Court File and Parties
Ontario Court of Justice
Date: November 9, 2020
Between:
Her Majesty the Queen
— And —
Tyler Chevalier, Anthony Muir, Steven Westrik and B.H.
Before: Justice B. Green
Heard on: November 9, 2020
Ruling on Applications for the Issuance of Summonses
For the Purposes of the Identification of Criminals Act
Counsel:
- M. Newell as counsel for the Crown
- E. Green as counsel for the Respondent, B.H.
The Crown proceeded on an ex parte basis with respect to Tyler Chevalier, Anthony Muir and Steven Westrik, who are not represented by counsel.
Green J.:
A. Introduction
[1] This year a pandemic (COVID-19) created an international health crisis. Governments around the world are combatting the spread of this highly contagious virus by instituting social distancing measures, utilizing masks and sanitizers and temporarily shutting down places accessible to the public to prevent people from congregating in these settings. The Government of Ontario responded to the crisis by closing most businesses and facilities including the unprecedented closure of all the courthouses.
[2] As a result of the closure of the courthouses, the criminal justice system came to a virtual standstill for all persons who were out of custody awaiting their matters to be heard. Anyone who was issued a release document compelling them to attend the courthouse for fingerprinting and a court appearance were not able to fulfill their legal obligations during this period of time. Aside from cases involving inmates, other defendants were adjourned to presumptive return dates on a publicly available timetable. In order to maintain jurisdiction over the alleged offender and the offences, courts issued bench warrants to be held with discretion that were returnable on the presumptive dates.
[3] While our courts were able to deal with the jurisdictional issues with individuals who were unable to attend their court appearances, there was no similar process instituted for failing to appear for fingerprints. As we attempt to resume regular court operations, it is imperative to address these missed fingerprint dates.
[4] The Crown has brought these applications seeking the issuance of summonses to compel the appearance of the four named respondents who missed their fingerprint dates to ensure compliance with the Identification of Criminals Act. Normally, applications of this nature would be submitted to the court through an electronic portal referred to as E-Hub. The application would then be reviewed by an available Justice of the Peace in the Central East Region. I am advised that the police will be seeking hundreds of these summonses. Justices of the Peace will be inundated with applications without the benefit of evidence or submissions or the luxury of time to reflect on matters of statutory interpretation. Hopefully, this decision will assist with promoting an efficient and consistent response to similar applications in this region.
[5] Part XVI of the Criminal Code encompasses the provisions for compelling the appearance of an accused charged with a criminal offence and judicial interim release. Most of the sections in this Part specifically refer to compelling the attendance of the accused before a court at a specified time and place which has led to a legal debate about whether a summons can be issued for the sole purpose of compelling the accused to comply with the Identification of Criminals Act.
[6] Arguably, a very restrictive interpretation of these provisions is that there is no authority to issue a standalone summons for the purpose of compliance with the I.C.A. because there is no specific provision in the Criminal Code that authorizes this process. In contrast, the Crown urged me, in a detailed factum, to interpret the provisions in this Part of the Code as a whole to permit a broader reading of a justice's authority that is harmonious with the scheme and intent of these sections.
[7] In R v. Beare and Higgins, [1988] 2 S.C.R. 387 at para. 24 (S.C.C.), the Supreme Court of Canada recognized that the collection of fingerprints is an "integral part of the criminal justice system at every stage". I accept the vital importance of ensuring that these missed fingerprint dates are addressed, and that defendants who have outstanding charges are compelled to fulfill their legal obligations in the least onerous fashion that is legally available. For the reasons outlined below, I find that there is statutory authority for the proposed process, and it is necessary in the public interest to issue summonses to compel the appearance of each of the respondents for the purpose of obtaining their fingerprints and photographs.
B. Facts
[8] In support of this application, the Crown provided an affidavit from Sgt. Groves, a sergeant for the Court Services division of Durham Regional Police Services. Sgt. Groves' duties specifically include the oversight of all fingerprinting activities. The only location that is equipped for processing fingerprinting and photographing of out-of-custody accused persons in accordance with the Identification of Criminals Act, R.S.C., 1985, c. 1-1 (hereinafter the I.C.A.), is located on the first floor of the Lieutenant-Colonel Samuel S. Sharpe Court House in Oshawa, Ontario (the "courthouse").
[9] Sgt. Groves explained the impact of the pandemic on the collection of fingerprints and the process the police are seeking to remedy the failures of accused persons to appear for prints during the closure of the courthouse:
When a State of Emergency was declared in Ontario in response to the COVID-19 pandemic and the Courts were closed to the public on March 17, 2020, the DRPS was not able to process any identification collection in accordance with the Act for any accused who was out of custody.
Without the collection of fingerprints in accordance with the Act, the RCMP will not permit DRPS (or any police service) to upload the individuals' charges to the Canadian Police Information Centre system ("CPIC") which will impact any future dealing with such persons by the criminal justice system.
