COURT FILE NO.: SCA(P) 1599/19
DATE: 2021 05 10
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL)
B E T W E E N:
HER MAJESTY THE QUEEN
Patrick Quilty, for the Respondent
Respondent
- and -
SUNEET SHARMA
Murray H. Shore & Lucas Rebick, for the Appellant
Appellant
Heard: May 22, 2020
REASONS FOR JUDGMENT
[On appeal from a Decision of the Ontario Court of Justice at Brampton, ON, delivered March 25, 2019 and May 3, 2019]
BARNES J.
INTRODUCTION
[1] On May 3, 2019, Kastner J. of the Ontario Court of Justice acquitted Mr. Sharma of one count of impaired operation of a motor vehicle, contrary to s. 253(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, and convicted him of one count of operating his motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 milliliters of his blood, contrary to s. 253(1)(b) of the Criminal Code. He appeals his conviction.
[2] There were two informations laid in this case. In the first information, Mr. Sharma was charged with the “over 80” offence. The Crown instructed the police to lay an additional charge of impaired driving. Relying only on an email communicating the Crown’s instructions, a peace officer swore a second information adding the impaired driving charge to the over 80 charge.
[3] According to Mr. Sharma, the trial judge erred in law by finding that a sworn belief on reasonable grounds does not require a basis in objective fact. In addition, he contends that the trial judge failed to apply the governing legal principles in the analysis of his application under s. 7 of the Canadian Charter of Rights and Freedoms.
[4] I conclude that a peace officer who has a subjective belief that an offence has been committed cannot rely on a presumption of good faith of the Crown, based only on instructions from Crown counsel to lay a new charge, which is not an included offence, without any information on the circumstances giving rise to the allegations, as an objective fact to support reasonable grounds to lay the new charge. However, based on binding appellate jurisprudence in Ontario, the absence of reasonable grounds to support an informant’s solemn affirmation does not invalidate an information.
[5] A protocol that permits an informant to make a solemn affirmation devoid of reasonable grounds is a breach of Mr. Sharma’s s. 7 rights. It introduces prejudice to the integrity of the justice system that will be “manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.”[^1] The appropriate remedy is a stay of proceedings limited to the impaired operation charge. Since Mr. Sharma was acquitted on this charge, this remedy is moot. In the result, the appeal against conviction of the over 80 charge is dismissed.
BACKGROUND FACTS
[6] At approximately 2:01 a.m. on Saturday, April 20, 2018, Mr. Sharma was driving his motor vehicle eastbound on Castlemore Road. He stopped at the intersection of Castlemore and Clarkway Drive in the City of Brampton. His intention was to turn northbound on Clarkway.
[7] At this time, Mr. Gravito was driving his vehicle westbound on Castlemore Road approaching Clarkway Drive. Mr. Gravito drove through the intersection on a green light, at the same time Mr. Sharma drove his vehicle into Mr. Gravito’s path causing a collision. Each vehicle sustained $10,000 in damage.
[8] Police arrived on scene. The police officer on scene detected an odour of alcohol emanating from Mr. Sharma’s breath and observed his eyes to be rimmed and watery. At 2:36 a.m., the officer formed the suspicion that Mr. Sharma had alcohol in his body while operating his motor vehicle.
[9] The officer administered the approved screening device test at 2:38 a.m. Mr. Sharma failed the test. He was arrested for operating his motor vehicle with over the legal limit of 80 milligrams of alcohol in 100 millilitres of his blood. He was provided all the necessary cautions and right to counsel.
[10] A blood alcohol concentration test by an approved instrument revealed that at 4.34 a.m., Mr. Sharma had 170 milligrams of alcohol in 100 millilitres of his blood and at 4.47 a.m., he had 150 milligrams of alcohol in 100 millilitres of his blood. Mr. Sharma was charged with an over 80 offence and released on a promise to appear in court on May 10, 2018.
[11] It is agreed that in the very busy Region of Peel, there is a standing protocol between the Crown and the police on how requests from the Crown for additional charges to be laid should be handled (“the Protocol”). The specifics are as follows:
When a Court Bureau officer swears an original information-that is, the first information relating to a specific allegation-the officer will read the synopsis provided by the officer in charge in order to gain the requisite reasonable and probable grounds to swear the information.
In some cases, the Crown Attorney's office may request that a new information be laid in a case. This could be to add charges, the correct wording, or for the purposes of resolution (e.g. laying a Highway Traffic Act information in order to resolve a criminal driving offence).
When the Crown asks for a new information to be laid, the request is reviewed by Sergeant in the Court Bureau. The Sergeant determines whether the new charge (or wording) is reasonable and relevant. If the Sergeant determines that laying a new information is appropriate, they will direct an information clerk-a civilian employee in the PRP Court Bureau-to type up the new information.
