NEWMARKET COURT FILE NO.: CR-16-02050G DATE: 20180706 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ASHTON LAWSON Applicant

Counsel: S. Kumaresan, for the Crown M. Lacy and D. Negandhi, for the Applicant

HEARD: June 27, 2018

RULING ON DEFENCE MOTION

HEALEY J:

Nature of the Motion

[1] Ashton Lawson is charged with robbery with a firearm and disguise with intent. Mr. Lawson was arraigned on the charges on June 26, 2018. Jury selection was completed by the lunch recess on June 27.

[2] After the jury was put in charge, in the absence of the jury Mr. Lawson’s counsel made an oral motion for two related orders. He sought an order declaring that Toronto is the proper venue for the trial of this matter, along with an order transferring the indictment to Toronto. He also sought an order declaring a mistrial.

[3] The indictment alleges that Ashton Lawson committed the offences in the City of Toronto in the Toronto region. Mr. Lacy submits, and I accept, that it was only upon hearing the charges read out to the selected jury that it occurred to him that this trial was not being conducted in the proper venue. Counsel were provided with an opportunity to conduct research, and submissions were heard later that day.

[4] At the commencement of court on June 28, I delivered a ruling dismissing the motion, with reasons to follow. These are those reasons.

Background

[5] The background to the case is this: a robbery took place at a PetroCanada gas station on the corner of the intersection of Steeles and Kipling Avenues on February 9, 2016. The York Regional Police force had been conducting an investigation and surveillance of this gas station, as a result of a previous robbery at the same location. Steeles Avenue marks the border of Toronto Region and York Region. Although the gas station is located on the north side of Steeles Avenue, the Crown informed the court that, as a result of the gas station being required to pay taxes to the City of Toronto, a decision was made that the location of the offence is within the Toronto region.

[6] Several weeks after the second robbery occurred, Mr. Lawson was arrested by the York Regional Police. The location of his arrest was on Kipling Avenue, which he reached after being observed walking along Kidron Avenue. The intersection of Kipling and Kidron Avenues is south of Steeles Avenue.

[7] The information was sworn in Newmarket, in York region, a preliminary hearing was waived, and the indictment was filed in Newmarket. Two judicial pre-trials and two pre-trial Charter applications have been conducted in Newmarket and the trial date was set in the Newmarket courthouse.

[8] Mr. Lacy only recently assumed carriage of this matter from his partner for the purpose of conducting the trial. As earlier indicted, the jury had been selected, using the challenge for cause procedure prescribed by s. 640(2) of the Code. Subject to this motion, the trial was ready to continue.

Issue

[9] The issue to be determined is whether the Crown was required to file the indictment in the Toronto region as a result of the offence having allegedly arisen in that same region, and if so, whether the trial is required to be held in the Toronto region.

The Positions of the Parties

[10] The position of the defence is that the indictment was initiated in the wrong venue and has always been processed in the wrong venue, and to proceed with the trial in Newmarket would be a perpetuation of this procedural error. Mr. Lacy submits that the trial can only be held in Newmarket if one of two things exist: either an order made under s. 599 of the Criminal Code for a change in venue from Toronto to Newmarket, or an order from the Chief Justice requiring that this trial be held in Newmarket. In the absence of both such orders, the proper venue is Toronto, as it is the default judicial region in which the offence occurred.

[11] In support of his position, Mr. Lacy relies on two decisions of this court: R. v. Jeffries, 2010 ONSC 772 [Jeffries] and R. v. Singh, 2018 ONSC 1532 [Singh]. He submits that s. 470 of the Criminal Code is of no assistance, because it addresses the jurisdiction of the court over the accused person, as opposed to the place of the trial. He argues that if the trial had been held in the proper default venue, Mr. Lawson would have had the benefit of a jury pool drawn from the Toronto region, which he submits would have contained a greater number of potential jurors from the same racial background.

[12] The position of the Crown is that this trial may be conducted in Newmarket, for the same reason that all of the pretrial steps occurred in Newmarket. A judge of the Superior Court has the jurisdiction to hear criminal matters, including trials, arising from crimes committed within the entire Province. Ms. Kumaresan submits that the defence has not provided authority for its argument that the indictment must be laid in the judicial region in which the offence occurred, and argues that neither Jeffries nor Singh support such a conclusion.