From March 17, 2020 until June 3rd, 2020, being the timeframe when we were unable to photograph and fingerprint out-of-custody defendants, approximately 142 defendants could not fulfill their obligations imposed pursuant to the Act and the Criminal Code.
The courthouse reopened in a limited capacity on July 6, 2020, but DRPS began using the courthouse for the purposes of fingerprinting and photography in accordance with the Act on June 3, 2020. Since that time DRPS has been able to process fingerprinting, albeit in a reduced capacity, processing approximately 30 individuals per day.
Since June 3rd, 2020, approximately 223 defendants have been properly served with appearance notices which imposed obligations pursuant to the Act and the Criminal Code but who failed to appear.
As of October 26, 2020, in total there have been 365 people who have still not attended to have their prints done.
As of the date of this affidavit there are 620 out of custody defendants who have first appearance dates between October 23 and November 26, 2020, and who have not had an opportunity to attend at the courthouse for prints yet.
Between June 3 and October 26, 2020, the DRPS has fingerprinted 1071 people, although as noted above 365 people remain unprinted.
Starting on October 26, 2020, the DRPS has resumed the pre-pandemic practice of seeking an arrest warrant pursuant to s.512.2 of the Criminal Code in respect of any defendant who fails to appear for the fingerprinting and photographing obligations pursuant to the Act. While we could seek arrest warrants for the individuals who failed to appear between June 3 and October 19, 2020, we are seeking a less intrusive and resource intense remedy to obtain compliance.
[10] In addition to the affidavit filed in support of the application, Sgt. Groves was called as a witness to address the safety measures that have been put in place to protect the safety of individuals who attend the courthouse to have their prints taken.
[11] When a person arrives at the courthouse, s/he is screened by security guards with respect to any symptoms of COVID-19, recent travel or exposure to the virus. If the person does not pass the screening process, s/he is not allowed to enter the building. If s/he is appearing to fulfil their I.C.A. obligations, s/he is provided with Sgt. Groves' contact information and he can provide an alternate date for him/her to attend the courthouse. Sgt. Groves has been regularly communicating with individuals who have been unable to attend their prints dates and successfully rescheduling these appearances.
[12] If the individual passes the screening process, s/he is greeted by uniformed officers who are wearing masks, goggles and gloves. If the person does not have a mask on, they are provided with a mask. S/he is then escorted to the room that is devoted to fulfilling the purposes of the I.C.A. Social distancing is respected at all times while the person is walking to and from the I.C.A. room.
[13] Once inside this room, there is another uniformed officer who is also wearing a mask, goggles and gloves. The officer takes the defendant's fingerprints and photographs. The person is only permitted to briefly remove his/her mask while the photograph is being taken. Once this process has been completed and the defendant has left the room, the room is immediately sanitized by the officer. Any surface that was touched by the defendant is wiped down. In addition, cleaners work in the building throughout the day wiping down all surfaces, door handles and seats multiple times. There are also "hall monitors" who patrol the courthouse tasked with ensuring that any individual in the courthouse respects social distancing measures.
[14] The precautions that have been instituted to prevent the spread of COVID-19 or exposure to the virus within the courthouse protects individuals who are attending to fulfill their legal obligations as well as the officers engaged in their duties. Currently, defendants are not attending court in person for set date appearances or in person for the regularly scheduled plea courts. As a result, the hallways of the courthouse are far less populated than they were prior to the pandemic. This is the ideal opportunity to accommodate social distancing while ensuring compliance with the I.C.A.
[15] Sgt. Groves highlighted another significant fact during his evidence. If an individual is not fingerprinted for each offence that s/he is charged with, any conviction that results from that offence will not be entered into CPIC. In support of this fact, the Crown referred me to section 667 of the Criminal Code that provides for the issuance of a certificate of conviction upon a fingerprint examiner comparing the fingerprints on file to the fingerprints provided for any disputed convictions. Accordingly, unless fingerprints are obtained for each of the offences an offender is charged with, the criminal records that are tendered to the court as evidence during a sentencing hearing may not reliably reflect the person's criminal antecedents.
[16] The police are diligently trying to compel the appearance of hundreds of accused who missed their print dates or who have upcoming court dates and may not attend, in the least coercive manner, through the issuance of a summons as opposed to seeking a warrant for their arrest.
[17] In support of these four applications, the Crown produced a series of exhibits that established the nature of each individual respondent's outstanding criminal charges and their release documents that compelled an appearance at the police I.C.A. facility located at 150 Bond Street East in Oshawa, Ontario. I have reviewed all these documents and I am satisfied that:
a) The youth, B.H., is charged as a young person under the Y.C.J.A. with assault and assault with a weapon. He is also charged as an adult with two additional counts of domestic assault.
On March 11, 2020, he was arrested pursuant to arrest warrants and he was released on two undertakings. Both of his undertakings required him to attend on April 7, 2020 at the police I.C.A. facility located at 150 Bond Street East in Oshawa, Ontario. He has never attended for the purposes of fulfilling this legal obligation. He is scheduled to attend a court appearance in Courtroom 101 on November 24, 2020 at 9:00 a.m.
