Court File and Parties

Ontario Court of Justice

Date: 2019-07-04

Court File No.: Brampton 18-5733

Between:

Her Majesty the Queen

— and —

Suneet Sharma

Before: Justice N. S. Kastner

Heard on: March 25 and April 2, 2019

Reasons for Judgment released on: July 4, 2019

Counsel:

• Patrick Quilty, counsel for the Crown
• Craig Penney, counsel for the defendant

Judgment

KASTNER J.:

Overview

[1] Mr. Sharma was arrested following a drink/drive investigation on April 28, 2018. On May 7, 2018 a member of the Peel Regional Police assigned to the police bureau in the Brampton courthouse swore an information that they believed on reasonable grounds that Mr. Sharma was operating a motor vehicle while his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood. I will refer to that information as the "original information."

[2] The Justice of the Peace confirmed a Promise to Appear on the original information and Mr. Sharma was to appear June 14, 2018 in the Intake Assignment Court.

[3] No issue is taken with the validity of the original information.

[4] In the meantime, a vetting Crown or supervising Crown reviewed the materials and made the decision that they would request that Peel Regional Police lay an additional charge of Impaired Driving along with the Over 80 offence on a new or second information to be put over to the first appearance date.

[5] This decision was communicated to the Police Bureau via email on May 9, 2018, along with several requests for further disclosure to be made with respect to six items.

[6] Further to a protocol developed between the Peel Regional Police and the Crown Attorney's Office, a Sergeant in the Police Bureau of Court Services reviewed the file and the Crown request, and directed a civilian employee to type the "new information" with the additional impaired driving charge. He or she also instructed that a Police Constable attend at the office of the Justice of the Peace and swear to the new information.

[7] Police Constable Del Zotto, a member of the Peel Regional Police Service attached to the Police Bureau or Court Bureau, swore this second information before a Justice of the Peace on May 15, 2018. The second information consisted of both the alleged offences of impaired driving and driving with excess blood alcohol.

[8] The Justice of the Peace remanded the new information to the date scheduled for the original information in the Intake Court of June 14, 2018.

[9] The Applicant appeared on both informations in the intake process.

[10] Both the original and second information were before the Court on the motion date.

[11] The Crown wishes to proceed on the second information.

Issue

[12] The Applicant submits that the second information is a nullity and is void ab initio. At the outset of this motion, he declined to rely on the jurisdictional argument, however, in light of the decision of R. v. Davey, [1995] O.J. No. 3064 (S.C.J.).

[13] In the alternative, he argues in a trial application that the swearing of the second information amounts to an abuse of process and together with continuing with it, is a continuing breach of s. 7 of the Canadian Charter of Rights and Freedoms (Charter); and he seeks a stay as the remedy under the residual category of s. 24(1) of the Charter.

Factual Background

[14] The synopsis for the original charge was filed in the Application Record. It reads as follows:

On Saturday, April 28th, 2018, at approximately 02:01 a.m., the accused, Suneet Sharma, was operating a white 2018 Nissan Maxima bearing Ontario marker BWPY486 traveling eastbound on Castlemore Rd. waiting to turn left onto Northbound Clarkway Drive in the City of Brampton.

At this time, the victim, Jason Gravito, was operating his white 2008 Hyundai Santa Fe bearing Ontario marker CCDX192 traveling westbound on Castlemore Rd. approaching Clarkway Drive.

Jason proceeded through the intersection on a green light, and at this time, the accused turned left in front of the victim's vehicle path. Hence, both vehicles collided. Both vehicles sustained front end damage. The damage was valued at approximately $10,000 for each vehicle.

Police subsequently received a call for service and attended.

Whilst speaking with the accused, police detected an odour of an alcoholic beverage emanating from his breath. The accused's eyes were red rimmed and watery.

At 02:36 a.m. police formed the suspicion that the accused had been operating a motor vehicle and had alcohol in his body. As a result, a demand was made on the accused to provide a suitable breath sample into an approved screening device, and the accused understood. At 02:38 a.m. the accused provided a suitable sample on the first attempt and subsequently registered a "Fail" on the Alcotest 6810 GLC. At 02:38 a.m., police formed the opinion that the accused had in excess of 80 MGS of alcohol in 100 MLS of his blood and was operating a motor vehicle and was subsequently arrested for the offence of Excess Blood Alcohol contrary to Section 253(1)(B) of the Criminal Code of Canada. The accused was then read his rights to counsel, caution, and breath demand, all of which the accused indicated he understood.

