ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR120000013900AP
DATE: 20131218

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

GLEN BANY

Respondent

Rick Nathanson, for the Crown

Daniel Moore, for the Respondent

HEARD: October 24, 2013

B.P. O’marra j.

judgment

[1] On October 9, 2012 Justice H. Fraser of the Ontario Court of Justice ruled that an Information alleging an offence contrary to s. 253(1)(b) of the Criminal Code was not properly before the Court and that jurisdiction was lost. The Crown appeals from that decision.

CHRONOLOGY

[2] On August 26, 2011 the Respondent was arrested for Impaired Operation of Motor Vehicle. He was released on a Form 10 Appearance Notice requiring him to attend Court on October 13, 2011.

[3] On October 6, 2011 Information #332473 was sworn with one count of Impaired Operation of a Motor Vehicle. On October 13, 2011 an agent appeared on behalf of counsel, Mr. Rubel, with a designation on behalf of the accused. The matter was adjourned to November 10, 201l for initial disclosure to be provided.

[4] On October 24, 2011 a new Information #332795 was sworn with a charge of Over 80 with the same offence date and based on the same circumstances.

[5] On November 10, 2011 the new Information #332795 was before the Court. An agent appeared for counsel pursuant to the designation. Counsel for the Crown confirmed that there was a “replacement” Information before the Court and the same form of release would apply to that. The matter was adjourned on consent to December 8, 2011 for further disclosure and to arrange a pretrial.

[6] On December 8, 2011 an agent appeared for counsel pursuant to the designation. The clerk of the Court referred to the Impaired charge as well as an Over 80 charge. The latter was Information #332795 which was before the Court. The matter was adjourned to dates from January through March of 2012.

[7] On March 8, 2012 Mr. Rubel appeared for the Respondent. He stated that his office had only been appearing on behalf of the Respondent in relation to the original count of Impaired Operation and that he reserved his right to challenge any Information which was improperly before the Court. A trial date was set for October 9, 2012.

[8] On October 9, 2012 the Respondent appeared in person with Mr. Rubel as counsel and was arraigned on Information #332795 (the Over 80 count). Mr. Rubel argued that his office had never appeared on behalf of the Respondent on any Information other than the original Impaired Operation charge for which there was a designation. He then indicated that process had never been issued to the Respondent in relation to Information #332795. He further indicated that his client had never attorned to jurisdiction and the Court therefore had no jurisdiction to proceed to trial on that Information. Mr. Rubel further stated that his office was unaware of a new Information that had been laid until they were advised in March of 2012.

the trial decision

[9] Unfortunately, the trial judge was not provided with transcripts of any prior appearances before delivering his decision. The information provided by defence counsel at trial included the following:

The designation of counsel referred only to the original charge of Impaired Operation (Information #332 473).
Mr. Bany had not appeared personally since the first set date.
It was not until March of 2012 that the defence became aware that the Over 80 charge (Information #332 795) was before the Court.
The Over 80 Information (#332 795) was never served on Mr. Bany and there was no release or process in regard to that Information.
Mr. Bany appeared for trial with counsel on the only charge he had been served with (being Impaired Operation, Information # 332473).

[10] The Respondent’s position at trial was that jurisdiction on the Over 80 charge (Information #332795) cannot be gained simply because counsel may have appeared on one or more occasions.

[11] The Applicant’s position at trial was as follows:

Designated counsel or agent appeared on all of the outstanding Informations on various dates starting in October of 2011.
Counsel were properly informed of the various Informations before the Court.
When Information #332795 was before the Court on November 10, 2011 the existing release on Information #332473 was attached to the new Information.

[12] The Court accepted that the designation filed on the first appearance authorized counsel to appear for Mr. Bany on the original charge of Impaired Operation only (Information #332473).

[13] The Court found that Mr. Bany had never been served with any document requiring him to appear on the Over 80 charge and that s. 523(1) for the Criminal Code did not assist the Crown.

[14] Based on the above, the Court found that Information #332795 was not properly before the Court and jurisdiction was lost.

appearance on November 10, 2011

[15] A review of this brief transcript (which was not provided to the trial judge) reveals the following:

A student from counsel’s office appeared as agent for counsel pursuant to a designation.
The clerk of the Court advised that a designation had been filed but she was unable to locate it.
The student agent for counsel confirmed that counsel was retained. On that basis the Crown elected to proceed summarily so that the student could appear as agent for Mr. Bany rather than requesting a warrant with discretion.
The clerk of the Court referred to a replacement Information (#332795) that was before the Court. The Crown confirmed that the same release would apply to that.
On consent the matters were adjoined to December 8, 2011 for counsel to review disclosure and arrange a pretrial meeting.

appearance on december 8, 2011

[16] A review of this brief transcript (which was not provided to the trial judge) reveals the following:

Counsel, J. Heller, appeared as agent for counsel, Mr. Rubel, pursuant to a designation.
Mr. Heller confirmed that he had received some new paper disclosure. The clerk asked “on which charge, the impaired or the over 80?” Mr. Heller said the cover sheet indicated impaired driving.
On consent the matter was adjourned to January 5, 2012 to be spoken to.

designation of counsel and appearance by agent

[17] Where a designation is filed an appearance by the designated counsel is equivalent to the accused being present unless the Court orders otherwise.