B.H. has retained counsel, Mr. Green, who was served with a copy of this application. Mr. Green advised that he was not taking a position on the application and that his client tried to attend to fulfill his obligations on his scheduled date but he was not able to enter the courthouse.
b) Tyler Chevalier is charged with assault with a weapon, unlawful confinement, uttering threats, weapons dangerous and breach probation.
At the time of his arrest, he was served with an undertaking which required him to attend on August 4, 2020, at the police I.C.A. facility located at 150 Bond Street East in Oshawa, Ontario. In August of 2020, the police were actively performing their duties under the I.C.A. and the courthouse was open to the public. However, he has never attended for the purposes of fulfilling this legal obligation. He is scheduled to attend a court appearance in Courtroom 108 on November 17, 2020 at 9:00 a.m.
Mr. Chevalier does not have counsel of record. There is currently a warrant for his arrest in another jurisdiction and he is of no fixed address. The Crown was unable to serve him with a copy of this application.
c) Anthony Muir is charged with three counts of breaking and entering with intent to commit an indictable offence, mischief under $5000, breach of undertaking and breach of probation.
Each time he was arrested, he was released on an undertaking, requiring him to attend at the police I.C.A. facility located at 150 Bond Street East in Oshawa, Ontario. He failed to attend on July 21, August 5, August 12 and September 4, 2020. In July, August and September of 2020, the police were actively performing their duties under the I.C.A. and the courthouse was open to the public. He has never attended for the purposes of fulfilling this legal obligation. He is scheduled to attend court appearances in Courtroom 108 on November 13, 18 and 25, 2020 at 9:00 a.m.
Mr. Muir does not have counsel of record. Police attempted to serve Mr. Muir with this application but he is currently incarcerated at C.E.C.C. He is in isolation as a result of COVID-19 related symptoms.
d) Steven Westrik is charged with impaired operation of a conveyance and "over 80".
At the time of his arrest, he was served with an undertaking which required him to attend on March 17, 2020, at the police I.C.A. facility located at 150 Bond Street East in Oshawa, Ontario. He has never attended for the purposes of fulfilling this legal obligation. He is scheduled to attend a court appearance in Courtroom 108 on November 17, 2020 at 9:00 am.
Mr. Westrik is self-represented. He was served with the application by email and by a special constable. He did not appear to make submissions.
[18] The Crown is seeking the issuance of a summons for each of the respondents to compel their appearance on November 30th, 2020, at the police I.C.A. facility located at 150 Bond Street East in Oshawa, Ontario for the purposes of fulfilling their obligations pursuant to the Identification of Criminals Act.
[19] Since counsel for B.H. did not make any submissions with respect to the issuance of a summons for his client and the other respondents either did not appear or were not served, the application was heard and considered on an ex parte basis with respect to all four respondents.
C. Legal Analysis
i. The importance of the Identification of Criminals Act
[20] The Identification of Criminals Act authorizes the police to obtain the fingerprints and photographs of criminal defendants who are charged with or convicted of indictable and hybrid offences. Sections 2(1) and 2(2) of the I.C.A. state:
- (1) The following persons may be fingerprinted or photographed or subjected to such other measurements, processes and operations having the object of identifying persons as are approved by order of the Governor in Council:
(a) any person who is in lawful custody charged with or convicted of
(i) an indictable offence, other than an offence that is designated as a contravention under the Contraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under section 50 of that Act,
(ii) an offence under the Security of Information Act, or
(iii) an offence punishable on summary conviction if that offence may also be prosecuted as an indictable offence described in subparagraph (i);
(b) any person who has been apprehended under the Extradition Act;
(c) any person alleged to have committed an indictable offence, other than an offence that is designated as a contravention under the Contraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under section 50 of that Act, who is required under subsection 500(3), 501(4) or 509(5) of the Criminal Code to appear for the purposes of this Act by an appearance notice, undertaking or summons; or
(d) any person who is in lawful custody pursuant to section 83.3 of the Criminal Code.
(2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described under subsection (1).
[21] In R. v. Beare and Higgins, supra, at paras. 22 to 25, the Supreme Court of Canada highlighted some of the many benefits of this Act:
Fingerprints serve a wide variety of purposes in the criminal justice system. These include linking the accused to the crime where latent prints are found at the scene or on physical evidence; determining if the accused has been charged with, or convicted of other crimes in order to decide whether, for example, he should be released pending trial or whether he should be proceeded against by way of summary conviction or indictment; ascertaining whether the accused is unlawfully at large or has other charges outstanding; and assisting in the apprehension of an accused should he fail to appear. As well, fingerprints taken on arrest are used to identify prisoners with suicidal tendencies, sex offenders, career criminals and persons with a history of escape attempts so that they can be segregated or monitored as may appear appropriate.