The accused was transported to 21 Division for the purposes of testing. The accused spoke with his lawyer of preference and he was subsequently placed into the custody of PC Simmons #2227, who is a qualified Intoxilizer Technician.

The accused provided two suitable samples of his breath into an approved instrument that registered as follows:

1. 170 Milligrams of alcohol in 100 Millilitres of Blood at 04:34 a.m.
2. 150 Milligrams of alcohol in 100 Millilitres of Blood at 04:57 a.m.

As a result of the readings, the accused was advised of the charge of excess blood alcohol contrary to Section 253(1)(b) CCC. The accused was held at 21 Division and lodged into cells. The accused was later released on a Form 10, with a court date of Thursday, May 10th, 2018 at 9:00 a.m. and a fingerprint date of Wednesday, May 9th, 2018 at 10:30 a.m.

Injuries:

The victim was treated for minor chest pain on scene by EMS.

The accused had minor pain in his left ankle.

[15] The matter came before this Court for a pre-trial motion styled "Abuse of Process" on March 25, 2019, in regard to a matter set for a two day trial commencing on May 2 and 3, 2019. The motion was argued that day.

[16] The case was spoken to briefly thereafter on April 2, 2019, when the Court dismissed the motion with reasons to follow.

[17] These are the reasons for dismissing the motion.

Procedure in Swearing the Relaid/New Information

[18] More clarity is brought to this argument by setting out the seminal sections in the Criminal Code relating to the swearing of informations.

[19] Section 504 of the Criminal Code reads:

504. Anyone 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. (emphasis added)

[20] Sections 507 and 508 of the Criminal Code set out the procedure for issuance of process for persons to attend Court to answer to the charge(s) alleged in those informations:

507. (1) Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney General's agent, other than an information laid before the justice under section 505, shall, except if an accused has already been arrested with or without a warrant,

(a) hear and consider, ex parte,

(i) the allegations of the informant, and

(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and

(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence.

(2) No justice shall refuse to issue a summons or warrant by reason only that the alleged offence is one for which a person may be arrested without warrant.

(3) A justice who hears the evidence of a witness pursuant to subsection (1) shall

(a) take the evidence on oath; and

(b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.

(4) Where the justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) disclose reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused.

(5) A justice shall not sign a summons or warrant in blank.

(6) A justice who issues a warrant under this section or section 508 or 512 may, unless the offence is one mentioned in section 522, authorize the release of the accused pursuant to section 499 by making an endorsement on the warrant in Form 29.

(7) Where, pursuant to subsection (6), a justice authorizes the release of an accused pursuant to section 499, a promise to appear given by the accused or a recognizance entered into by the accused pursuant to that section shall be deemed, for the purposes of subsection 145(5), to have been confirmed by a justice under section 508.

(8) Where, on an appeal from or review of any decision or matter of jurisdiction, a new trial or hearing or a continuance or renewal of a trial or hearing is ordered, a justice may issue either a summons or a warrant for the arrest of the accused in order to compel the accused to attend at the new or continued or renewed trial or hearing. R.S. c.2 (2d Supp.), s. 5; 1972, c. 13, s. 35; R.S.C. 1985, c. 27 (1st Supp.), s. 78; 1994, c. 44, s. 43; 2002, c. 13, s. 21.

508. (1) A justice who receives an information laid before him under section 505 shall

(a) hear and consider, ex parte,

(i) the allegations of the informant, and

(ii) the evidence of witnesses, where he considers it desirable or necessary to do so;

(b) where he considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearance notice, promise to appear or recognizance or to an included or other offence,

(i) confirm the appearance notice, promise to appear or recognizance, as the case may be, and endorse the information accordingly, or

(ii) cancel the appearance notice, promise to appear or recognizance, as the case may be, and issue, in accordance with section 507, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice, promise to appear or recognizance, as the case may be, has been cancelled; and

(c) where he considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice, promise to appear or recognizance, as the case may be, and cause the accused to be notified forthwith of such cancellation.

(2) A justice who hears the evidence of a witness pursuant to subsection (1) shall

(a) take the evidence on oath; and

(b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied. R.S. c.2 (2nd Supp.), s. 5; R.S.C. 1985, c. 27 (1st Supp.), s. 79.