This typed information is provided to one of 3 police officers in the Court Bureau, who will take it before a justice of the peace in intake court and swear to it. In such cases, the swearing officer would generally not review a synopsis before swearing the information. Instead, the Court Bureau presumes good faith on the part of the requesting Crown and treats the Crown’s request as its grounds to lay the new information.
In cases where the Crown asks for a new charge to be laid, the Court Bureau presumes that the Crown has reviewed the file and determined that there is sufficient evidence to proceed with the additional charge.
This process for swearing and new information at the request of the Crown was the result of an agreement/understanding between the Court Bureau and the Peel Crown Attorney’s office.
[12] On May 7, 2018, a peace officer made a solemn oath before a justice that he had reasonable grounds to believe that Mr. Sharma had committed the offence of over 80. Mr. Sharma appeared on this information on May 10, 2018, June 14, 2018, and June 26, 2018.
[13] On May 15, 2018, based on an email stating: “Please prepare and put forward into court a new replacement information in this case as per assigned Crown. Please add the charge of impaired operation to the information, thank you”,[^2] Constable Del Zitto, made a solemn affirmation before a justice in support of a second information adding the impaired operation charge.
[14] On June 14, 2018, Mr. Sharma appeared on both informations. The case was adjourned to June 26, 2018. He appeared on June 26, 2018 and was remanded on both informations for trial beginning on February 20, 2019.
[15] On February 20, 2019, the trial did not proceed. The trial was adjourned to March 25, 2019. On March 25, 2019, the Crown elected to proceed on the second information. The Crown elected to proceed summarily.
[16] At trial, Mr. Sharma sought an order staying the second information. He argued that the informant had no reasonable ground to believe that Mr. Sharma had committed the offences. A presumption of good faith on the part of the Crown is not an objective fact. Therefore, the informant had sworn a false oath and the information was a nullity.
[17] In the alternative, the swearing of the second information was an abuse of process and a breach of his rights under s. 7 of the Charter. Thus, he sought a stay pursuant to s. 24(1) of the Charter.
[18] Kastner J. dismissed Mr. Sharma’s application and, after trial, convicted him of the over 80 offence and acquitted him of impaired operation.
EVIDENCE AT TRIAL
[19] The informant, Constable Del Zitto, was the main witness on this discrete issue. He explained that the Crown email was an electronic request, which was processed through the Peel Police Case Management Sergeant. The Sergeant used the NICHE system to prepare an administrative task to implement the Crown’s request. The task was for personnel with the Court Bureau to swear the new information with the additional charge of impaired operation.[^3]
[20] Constable Del Zitto was not the informant for the first information. Constable Del Zitto swore before a justice that he had reasonable grounds to believe that Mr. Sharma had committed the offence of operating his motor vehicle with over 80 mg of alcohol in his body and a new charge of operating a motor vehicle while his ability to do so was impaired by his consumption of alcohol. Constable Del Zitto was aware that the first information charged Mr. Sharma with only the over 80 offence. He had no information about the factual basis for the impaired driving offence. He relied on a presumption that the Crown must have reviewed the case and decided that there were reasonable grounds warranting the additional charge.
REASONS OF THE TRIAL JUDGE
[21] On the issue of a false oath, Kastner J. succinctly summarized her reasons, at paras. 39-41, as follows:
The applicant takes issue with the validity in his application.
The applicant asserts that because the process of swearing second or new informations in the Peel Court House is from an understanding or agreement between the Crown and the police, it undermines the requirements of section 504. Mr Penny also asserts such process results in falsely sworn informations and nullifies the Justice’s ability under section 507 to inquire into the “allegations of the informant”.
Firstly, nothing before the court in this motion supports the assertion of informations being “falsely sworn”. The informant believes on reasonable grounds that the named offence has been committed. Those grounds in the first instance are found in the Court Brief or Court Synopses. In the second or new information, the grounds are both because the officer also relied upon a review by Crown counsel of the file and request, and that his Sergeant has reviewed the request, satisfied him or herself that there are reasonable grounds to believe the offence has been committed, and tasks both the typing and swearing of the information.
Secondly, the ability of the Justice of the Peace to fulfill the duties under section 507 of the Criminal Code is not undermined. That section is not engaged when the informant is not seeking that process be issued to compare the individual charge to attend court to answer the charge(s).