Fingerprints are also of great assistance in the judicial process. Thus in addition to their utility in positively identifying an accused, they may also assist the Crown in determining the punishment it should seek by revealing, for example, whether the accused is a first offender or otherwise. This, of course, will be of assistance to the court in imposing an appropriate sentence.
These are only some of the more important uses to which fingerprints are put. In brief, they have become an integral part of the criminal justice system at every stage. I should add that they provide advantages to an innocent accused. They may establish that another has committed the crime and they may also ensure that the innocent will not be wrongly identified with someone else's criminal history.
Finally, I should, in light of the view taken by the Court of Appeal, add that use of fingerprints is not confined to criminal matters, but serves a number of functions outside the criminal process. These include their use in relation to security clearances, provincial and municipal licensing of taxi drivers, security guards and others, positions involving contact with vulnerable members of society, applications for Canadian citizenship and visas to some foreign countries. The Attorney General of Alberta points out that it is even used by some parents to ensure the identification of their children if they become injured or missing.
[22] Considering the essential nature of a positive identification process to the proper functioning of the administration of justice, there is a strong public interest in ensuring that the hundreds of missed appearances at the courthouse to fulfil these legal obligations are remedied as soon as possible. Unfortunately, the Criminal Code does not have a provision that specifically addresses compelling the appearance of an accused by summons for the sole purpose of the I.C.A.
ii. Compelled appearances for the purposes of the Identification of Criminals Act
[23] The Criminal Code provides the police with the authority to release an accused person who has been charged with a criminal offence without requiring him/her to appear in bail court. There are various means for the police to compel the accused to attend court: an appearance notice pursuant to section 500, an undertaking pursuant to section 501 or a summons pursuant to section 509.
[24] Each of these forms of release mandates the accused to fulfill two distinct obligations upon their first appearance. First, the accused must attend court on a specific date and time and appear thereafter as directed. Secondly, when an accused is charged with indictable or hybrid offences, he or she is also compelled to attend for purposes of the I.C.A.
[25] Pursuant to section 145(3) of the Criminal Code, it is an offence for a "person who is named in an appearance notice that has been confirmed by a justice under section 508 or who is served with a summons and who fails, without lawful excuse, to appear at the time and place stated in the notice or the summons, as the case may be, for the purposes of the Identification of Criminals Act." In the ordinary course, if a defendant fails to appear on the date and time scheduled for fingerprinting, section 512.1 and 512.2 of the Criminal Code provide that:
Arrest warrant — failure to appear under summons
512.1 If an accused who is required by a summons to appear at the time and place stated in it for the purposes of the Identification of Criminals Act does not appear at that time and place and, in the case of an offence designated as a contravention under the Contraventions Act, the Attorney General, within the meaning of that Act, has not made an election under section 50 of that Act, a justice may issue a warrant for the arrest of the accused for the offence with which the accused is charged. [emphasis mine]
2019, c. 25, s. 224
Arrest warrant — failure to appear under appearance notice or undertaking
512.2 If an accused who is required by an appearance notice or undertaking to appear at the time and place stated in it for the purposes of the Identification of Criminals Act does not appear at that time and place, a justice may, if the appearance notice or undertaking has been confirmed by a justice under section 508, issue a warrant for the arrest of the accused for the offence with which the accused is charged. [emphasis mine]
2019, c. 25, s. 224
[26] This pandemic however, is anything but the ordinary course of business. In the unusual circumstances of a defendant not being able to fulfill their legal obligations because they could not access the courthouse, it is imperative that this situation is remedied in a manner that is the least intrusive for the defendants while still achieving the important objectives of the I.C.A.
[27] The permissive language in sections 512.1 and 512.2 that a justice "may" issue a warrant provides some authority for the proposition that Parliament intended judicial officials to use their discretion when deciding what form of process to issue to address a failure to appear for prints. In R v. Beare and Higgins, supra, at paragraphs 51 and 52, the Supreme Court emphasized that the exercise of discretion by all participants in the criminal justice system is essential to its proper functioning:
The existence of the discretion conferred by the statutory provisions does not, in my view, offend principles of fundamental justice. Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.
The Criminal Code provides no guidelines for the exercise of discretion in any of these areas. The day to day operation of law enforcement and the criminal justice system nonetheless depends upon the exercise of that discretion.
[28] While there is discretion to refuse to issue a warrant for the arrest of a person who failed to appear for their print date, the issue for me to decide is whether there is any alternative means to compel the appearance of the accused for the sole purpose of complying with the requirements of the I.C.A.
iii. Issuance of a summons for the purposes of the I.C.A.
[29] The proposed alternative means of compelling the appearance of the respondents is to issue a summons for a specified date and time. However, most of the sections in Part XVI of the Code that provide for the issuance of a summons refer to compelling an attendance before a "justice". For example, section 507(1)(b) of the Code provides that a justice who receives an information shall consider the evidence of the informant and any witnesses when deciding whether to issue "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." Sections 507(4), 507(8), 507.1(2) and s. 508(1)(b) all have the same wording.
