ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 95/11
DATE: 20120217
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SUJEEPAN VAITHEESVARAN
Appellant
Debra Moskovitz , for the Crown/Respondent
Philip B. Norton , for the Appellant
HEARD: February 13, 2012
KELLY J.
REASONS FOR DECISION
[ 1 ] At trial before Nakatsuru J. and on May 13, 2010, the Appellant was convicted of both impaired driving and over 80. He raises the following issue on appeal: did the trial judge err by not quashing the information because there was non-compliance with s. 508 of the Criminal Code , R.S.C., 1985, c. C-46?
[ 2 ] I find that the trial judge did not err in failing to quash the Information. The appeal is dismissed. What follows are my reasons.
The Facts
[ 3 ] The facts that give rise to this appeal may be summarized briefly as follows:
a. On February 14, 2010, the Appellant was observed driving a vehicle.
b. He was stopped and investigated for a traffic infraction.
c. The officer formed the opinion that the Appellant was impaired and he was arrested, etc.
d. The Appellant was transferred to the police station where he provided two breath samples.
e. The Appellant was released on a Promise to Appear. The Appellant signed and dated the Promise to Appear which required him to appear before the Court on March 11, 2010.
f. The information was sworn before and signed by a Justice of the Peace on February 23, 2010. The information confirms that the Appellant was released on an Appearance Notice (as opposed to a Promise to Appear). The Promise to Appear was attached to the information before the Court.
g. On the first appearance, Counsel appeared for the Appellant. A notice of designation was filed and attached to the information. The matter was initially adjourned to March 29, 2010 to set a date.
h. The matter returned to the Court on 7 more occasions, including the date the matter was heard before Nakatsuru J.
[ 4 ] On May 12, 2010, the Appellant brought an application to quash the information. Nakatsuru J. declined to do so. Put simply, the trial judge held that the requisite hearing occurred before a Justice of the Peace and he stated as follows:
… In my view, it is more likely than not that the justice of the peace simply made an error in checking off the wrong box. The fact that he was released on a promise to appear and the equivalent box not checked off on the Information, does not rise to the sufficient threshold of evidence to displace the presumption of regularity. As a result, the defence application to quash the Information is dismissed.
The Issue
[ 5 ] This appeal focuses on the failure of the Justice of the Peace to confirm the Appellant’s actual form of release and endorse the Information accordingly as set out in s. 508 (b)(i) of the Criminal Code . Counsel for the Appellant submits that the trial judge erred having found that the mandatory legal requirements of s. 508 were followed and that a presumption of regularity applied. I disagree.
Analysis
[ 6 ] Counsel for the Appellant argues that s. 508 is a screening mechanism wherein the Justice of the Peace may either confirm or cancel the type of release granted to an accused person. He submits that there are 7 Superior Court rulings and 14 Ontario Court of Justice rulings wherein the Justice has held that any breach of s. 508 is fatal to the jurisdiction of the Court over the offence. There are six decisions of the Superior Court of Justice that take the opposite view. Simply put, he submits that even if the relevant paragraph of R. v. Gougeon [1] is obiter , it has been followed for over 30 years and should be followed in this case. Such a position provides certainty in the law.
[ 7 ] The relevant portion of Gougeon , supra , that deals with the mandatory compliance with s. 508 states as follows:
While this is not intended to be an exhaustive list of jurisdictional defects respecting process to which a valid objection may be made, I would also include a failure to obtain prior judicial sanction under ss. 455.3(1) or 455.4(1) of the Code [ss. 507 & 508], where the Crown purports to rely upon the kinds of process referred to in those provisions to bring the accused before the court. I appreciate that there is not judicial unanimity on this point but it appears to me that the fundamental purpose of these provisions, which is to protect persons from having to appear in court to answer charges where a judicial officer does not consider that a case for the issuing of process has been made out, would be thwarted if the law did not allow their breach to be raised on a timely objection to the court’s jurisdiction. In my view, the legislative policy underlying these provisions overrides the principle of the acquisition of jurisdiction by mere appearance.
[ 8 ] While the argument of Counsel for the Appellant was extremely well presented, I find the opinion of my colleagues Trotter J. in his most recent decision on the issue in R. v. Duran [2] and Ramsay J. in the case of R. v. Cook [3] to be more persuasive.
[ 9 ] To be frank, I simply cannot provide any reasons better than that stated in paragraph 10 of the reasons for decision in R. v. Duran , supra . Trotter J.’s reasoning is persuasive and I adopt it in these circumstances:
With great respect to others with a different view, I conclude that a failure to comply with s. 508 of the Criminal Code does not invalidate an information that is properly sworn. Support for this conclusion flows from the recent decisions of the Court of Appeal for Ontario that address the related issue of non-compliance with s. 505. In principle, if a failure to lay an information “as soon as practicable” does not invalidate an information ( R. v. Markovic , supra ) or an undertaking ( R. v. Oliveira , supra ), it is difficult to see why a failure to confirm a promise to appear would lead to the opposite result. If anything, the failure to have a charge sworn in a timely manner strikes more at the core of the prosecutorial process. The confirmation of a promise to appear or an appearance notice, while important, is collateral to the validity of the charge itself. When s. 508 is not complied with, the accused person is fully protected in the sense that no warrant may issue for his or her arrest (s. 502) and a charge of failing to appear becomes completely untenable. It strikes me as somewhat ironic that an information becomes invalid and the state is prohibited from prosecuting on it merely because of an imperfection in the use of the liberty-enhancing police bail conditions.
[ 10 ] It is my view that the passage of Doherty J.A. in the case of R. v. Oliveira [4] is dispositive of the issue raised on this appeal:
…The purpose of a promise to appear is to secure the initial attendance of the accused in court. Subsequent court attendances are pursuant to court orders. A defect in the promise to appear, or the process required to confirm a promise to appear, will not affect the validity of the information charging the offences referred to in the promise to appear. Nor will those defects affect the Crown’s ability to proceed on the charges referred to in the promise to appear, or the ultimate disposition of those charges: See Criminal Code , ss. 485(2), (3). In short, after the first appearance of an accused, the promise to appear is largely irrelevant to the criminal process.
[Footnote omitted]
[ 11 ] The Promise to Appear referred issued in this case refers to the two charges that the Appellant was facing: impaired driving and over 80. The Information and the promise to appear were before the Justice of the Peace during the confirmation process. Although the box indicating that the Promise to Appear was not marked, the Promise to Appear was attached to the Information and before the Court on March 11, 2010. There was an appearance by Counsel pursuant to the Promise to Appear on March 11, 2010. Seven more court appearances were made following that initial appearance.
[ 12 ] In light of the abovementioned authorities, I find that the trial judge did not err in refusing to quash the information. The appeal is dismissed.
Kelly J.
Released: February 17, 2012
COURT FILE NO.: SCA 95/11
DATE: 20120217
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Appellant – and – SUJEEPAN VAITHEESVARAN Respondent
REASONS FOR DECISION Kelly J.
Released: February 17, 2012
[1] (1980), 55 C.C.C. (2d) 218 (Ont. C.A.)
[2] 2011 ONSC 7346, [2011] O.J. No. 5664
[3] 2011 ONSC 7468
[4] 2009 ONCA 219, [2009] O.J. No. 1002 (C.A.)