[22] Kastner J. also concluded that there was no abuse of process and thus a stay of proceedings was unwarranted. At paras. 45, 57, and 65-66 of the reasons for decision, Kastner J. wrote the following:
The applicant states that he [Constable Del Zotto] lacks any objective belief in the commission of the offence. This position respectfully is not cognizant of the nature of the understanding between the Crown and peel regional police. This understanding is not merely in the nature of experience and respecting the appropriate use of manpower; it requires both the review of a law officer of the Crown and the supervising police sergeant. Such review, as in this case, satisfies the subjective and objective belief of reasonable grounds. …
The Court finds no abuse of process occurred in these circumstances. The laying of informations by a peace officer who either reads the file himself or herself to establish reasonable grounds to believe an offence has been committed, or is involved in the investigation and believes on reasonable grounds that an offence has been committed, or receives credible information from another officer to that effect, or is asked by a fellow officer or supervising officer who has reviewed the case and advised that there are reasonable grounds to lay certain charges, complies with statutory obligations by doing so.
The Brampton Court, or a Granville and William Davis courthouse, is arguably one of the busiest court houses in the country. This includes a large International Airport and Postal facility which due to the volume, thousands of charges are processed each week. The understanding between the Peel regional police and the Crown attorney's office does nothing to circumvent the Criminal Code procedures. It is a practical solution to manage crushing volume and resources, while respecting the individual roles of peace officer and legal counsel, and judicial discretion of the justice of the peace receiving informations in the intake office.
ISSUES
[23] Mr. Sharma raises two issues:
a) Did the trial judge err in finding that the second information (and any other information laid under the “agreement/understanding”) was properly sworn?
b) Did the Trial Judge properly apply the governing legal principles in her section 7 analysis?
[24] The crux of this appeal is whether the informant’s presumption of good faith of the Crown is an objective fact that can support the informant’s reasonable grounds. If answered in the affirmative, that ends the matter and the appeal should be dismissed. If answered in the negative, the next consideration is whether the information sworn devoid of reasonable grounds is a nullity. If answered in the affirmative the appeal shall be granted. If an information devoid of reasonable grounds is not a nullity, Mr. Sharma has alleged a breach of his s. 7 Charter rights. Thus, I must consider whether the state’s conduct constitutes an infringement of his Charter rights such as to warrant a judicial stay of the proceedings.
POSITION OF THE PARTIES
[25] Mr. Sharma concedes that the informant had the requisite subjective belief for swearing the information, however, he had no objective justification for his belief. In effect the informant’s subjective belief cannot “transmute into objectivity based on the presumptive good faith or diligence of its source, rather than on objective facts known to the officer who swears to the belief.”[^4] In effect, the informant swore a false oath and the information is a nullity. Even if the information is not a nullity, the Crown’s conduct in instructing an informant to swear what amounts to a false oath constitutes an abuse of process and all charges should be stayed.
[26] The Crown submits that according to the law in Ontario, the fact that an informant did not have reasonable grounds to swear an information does not render the information a nullity.
[27] According to the Crown, it was entirely reasonable for the informant to presume that the Crown had reviewed the case, determined that there are sufficient grounds to lay the additional charge and would not request that a new charge be laid if there were insufficient grounds to lay it. The Crown is a quasi-Minister of Justice, an expert in the law, charged with ensuring the fairness of the prosecution and proving the accused’s guilt beyond a reasonable doubt. Under these circumstances, when assessed objectively, it is reasonable for the informant to form reasonable grounds on the basis that the Crown has discharged its quasi-ministerial responsibility in requesting that a new charge be laid.
[28] The Crown submits that there is no requirement that an informant rely on personal knowledge of the allegations to support reasonable grounds to swear an information. Ontario courts have accepted that reasonable grounds acquired after reading a synopsis prepared by another officer is sufficient. By analogy, reasonable grounds acquired on the basis of instructions by the Crown requesting that a new charge be laid is sufficient.[^5] Therefore, there is no basis to conclude that the conduct of the Crown constitutes an abuse of process warranting a stay of the charges.
ANALYSIS
a. Did the trial judge err in finding that the second information (and any other information laid under the “agreement/understanding”) was properly sworn?
[29] The trial judge erred in concluding that the second information under the “agreement/understanding” was properly sworn; however, the trial judge was correct in concluding that the information was not a nullity.
General overview of the criminal intake process
[30] There are specific statutory provisions and common law principles prescribing the rules, procedures, and effects of non-compliance in initiating the criminal intake process.[^6] An exhaustive overview of the intake process is outside the scope of these reasons.
