

[34] Third, it is clear that the eight day time limit in s. 7(7) to obtain the consent of the Attorney General of Canada to continue the proceedings was designed by Parliament to ensure that charges for extraterritorial offences against people who are not Canadian citizens are screened at an early stage by the Attorney General of Canada in order to minimize the risk that international relations issues will arise from such prosecutions. If no-one adverts to the issue of obtaining the consent of the Attorney General of Canada under s. 7(7), and the prosecution continues, this increases the risk that such a prosecution may have an adverse effect on international relations. I hasten to add that there is no evidence in the record in this case to suggest that any adverse effects on international relations occurred in this case. But s. 7(7) exists to ensure that the Attorney General of Canada is able to consider potential international implications of the prosecution of a non-citizen for an offence committed outside Canada. If no-one alerts to Attorney General of Canada to the existence of the prosecution, she is denied the ability to consider any possible international issues.

[35] All of these potential harms speak to the need for the police and Crown counsel to be aware of the requirements of s. 7(7) in cases where they seek to ground jurisdiction in any of the extra-territorial provisions of s. 7. I note that, in general, a defendant's citizenship is not relevant under the Criminal Code. For example, the bail provisions speak only to where a person is "ordinarily resident" either outside the province or more than two hundred kilometres from the place in which he or she is in custody, but do not speak to citizenship or permanent resident status: see s. 515(2)(e). I do not know if it is routine practice for the police to ask a person's status in Canada at the time of arrest or booking. But where the police and Crown counsel rely on s. 7 for jurisdiction, they must be aware of the relevance of a defendant's citizenship, and the need to seek consent of the Attorney General of Canada to continue the prosecution if the defendant is not a Canadian citizen.

[36] Crown counsel advised on the last appearance in this matter that in the usual course, if a person charged is not held for a bail hearing, Crown counsel will not see the file within 8 days of the commencement of proceedings, as the first appearance in court will normally be later than 8 days after the Information is laid. As a result, in many cases, as a practical matter, the police will have the primary responsibility for flagging cases where the consent of the Attorney General of Canada is required to continue a proceeding pursuant to s. 7(7).

[37] Crown counsel advised that the Crown's office has now taken steps to ensure that Crown counsel are aware of the effect of s. 7(7) and the need to expeditiously consider seeking consent to continue proceedings from the Attorney General of Canada if the defendant is not a Canadian citizen. In addition, Crown counsel advised that steps have been taken to ensure that officers in the Airport Division of the Peel Regional Police Service are aware of the requirements of s. 7(7). Where jurisdiction is grounded in the fact that a flight terminates in Canada under s. 7(1)(b) (or any other provision of s. 7), the police will need to determine whether the defendant is a Canadian citizen, and if he or she is not, to immediately contact Crown counsel to take steps to seek the consent of the Attorney General of Canada (if the Crown feels it is appropriate to seek that consent and continue the proceeding).

Conclusion

[38] The court does not have jurisdiction to try the charge against Mr. Patel, and has not had jurisdiction since 8 days elapsed after the laying of the Information. The Information is now a nullity, and there will be no further proceedings against Mr. Patel.

Released: March 30, 2016

Justice J. M. Copeland

Footnotes

[1] The only Ontario decision I was able to find was the decision of Justice Kastner in R. v. Vella, 2009 ONCJ 30. Vella addresses several jurisdictional issues related to s. 7, but not the particular issue that arose in this case. Outside of Ontario, several jurisdictional issues in relation to s. 7 were considered by the Newfoundland Court of Appeal in Minot v. Canada (Attorney General), 2011 NLCA 7, and by the British Columbia Court of Appeal in Davidson v. British Columbia (Attorney General), 2006 BCCA 447.

[2] This was a different jurisdictional issue, unrelated to the issue of the defendant not being a Canadian citizen. Ultimately, this other jurisdictional issue was never dealt with because of the issue related to Mr. Patel's citizenship. As a result, I make no further comment on it.

[3] I note in passing that some of the subsections of s. 7 are further restrictive, and require the consent of the Attorney General of Canada before proceedings are commenced: see for example: s. 7(2.33) and 7(4.3). In addition, some of the subsections are only applicable to Canadian citizens, permanent residents of Canada, or stateless persons who are ordinarily resident in Canada: see for example: s. 7(2.01) and 7(4.1).