[13] Ms. Kumaresan relies on R. v. Ellis 2009 ONCA 483 to argue that there is no restriction on where the information, and by extension, the indictment, may be filed within the Province. The Crown was aware that the offence occurred within Toronto region at the time that the proceedings were undertaken in York region. Crown counsel submits, given her position that the trial is being held within a proper and permissible judicial region, that the defence was required to bring an application under s. 599 of the Criminal Code if Mr. Lawson wanted the trial to be conducted in Toronto. Given that no such application has been made, the court should not entertain any submissions regarding whether Mr. Lawson is prejudiced by having the trial conducted in Newmarket, and particularly not at this late stage when there has been ample time and opportunity to raise the issue.

Analysis

[14] The defence has not persuaded me that the Crown was required to file the indictment in Toronto region, nor that the trial is required to be held in Toronto.

[15] There is no doubt that both Jeffries and Singh recognize that the Crown does not have exclusive jurisdiction to decide the place of the trial: Jeffries, paras. 48-62; Singh, at para. 147. The ultimate authority for determining the venue of a trial, as recognized in those cases, is the Chief Justice of the Superior Court of the province, which authority may be and typically is delegated to the Regional Senior Justice where an intra-regional transfer of the trial venue is contemplated, and which must be exercised by the Chief Justice where the place of trial involves a transfer outside of the judicial region in which the indictment is lodged. These powers are exercised under s. 14(1) and (2), 75(1) and 79.1(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 [“CJA”], and result in providing the court with the administrative authority to direct the venue of trials: Jeffries, paras 59-63 and 68; Singh, para. 151. The more common legislative avenue, however, to effect the transfer of a trial is under s. 599 of the Criminal Code.

[16] However, the initial administrative decision as to where the indictment should be filed falls to the Crown, and neither Jeffries nor Singh provide authority for Mr. Lacy’s submission that the default venue for filing the indictment absolutely must be the judicial region in which the offence occurred. The Crown is however, constrained by the common law and legislation that has altered the common law, notably s. 470 of the Criminal Code.

[17] The issue in Jeffries was whether the accused was bound by an order made by the then-Regional Senior Justice of the Superior Court of the North East Region, which required all Superior Court trials be held in Timmins with respect to committals for trial arising from charges returnable in Chapleau in the district of Sudbury. Prior to the former Senior Justice’s order, if an accused was committed to stand trial the indictment would issue from Sudbury, and the trial would be held in Sudbury. The accused wanted her trial to be held in Sudbury. By virtue of the provisions of the CJA previously cited, Gauthier, J. held that the then-Regional Senior Justice properly exercised the administrative authority to direct that the trial venue for Chapleau matters be held in Timmins.

[18] In discussing the issue of the proper venue for trial, Gauthier J. analyzed how the common law rule that the trial of a matter should take place in the “neighbourhood” in which the offence is alleged to have occurred has been altered. First, s. 470 of the Criminal Code extends the territorial jurisdiction of the Superior Court beyond the local neighbourhood: para. 36.

Section 470 of the Code provides:

Jurisdiction over person

470. Subject to this Act, every Superior Court of criminal jurisdiction and every court of criminal jurisdiction that has power to try an indictable offence is competent to try and accused for that offence (a) if the accused is found, is arrested or is in custody within the territorial jurisdiction of the court; or (b) if the accused has been ordered to be tried by (i) that court, or (ii) any other court, the jurisdiction of which has by lawful authority been transferred to that court.

[19] The meaning of “territorial jurisdiction” in s. 470 has been interpreted to mean the whole of the Province of Ontario in the context of provincially appointed judges: R. v. Feige, [1992] O.J. No. 2521. In Jeffries, Gauthier J. concluded that this expanded jurisdiction would also apply to federally appointed judges: para. 39.

[20] Similarly in R. v. Reyat, [1990] B.C.J. No. 1331, the court considered the same phrase in s. 470 of the Criminal Code and concluded that the "territorial jurisdiction" of the British Columbia Supreme Court is all of that province. If an accused is found, arrested, held in custody, or ordered by the court to be tried in British Columbia, then the Supreme Court of British Columbia has jurisdiction to try that accused for an indictable offence: para. 6.

[21] Further, as a result of s. 79.1 of the CJA, Ontario has been divided into eight judicial regions. As noted by Gauthier, J., the venue of trial was no longer confined to the, town, city or district in which the offence allegedly took place, but rather the judicial region in which the offence allegedly occurred: paras. 44 and 45.

[22] In Singh, Durno J. was faced with the issue of the transfer of a trial to a different judicial region. The indictment had been filed in Brampton, located in the Central West Region. One of the issues that had to be decided was whether the Superior Court of Justice had authority to move proceedings from where the indictment was filed into a courthouse in a different judicial region. At para. 144 he distinguished between venue and jurisdiction:

Based on the current federal and provincial legislation, venue and jurisdiction are not synonymous. The venue of a trial is the place where it would normally be held. Jurisdiction involves the court’s authority to hear a particular proceeding or select the location of trial: Jeffries, at paras. 29-35.