[31] The overarching principle is that a person’s liberty should not be interfered with without reasonable grounds to believe that the person has committed a criminal offence.[^7] Secondly, it is widely understood that a criminal charge can have deleterious impacts on an accused person’s liberty, employment, etc. Thus, the accused’s right to be tried within a reasonable time is a significant consideration.[^8]
[32] In addition, from contemporary understandings of the impacts of unconscious bias in the criminal justice system, there is an awareness that, although overt bias is widely abhorred, unconscious bias is a human affliction that can affect even “good people” and it is therefore imperative that criminal justice actors remain vigilant to avoid inadvertent miscarriages of justice.[^9] In contemporary times, appropriate and transparent checks and balances to reduce instances of unconscious bias are necessary to reduce the likelihood of an inadvertent miscarriage of justice. Lastly, there is a statutory scheme for the criminal intake process which provides for judicial oversight.[^10]
[33] An information is the document that formally begins a person’s prosecution. It is a document that specifies the charges, provides particulars of the allegations, and names the accused. It is created when it is sworn, which occurs when the informant produces the document to a justice and makes a solemn affirmation that he or she has reasonable grounds to believe that the named person committed the listed indictable offence. The informant can be anyone. The focus of this analysis is on informations sworn by the police.[^11]
[34] This belief must be based on the informant’s personal knowledge or reasonable grounds that the person charged has committed the offence specified.[^12] The informant’s personal knowledge or reasonable grounds can be based on a synopsis or other report prepared by the arresting officer.[^13]
[35] There is a distinction in the intake processes for a person arrested and held in custody by the police and for a person released by the police. if the accused is not held in custody by the police, the police shall swear an information before a justice before the accused’s first court appearance.
[36] If the information reveals no facial defect the justice must accept it and has no discretion to refuse the information.[^14] The justice’s function at this stage is ministerial and is statutorily required to receive the information.[^15]
[37] Once the information is sworn and received by the justice, the person named is charged with the offence.[^16] At this stage, the justice’s role transforms from ministerial to judicial. The justice is required to conduct a pre-inquiry to decide whether to confirm or cancel the process issued by the police. This is an in camera ex parte process whereby the justice must inquire of the informant the circumstances surrounding the allegation.
[38] The pre-inquiry to confirm or cancel process seeks to determine whether the circumstances support a prima facie case for the allegations. At the justice’s discretion, this process may include a consideration of the testimony of sworn witnesses. If the justice is satisfied that there is sufficient evidence to support the allegations, the justice will confirm the process issued by the police (i.e., the Appearance Notice, Promise to Appear or Undertaking). If the justice is not satisfied that there is a prima facie case, the justice may cancel the process issued by the police and notify the person not to attend court or refuse to issue a summons for the person to attend court.[^17] A defect in the confirmation process does not affect the validity of the information. In such a circumstance, the court loses jurisdiction over the accused but not the offence. The defect provides the accused with a defence to a charge of fail to appear.[^18]
[39] If, while an accused is on release, the police decide to lay a new information charging the same or an included offence, the original release continues to apply and there is no need for a justice to issue, confirm, or cancel process. Thus, s. 507 (issuance of a summons or warrant) and s. 508 (confirming or cancelling process) of the Criminal Code do not apply to the new information.[^19]
[40] If the police determine that the accused poses a risk to herself or the public or will not attend court, the police can keep the accused in custody and bring her before a justice for a bail hearing. If the accused has been arrested without a warrant, the information shall be sworn after the accused’s arrest but before her first court appearance. In this circumstance, the justice will not make an inquiry into the circumstances surrounding the allegations to determine whether there is a prima facie case to support the allegations. Instead the accused will be brought before a justice for a bail hearing.[^20]
Reasonable Grounds
[41] Reasonable grounds have an objective and subjective component.[^21] In this case, Constable Del Zitto’s subjective belief is not in issue. The objective component is crystalized on a “constellation of objectively discernible facts” known to the officer at the time he or she formed her grounds.[^22] The factual basis of an informant’s belief “must be such as would give rise to a reasonable belief in the mind of a reasonable person that the accused probably committed the offence alleged.”[^23]
[42] On the May 7, 2018, the informant read a synopsis of the alleged facts supporting the allegations prepared by the arresting officer to form her grounds in support of the over 80 charge. There is no issue with the informant’s grounds to swear this information. By analogy, there will have been no issue with the informant’s ground if the synopsis had been prepared by the Crown.
[43] Constable Del Zitto was the informant for the second information. He added the charge of driving while impaired to the over 80 charge. The over 80 charge was not a new charge and thus pursuant to s. 523(1.1), is exempt from the process mandated by ss. 508 and 507 (i.e., the issuance, confirmation, or cancellation of process)[^24].
[44] The impaired driving charge is a new charge. It is not an included offence. Therefore, pursuant to s. 523(1.1), it is not exempt from the application of 508[^25] however, since Mr. Sharma was already on a release, is exempt from the application of section 507[^26], because confirmation of process by the justice is unnecessary.
