ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P)266/13
DATE: 20140414
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. A. Simitsis, for the Crown
Appellant
- and -
DANIEL WINK
Mr. D.R. Lent, for the respondent
Respondent
HEARD: April 7, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of The Honourable Justice Kerrigan-Brownridge dated April 2, 2013]
Fragomeni J.
[1] The Crown appeals against the order of Justice Kerrigan-Brownridge of the Ontario Court of Justice, quashing the information against the respondent, Daniel Wink, on April 2, 2013 on a charge of operation of a motor vehicle with excess blood alcohol, contrary to s. 253(1) (b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.
[2] The Crown advances four grounds of appeal:
The learned trial judge committed legal or jurisdictional error in quashing the information on the grounds that it was a nullity;
The learned trial judge committed legal or jurisdictional error in holding that the information was a nullity and the court had no jurisdiction to act upon it;
The learned trial judge erred in law in failing to find that the accused had attorned to the jurisdiction of the court regardless of whether process had been confirmed; and
The learned trial judge erred in law in failing to find that the presumption of regularity applied in relation to the information and the confirmation process.
[3] The trial judge rendered her decision on April 2, 2013. Subsequent to her decision, the Court of Appeal for Ontario in R. v. Ladouceur, 2013 ONCA 328, 116 O.R. (3d) 64 dealt with the very issue that is before me at this appeal.
[4] The respondent’s position is succinctly set out at paras. 38 and 39 of his Factum as follows:
It is respectfully submitted that R. v. Ladouceur [2013] O.J. No. 2287 (O.C.A) should not be followed as the said Court erred in not recognizing and following the intent and plain wording enacted by Parliament in creating Section 508 CCC. As set out in Gougeon, Parliament intended to give to the Justice of the Peace a screening ability to prevent unjustified criminal court appearances by citizens of this Country. The Court in Ladouceur improperly assumed that of the Justice of the Peace failed to endorse on the Information that the Information was confirmed, was merely a “deficiency” (paragraph 19) or “a flawed confirmation process” (paragraph 26) as opposed to the Justice of the Peace exercising his screening function as intended by Parliament and as set out in s. 508 CCC. The result of the Ladouceur decision renders the procedure in s. 508, meaningless. As such the Court of Appeal in Ladouceur has erred in exceeding their judicial jurisdiction.
It is respectfully submitted that the trial judge did not err in law as she correctly applied the law in Ontario by quashing the information due to the failure to obtain prior judicial sanction in accordance with the provisions set out in s. 508 of the Criminal Code.
[5] I cannot and do not accept the respondent’s position on this issue. I am bound to follow the decision in Ladouceur. The following paragraphs in Ladouceur make it clear that the trial judge fell into error in deciding the issue as she did.
[6] Justice Speyer (ad hoc) frames the issue on appeal, at para. 1, as follows:
What effect does non-compliance with s. 508 of the Criminal Code have on the validity of an information? Is the information a nullity, resulting in loss of jurisdiction over the offence, or does non-compliance with s. 508 simply result in a loss of jurisdiction over the person? These questions of law are at the heart of this appeal. [citations omitted.]
[7] At para. 2, Justice Speyer notes:
There has been a significant lack of judicial consensus on the effect of non-compliance with s. 508, illustrated by multiple conflicting decisions in both the Superior Court of Justice and the Ontario Court of Justice. The issues of law in this appeal are matters of general importance to the administration of criminal law and require clarification. Leave to appeal is granted.
[8] After reviewing the two divergent lines of authority, the Gougeon (R. v. Gougeon (1980) 1980 2842 (ON CA), 55 C.C.C. (2d) 218) line of cases and the Oliveira (R. v. Oliveira, 2009 ONCA 243 C.C.C. (3d) 217) line of authority, Justice Speyer commenced his analysis of the issue at para. 16. Justice Speyer then sets out the following, at paras. 18-19, 24, 25-26, 27, 30-31:
18 In the event of a failure to comply with the time limit for laying an information under s. 505, the law is well settled that the promise to appear is defective and non-compliance with s. 505 provides a complete defence to a charge of failure to appear as directed by the promise to appear. However, the defect does not affect the validity of the information. In a nutshell, jurisdiction is lost over the person, but not over the offence; that is, the validity of the information survives a defect in the process: see R. v. Naylor (1978), 1978 2371 (ON CA), 42 C.C.C. (2d) 12 (Ont. C.A.) and R. v. Markovic (2005), 2005 36251 (ON CA), 200 C.C.C. (3d) 449 (Ont. C.A.).
19 So, if an information survives a defect in the time limit imposed by s. 505, the crucial issue raised in this appeal is whether there is any reason, based in logic or policy, why a deficiency in the confirmation process set forth in s. 508 ought to operate differently so as to nullify a valid information. I am of the view that a defect in the confirmation process does not affect the validity of an information. The legal consequence of a deficiency in the confirmation process set forth in s. 508 is to provide a complete defence to a charge of failing to appear as directed by the promise to appear and to prohibit a warrant from issuing for the accused's arrest. A failure to conform to the requirements of s. 508 results in a defect in the process and a loss of jurisdiction over the person; it does not result in loss of jurisdiction over the offence. I come to this conclusion for several reasons.