[23] After analyzing the legislation and common law authorities, including Jeffries, Durno J. concluded that the Chief Justice has the authority to transfer cases anywhere in Ontario and Regional Senior Justices have the authority to transfer cases anywhere within his or her region: paras. 137-151.

[24] The reason why Singh and Jeffries are not particularly helpful in this case is that neither one dealt with an attack on the initial trial venue. Both dealt with jurisdiction to transfer cases, outside of the context of a venue change brought about by the application of s. 599.

[25] In this case, the indictment was filed in the judicial region in which the offence occurred. This offence allegedly took place at a gas station located north of Steeles Avenue. Steeles Avenue marks the boundary between the judicial regions of York and Toronto. The fact that the payment of taxes to the City of Toronto somehow led the authorities to conclude that Toronto was the location in which the offence occurred is a red herring. The common law rule that the trial of a matter should take place in the judicial region in which the offence allegedly took place has been followed. Additional connection to York region arises from the fact that it was the York Regional police who were tasked with the investigation of the robbery at this location.

[26] However, I would go further to state that even if the offence took place in the Toronto region, either as a result of the technicality of the tax payment or otherwise, the Crown could decide to file the indictment in York Region and hold a trial here. This decision would be subject to an order made on motion brought by the defence for a change in venue pursuant to s. 599 of the Criminal Code, or an order issued by the Chief Justice.

[27] In Ellis, the court of appeal determined that for the purposes of s. 504 of the Criminal Code, the phrase “territorial jurisdiction” should be interpreted to mean the Province of Ontario, in part because justices of the peace have jurisdiction throughout the province. The court ruled that a justice of the peace sitting in Toronto was obliged to receive an information even though the matter had no connection to the Toronto region. The events of which Ms. Ellis complained arose in Hanover, Ontario, located in the Central West judicial region. The court cited with approval the case of R. v. Ponnuthurai (2002), 170 C.C.C. (3d) 440 (Ont. C.J.) in which the accused was charged with a sexual assault alleged to have occurred in the Peel Region, but the charge was laid in Toronto before a justice of the peace in Toronto, and the Crown proceeded summarily before a provincial court judge sitting in Toronto. In Ponnuthurai it was concluded that the enactment of s. 79.1 of the CJA was for administrative as opposed to jurisdictional purposes, and did not affect the territorial jurisdiction of the Ontario Court of Justice. Accordingly, it was concluded that s. 798 of the Criminal Code, which gives summary conviction courts jurisdiction over proceedings “in the territorial division over which the person who constitutes that court has jurisdiction” referred to the entire province of Ontario. Accordingly, the court in Ponnuthurai ruled that a provincial court judge sitting in Toronto had the jurisdiction to hear a matter that arose in Peel. At para. 23, Pringle J. stated:

However, in the absence of prejudice, and assuming that the information is validly laid, I find that there is no automatic, jurisdictional impediment to hearing a summary conviction trial in a region other than the one in which the offence arose.

[28] While Jeffries and Singh make the point that jurisdiction to determine the trial venue does not reside in the Crown, the day to day administrative decision of where an indictment should be filed is one that is routinely made by the Crown’s office in each judicial region. Where, for example, an offender commits acts within more than one judicial region, the indictment may include all of those offences and the Crown will make the initial decision about where to lodge the indictment. While the usual administrative practice is to file an indictment in the judicial region in which the offence occurs, there is nothing in the Crown Prosecution Manual, a practice direction or any legislation that makes this a requirement. It is the normal and usual practice based on long-standing principle and tradition, but not one that is absolute.

[29] In Jeffries, Gauthier, J. referenced R. v. Reyat, [1990] B.C.J. No. 1331, which held that the Crown has no authority to issue an indictment and direct a place of trial which has no connection to the charge. I respectfully disagree. While it is preferable for many reasons not to do so, there may be valid reasons, provided that there is no abuse of process or prejudice to an accused, for initiating the trial venue in a judicial region other than the one from which the charges arose. Flexibility must be allowed in special circumstances to accommodate, for example, a situation in which the Crown’s key witness is elderly or infirm and travel to another judicial region would cause hardship or be impossible for that witness, or where other circumstances exist where the orderly administration of justice would be compromised by issuing an indictment in the normal venue.

[30] However, in this case the Crown did follow the usual practice and filed the indictment in the region both where the offence arose and which is logically connected to the events, and accordingly the proper trial venue is Newmarket.

Healey J. Released: July 6, 2018