[45] As noted, the over 80 charge was not a new charge and is exempt from any inquiry by the justice. The impaired driving charge is a new offence, is not an included offence in the over 80 offence,[^27] and, therefore, is not exempt from the application of s. 508. The justice is required to make an inquiry into the circumstances surrounding this offence to determine whether there is a prima facie case for the charge.[^28]
[46] The Crown is a quasi-Minister of Justice and expert in the law with a public responsibility to bring forth a prosecution only if it is in the public interest to do so. It is reasonable to presume that, in the context of the role of the Crown, the Crown would only instruct the police to lay a charge only after reviewing a case and determining that it was in the public interest to proceed with the prosecution. It is also reasonable to conclude that the myriad of important considerations the Crown must and will consider under “public interest” includes a standard with a more onerous threshold than reasonable grounds (i.e., whether there is a reasonable prospect of conviction).
[47] Under all these circumstances, it appears reasonable, logical, and convenient to translate this presumption into an objective fact in support of reasonable grounds to swear an information. However, such an interpretation fails to consider contemporary understanding of the deleterious impacts of unconscious bias on the actions of well-meaning criminal justice actors. Without encroaching into the protected arena of prosecutorial discretion, there are several built in checks and balances in the Canadian criminal justice system aimed at reducing or eradicating instances of inadvertent miscarriages of justice.
[48] An assessment of reasonable grounds for swearing an information which will interfere with the liberty of affected persons to varying degrees, must occur within this overarching principle including contemporary understandings of how unconscious bias can occur. This general principle does not require the existence of malicious or other improper intent. It does not require an analysis based on abuse of process but rather reflects the objective to assist all criminal justice actors to continue to ensure that inadvertent biases do not have unintended deleterious consequences. Secondly, the existence and sufficiency of reasonable grounds must be interpreted in a manner that does not frustrate the intent of parliament or violate the Charter.
[49] Constable Del Zitto was aware of the Peel Protocol for swearing new informations. He was very clear that the only basis for his reasonable grounds was a presumption that the Crown had assessed the file. He relied on instructions from his Sergeant to comply with the Crown’s request. This excerpt from his testimony illustrates this fact:
Q. And, as I understand your evidence- so, when we’re dealing with relayed information with new charges it was not the practice at the time to review the factual basis for the new charges.
A. It would not be simply because the fact that we’re relying on the basis that the Crown has gone over the evidence synopsis and the basis that, on our basis that they have got the grounds to lay the additional charge and we’re relying on good faith that that’s, the charge based on their, their grounds which then starts the process of our sergeant in case management creating a task and hence the information being drawn[^29]…….
Q. So, in this case you, and I think you’ve given this answer already earlier, so your basis for believing that an impaired charge is warranted is that a Crown attorney has, in the Crown’s office has approved that it be laid.
A. Yes…….
Q. Approved, sorry, if the Crown has instructed you to lay a new impaired charge.
A. That’s correct.
Q. Correct, right. There’s nothing that you have that indicates the basis for the grounds for the impaired.
A. No.
Q. Right, it’s simply an instruction that you’re operating upon.
Q. And I guess what’s behind that is a presumption that somebody somewhere in the Crown’s office must have decided that the impaired charge should be laid.
A. That’s correct.
Q. Okay. So, I take it if the justice were to ask about the basis for the charge, you’re not able to assist with respect to that, other than to say the Crown’s instructing me to lay a charge.
A. That’s correct[^30].
[50] However, the parties agreed that based on the Protocol, it was a fact that the Sergeant reviewed the Crown’s request, determined that it was appropriate and then gave the instruction that the second information be sworn and Constable Del Zitto acted on those instructions from his Sergeant. Thus, there is no basis to interfere with the trial judge’s finding that Constable Del Zitto acted both on his belief that his Sergeant had reviewed the Crown request and found it appropriate as well as his own presumption of good faith on behalf of the Crown. There was no evidence at trial that the Sergeant had any more information than Constable Del Zitto about the circumstances for the new charge.
[51] Section 508 clearly conveys the intent of parliament that once a justice has received an information, she shall inquire into the circumstances surrounding the allegations to determine if there is a prima facie case[^31]. When a new information is laid, Parliament’s intent not to unnecessarily duplicate process is clearly indicated in section 523(1.1) which limits the exemption for re issuing or confirming process by a justice to a circumstance where the new information charges “the same offence or an included offence”.
[52] The impaired driving charge was not the “same offence or an included offence”, therefore it is not exempt from the pre inquiry provisions of section 508. This reflects Parliament’s intent to maintain the same checks and balance of judicial oversight, of all new charges which are not included offences, in an information even if they are in addition to old charges in a previously sworn information.
[53] Constable Del Zitto’s reliance on the presumption means he could not answer any questions by the justice. Constable Del Zitto had no nefarious purpose. He was following the protocol. An interpretation which transforms a presumption of the Crown’s review of the case, without any additional information, into an objective fact to support reasonable grounds, will in effect frustrate a judicial inquiry into the circumstances surrounding the allegations to determine whether there is a prima facie case to support a new charge. The fact that the justice’s review is to determine whether there is a prima facie case instead of reasonable grounds makes no practical difference.