25 Second, s. 508 has an important but limited purpose. Until the confirmation process is complete, a promise to appear does not bind an accused person. The judicial screening under s. 508 is aimed at protecting an accused from an unwarranted court appearance: Gougeon, at p. 227; Millar, at para. 48. In this way, the provision is a "key accountability-enhancing feature" of the police bail powers: Duran, at para. 5. For example, in appropriate circumstances, a justice may cancel the promise to appear altogether. Or, as in the present case, cancel the promise to appear and substitute a summons because no court was scheduled to sit on the return date on the promise to appear. What a justice scrutinizing the confirmation process does not have is the power to dismiss the charge.
26 If an accused is arrested and held for a bail hearing, no jurisdiction exists for the justice presiding at the bail hearing to inquire into the sufficiency of the allegations and quash the information or dismiss the charge. In such circumstances, there is no need to confirm process because the accused is already before the court: R. v. Whitmore (1987), 1987 6783 (ON SC), 41 C.C.C. (3d) 555 (Ont. H.C.J.), at p. 561. As Crown counsel argues in this appeal, it would be an incongruous situation that a flawed confirmation process could invalidate an information for want of jurisdiction, thereby terminating a criminal proceeding, yet, in the circumstances of an accused held for a bail hearing, a review of an informant's allegations by the presiding justice would not be permitted.
27 Moreover, rational criminal law policy supports the finding that a justice should not have the power to dismiss charges under s. 508. At the time of the s. 508 confirmation process, there is little evidence before the justice and the accused is not present. Furthermore, as Code J. pointed out at para. 52 of Millar:
[I]f there is truly no case to answer, or if the case is simply too weak to convict, the remedies available at trial are far more potent ... Failure to confirm process under s. 508, or to issue process under s. 507, simply means the authorities can gather further and better evidence and then return and try again before a different Justice of the Peace.
30 That said, I find the dicta in Markovic and Oliveira compelling and difficult to reconcile with the dicta in Gougeon. Interestingly, in Millar, at paras. 29-41, Code J., in a scholarly analysis of the jurisprudence at the time of the Gougeon decision, explains that a state of confusion in the law existed with respect to jurisdiction over the person and jurisdiction over the offence. Subsequent developments in the law emanating from the Supreme Court of Canada, as well as Parliament's enactment of s. 485 of the Code, had the effect, in Code J.'s view, of reversing the Gougeon dicta. I find considerable merit in Code J.'s analysis.
31 In the result, I am persuaded that there is no principled reason why non-compliance with the confirmation process in s. 508 should affect the validity of a properly laid information. It results in a defect in process that causes a loss of jurisdiction over the person. This loss of jurisdiction over the person can be regained if the accused attends in court. There is no reason to depart here from that well-established principle: see Naylor, at p. 19, and Markovic, at para. 24.
[9] In the case at bar the following chronology of events occurred:
On April 5, 2012 Cst. Virginia Danos of the Peel Regional Police properly swore an information relating to the Respondents charge before a Justice of the Peace. The information was properly dated, confirmed and signed. The Justice of the Peace failed to properly confirm the specific form and date of release. In other words, while the box labeled “confirmed” was ticked off (accompanied by a date and signature), one of the 3 boxes (Appearance Notice; Promise to Appear; or Recognizance) was not ticked off and the date of the particular release was missing.
On April 16, 2012 Mr. Wink himself appeared in courtroom 104 for his first appearance time in accordance with his promise to appear. He received disclosure and the matter was adjourned for six weeks to May 28, 2012 in courtroom 104 at 10:00 a.m. to allow the Respondent to consult with and/or retain counsel Douglas Lent.
On May 28, 2012 Ms. Christie Lent appeared in court as agent for counsel for Mr. the accused, and Filed a designation in the name of Douglas Lent. Ms. Lent advised the court a resolution meeting had been held, and further disclosure was being sought. The matter was adjourned to June 28, 2012 at 9:15 a.m. in courtroom 207 for a Judicial Pre-trial.
On June 28, 2012 Ms. Christine Lent appeared on behalf of the Respondent as agent for Douglas Lent pursuant to the designation previously filed. Justice Blacklock set 1.5 days of trial, and adjourned the matter to February 15, 2013 in courtroom 103 for trial confirmation.
On February 15, 2013 Ms. Christie Lent appeared on behalf of the Respondent as agent for Douglas Lent pursuant to the designation previously filed. Ms. Lent confirmed that 2 dates were previously set for trial: March 28, 2013 and April 2, 2013 in courtroom 302, and filed a certificate of trial readiness on behalf of the Respondent. The matter was remanded to March 28, 2013 for trial.
On March 28, 2013 Mr. Douglas Lent appeared in courtroom 302 on behalf of the Respondent for his first day of trial before Justice Kerrigan Brownridge. The Respondent, Mr. Wink was present. Ms. Greco, on behalf of the Crown was ready to proceed with the trial. Mr. Lent requested a review of the information before Mr. Wink was arraigned.
[10] The case at bar falls squarely on all fours with the Ladouceur decision. The loss of jurisdiction over the person was regained as the respondent attended court on five occasions either personally or through counsel.
[11] Finally, I agree with the Crown’s position that even apart from the Ladouceur decision, the Justice of the Peace did confirm the information as disclosed in the transcript of April 5, 2012, Proceedings at Intake, before a Justice of the Peace.
[12] For all of these reasons the Crown appeal is allowed and the matter is remitted back to the Ontario Court of Justice in courtroom 104 at 9 a.m. on April 22, 2014 to set a date for trial.
Fragomeni J.
Released: April 14, 2014
COURT FILE NO.: SCA(P)266/13
DATE: 20140414
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
DANIEL WINK
REASONS FOR JUDGMENT
Fragomeni J.
Released: April 14, 2014