R. v. Sinopec Shanghai Engineering Company Ltd., 2011 ABQB 170

Court of Queen ’ s Bench of Alberta Citation: R. v. Sinopec Shanghai Engineering Company Ltd., 2011 ABQB 170 Date: 20110316 Docket: 101170512X1 Registry: Edmonton Between: Her Majesty the Queen In Right of Alberta Applicant - and - Sinopec Shanghai Engineering Company Ltd. Respondent - and - The Honourable Bruce R. Garriock, Judge of the Provincial Court of Alberta Respondent (Not a Party to the Application) _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling Sanderman _______________________________________________________

[ 1 ] The Applicant seeks relief from the Superior Court of this Province in relation to a decision made by a Judge of the Provincial Court of Alberta on March 31, 2010. The Applicant seeks the prerogative writs of certiorari and mandamus to compel the Provincial Court of Alberta to bring a foreign organization before it to face a trial in relation to allegations of a breach of the Occupational Health and Safety Act of this Province. The Provincial Court of Alberta has the jurisdiction to hear such matters. [ 2 ] In the month of April of 2007 an accident occurred at a work site near Fort McMurray, Alberta.

Two workers were killed and two others were seriously injured when a structure collapsed. The matter was investigated. In April of 2009 an Information was sworn charging three corporations with violating sections of the Occupational Health and Safety Act. The named Defendants were SSEC Canada Ltd. (SSEC Canada), Canadian Natural Resources Ltd. (CNRL), and Sinopec Shanghai Engineering Company Ltd. (Sinopec Shanghai). The first two organizations have a presence in this country.

Sinopec Shanghai has none. [ 3 ] On April 20, 2009 process issued directing a first appearance in the Provincial Court in Fort McMurray for June 8, 2009. No one appeared as counsel or agent for Sinopec Shanghai. The other accused were represented. [ 4 ] On June 8th, 2009 a new summons for Sinopec Shanghai was issued by a Provincial Court Judge with a return date of September 14, 2009 in the Provincial Court in Fort McMurray. Once again, no one appeared as counsel or agent for Sinopec Shanghai.

Appearances were made by the other two accused. [ 5 ] The summons returnable for September 14, 2009 was served on Helen Xing Wang on September 8, 2009 at the offices of SSEC Canada in Calgary, Alberta. Ms. Wang is the only employee of SSEC Canada in this country. [ 6 ] On September 14, 2009 the matter was adjourned to January 27, 2010 for plea. Before that date, Mr. Balfour Der, Q.C., contacted the Crown to indicate that he had been retained by Sinopec Shanghai.

Consequently, the Information was brought forward to December 10, 2009 for an appearance in the Provincial Court of Alberta in Stony Plain, Alberta for the purpose of allowing the Crown to make an application for a trial ex parte against Sinopec Shanghai pursuant to Section 800(3) of the Criminal Code of Canada . [ 7 ] On December 10, 2009 Mr. Der appeared and went on the record as counsel for Sinopec Shanghai. The Crown ’ s application was adjourned by consent to February 1, 2010. It proceeded on that day. Mr. Der appeared to argue the matter and provided written submissions and authorities to the Court.

On March 31, 2010 the Provincial Court Judge hearing the application for an ex parte trial rendered a written decision. It is against this backdrop of procedural history that the Crown brings its application. [ 8 ] It is necessary to be aware of the relationship between Sinopec Shanghai and SSEC Canada to understand why the Crown chose to proceed under Section 800(3) .

In the first part of 2005, Luke Chan, the President of Zachary Energy International Inc., began to negotiate with certain officers and representatives of Sinopec Shanghai in Shanghai, China in order to develop a proposal to submit to CNRL to construct large storage tanks near Fort McMurray. It appears as if SSEC Canada was incorporated in order to facilitate the joint venture contemplated by Zachary Energy International Inc., CNRL and Sinopec Shanghai. It came into existence for this purpose. [ 9 ] In its first incarnation, Sinopec Shanghai held 90% of the shares of SSEC Canada with Mr. Chan holding 10%.