[30] The definition of a summons in Section 2 of the Criminal Code simply states that a "summons means summons in Form 6 issued by judge or justice". However, form 6 includes the following fill in the blank section:
Therefore, you are ordered, in Her Majesty's name:
(a) to appear on (date) at (hour) at (place) for the purposes of the Identification of Criminals Act (Ignore, if not filled in); and
(b) to attend court on (date), at (hour), at (place), or before any justice for the (territorial division) who is there, and to attend court at any time after as required by the court, in order to be dealt with according to law. [emphasis mine]
[31] Notably the form indicates that section (a) can be ignored "if not filled in" but there is no similar phrase at the end of section (b). Inferentially, the summons does not have to compel an appearance for (a) for the purposes of the I.C.A. since it can be left blank but it must include (b) an appearance for "court". Moreover, the placement of the word "and" in the form 6 as opposed to "or" in between (a) and (b) suggests that an appearance for the purposes of the I.C.A. must be accompanied by a requirement to appear in court.
[32] The required contents of the Form 6 and the manner of service of a summons are set out in section 509 of the Criminal Code:
509 (1) A summons issued under this Part shall
(a) be directed to the accused;
(b) set out briefly the offence in respect of which the accused is charged; and
(c) require the accused to attend court at a time and place to be stated therein and to attend thereafter as required by the court in order to be dealt with according to law.
Service on individual
(2) A summons shall be served by a peace officer who shall deliver it personally to the person to whom it is directed or, if that person cannot conveniently be found, shall leave it for him at his latest or usual place of abode with an inmate thereof who appears to be at least sixteen years of age.
(3) [Repealed, 2008, c. 18, s. 17]
Summary of certain provisions
(4) The summons must set out a summary of subsection 145(3), section 512.1 and subsection 524(4).
Attendance for purposes of Identification of Criminals Act
(5) A summons may require the accused to appear at a time and place stated in it for the purposes of the Identification of Criminals Act, where the accused is alleged to have committed an indictable offence and, in the case of an offence designated as a contravention under the Contraventions Act, the Attorney General, within the meaning of that Act, has not made an election under section 50 of that Act. [emphasis mine]
[33] As a result of the wording of section 509 of the Criminal Code, there has been some debate about whether there is any authority to issue a summons solely to compel attendance for the purposes of the I.C.A. The Crown provided examples of contradictory findings of two different Justices of the Peace in this jurisdiction with respect to this issue (exhibits D and E). In addition, there is one precedent that has been cited by other jurists as persuasive authority in support of the view that a summons is limited to compelling a court appearance.
[34] In R. v. Michelsen, [1983] M.J. No. 24 (Man. Q.B.), the court found that the purpose of a summons was to compel an appearance in court, and it cannot be used to compel an appearance for the purposes of the I.C.A. Presumably, this fact specific and tersely worded judgment has attracted so much recent attention because of an annotation in Martin's Annual Annotated Criminal Code following section 509 which states that:
A justice has no power to issue a summons to an accused solely for the purpose of the Identification of Criminals Act and not in conjunction with procuring his attendance at court: R v. Michelsen (1983), 4 C.C.C. (3d) 371, 33 C.R. (3d) 285 (Man. Q.B.).
[35] These annotations are only intended to be legal resources as opposed to authoritative statements of law. In addition, I am not bound to follow this decision.
[36] In Michelsen, Justice Scollin briefly reviewed the overall wording of section 455 (now 509) and found at paragraph 5 that:
To sever subsection (5) from the remainder of the section and carry it for microscopic analysis, as the Crown has done, is unjustifiable statutory vivisection. Functioning whole, the section deals only with a summons issued under s. 455.3 to compel the attendance in court of an accused charged under section 455 with an indictable offence. The need to compel attendance in court of the accused is the justification of the process (as it is in other cases under sections 507.1 and 728).
[37] The Court concluded, at paragraph 9, that since "the summons in this case was not issued to secure attendance in court but was issued solely to serve an ancillary investigatory purpose, it is not valid and is therefore quashed."
[38] In his reasons, Justice Scollin dismissively referred to the requirement to appear for fingerprints as an "incidental investigatory purpose". This statement is inconsistent with the subsequent finding of the Supreme Court of Canada in R. v. Beare and Higgins, supra, that emphasized the integral role that this process plays in the proper functioning of the criminal justice system. In addition, the court considered section 509 in isolation without any contextual analysis guided by the other provisions in Part XVI of the Criminal Code, in particular, section 512(1) of the Criminal Code that provides a residual discretion to issue a summons when it is "necessary in the public interest". As a result, I do not find the reasons in Michelsen to be compelling and I respectfully decline to follow it.
