ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 111/11
DATE: 20120323
BETWEEN:
HER MAJESTY THE QUEEN – and – JENNIFER MILLAR
David Mitchell, for the Appellant
Adam Little, for the Respondent
HEARD: March 15, 2012
m.a. code j.
reasons for judgment
A. OVERVIEW
[ 1 ] On June 6, 2011 the Respondent Jennifer Millar (hereinafter, Millar) appeared before Cleary J. for trial in the Ontario Court of Justice. She was charged in a two count Information with refusal to comply with a roadside demand for breath samples in an “approved screening device”, contrary to ss. 254(2) and 254(5) of the Criminal Code, and with impaired driving, contrary to ss. 253 and 255.
[ 2 ] The two offences were alleged to have been committed over a year earlier, on May 20, 2010. The case had proceeded through the usual series of pre-trial preparatory steps and remand appearances. Indeed, there had been five prior appearances on the Information in the Ontario Court of Justice before the case eventually reached its trial date before Cleary J. on what was the sixth appearance. At the first appearance in Court on the Information, on July 2, 2010, the Crown had elected to proceed summarily. No objection had previously been raised to the jurisdiction of the Court until the trial date was reached.
[ 3 ] At the commencement of the trial, on June 6, 2011, counsel for the Respondent (who was not Mr. Little) brought a Motion seeking to quash the Information on the basis that a Justice of the Peace had not confirmed process, in relation to this particular Information, pursuant to s. 508 of the Criminal Code. After hearing full argument, Cleary J. held that there had been “a loss of jurisdiction over … the offence” and that the appropriate remedy was that the Information “must be quashed”.
[ 4 ] The Crown now appeals from that decision pursuant to s. 830(1) of the Criminal Code. The central issue on the appeal is whether non-compliance with s. 508 causes a loss of jurisdiction and, if so, whether attornment through repeated court appearances cures that loss of jurisdiction. This issue has been around for a long time and it has never been definitively resolved in Ontario. There are two lines of competing authority which go in different directions. The Respondent relies on what may be called the Gougeon line of authority and the Appellant relies on what I will call the Oliveira line of authority. Some judges of the Ontario Court of Justice, like Cleary J. in the case at bar, follow the Gougeon line of authority. Other members of that Court follow the Oliveira line of authority. The same disarray exists in the Superior Court of Justice where some members of the Court follow Gougeon and some follow Oliveira.
[ 5 ] This uncertainty in the law is obviously unsatisfactory and it is to be hoped that the Ontario Court of Appeal will resolve the matter in the near future. See: R. v. Gougeon, Haesler and Gray (1980), 55 C.C.C. (2d) 218 (Ont. C.A.); R. v. Oliveira (2009), 243 C.C.C. (3d) 217 (Ont. C.A.).
B. THE HISTORY OF THE PROCEEDINGS
[ 6 ] As noted above, the incident giving rise to the charges took place on May 20, 2010 in Toronto. As is the norm in this kind of case, the Respondent Millar was not detained in custody or held for a bail hearing. Rather, the police released her on an appearance notice, pursuant to either s. 496 or s. 497. The return date on the appearance notice was July 2, 2010. The only offence named in the appearance notice was “refuse to provide breath sample”.
[ 7 ] On June 14, 2010, twenty-five days after the issuance of process, a police officer named Bagshaw appeared before a Justice of the Peace and swore an Information charging Millar with one count of refusal to comply with a roadside demand for breath samples in an “approved screening device”. The Justice of the Peace then confirmed the appearance notice that same day. In other words, the procedure set out in ss. 505 and 508 was followed. These steps were completed eighteen days before the July 2, 2010 return date on the appearance notice.
