Ontario Court of Justice

Date: 2018-10-12

Court File No.: Durham 2811-998-17-25083-00

Between:

HER MAJESTY THE QUEEN

— AND —

ROSE ANDREWS-SOMERS

Before: Justice G.R. Wakefield

Heard on: April 17, 2018

Ruling on Application to Quash Information released on: October 12, 2018

Counsel

O. Fitzgerald — counsel for the Crown

A. Risen — counsel for the defendant R. Andrews-Somers

WAKEFIELD J.:

[1] Application to Quash Information

[1] Prior to arraignment, the Defendant brought an application to Quash the Replacement Information for non-compliance with s. 504, in that insufficient information was provided by the Informant to the intake Justice of the Peace as well as the Justice of the Peace not verbally taking an oath from the Informant when laying the Information.

[2] Given that on its face the Replacement Information appears valid, the presumption of regularity would apply subject to an evidentiary attack by the Defendant to be determined on a balance of probabilities, as is the case here.

[3] I have dismissed the Defendant's application, and these are my reasons for doing so.

[2] Background Facts

[4] The Defendant was originally charged with one count of "Over 80" by the investigating officer. Upon review of the Crown brief, the Crown's office apparently emailed the police requesting replacement charges of Impaired Causing Bodily Harm x2 and Exceed Causing Bodily Harm x 2. The procedure in swearing that Replacement Information is the subject of the Defendant's attack.

[5] The day before trial, a second Replacement Information with exactly the same charges was sworn, however the trial Crown elected to not proceed on that newest Information but was requesting arraignment on the first Replacement Information.

[6] There will be a separate set of reasons for the trial proper, however to put this application into context, a brief overview of the offence allegations is appropriate, as known at the time of this application.

[7] On March 24, 2017, at approximately 2pm, the Defendant was alleged to be the operator of a motor vehicle driving northbound on Simcoe Street in the City of Oshawa, and collided with a car in front of her, which caused a chain reaction with another car. She was alleged to having admitted to being the driver and causing the accident by looking down just prior to the accident. She allegedly admitted to consumption of alcohol earlier in the morning at about 4am. An ASD demand produced a failure, an arrest for Exceed and a drive to the local police station for breath tests albeit without a formal demand for breath samples by the arresting officer.

[8] After a review by either or both the Durham Crown office and the Durham Police audit department a request went to the arresting officer regarding upgraded charges to which it seems common ground between Crown and Defence that some form of reply was made by that officer advising he did not have Reasonable and Probable Grounds to lay an Impaired charge, let alone other upgraded charges.

[9] Notwithstanding that, apparently an Assistant Crown Attorney requested a Replacement Information be laid for the two counts each of Impaired Bodily Harm and Exceed Bodily Harm. That endeavour was undertaken by an officer from the Durham Police occurrence report compliance audit department which included a tour of duty for two years of swearing all informations. P.C. Doucette a 30-year veteran of the police force, advised that he would have an average of about 30 informations each time he attended upon an intake Justice of the Peace, sometimes less, and sometimes more and as many as 60 separate informations.

[10] He would normally have reviewed the file copy of the guilty plea summary but confirmed he did not review any other reports from an investigation unless the Justice of the Peace requested additional allegations. He confirmed he might not review a file if it is for the purpose of a replacement information as he would rely on that request together with the fact that there had already been an initial Information sworn, the original of which would also be before the intake Justice of the Peace when the replacement information was laid. He confirmed he swears each Information he brings to an intake Justice of the Peace. In this case the request came from the Crown Attorney office after their review of their brief and he did not recall making any other independent investigation and confirmed he did not access the electronic Durham Police files in this matter.

[3] The Oath Issue

[11] The first line of attack on the validity of this Information was the lack of swearing the document under oath.

[12] The proceedings before the intake Justice of the Peace were recorded and a transcript ordered by the Defendant the entirety of which reads as follows:

JUSTICE OF THE PEACE: So there are Criminal Code and P.O.A. matters?

P.C. DOUCETTE: Yeah, we're replacing the Criminal Code only. We're upping the charges from Impaired and Exceed to two counts of Impaired causing Bodily Harm and two counts of Exceed causing Bodily Harm as information from the injuries has been obtained and the accused will attorn, not seeking process. It's all previously, the P.O.A. one was previously dealt with, has purged (ph).

[13] In testifying, the Officer appeared genuinely surprised that this recording lacked an oral, formal oath or affirmation by the Justice of the Peace to the officer. I find that the officer who is an experienced senior officer and by his reaction clearly understood his responsibility in complying with s. 504. He did not hesitate in conceding he made a mistake in telling the Justice of the Peace that the original information contained an impaired count as well and confirmed his agreement that the original only had one count that being the Exceed simpliciter, thereby enhancing his credibility before myself. I find as a fact that P.C. Doucette honestly believed himself to be under oath when signing this Information.