It was anticipated that he would turn them over to Sinopec Shanghai by a date certain and he did. Ms. Wang was the only employee that SSEC Canada had. She was originally an employee of Sinopec Shanghai but was moved to the Canadian company and acted as a connection between Sinopec Shanghai and SSEC Canada after the contract to build the storage tanks was signed. [ 10 ] As stated earlier, Sinopec Shanghai has no presence in this country. It is not known whether any of the directors or senior officers of Sinopec Shanghai have ever come to Canada. Whenever Mr. Chan or Ms.

Wang had to discuss matters of importance in relation to the Fort McMurray project, they flew to Shanghai for discussions and to receive their instructions. There is no doubt that Sinopec Shanghai and SSEC Canada are closely connected and that Ms. Wang carried out instructions as opposed to making decisions on her own in relation to SSEC Canada ’ s role in this joint venture. She was a low level employee of Sinopec Shanghai before her

services were transferred to SSEC Canada. She carried on the business of that company in Canada. SSEC Canada paid her salary as long as the construction project in Fort McMurray was ongoing. Since July of 2007 she has been paid directly by Sinopec Shanghai, although she continues to stay in Canada to wrap up SSEC Canada ’ s involvement in the project. [ 11 ] According to the evidence led by the Crown at the hearing, it appears as if Ms. Wang was a conduit used by Sinopec Shanghai to monitor, control and protect its interests in the Fort McMurray project.

Her presence in this country and the various functions she performed as SSEC Canada ’ s employee insured that this would happen. Sinopec Shanghai ’ s interests in the project were managed without having to establish a connection to Alberta. [ 12 ] The allegations made under the Occupational Health and Safety Act will be tried in the Provincial Court of Alberta. The Provincial Offences Procedures Act governs the conduct of the prosecution. That provincial statute incorporates the Criminal Code of Canada provisions in relation to the service of a summons upon organizations.

CNRL and SSEC Canada have been properly served and are before the Court. There is no provision in the Criminal Code to effect service on an organization that is located outside Canada. Before such an organization can be properly served and brought before the Court, someone capable of being served must be found in this country in order to effect proper service.

Section 703.2 of the Criminal Code states: Where any summons, notice of other process is required to be or may be served on an organization, and no other method of service is provided, service may be effected by delivery (

a) in the case of municipality, to the mayor, warden, reeve or other chief officer of the municipality, or to the secretary, treasurer or clerk of the municipality; and (

b) in the case of any other organization, to the manager, secretary or other senior officer of the organization or one of its branches. [ 13 ] In order to effect proper service on Sinopec Shanghai it would be necessary to serve a summons on the manager, secretary or other senior officer of Sinopec Shanghai or one of its branches in Canada. [ 14 ]

Section 2 of the Criminal Code defines senior officer in the following terms: “ Senior officer ” means a representative who plays an important role in the establishment of an organization ’ s policies or is responsible for managing an important aspect of the organization ’ s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer; [ 15 ] A representative is defined in the following terms: “ Representative ” , in respect of an organization, means a director, partner, employee, member, agent or contractor of the organization; [ 16 ] Branch is not defined. [ 17 ] As Sinopec Shanghai had no personnel in this country, and service outside Canada is not permitted, the Crown chose to serve Ms.

Wang and attempted to establish that she fit within one of the above noted

definitions. Service was effected upon her and Mr. Der was retained by Sinopec Shanghai in order to argue its position before the Provincial Court of Alberta. SSEC Canada has retained counsel to represent its interests at the trial that is scheduled for the fall of 2011 to investigate the allegations made pursuant to the Occupational Health and Safety Act . [ 18 ] Section 800(3) of the Criminal Code states:

Where the defendant is an organization, it shall appear by counsel or agent and, if it does not appear, the

summary conviction court may, on proof of service of the summons, proceed ex parte to hold the trial. [ 19 ] A review of the information sworn pursuant to the Occupational Health and Safety Act reveals that a number of appearances were made by counsel for the other accused. The first appearance was June 8, 2009. At this time the matter was put over to September 4, 2009. On that occasion the matter was put over to November 4, 2009. On that occasion the matter was further adjourned to January 27, 2010.