[54] In addition, as noted previously, an informant can rely on the synopsis of the circumstances of allegations prepared by the arresting police officers to form reasonable grounds. In the same way, the informant can rely on a summary of circumstances of the allegations prepared by the Crown, after a review of the circumstances, to form reasonable grounds. In this case the informant relied only on a presumption of good faith. There was no information on the circumstances of the case. The presumption alone is not an objectively discernible fact and thus cannot be relied on to support reasonable grounds.
[55] The Region of Peel has an overwhelming case load. It is a busy jurisdiction. The Peel Protocol was created to address this practical reality. It is prudent to note that “while the law and common sense may not always coincide, we should not be looking for ways to send them scurrying in opposite directions.”[^32]
[56] The Protocol was designed to ensure that common sense and the law coincide. In effect, develop a process where efficiencies can be found without creating a circumstance of non-compliance with the law. Despite the Region’s high workload, Peel Region’s Court Bureau Officers routinely rely on synopses prepared by the arresting officers to form the reasonable grounds required to swear an oath or make a solemn affirmation.
[57] For reasons previously articulated, the simple reliance on a presumption of good faith on the part of the Crown is not enough however reasonable it may seem. It is reasonable to conclude that information about the circumstances need not be lengthy and verbose; it can be concise and brief. What is required is sufficient information for the informant to review and determine whether there are reasonable grounds to comply with s. 504. In effect, to comply with the law. A modification of the Protocol to comply with this requirement for a new charge which is not an included offence, will not bring operations in the Peel courthouse to a halt or slow down the criminal intake process.
[58] Having concluded that the trial judge erred in finding that Constable Del Zitto had reasonable grounds to swear the second information, I conclude that he inadvertently swore a false oath. There is authority for the proposition that any information sworn in the absence of reasonable grounds is a nullity and, thus, cannot be amended under s. 601. This line of reasoning classifies a false oath as a fundamental non-compliance with the statutory prescription, in section 504, that an information is formed only after the informant takes an oath based on reasonable grounds before a justice. Unlike a defect in process, a false oath affects the validity of the information and, hence, the court’s jurisdiction over the offence and the person.[^33] This line of reasoning gives the accused early relief from a criminal intake process commenced on the basis of a false oath.
[59] Binding appellate authority in Ontario, specifically rejects the notion that an information sworn without reasonable grounds is a nullity. This is based on a line of reasoning premised on the statutory limits on the ambit of judicial oversight over the criminal intake process. The statutorily prescribed purpose of judicial oversight of the criminal intake process is restricted to confirming, issuing, or cancelling process by determining whether there is a prima facie case for the allegations and not reasonable grounds. Therefore, absence of reasonable grounds in swearing the information does not make the information a nullity. The proper avenue for the accused to mount a challenge is by bringing a motion before the original justice to set aside the information or by extraordinary remedy in the Superior Court. Should the Superior Court conclude that the justice committed a jurisdictional error, the Superior Court can only quash the justice’s process but not the information. The accused has other forms of recourse, for example challenging the sufficiency of the evidence against her at a preliminary inquiry in an indictable or hybrid case, seeking a directed verdict after trial, or seeking remedies under the Charter.[^34] Therefore, although the informant’s oath was devoid of reasonable grounds, the second information is not a nullity. This ground of appeal is dismissed.
b. Did the Trial Judge properly apply the governing legal principles in her section 7 analysis?
[60] The trial judge erred in finding that the informant had reasonable grounds and did not swear a false oath. Swearing a false oath is a breach of Mr. Sharma’s s. 7 Charter rights. The appropriate remedy is a stay of proceedings limited to the new charge – the impaired driving charge.
[61] Section 7 of the Charter involves the protection of individual rights. The common law doctrine of abuse of process focusses on the integrity of the court process. The doctrine of abuse of process is subsumed in s. 7 of the Charter.[^35] A stay of proceedings on the basis of an abuse of process is a rare remedy reserved for only the clearest of cases.[^36] Two categories of cases warrant a consideration of whether a stay of proceedings should be issued. The first is the main category: this is a case “where state conduct compromises the fairness of an accused’s trial. The second is the residual category: a case “where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process.”[^37]
[62] Mr. Sharma submits that the state conduct did not compromise his right to a fair trial. I agree. Thus, Mr. Sharma does not seek any relief based on the main category. He submits that a stay of proceedings is warranted under the residual category and the trial judge’s erred by conducting an analysis based on the main category. The crux of his argument is that reliance on the Peel Protocol in his case and other cases risks undermining and does in fact undermine the integrity of the judicial process. He submits that this is one of those clearest of cases where a stay of the proceedings is the appropriate remedy.