[ 8 ] On July 2, 2010, the parties appeared in Court on the June 14, 2010 Information, which I will refer to as the original Information. The Crown and the Court Clerk advised that “there is a new Information before the Court”. The Justice of the Peace advised defence counsel that it is “a replacement Information” and asked if defence counsel “had a chance to peruse it”. Defence counsel had not and so the Justice of the Peace told him to “take a moment” to review it. The Crown then stated that the “original Information can be withdrawn” and “the release [should be] attached to the new Information”. The Justice of the Peace confirmed these steps and stated that “we are now replacing it [the original Information] with a replacement Information”. Disclosure was provided to defence counsel who advised “we’re retained”. Crown counsel elected to proceed summarily and the matter was remanded to a second appearance on July 23, 2010.
[ 9 ] Of some significance to the issue of loss of jurisdiction that is now raised, defence counsel advised the Court on this first appearance that “I’ll appear as agent” on behalf of the Respondent Millar. This was after defence counsel had examined the replacement Information, after the Crown had withdrawn the original Information, and after the Crown had elected to proceed summarily. In other words, the Court acquired jurisdiction over the person because defence counsel agreed to appear on the replacement Information as agent for his client.
[ 10 ] What the Court referred to as “a replacement Information”, and I will adopt the same terminology, had been sworn three days earlier on June 29, 2010 by a police officer named Ali. He appeared that day before a Justice of the Peace who then received and signed the sworn Information. This new Information was marked “Replacement” at the top. It charged the Respondent Millar with the two counts summarized at the beginning of these Reasons. In other words, it duplicated the original roadside refusal offence in count one and added a new charge of impaired driving in count two. It was this new replacement Information that was before Cleary J. for trial, almost a year later, on June 6, 2011.
[ 11 ] The Justice of the Peace never confirmed process pursuant to s. 508, or issued fresh process pursuant to s. 507, in relation to the replacement Information when swearing it and receiving it on June 29, 2010. On the back of the new Information, the Court Clerk noted “Old release to apply” and affixed a July 2, 2010 date stamp. This notation and date stamp were presumably made on the first appearance in Court, on July 2, 2010, when the Crown asked that the original release from May 20, 2010 apply to the replacement Information.
[ 12 ] The replacement Information, which was delivered to this Court for purposes of the appeal, has the original appearance notice stapled to it. That appearance notice, as noted earlier in these Reasons, refers only to a charge of “refuse to provide breath sample” and it has a return date of July 2, 2010. It is signed both by the Respondent Millar and a police officer, as required.
[ 13 ] As noted at the beginning of these Reasons, there were four more appearances by counsel for the Respondent on the replacement Information, prior to the trial date. The court documents attached to the Information indicate that a Crown pre-trial was held, a judicial pre-trial was held, the trial date was set, and a Charter of Rights Motion was filed by the Respondent returnable on the June 6, 2011 trial date. The Charter Motion alleged that the demand for breath samples on May 20, 2010 involved a violation of s. 8 of the Charter and that further violations of s. 9, s.10(a), and s. 10(b) followed. The remedy sought was the exclusion of the resulting evidence at trial pursuant to s. 24(2) of the Charter. The Crown filed a lengthy response to this Charter Motion challenging the assertion that there had been any violation of the Charter.
[ 14 ] On the trial date, the Crown advised that it was ready to proceed. Defence counsel announced that she was “making a motion to quash the Information”. The original Information, that had been withdrawn on July 2, 2010, was before the Court during argument of this Motion. Crown counsel advised, during submissions on the Motion, that the Crown would not be proceeding on the added count of impaired driving. He stated:
It’s my intention today to proceed solely on the Refuse charge.
Crown counsel went on to submit that “in relation to the Refuse charge, the evidence before you shows that the s. 508 process was completed and that the replacement Information contains the same charge with the same details and that the jurisdiction, in that sense, is transferred to the new Information without another s. 508 inquiry and process being required”.
C. WAS THERE A FAILURE TO CONFIRM PROCESS IN RELATION TO COUNT ONE CHARGING REFUSAL TO PROVIDE A ROADSIDE BREATH SAMPLE?
[The remainder of the judgment continues exactly as in the source text.]
M.A. Code J.
Released: March 23, 2012
COURT FILE NO.: 111/11
DATE: 20120323
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – JENNIFER MILLAR
REASONS FOR JUDGMENT M.A. Code J.
Released: March 23, 2012