iv. A contextual analysis
[39] While I cannot do damage to the language in section 509 of the Criminal Code by adopting an unrealistic construction or engage in "statutory vivisection", this section cannot be considered in isolation without reference to other relevant sections in the same Part. It is essential to engage in a contextual analysis of the wording in section 509 in conjunction with other provisions in Part XVI of the Code especially section 512(1) which provides that:
512 (1) A justice may, where the justice has reasonable and probable grounds to believe that it is necessary in the public interest to issue a summons or a warrant for the arrest of the accused, issue a summons or warrant, notwithstanding that:
(a) an appearance notice or undertaking has been confirmed or cancelled under subsection 508(1);
(b) a summons has previously been issued under subsection 507(4); or
(c) the accused has been released without conditions or with the intention of compelling their appearance by way of summons. [emphasis mine]
[40] Unlike the other provisions in this Part, section 512(1) is very broadly worded and does not specifically require an appearance before a court. Courts in Ontario have interpreted this section "to give a justice residual powers, to be exercised in the public interest, until the offence charged has been disposed of". Please see: R. v. Horton, [2002] O.J. No. 1219 (Ont.S.C.J.) and R. v. Verdon, [2010] No. 4125 (Ont.S.C.J.) It is a catchall category for situations that do not neatly fit into the other sections in this Part of the Criminal Code, but it is not an unlimited power. Before a justice can issue a summons or a warrant pursuant to this section, there must be reasonable and probable grounds to believe that it is necessary in the public interest.
[41] The difficulty is reconciling the required content of a summons contemplated by section 509 with the broadly worded discretionary authority in section 512(1). Notably, the principles of statutory interpretation do not require that I choose the most linguistically consistent outcome. Rather, as the Supreme Court recognized in Bell Express Vu Limited Partnership v. R., 2002 SCC 42, [2002] S.C.J. No. 43 at para. 46 (S.C.C.):
In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings … (citations deleted) I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C 1985, c. I-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
[42] It is important to consider the implications if a court were to find that a justice does not have the discretionary authority to issue a summons in these circumstances. It would result in the unfair dichotomous outcome of the police either ignoring hundreds of missed print dates and the fundamental importance to the criminal justice system of collecting this identification information or seeking warrants for the arrest of the respondents and all similarly situated accused pursuant to section 512.1 and 512.2 of the Criminal Code. This unnecessarily restrictive interpretation would not reflect the intention of Parliament to confer a discretionary power to issue a summons when it is necessary in the public interest to do so nor would it respect the integrity of the criminal justice system or the fundamental rights of the accused.
[43] Parliament recently provided some guidance with respect to how to interpret the sections in Part XVI of the Code in a 2019 amendment that expressed its "principle and considerations". Section 493.1 states that:
Principle of restraint
493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be. [emphasis mine]
2019, c. 25, s. 210
[44] This principle of restraint is evident in other sections in this Part. For example, section 496 of the Code provides the police with an expansive discretion to issue an appearance notice for a person to appear at a judicial referral hearing for administration of justice offences without a requirement for the officer to lay a criminal charge:
If a peace officer has reasonable grounds to believe that a person has failed to comply with a summons, appearance notice, undertaking or release order or to attend court as required and that the failure did not cause a victim physical or emotional harm, property damage or economic loss, the peace officer may, without laying a charge, issue an appearance notice to the person to appear at a judicial referral hearing under section 523.1. [emphasis mine]
[45] At a judicial referral hearing, if the judge or justice who hears the matter is satisfied that the accused failed to comply with a summons, appearance notice, undertaking or release order or to attend court as required, the judge has various options including the authority "to remand the accused to custody for the purposes of the Identification of Criminals Act" (section 523.1(3)(c)). It would make no sense that a peace officer can issue an appearance notice for each of the respondents to appear at a judicial referral hearing for failing to comply with the requirement to appear for the purposes of the I.C.A., which could result in a justice remanding them into custody, but a justice has no authority to compel the appearance of the accused by a summons to comply with these same requirements.
[46] I also note that the Supreme Court of Canada has provided significant guidance with respect to interpreting this Part of the Criminal Code in recent years. In R. v. Zora, 2020 SCC 14, [2020] S.C.J. No. 14, the Supreme Court of Canada sent an unequivocal message to all justice officials that we must exercise our discretion in a manner that does not result in more onerous restrictions on the liberty interests of defendants than is necessary in the circumstances. The Court emphasized that this Part of the Criminal Code codified the "ladder principle" which is premised on the principle of restraint. By analogy, the first rung on the ladder to consider when addressing failures to appear for prints must be a summons as opposed to an arrest warrant.
[47] It would be inconsistent with the statutorily expressed principle of restraint and the unambiguous directions from the Supreme Court of Canada in cases like R. v. Zora, supra, and R. v. Antic, [2017] S.C.J. No. 14 (S.C.C.) to interpret sections 512(1), 512.1 and 512.2 in such a restrictive manner that it mandates the issuance of a warrant for the arrest of the respondents in order to compel their appearance for the purposes of the I.C.A. as opposed to the far less onerous process of serving them with summonses. As Justice Gorman observed in R. v. Sheppard, [2020] N.J. No. 132 at para. 41 (Prov.Ct.):
Section 512(1) provide a judge with two options: issue a summons or an arrest warrant. It is my view that before choosing the latter option, there must be a reason for rejecting the former. If issuing a summons is not contrary to the public interest, it should be the preferred option because it is consistent with Parliament's intent.