[63] The test to determine whether a stay of proceedings is warranted is the same for both categories and has these three requirements:[^38]
There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”.
There must be no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.
[Citations omitted.]
[64] In assessing state conduct under the residual category, the question is:[^39]
whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.
Is there prejudice to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome?
[65] The Protocol’s procedure for laying a new information charging a new offence which is not an included offence is prejudicial to the integrity of the justice system and “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.”[^40]
[66] The Protocol contemplates that an officer will read a synopsis to gain the requisite reasonable grounds to swear an initial information. Per the protocol, when the Crown requests that a new charge be laid, a two-step process must be followed in submitting a new information to be sworn before a justice: 1) the Sergeant reviews the Crown request to determine if the new charge is reasonable and relevant; and 2) if the Sergeant determines that the new charge is reasonable and relevant, she instructs the Court Bureau Officer to lay the new charge.
[67] In so doing, the Protocol contemplates that the Court Bureau Officer would not have reviewed the synopsis; it makes no mention of the type of information provided to the Sergeant for review. Except for an instruction to lay the new charge, the Protocol makes no mention of the type of information the informant shall receive from the Sergeant. It also makes no mention of the type of information that will be submitted by the Crown. This is in contrast to the identification of a synopsis as the document reviewed by the informant to form reasonable grounds to swear the first information. The Protocol mandates the informant to rely solely on a presumption of good faith on the part of the Crown, to have reviewed the file, and to have determined that there are reasonable grounds to swear the information.
[68] In effect, the Protocol constitutes a frustration of the legislative intent to provide for judicial oversight of new charges which are not included offences, by placing before a justice an informant who has no information whatsoever on the circumstances underpinning the new charge and no basis in objective fact to gain the requisite reasonable grounds to swear the information. In effect, the Protocol creates a circumstance where, in the case of a new charge which is not an included offence, an informant of a new charge will swear a false oath.
[69] The Protocol is an attempt by both parties to develop efficiencies in response to the high caseloads in Peel. It is also not an attempt to undermine the rights of accused persons, as it is premised on the belief that, as experts in the law with the quasi-ministerial responsibility of carrying out prosecutions in the public interest, it is reasonable to presume that the Crown will not request the police to swear an information to lay a new charge unless: (1) there were reasonable grounds to support the charge, (2) there was a reasonable prospect of conviction, and (3) it was in the public interest to carry out the prosecution. While this presumption may appear reasonable, a Protocol which undermines the intent of Parliament in a systemic way is prejudicial to and undermines the integrity of the justice system. Such conduct cannot be condoned by the court and it constitutes an abuse of process.
Is there an alternative remedy short of a stay capable of redressing the prejudice?
[70] Considering all of the foregoing, a stay on the impaired driving charge, is the appropriate remedy. As Mr. Sharma was acquitted of this charge at trial, this remedy is moot. This remedy signifies that the court will not condone such state conduct and it sufficiently addresses the harm caused by prejudice to the integrity of the judicial system.
[71] Mr. Sharma seeks an order allowing the appeal, quashing the conviction, and entering a stay of proceedings. In the alternative, he seeks an order allowing the appeal, quashing the conviction, and ordering a new trial.
[72] The Crown submits that since Mr. Sharma concedes that his trial was fair and takes no issue with the first information or the over 80 charge, if I find that there has been an abuse of process, I can allow the appeal and order an acquittal instead of a stay of proceedings and, if I conclude that a stay of proceedings is warranted, only the new charge (i.e., the impaired driving charge) should be stayed.
[73] Moldaver J. succinctly set out the considerations for assessing the appropriate remedy under the second stage of the test in Babos, at para. 39:
The question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused’s right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused’s right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward. [Emphasis in original.]
[74] The state conduct did not render Mr. Sharma’s trial unfair. He does not take issue with the first information i.e. over 80 charge. The impugned state conduct resulted in the creation (i.e., addition) of a new charge – the impaired driving charge – in the new information by an informant who did not have reasonable grounds, resulted in prejudice to the integrity of the judicial system and any remedy must be directed toward correcting that harm.
[75] The appropriate remedy is one directed toward seeking to redress the harm caused by the state conduct going forward. As per Whitmore quashing the information is not an option; entering an acquittal without a consideration of the basis of the allegations does not seem appropriate. Setting aside the conviction; granting an acquittal or ordering a new trial or granting a stay of proceedings on a charge i.e. the over 80 charge, tangentially related to the impugned state conduct is inappropriate in the circumstances. There was no conviction on the subject of the impugned conduct - a new non included offence charge, based on a false oath (i.e., the impaired driving charge). The impugned state conduct is systemic. There is no alternative remedy to a stay of proceedings, however, it shall be limited to the impaired driving charge. Since I have reached a definitive conclusion after step 2 of the analysis, further consideration under step 3 is unnecessary.