The endorsements for November 4, 2009 in relation to Sinopec Shanghai indicate that the Crown would be making an application on January 27, 2010 to proceed with an ex parte trial. Sometime between November 4, 2009 and January 27, 2010, Mr. Der was retained by Sinopec Shanghai. One can properly surmise that this came as a direct result of the service of a summons on Ms. Wang at the offices of SSEC Canada on September 8, 2009.

In any event, he communicated with the Crown and it was arranged to have this matter brought forward prior to the January 27, 2010 date to set a date for the hearing that the Crown wished to make pursuant to Section 800(3) . The appearance of Mr. Der on February 1, 2010 to make that application created a problem for the Crown. [ 20 ] The ability of the Crown to proceed with an ex parte trial lies within the discretion of the

Summary Conviction Court. The Court may, on proof of service of the summons, proceed ex parte to hold the trial only if the defendant organization does not appear by counsel or agent. [ 21 ] There is no doubt that when Mr. Der appeared in the Provincial Court on December 10, 2009 to

schedule the hearing the Crown asked for pursuant to Section 800(3) that he was retained and properly instructed by Sinopec Shanghai. On that day at Page 8 of the transcript is found this comment: MR. DER: Yes, Sir, and that ’ s agreeable with Mr. Scott and I, and just for the record, Sir, I ’ ll just identify that I represent Shanghai – sorry, Sinopec Shanghai Engineering Company, who is on your docket, and Mr.

Scott is here for – I think on the docket it reads SSEC Canada. [ 22 ] Although instructed and retained, he maintained the position that he was appearing for his client for the limited purpose to oppose the Crown ’ s application for an ex parte trial. He took the position that proper service had not been effected and that this was a fatal flaw to the discretionary remedy sought by the Crown. He was there to contest the proof of service on his client and he took the position that by doing so he had not attorned to the jurisdiction of the Court.

After evidence was called and argument made, the learned Provincial Court Judge decided in favour of Sinopec Shanghai. He found that service upon the corporate organization was deficient and that Mr. Der ’ s appearance to argue this matter did not amount to an attornment.

At Paragraph 165 of his decision the learned Provincial Court Judge stated: In conclusion, I do not find that the appearance in this Court by Defence counsel on behalf of Sinopec Shanghai for the purpose of opposing the Crown ’ s application for an ex parte trial and by arguing invalid service upon his client, constitutes an attornment by Sinopec Shanghai to the jurisdiction of this Court. I dismiss the application of the Crown to proceed ex parte to hold the trial. [ 23 ] The Crown seeks relief by bringing its application to this Court. Sinopec Shanghai makes a preliminary objection.

The Provincial Offences Procedure Act RSA 200, c. P-34 allows an appeal to the Court of Queen ’ s Bench. It states at s. 18(1): The Minister of Justice and Attorney General, a prosecutor, a defendant or a person affected by a judgment , order or sentence to which this act applies may appeal a judgment order or sentence of a justice to the Court of Queen ’ s Bench at the judicial centre closest to the place where the trial was held. [ 24 ] The Respondent characterizes the decision of the Provincial Court Judge as a judgment or order which is subject to an appeal. Relying upon the authority of Dubois v.

R . (1986) 25 C.C.C. (3d) S.C.C. 221 the Respondent suggests that where there is a right of appeal then the remedy of certiorari is not available. A truer statement of the law is that certiorari and prohibition are discretionary remedies that should generally be declined where there is an adequate appellate remedy. The supervisory court can choose to exercise its discretion to grant the remedies if it is appropriate in the circumstances.

A right of appeal granted by the statute governing the prosecution of provincial offences cannot remove the supervisory capacity granted to the Superior Court through the use of prerogative writs. Indeed, audience should be granted sparingly by the Superior Court, but this is one of those cases where the matter is properly

before the Court. [ 25 ] The second preliminary objection taken by the Respondent is that the remedy of certiorari does not apply unless it can be shown that the Provincial Court Judge acted outside his jurisdiction. Without jurisdictional error being shown, the Superior Court cannot exercise its supervisory capacity over the Provincial Court. If the Provincial Court Judge makes a decision that he is entitled to make even though it may be wrong, certiorari will not be available. That is not jurisdictional error that attracts the remedy.