[21] It is to be noted that the Justice shall receive an information from an informant who believes, on reasonable grounds, that an offence has been committed pursuant to s. 504 of the Criminal Code; whereas the Justice shall consider issuing or cancelling process to compel an accused to attend Court after a hearing pursuant to ss. 507 and 508 of the Criminal Code.

[22] The language of the Criminal Code is specific. It is mandatory to receive the information, and discretionary as to whether to issue process to compel attendance before a Court.

Evidence on the Application

[23] The Applicant filed a transcript of the proceedings before Justice of the Peace Karen Murphy on May 15, 2018. It is very brief.

[24] Police Constable Del Zotto swore the contents of the information to be true. He added that the information adds an additional impaired charge to the original information done on record at the last appearance before the justice.

[25] The officer briefly referred to an email he had to clarify the return date for the original information. The intention was to have both informations before the Court on the first or second appearance date.

[26] The email referred to was likely one sent to the police division along with some disclosure requests.

[27] Some agreed facts were filed in the Application Record. They include the following points:

• Peel Regional Police has a Court Bureau embedded in the A. Grenville and William Davis Courthouse in Brampton;

• The Court Bureau consists of police officers, court services officers and civilian employees;

• When an individual is first charged with an offence, the officer-in-charge of the case will provide a court brief to the Court Bureau. Currently, this is done electronically through Peel Regional Police's NICHE system. The brief contains at the minimum a synopsis of the alleged offence;

• Most informations are sworn to by a police officer assigned to the Court Bureau, not the officer in-charge of a case. This is an efficiency necessitated by the high volume of charges in Peel Region, and the wait times to see a Justice of the Peace in the intake area;

• When a Court Bureau officer swears an information at first instance, the officer will read the synopsis provided by the officer-in-charge in order to gain the requisite reasonable grounds to swear the information;

• The Crown Attorney's Office may request that a new information be laid in a case. This could be to add charges, to correct wording, to join parties, or for the purposes of resolution;

• When the Crown asks for a new information to be laid, the request is reviewed by a Sergeant in the Court Bureau. The Sergeant determines whether the new charge (or wording) is reasonable and relevant. If the Sergeant determines that laying a new information is appropriate, they will direct an information clerk, a civilian employee in the Court Bureau, to type up the new information;

• The typed unsworn information is provided to one of three police officers in the Court Bureau, who will take it before a Justice of the Peace in intake and swear to it. In such cases, the swearing officer will generally not review a synopsis before swearing the information. Instead the Court Bureau presumes good faith on the part of the requesting Crown, and treats the Crown's request as its grounds to lay the new information;

• Where the Crown asks for a new charge to be laid, the Court Bureau presumes that the Crown has reviewed the file and determined that there is sufficient evidence to proceed with the additional charge; and

• This process for swearing a new information at the request of the Crown was the result of an agreement/understanding between the Court Bureau and the Peel Crown Attorney's Office.

[28] Police Constable Enzo Del Zotto, the informant on this "new information or relaid information" also testified on this motion. He was called by the Applicant. He has twenty-nine years of policing experience, and has been with the Court Bureau or Police Bureau for nine years at the time on May 15, 2018. He now works with the Central Disclosure Unit.

[29] He testified that when the electronic request comes from the Crown Office, as in Tab B of the Application Record, the case management sergeant then through NICHE creates the task for administrative personnel in the Court Bureau to create the information and leave it for a Court Officer to swear to.

[30] The Crown email with the request is attached to the printed Information.

[31] The procedure for an original information is different than a relaid information.

[32] Police Constable Del Zotto swears fifty or more informations a day. If an original information, he attends the office of the Justice of the Peace with the typed information and the synopsis, which he reviews. The justice may ask questions, particularly if the section number may not be correct. He always has information with him about the charges in the first instance.

[33] For relaid informations, sometimes they are slightly different wording, simplified wording, correcting an error, or combining charges from several informations onto one information. Relaid informations may add charges, or increase a charge such as aggravated assault, from a simple assault. They may also replace lost or misplaced informations.

[34] The officer does not review the factual basis for the new charges, as he "relies on the basis that the Crown has gone over the evidence, and they have grounds to lay the additional charge." He accepts the good faith of the Crown assessment, as well as his sergeant's review. If the Justice of the Peace asked his grounds, he would tell him or her he was instructed by the Crown.