[48] There is a logical way to interpret the wording of section 509 harmoniously with Parliament's expressed intent that "restraint" must be exercised when a justice is deciding the appropriate forms of process to issue for the purposes of the I.C.A. Section 509 mandates the form and content of a summons while section 512(1) provides a distinct discretionary authority to issue a summons in this form or a warrant when it is necessary in the public interest.
[49] A summons "shall" set out "the offence in respect of which the accused is charged" (section 509(1)(b)). This prerequisite ensures that a summons can only be issued if a justice is satisfied that there are outstanding charges in respect of the summons. Accordingly, if the charges have been resolved a summons cannot be issued for the purposes of the I.C.A. Secondly, if the police provide the justice with a return date for the outstanding charges, the summons "shall" include that return date requiring "the accused to attend court" on that date and in that place (section 509(1)(c)). Thirdly, the summons "may" also compel the person to attend on a date and at a specified place for the purposes of the Identification of Criminals Act if "the accused is alleged to have committed an indictable offence" or hybrid offence (section 509(5)) and there are reasonable and probable grounds to believe that it is necessary in the public interest to issue a summons (section 512(1)). Finally, even though each of the respondents have been previously compelled to attend court, section 512(1) specifically states that it applies "notwithstanding" these forms of release.
[50] This purposive interpretation creates "harmony, coherence, and consistency" between the sections in Part XVI of the Code. It ensures the ongoing integrity of the criminal justice system and supports the expressed principle of restraint. I find that section 512(1) must be read to permit the issuance of a summons if there are outstanding eligible criminal offences in respect of the summons and if I am satisfied that it is necessary in the public interest.
v. Is it in the public interest to issue summonses for the respondents?
[51] The meaning to be ascribed to the phrase "necessary in the public interest" is dependent on the context. Once again, the phrase should be interpreted purposively such that it works hand in hand with the overall scheme of this Part of the Criminal Code.
[52] There is no definition of "public interest" in section 512(1) of the Code nor does it provide a list of factors to guide this determination. However, sections 495(2)(d) and 498(1.1)(a), which are in the same Part, both refer to the "public interest" as "having regard to all the circumstances including" the "need to establish the identity of the person". Parliament provided some direction in these other provisions that it is in the public interest to establish and confirm the identity of defendants.
[53] R. v. Verdon, [2010] O.J. No. 4125 at paras. 26 and 27 (Ont.S.C.J) Justice Hackland cited an earlier decision of Justice Watt in R. v. Hartmann, [1986] O.J. No. 1097 (Ont.H.C.) to explain the meaning of public interest in this section:
It has earlier been observed that the phrase "public interest" is neither in terms defined nor described by reference to the factors to be considered in its determination. Indeed, it is a phrase that, in every event, defies precise description and leaves to the presiding justice a wide and unfettered discretion. Neither the compendious phrase "the public interest" nor its near-relative "the interests of justice" are necessarily equivalent to "the interests of the accused". Whilst the interests of the accused are, perforce, an important consideration in a determination of the public interest" and "the interests of justice", it is apposite to here recall the words of Goddard L.C.J. in Rex v. Grondkowski; Rex v. Malinowski, [1946] 1 K.B. 369, at 372, where he said:
The judge must consider the interests of justice as well as the interests of the prisoners. It is too often nowadays thought, or seems to be thought, that the interests of justice mean only the interests of the prisoners.
Accordingly, in my view, given this recognition that the consideration of the public interest gives the justice a wide and unfettered discretion, it would be inconsistent, in my view, to then impose a restriction on the interpretation of s. 512(1) constraining its application to jurisdictional situations.
[54] While some subsequent decisions have disagreed with the use of the expression "wide and unfettered" discretion, this decision is nevertheless instructive. Please see: R. v. Sheppard, [2020] N.J. No. 132 (N.J.Prov.Ct.) The residual discretion in section 512(1) is limited by the requirement that a justice must be satisfied that there are reasonable and probable grounds to believe that the issuance of a summons is necessary in the public interest from the broad perspective of the administration of justice while still protecting the individual interests of the respondents.
[55] The Crown helpfully provided a very comprehensive list of reasons why the issuance of a summons for each of the respondents for the purposes of the I.C.A. is necessary in the public interest:
a) The nature of the respondents' criminal charges;
b) The broad and important purposes served by the Identification of Criminals Act;
c) The issuance of undertakings that were confirmed by a Justice, which lawfully compelled the respondents to submit to fingerprinting and photographs pursuant to the I.C.A.;
d) Emergency public health measures implemented in response to the COVID-19 pandemic, which prevented the police from executing their duties under the I.C.A.;
e) The good faith of the police;
f) The diligence with which the police resumed their duties under the I.C.A.;
g) The failure of the respondents to attend for fingerprinting;
h) The routine attendance of other defendants at 150 Bond Street East in Oshawa, Ontario, for purposes of the I.C.A.;
i) Lack of any prejudice to the respondents; and
j) In the absence of a summons, the only remaining mechanism for the police to obtain the respondents' fingerprints is pursuant to a warrant issued pursuant to section 512.2 of the Criminal Code, resulting in the respondents' re-arrest for the substantive offences with which they are charged. Given the Supreme Court of Canada's rulings in Antic and Zora, a summons issued pursuant to s.512(1) serves the public interest while minimizing interference with the respondents' liberty.