In such an instance, the remedy is to appeal the decision pursuant to the regulating statute. It has to be determined whether the Provincial Court Judge has acted within or without his jurisdiction. [ 26 ] The Provincial Court Judge was certainly alive to the conundrum facing the Crown when it embarked upon its application on February 1, 2010. In his written decision the Provincial Court Judge clearly describes the problem. At para. 142 to para. 146 he states: [142] The Crown pointed out that under s. 800(3) of the Criminal Code , there are two conditions precedent to an order for a trial ex parte:

a) good service of the summons; and

b) non-appearance by the accused. [143] The Crown contended that the appearance by Defence counsel to challenge service effectively prevents the Crown from obtaining an ex parte trial because one of the conditions precedent would not be met. [144] Further, if such appearance is found not to be an attornment, the Crown is deprived of an opportunity to try the case against Sinopec Shanghai on its merits.

The Crown further submitted that to avoid the absurd situation where such an appearance by counsel prevents an ex parte trial and also is not found the constitute attornment to the jurisdiction, attornment must be the inevitable consequence of appearing at the court of first instance. [145] Obviously, if counsel for an accused appears in the court of first instance to challenge service and service is not approved, the issue of an ex parte trial is mute. [146] However, if counsel for the accused appears to challenge service and service is proven, the right to hold the ex parte trial is extinguished by the appearance.

While I am sympathetic to the Crown ’ s position, I feel that the intent of s. 800(3) of the Criminal Code should not be interpreted to exacerbate the dilemma already faced by extra-judicial organizations wanting to appear in court to challenge service as previously alluded to. In this context, I feel that the rights of an accused to appear and argue service without fear of attornment should trump the ability of the Crown to hold an ex parte trial arising on proof of service. [ 27 ] The purpose of the summons provisions in the Criminal Code whether they relate to an individual or an organization is the same.

It is to get the accused before the Court that has jurisdiction to deal with the charges. In this case, the accused did not take issue that the Provincial Court of Alberta had jurisdiction over the offence. Sinopec Shanghai took the position that jurisdiction over it was absent failing proper service of the summons. [ 28 ] Put simply, the purpose of any process is to inform an accused who is in legal jeopardy of the nature of the proceedings and when the Court will convene in order to begin proceedings.

The accused is then in a position to take steps to deal with the allegations. [ 29 ] The standard for process being issued is whether or not an informant has reasonable and probably grounds to believe that an offence has been committed. Notification to the accused comes in different forms. It can come with arrest and then release upon a recognizance or notification without arrest through the issuing of a summons. No greater standard need be met than reasonable and probable grounds in relation to the commission of an offence.

[30] At trial full answer and defence can be made. All the protections offered by our criminal justice system are available to anyaccused, including the necessity of the Crown to meet the criminal standard of proof beyond a reasonable doubt. The service of thesummons upon an accused, where process is begun in that fashion, gives the necessary information in relation to time, place andallegations so that the accused can protect his interests. That is the purpose of the service of the summons. In addition to providing thenature of the allegations, it sets a date allowing the accused to take

part in the scheduling of future proceedings. [31] If there are deficiencies in this notification process to the accused, can they be rectified in some fashion without starting theprocess over? A body of case law has developed that addresses this point. The Respondent’s position is clear. If there has not beenservice of the summons as envisioned by the Criminal Code then this deficiency prevents the Court from finding that the appearance ofcounsel instructed by the accused is attornment.

The Respondent takes the position that the fundamental deficiency of no service leads tothe conclusion that there can be no attornment. A nullity cannot be corrected by a subsequent action. [32] The Applicant’s position is diametrically opposed.

The Crown suggests that any deficiency that may exist in the service ofthe summons is overcome as soon as counsel instructed by the accused appears before the Court having the jurisdiction to try the matter.The Applicant takes the position that any deficiency in the process designed to get the accused before the Court short of a nullity, iscured by the appearance of the accused. As an organization can only appear by counsel or by an agent, the appearance of counsel in thisinstance remedies the lack of service. [33] A number of decisions from various Courts of Appeal across the country supports this position.