Is the Relaid Information a Nullity or Invalid?

[35] An information laid per s. 504 of the Criminal Code has to be on reasonable grounds, and allege an offence known to law. It is a judicial act to swear an information.

[36] The new information in this case is not a nullity ab initio. It was properly remanded to the Intake Court for first appearance, and the accused attorned to the jurisdiction of the Court. Indeed counsel for Mr. Sharma concedes that jurisdiction over the person was established.

[37] Mr. Penney expressly does not seek to do a subfacial analysis of the information, which is presumptively valid.

[38] The Applicant takes issue however with the validity of the information in his Application.

[39] The Applicant asserts that because the process of swearing second or new informations in the Peel Courthouse is from an understanding or agreement between the Crown and the police, that it undermines the requirements of s. 504. Mr. Penney also asserts such process results in falsely-sworn informations, and nullifies the Justice's ability under s. 507 to inquire into "the allegations of the informant."

[40] Firstly, nothing before the Court in this motion supports the assertion of informations being "falsely sworn." The informant believes on reasonable grounds that the named offence has been committed. Those grounds in the first instance are found in the Court Brief or Court Synopsis. In the second or new information, the grounds are both because the officer relied upon a review by Crown counsel of the file and the request, and that his Sergeant has reviewed the request, satisfied him or herself that there are reasonable grounds to believe the offence has been committed, and tasked both the typing and swearing of the information.

[41] Secondly, the ability of the Justice of the Peace to fulfill the duties under s.507 of the Criminal Code is not undermined. That section is not engaged when the informant is not seeking that process be issued to compel the individual charged to attend Court to answer to the charge(s).

Charter Argument (or Abuse of Process)

[42] In the alternative, the Applicant seeks a stay of proceedings under s.24 (1) of the Charter. During viva voce argument on the motion, Mr. Penney clarified that he seeks a Charter remedy rather than a finding of nullity, although he submits that finding can be made in the course of the Charter application.

[43] The Applicant states that this is not an isolated incident, and the officer was following an established practice. Mr. Penney characterizes this practice as circumventing the requirements of both ss. 504 and 507 of the Criminal Code. He submits this is a systemic problem.

[44] It is said that the requirement of reasonable grounds requires both a subjective and objective element.

[45] It is the Applicant's position that the witness Police Constable Del Zotto had no information about the merits of the new charge to be added to the information, and only had a subjective belief of those grounds from the email from the Crown's office and his Sergeant's direction.

[46] The Applicant states that he lacks any objective belief in the commission of the offence. This position respectfully is not cognizant of the nature of the understanding between the Crown and Peel Regional Police. This understanding is not merely in the nature of expedience and respecting the appropriate use of manpower; it requires both the review of a law officer of the Crown and a supervising police sergeant. Such review, as in this case, satisfies the subjective and objective belief of reasonable grounds.

[47] The case of R. v. Peavey is readily distinguishable. In Peavey, the Court found informant to be "perfunctory or irresponsible" when swearing the information, "with a reckless disregard as to the truth of his assertion."

[48] An informant need not have personal knowledge of all the facts or even most of the facts that support an allegation. Peavey acknowledges that much of what is available to the informant is hearsay.

[49] The Applicant relies of the Awad decision from Nova Scotia as closest to our facts. The Crown distinguishes that case because it declares the information to be a nullity, and is not a Charter case. Mr. Quilty also submits that Awad is inconsistent with the Ontario Court of Appeal authority that a lack of grounds does not invalidate an information, it simply means that process should not issue: see R. v. Millar, which is relied upon in R. v. Ladouceur.

[50] Millar is a summary conviction appeal heard in the Ontario Superior Court of Justice. Justice Code indicates that defects in process will not affect the validity of the information. He illustrates a number of Ontario decisions, or a trilogy of appellate decisions, which are uniformly to the effect that deficiencies in process are irrelevant at a trial, assuming the accused is before the court and a sworn information is before the court.

[51] Even major defects in process such as the lack of reasonable and probable grounds at the time the Information was sworn, are not reviewable at trial, subject to the Charter. The remedy adopted in the Millar case, quashing the information, Justice Code says "over-shoots the purpose of s. 508 and delivers an unwarranted windfall to the accused."