[4] Statutory Framework

Section 504 of the Criminal Code

The Criminal Code of Canada, s. 504, sets out how a Justice may receive an Information, and reads as follows:

504 Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person

(i) is or is believed to be, or

(ii) resides or is believed to reside

within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;

(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or

(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

R.S., c. C-34, s. 455; R.S., c. 2 (2nd Supp.), s. 5.

Canada Evidence Act — Oaths and Solemn Affirmations

[14] "Under Oath" requirements are set out in the Canada Evidence Act, R.S.C., 1985, c. C-5, sections 13 to 15 read as follows:

Who may administer oaths

13 Every court and judge, and every person having, by law or consent of parties, authority to hear and receive evidence, has power to administer an oath to every witness who is legally called to give evidence before that court, judge or person.

R.S., c. E-10, s. 13.

Solemn affirmation by witness instead of oath

14 (1) A person may, instead of taking an oath, make the following solemn affirmation:

I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth.

(2) Where a person makes a solemn affirmation in accordance with subsection (1), his evidence shall be taken and have the same effect as if taken under oath.

R.S., 1985, c. C-5, s. 14 ; 1994, c. 44, s. 87.

Solemn affirmation by deponent

15 (1) Where a person who is required or who desires to make an affidavit or deposition in a proceeding or on an occasion on which or concerning a matter respecting which an oath is required or is lawful, whether on the taking of office or otherwise, does not wish to take an oath, the court or judge, or other officer or person qualified to take affidavits or depositions, shall permit the person to make a solemn affirmation in the words following, namely, "I, do solemnly affirm, etc.", and that solemn affirmation has the same force and effect as if that person had taken an oath.

(2) Any witness whose evidence is admitted or who makes a solemn affirmation under this section or section 14 is liable to indictment and punishment for perjury in all respects as if he had been sworn.

R.S., 1985, c. C-5, s. 15 ; 1994, c. 44, s. 88.

[5] Analysis of the Oath Requirement

[15] The question becomes firstly, whether the oath required by s. 504 is also required to be an oral one or not. In my view, an oath by any informant would be no less valid if that informant were incapable of hearing it administered, provided that informant is aware of the content and legal obligation imposed. The crux of the process is that the informant was aware of the oath obligation and felt duty bound, as was P.C. Doucette in this case.

[16] Even apart from informants who are hearing impaired, the Code has recognized since 1997 that an information laid through a telecommunications device with a written statement is deemed the same as under oath:

508.1 (1) For the purposes of sections 504 to 508, a peace officer may lay an information by any means of telecommunication that produces a writing.

(2) A peace officer who uses a means of telecommunication referred to in subsection (1) shall, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to the officer's knowledge and belief, and such a statement is deemed to be a statement made under oath.

1997, c. 18, s. 56.

[17] The informant need only reasonable grounds, as opposed to reasonable and probable grounds with respect to an indictable offence. He must produce an Information in writing and under oath upon which justice must receive that Information (by the use of the word "shall"). Obviously, any hybrid offence is deemed Indictable until otherwise elected by a Crown Attorney.

[18] While the original Information for Exceed simpliciter was laid after the Defendant's release from the station on a Promise to Appear, and might otherwise fall within s. 505, the Replacement Information set out new charges arising out of the same incident but for which the Defendant had not yet been arrested, and as such s. 507(1) applied and an ex parte hearing sufficient.

[19] The transcript of the Laying of the Replacement Information is at the minimalist end of brevity. However, it does reference the prior Exceed charge, albeit mistakenly in the context of an additional Impaired, though in my view any confusion would have been resolved by having that original Information before the Justice when applying for the Replacement. According to the testimony of P.C. Doucette, which I accept, the original would have been present. That previously laid Information would carry a presumption of regularity as it has not been attacked, so carrying with it the foundation of grounds for drinking and driving and having been taken under oath. The recording transcript also references new medical evidence of injuries to the two Complainants, and by the word injuries I accept an inference of a degree of harm which is more than trivial or trifling. Cumulatively, I find that satisfies the s. 504 requirement for reasonable grounds, given the low administrative threshold at that stage of the proceedings.

[20] This section of the Code recognizes that the efficiencies provided by technology do not detract from the administrative procedure regarding an oath in s. 504. I do conclude that s. 504 is administrative given that once reasonable grounds are provided under oath, discretion to refuse the information is removed from the jurist. Additionally, I note that in R. v. Ellis, [2009] O.J. No. 2460, dealing with an issue regarding in which jurisdiction the Information is laid, at paragraph 45:

It follows from the above that I do not find the Crown's argument that a broad interpretation of "territorial jurisdiction" in s. 504 would lead to an inefficient use of public resources to be particularly persuasive. Interpreting "territorial jurisdiction" in s. 504 so as to allow an informant to swear an information before any justice in the province does not necessarily entail any inconvenience or expense for either the parties or the witnesses to a criminal proceeding. As in Gentles itself, a pre-inquiry may be directed to proceed in a region other than the informant's choosing out of a concern for the orderly administration of justice or the principle that criminal matters should be dealt with where they occurred.