Criminal Code, s. 650.01(1) and (3).

[18] On summary conviction matters a defendant may appear personally or by counsel or by agent but the Court may require the defendant to appear personally.

Criminal Code, s. 800(2).

jurisdiction

[19] A defect in the process to require an accused to attend Court will not affect the validity of the Information charging the offence.

R. v. Oliveira 2009 ONCA 219 at para. 30.

R. v. Naylor (1978), 1978 2371 (ON CA), 42 C.C.C. (2d) 12 (O.C.A.).

[20] A defect in the process that requires attendance in Court may well provide a complete defence to a charge of failing to appear and to prohibit a warrant issuing for the arrest of the accused. A defect in the process may well amount to a loss of jurisdiction over the person. It does not result in loss of jurisdiction over the offence.

R. v. Ladouceur 2013 ONCA 328 at para. 19.

[21] Loss of jurisdiction over the person can be regained if the accused attends in Court and the charging document is present.

R. v. Ladouceur (supra) at para. 31.

analysis

[22] The provisions that allow a defendant to appear by designated counsel (on indictable matters), or by counsel or agent (on summary conviction matters) are accommodations for the defendant. When a defendant avails himself of these procedures the Court and the Crown are entitled to proceed as if he were present for all purposes. It is the obligation of whoever appears on behalf of the accused to inform counsel of record and the accused as to what transpired in Court.

[23] The provisions that allow the defendant to appear by a representative cannot become a trap for the Crown to lose jurisdiction it would otherwise maintain by a personal appearance of the defendant. The Court would be obliged to order the personal appearance of the defendant to avoid loss of jurisdiction.

Criminal Code, s. 650.01(3)(b), (4) and s. 800(2).

[24] It appears Mr. Rubel was designated as counsel from the outset and he appeared by agent on behalf of Mr. Bany on October 13, 2011. A student or other counsel from Mr. Rubel’s office appeared on behalf of Mr. Bany on various dates through March of 2012.

[25] At trial Mr. Rubel advised the Court that there was no attornment to jurisdiction on the Over 80 Information (#332795). He also stated that “we were unaware a new Information had been laid until we were advised in March of 2012”.

[26] However, that Over 80 Information was before the Court at appearances on November 10, 2011 and December 8, 2011. On those dates an agent for Mr. Rubel appeared pursuant to the designation filed. That was the legal equivalent of the defendant being there in person. On both occasions there is reference to the further Information charging Over 80. Notwithstanding a lack of process to require the defendant to attend he was for purposes of the law present as was the charging document. This amounted to attornment to jurisdiction on that new Information. The defendant then made a series of appearances by agent or counsel until he appeared in person along with Mr. Rubel for trial on October 9, 2012.

[27] Mr. Rubel is well known as a counsel of integrity. I do not suggest in any way that he misled the trial judge when he said he had no knowledge of the new Information until March of 2012. However, his representatives and agents who attended on behalf of himself and his client must have known as of November 10, 2011 that there was a new Information alleging Over 80 based on the same allegations as the original count of Impaired Operation. I can only assume there was a breakdown in communication or a failure to note up their file by the agents and counsel who appeared for Mr. Rubel and the defendant on November 10, 2011 and December 8, 2011. The fact that Mr. Rubel and his client were not personally aware of the new Information despite what happened on those dates cannot amount to a lack of jurisdiction.

[28] Where there is a facially valid Information before the Court and the accused appears in person, by designation of counsel or by agent the Court has jurisdiction over the person. It is of no consequence whether the process to order attendance is defective or nonexistent. A defect or absence of process to order attendance relate only to enforcing a failure to appear or a request for a bench warrant.

result

[29] The trial judge erred in law when he found that the Over 80 Information (#332795) was not properly before the Court.

[30] Appeal allowed. A new trial is ordered before a different judge of the Ontario Court of Justice.

B.P. O’Marra J.

Released: December 18, 2013

COURT FILE NO.: CR120000013900AP
DATE: 20131218

ONTARIO
SUPERIOR COURT OF JUSTICE