[52] The Ontario Court of Appeal in Ladouceur found considerable merit in Justice Code's analysis in Millar. They found no principled reason why non-compliance with the confirmation process in s. 508 should affect the validity of a properly laid information.

[53] I agree that the analysis in Awad is not aligned with that in Ontario, as in the above two authorities, which are binding on this Court.

[54] The Crown argues that Jordan highlights that an efficient criminal justice system is of utmost of importance, and that the Court has a role to play, as do all justice participants to avoid inefficient practices. Mr. Quilty says that the presence of a synopsis for the informant officer on a relaid information adds nothing to the reasonable grounds, which derive from reliance on another legally trained person(s) reviewing the file.

[55] Moreover, the Crown argues that if the Applicant is correct, then all trials would bifurcate into two separate trials, one of the sufficiency of the information, and another on the trial on the merits. He says that would unduly complicate matters.

[56] The Crown also submits that the Davey case is distinguishable because the informing officer in that case had determined there was no grounds to lay the charge, and following a complaint, his superiors told the officer to lay the charge when he did not believe it had been committed.

[57] It is to be remembered, he argues, that the Crown is a quasi-Minister of Justice. In that capacity, the police are objectively reasonable to rely upon the Crown's conclusion that the evidence supports reasonable grounds to lay a charge.

[58] The Court finds that no abuse of process occurred in these circumstances. The laying of informations by a peace officer who either reads the file himself or herself to establish reasonable grounds to believe an offence has been committed, or is involved in the investigation and believes on reasonable grounds that an offence has been committed, or receives credible information from another officer to that effect, or is asked by a fellow officer or supervising officer who has reviewed the case and advised that there are reasonable grounds to lay certain charges, complies with statutory obligations by doing so.

[59] Further, under s. 504 the Justice of the Peace must receive the information in those circumstances. The further s. 507 inquiry, with judicial discretion involved, was not necessary in this case. The police did not ask the Justice to issue process. The information was simply remanded to the Intake Court where the Applicant was already compelled to appear on the original information.

[60] It is difficult to discern any prejudice to the Applicant from the Crown directing that an impaired driving count be laid in addition to the excess blood alcohol charge in these circumstances. This was done in the earliest stages of the prosecution before the judicial pretrial conference, and before counsel set the trial date. If the charge was not made out, the Applicant would be entitled to a non-suit or an acquittal on that count. Even if the Crown was able to prove that charge beyond a reasonable doubt, the Applicant can only have a conviction on one of the two counts, which carry the same penalty.

Conclusion

[61] On April 2, 2019 at the conclusion of argument on this motion, I advised counsel that the motion was dismissed. Crown counsel elected to proceed on the two count second information and the original information was withdrawn.

[62] The Applicant has attorned to the jurisdiction of the Court on this information on court appearances throughout and at the judicial pretrial conference, without prejudice to this Application. The Court has jurisdiction over the person.

[63] The Court has jurisdiction over the offences, which are known to law.

[64] The information is not invalid, nor sworn in a defective procedure.

[65] The Brampton Court, or A. Grenville and William Davis Courthouse, is arguably one of the busiest courthouses in the country. The jurisdiction includes a large international airport and postal facility which add to the volume. Thousands of charges are processed each month. The understanding between the Peel Regional Police and the Crown Attorney's Office does nothing to circumvent the Criminal Code procedures. It is a practical solution to manage crushing volume and resources, while respecting the individual roles of peace officer and legal counsel, and the judicial discretion of the Justice of the Peace receiving informations in the intake office.

[66] This process of swearing relaid informations facilitates timely justice as required by R. v. Jordan, and may inure to the benefit of those alleged to have committed offences who wish to resolve their case on a different information to that originally charged; or to get on with setting a trial date on charges reviewed by a legal officer.

[67] Notwithstanding the creative and formidable argument of Mr. Penney, the burden on the Applicant to establish a breach of his s.7 Charter right fails. There is no oblique motive by the Crown demonstrated in these circumstances by adding another charge. The officer was entitled to rely upon the Crown request and his superior officer's review, as an objective foundation for his subjective belief that offence had been committed.

[68] The trial will commence on the relaid or new information alleging two counts; impaired driving, and driving with excess blood alcohol.

Released: July 4, 2019

Signed: Justice N. S. Kastner