Although none of thesedecisions deal specifically with s. 800(3), they deal with situations where the accused claimed the Court had lost jurisdiction over thembecause of a flaw in the process designed to bring them before the Court. Chief Justice McGillivray speaking for the Alberta Court ofAppeal, in accepting the reasoning of the Ontario Court of Appeal decision in R. v. Naylor, (1978), (ON CA), 42C.C.C.(2nd) 12, quoted with approval the following at para. 9: In the present case, however, the accused was present in Court. Was this sufficient, as the lower Court Judges held, to give jurisdiction?

Ibelieve it was. In order for the appellant to be obligated to attend Court, the provisions of s. 455.1 had to be followed; but the failure tofollow that procedure did not, in my opinion, invalidate the information or result in loss of jurisdiction over the offence: see R. v. Pottle(1978), (NL SC), 39 C.C.C. (2d) 484 at 495-6, affirmed (NL CA), 16 N. & P.E.I. R. 372, 49C.C.C. (2d) 113 (Nfld. C.A.). I agree with the decision in R. v. Halyk, (SK KB), [1972] 6 W.W.R. 506, 21 C.R.N.S.244, 9 C.C.C. (2d) 105, that non-compliance with s. 455.1 does not make the information a nullity.

Since the information was still valid and since jurisdiction over the offence had not been lost, the presence of the appellant was sufficientto confer jurisdiction on the Court: R. v. Isbell, (ON CA), 63 O.L.R. 384, 51 C.C.C. 362, [1929] 2 D.L.R. 732 (C.A.);R. v. Wetmore (NS CA), 1976, 18 N.S.R. (2d) 292, 32 C.C.C. (2d) 347 (C.A.). The lower Court Judges were right,therefore, in rejecting the jurisdictional argument of the appellant. [34] Over a decade later in R. v. McGinnis (1989) 1979 ABCA 322 , 19 A.R. 249, another panel of the Alberta Court ofAppeal quoted with favour from the same case.

At para. 16, Moir, J.A. adopted the reasoning of Dubin, J.A., in R. v. Naylor in thefollowing fashion: A distinction must be made between those matters which relate to the validity of an information and those matters which relate to thevalidity of a summons or warrant or to matters relating to the confirmation of an appearance notice, promise to appear or recognizance.Where there is a valid information and an accused attends, the trial judge has jurisdiction to proceed with the matter notwithstanding thatthere has been a defect in the process respecting a summons or warrant or confirmation.

The invalidity of such process, not invalidatingthe information, would not deprive the Court of proceeding with the matter when the accused is before it. However, where theinformation itself is invalid, the trial judge would have no basis upon which to proceed. [35] Similarly, the British Columbia Court of Appeal in R. v. Lindsay (2006) 2006 BCCA 150 , 207 C.C.C. (3d) 296came to the same conclusion. At para. 20, Justice Newbury speaking for the Court said: I agree with the Chambers judge that the weight of Canadian authority is to the effect that jurisdiction will not be affected by the manner

in which the accused is brought before the court, assuming the charging document is not defective. It is true that the authorities relied on by the Crown and by the Court on this point are not recent and predate the Charter; but Mr. Lindsay was not able to cite any case to us in which the involuntary appearance of an accused pursuant to a valid warrant or other process has been held to deprive a court of jurisdiction. [ 36 ] This conclusion came after a review of the authorities that were cited by the Chambers Judge who heard the matter which gave rise to the appeal.

At para. 11, the British Columbia Court of Appeal reviews some of these authorities in the following fashion: ... Jurisdiction over an offender may be acquired or regained in any manner which results in his appearance before a court with jurisdiction over the offence, e.g., by summons, warrant or voluntary or involuntary appearance. [Emphasis added.] ...