[21] Inefficient use of public resources applies equally to the case at bar and the necessity of a verbalization of the oath. While out of context, I note that s. 15(2) of the Canada Evidence Act, R.S.C. 1985 Chap. C-5, seems to expand the consequences of perjury to those documents admitted into evidence as if sworn beyond those subject to an affirmation.

[6] Standard of Review for Non-Compliance

[22] As an administrative or ministerial procedure, what should be the standard of review for non-compliance with one of the section's pre-requisites?

[23] The Applicant is relying upon three cases to demonstrate that the appropriate remedy is that of a stay: R. v. Kamperman, [1981] N.S.J. No. 494 (NSSC), R. v. Pilcher and Broadberry, [1981] M.J. No. 552 (MBPC), and R. v. Peavoy, [1974] O.J. No. 103 (ONSC).

[24] In Kamperman, the Informant was candid in that he not only did not have personal knowledge of the alleged offence therein, he often did not review the file nor even the Information document itself other than to confirm the date was prior to the date of issuance. Leaving aside that the wording of the predecessor section, s.455.2, the learned judge determined that an Informant officer who did not have personal knowledge hence lacked reasonable and probable grounds to believe the allegations amounted to a false oath, and specifically at paragraph 13, "I am unable to accept that the nature of the informant's duties as a police officer and that this information was in the police station is sufficient to allow anyone to swear the oath required".

[25] The law has progressed since 1981. For example, officers arrest solely on the direction of another officer who directs a suspect is arrestable. We do not require the arresting officer to sit down and obtain specificity of grounds but rather accept by inference that such grounds exist when another officer asserts that someone is arrestable. This again is a more efficient use of public resources and I respectfully do not follow R. v. Pilcher and Broadberry, [1981] MJ No. 552.

[26] I agree that s. 504 is an important protection for all residents from the potential deprivation of liberty from an arrest, and as set out in Peavoy, p.106, "A person swearing an Information, particularly a law enforcement officer, is not at liberty to swear the information in a perfunctory or irresponsible manner with a reckless disregard as to the truth of his assertion". I wonder whether even in 1974, it was administratively possible for only an officer who was involved in the original arrest or investigation, or one who had read the entire investigative file in order to ensure the earlier officer was neither irresponsible nor reckless to the truth to carry out a request for the laying of an information. It would certainly not be practical in large jurisdictions to do so and would amount to a stupendous waste of public resources to require the original investigating officer or an officer who has reviewed the entirety of the investigative records as a precondition to laying an information.

[27] Even if I am in error as to the degree of personal knowledge necessary to lay an Information, in my view, it is an error best resolved at a trial on its merits.

[28] R. v. Jennifer Millar, 2012 ONSC 1809, [2012] O.J. No. 1276, is a decision of Justice Code regarding reversing a quashing of a replacement information with an additional charge. There are strong parallels to the case at bar as to the consequences of quashing an information, albeit noting that at paragraph 46 "assuming the accused was before the court and a sworn information is before the court".

[29] Continuing in the same paragraph: "even major defects in process, such as a lack of reasonable and probable grounds at the time the Information was sworn, are not reviewable at trial (subject to what I will say about the Charter of Rights in the next section of these Reasons). The common law and the statutory provisions of the Criminal Code, as interpreted by the Court of Appeal, require the court to focus on the sufficiency of the evidence from the witnesses at the trial itself instead of focusing on earlier alleged errors in process".

[30] While the actual officer in charge may very well resist an invitation to charge, or re-lay an information with more serious charges when his or her own knowledge and belief of the allegations are contrary to that direction, and indeed in my view such an officer would have a duty to reject such a direction in those circumstances, an administrative officer is entitled to accept another officer's direction or that of a Crown Attorney that other charges are appropriate as inferring the necessary knowledge and belief to lay an information before a Justice of the Peace especially where that Informant knew there had already been an earlier related charge successfully issued.

[31] My only cautionary note is that had an evidentiary foundation been laid in this application as to any systemic ignoring of the oath obligation, a different result might ensue, depending on the informant's belief of being bound by the oath acknowledgment printed on the Information in each of those other processes. In my view the more easily proven compliance with s. 504 would be that Justices of the Peace always administer a verbal oath so that the recording demonstrates compliance and prevents lost court time litigating this issue.

Released: October 12, 2018

Signed: Justice G.R. Wakefield