Conclusion
[76] The appeal to set aside the conviction on the over 80 offence is denied. Mr. Sharma was acquitted of the impaired driving charge at trial therefore the remedy of a stay on the impaired driving charge is moot.
Barnes J.
Released: May 10, 2021
COURT FILE NO.: SCA(P) 1599/19
DATE: 2021 05 10
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
SUNEET SHARMA
Appellant
REASONS FOR JUDGMENT
[On appeal from a Decision of the Ontario Court of Justice at Brampton, ON, delivered March 25, 2019 and May 3, 2019]
Barnes J.
Released: May 10, 2021
[^1]: R. v. Babos, 2014 SCC 16, [2014] SCC 16, [2014] 1 S.C.R. 309, at para. 32. [^2]: Trial Transcript (March 25, 2019), at p. 31. [^3]: Trial Transcript (March 25, 2019), at p. 43. [^4]: Factum of the Appellant, at paras. 24-33. [^5]: Factum of the Respondent, at paras. 9-22. [^6]: Criminal Code, ss. 493-529.5 (Compelling Appearance of an accused before a Justice and Interim Release). [^7]: Criminal Code, ss. 493-529.5. [^8]: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. [^9]: An analogous reference to R. v. Johnson, 2020 ONSC 3673, at para. 5-17. There is no reasonable basis to limit concerns about the deleterious effects of unconscious bias to those generated by racial stereotypes or prejudice. [^10]: Criminal Code, Part XVI. [^11]: Section 504 of the Criminal Code refers to indictable offences. Section 506 mandates that an information shall be prepared in accordance with the format set out in Form 2. Section 795 incorporates intake procedures applicable to indictable matters to summary matters. Section 788(1) specifically requires that an information in a summary matter must comply with the requirements of Form 2. [^12]: Criminal Code, s. 504, Form 2; R. v. Kamperman (1981), 1981 CanLII 3159 (NS SC), 63 C.C.C. (2d) 531, 48 N.S.R. (2d) 317. [^13]: See R. v. Peavoy (1974), 1974 CanLII 1665 (ON SC), 15 C.C.C. (2d) 97, at pp. 105-106 (Ont. H.C.J.). [^14]: Criminal Code, s. 504. The conditions set out in s. 504 must be satisfied before a justice can accept an information. [^15]: Criminal Code, s. 504; R. v. Whitmore (1987), 1987 CanLII 6783 (ON SC), 41 C.C.C. (3d) 555, at pp. 562-63 (Ont. H.C.J.), aff’d (1989) 1989 CanLII 7229 (ON CA), 51 C.C.C. (3d) 294 (Ont. C.A.). [^16]: R. v. Kalanji, 1989 CanLII 63 (SCC), [1989] 1 S.C.R 1594, at p. 1607. [^17]: Criminal Code, s. 508. Case law dealing with the procedure for the issuance of summons and warrants under s. 507 apply by analogy to consideration of the process under s. 508. See R. v. Wilson, 2015 SKCA 58, at para. 27; Whitmore, at pp. 563-64. [^18]: R. v. Millar, 2012 ONSC 1809; R. v. Oliveira, 2009 ONCA 219; R. v. Ladouceur, 2013 ONCA 328. [^19]: Criminal Code, ss. 523(1.1). R. v. Millar, 2012 ONSC 1809 at para.20 [^20]: Criminal Code, s. 507. [^21]: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241, at para. 16. [^22]: R. v. Censoni, [2001] O.J. No. 5189, at para. 35, citing Doherty J.A. in R v Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 501. [^23]: Whitmore, at p.4. [^24]: Criminal Code, ss. 523(1.1). R. v. Millar, 2012 ONSC 1809 at para.20 [^25]: Ibid. [^26]: Criminal Code s. 507 (1) [^27]: As of 2018, driving over 80 mg was an offence pursuant to s. 253(1)(b) and impaired operation was an offence pursuant to section 253(1)(a). These are not included offences. [^28]: Criminal Code, ss 523(1.1), 508. [^29]: Trial Transcript (March 25, 2019), at p. 43. [^30]: March 25, 2019 Trial Transcript, p.45-6 [^31]: Criminal Code ss: 504, 508. [^32]: R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574, at para. 42. [^33]: Peavoy, at pp. 105-106; R. v. Awad, 2015 NSCA 10; Kamperman, at para. 9; R. v. Delalla, 2015 BCSC 592. [^34]: Whitmore, at p. 565-67. [^35]: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 63. [^36]: Ibid, at para. 68. [^37]: Ibid, at para. 73; Babos, at paras. 31. [^38]: Babos, at paras. 32. [^39]: Ibid, at para. 35. [^40]: Ibid, at para. 31.