[56] Finally, any concerns with respect to the well-being of the defendants who are compelled to attend the courthouse for the purposes of the I.C.A. have been addressed by the safety measures that have been put in place to ensure their protection. It is probably safer for these individuals to attend the courthouse this month, when there are a limited number of people who are attending court appearances in person, as opposed to months from now when it is anticipated that it will be extremely busy as we try and resume normal operations.
[57] Each of the respondents were previously compelled to attend at the courthouse for the purposes of the I.C.A. Their attendance to fulfill this legal obligation was frustrated because of an unexpected public health crisis. There are reasonable grounds to believe that it is necessary in the public interest that a summons is issued to compel each of the respondents to attend at the courthouse for the purposes of the I.C.A. and their next court date.
vi. Additional considerations
[58] The issuance of summonses for the respondents for the purposes of the I.C.A. and their next court date will not alter the form of release that is already attached to the Informations. Section 512(1) states that it applies "notwithstanding" the other listed forms of release which contemplates the issuance of a summons while the accused is still bound by an existing form of release. Furthermore, unless the Crown applies for cancellation of a prior release, section 523(1) of the Code details the time period for which the original forms of release continue in force:
If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part, the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, summons, undertaking or release order was issued, given or entered into,
(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3), until his trial is completed; or
(b) in any other case,
(i) until his trial is completed, and
(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.
[59] Absent an application to cancel the prior forms of release, the summons and the prior forms of release can co-exist. As a result, the issuance of the summons pursuant to section 512(1) of the Code will not impact the other forms of release or negate any terms attached to an undertaking.
[60] During oral submissions, the Crown asked me to consider two additional scenarios. He submitted that a justice should also be able to rely on section 512(1) to issue a summons for individuals who were convicted of criminal offences during the salient time period but did not comply with the requirements of the I.C.A. I did not hear any evidence with respect to the prevalence of this issue. Moreover, in light of my interpretation of sections 509 and 512(1), a summons cannot be issued unless a charge is still outstanding.
[61] The Crown and the police will have to find an alternative means to address any completed cases. They can proceed pursuant to sections 496 and 523.1 of the Criminal Code to issue appearance notices compelling the appearance of these individuals before a judge at a judicial referral hearing at a date and time arranged by the trial coordinator. Alternatively, the police can seek warrants for the arrest of these individuals.
[62] Finally, the Crown raised the hypothetical situation of an offender who has not complied with the requirements of the I.C.A. and has been convicted of eligible offences but has not been sentenced yet and there is not enough time to issue a summons. Section 732.1(3)(h) of the Criminal Code permits a court to prescribe various optional conditions of a probation order including to:
comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender's successful reintegration into the community.
[63] Courts have the power to compel offenders, as a term of probation, to comply with far more invasive procedures as a part of a probation order than fingerprinting. For example, section 732.1(3) includes the authority for a Judge to order an offender to:
(c.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under subsection (9) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(c.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by a probation officer in a notice in Form 51 served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
[64] There are various options to address each of the additional scenarios contemplated by the Crown during this hearing. I note, however, that Sgt. Groves testified that the police are dutifully contacting all individuals who have failed to appear for the purposes of the I.C.A. since March of 2020. Many people have voluntarily attended to redress their missed dates. I suspect that given the option to be compelled to appear at a judicial referral hearing or a warrant being issued or having to comply with the I.C.A. as a term of probation, the majority of defendants and convicted offenders will continue to cooperate with the police.
D. Conclusion
[65] The issuance of a summons to comply with the legal obligations of the I.C.A. for defendants who have outstanding eligible offences strikes an appropriate balance between achieving the laudable objectives of the I.C.A. and compelling the appearance of the respondents in the least coercive manner.
[66] I am satisfied that each of the respondents has another court appearance for eligible offence(s) and there are reasonable and probable grounds to believe that it is necessary in the public interest to issue the requested summonses. A summons will be issued pursuant to section 512(1) of the Criminal Code for each of the respondents in the statutorily prescribed form 6 and in a manner that will meet the requirements set out in section 509.
[67] All four respondents will be compelled to attend the police I.C.A. facility located at 150 Bond Street East in Oshawa, Ontario, on November 30th, 2020, for the purposes of compliance with the I.C.A. and each summons will also compel the respondents to appear on their next court date.
Released: November 9, 2020
Signed: Justice Green