A distinction must be made between those matters which relate to the validity of an information and those matters which relate to the validity of a summons or warrant or to matters relating to the confirmation of an appearance notice, promise to appear or recognize. Where there is a valid information and an accused attends, the trial Judge has jurisdiction to proceed with the matter notwithstanding that there has been a defect in the process respecting a summons or warrant or confirmation.

The invalidity of such process, not invalidating the information, would not deprive the Court of proceeding with the matter when the accused is before it. However, where the information itself is invalid, the trial Judge would have no basis upon which to proceed. [Emphasis added) Although not expressly dealing with appearances brought about in circumstances such as those before me that principle, in my judgment, applies here.

As long as the defect, whether it is a defect in the issuance of process or a defect in the manner by which the accused is otherwise brought before the court, does not invalidate the information (and in this case there is no suggestion that it does) then the court has jurisdiction to proceed once the accused is before it. [ 37 ] In this case, an information was properly sworn that conferred jurisdiction upon the Provincial Court of Alberta in relation to the offences alleged near Fort McMurray in April of 2007. No quarrel can be taken that the Provincial Court has jurisdiction to hear the trial of these matters.

There certainly has been a defect in relation to the service of the summons contemplated by s.702(3) of the Criminal Code of Canada . In fact, the learned Provincial Court Judge who heard the application found that there was not service in accordance with the statute. [ 38 ] This is not a nullity. This is a curable deficiency that is corrected with the appearance of the accused in the court having jurisdiction to hear the matter. This is what happened initially on December 10, 2009 when Mr.

Der appeared on behalf of Sinopec Shanghai and was further confirmed by his attendance at a Pre-Trial Conference before a Judge of the Provincial Court of Alberta and later to argue the matter of the sufficiency of the service on February 1, 2010. [ 39 ] The deficiency complained of did not nullify the information that was before the Court. When the accused, through counsel, appeared in the court having the jurisdiction to try that matter any defect in the service of the summons was cured and a plea should have been taken by the presiding Provincial Court Judge.

In fact, the Crown requested that the accused be asked to enter a plea. The Court never made this request. [ 40 ] Instead, the Provincial Court Judge allowed counsel for the accused to argue the sufficiency of the service of the summons upon his client. This was wrong. After hearing evidence and argument in this regard the Judge hearing the application carved out an exception for this extra-judicial organization. This was the term he applied to Sinopec Shanghai.

He gave relief to the extra-judicial organization by allowing it to argue before the Court without deeming that the accused had attorned to the jurisdiction of the Court. An organization actively involved in business in this country, but not having a presence here, was given protection to avoid potential responsibility for wrongdoing not given to Canadian organizations. [ 41 ] He allowed the accused to seek the protection of the Court but was not prepared to find that by doing so, the accused had attorned to the jurisdiction of the Court. This was an exercise of authority beyond the jurisdiction of the Court.

The Court refused to take jurisdiction over the offence and the accused that were simultaneously before it. Once the accused was present with counsel facing the charging document before the Court having authority to try the matter, a plea should have been taken. The decision made by the Provincial Court Judge is quashed and the matter remitted back to the Provincial Court of Alberta for the Respondent Sinopec Shanghai to enter a plea. The Respondent has attorned to the jurisdiction of the Court. The Court has an obligation to take a plea from the accused.

Sinopec Shanghai is properly before the Court and shall appear for the trial of this matter.

[ 42 ] If Sinopec Shanghai does not attend at the time scheduled for the trial of this matter, service has been effected and the Crown would be in a position to apply for an ex parte trial pursuant to Section 800(3) of the Criminal Code of Canada . [ 43 ] Having made this determination, it is not necessary to review the specific findings made by the learned Provincial Court Judge in relation to service of the summons. On this record, his detailed reasons are sound in relation to the role and function of Ms. Wang in relation to Sinopec Shanghai.

He clearly was acting within his jurisdiction in relation to this determination and it would only be reviewable through the appeal process. Heard on the 9 th day of March, 2011. Dated at the City of Edmonton, Alberta this 16 th day of March, 2011. Sterling Sanderman J.C.Q.B.A. Appearances: Mr. Marshall Hopkins Ms. Alison Magill for the Applicant Mr. Balfour Der, Q.C. for the Respondent