R. v. Loutitt, 2011 ABQB 545

Court of Queen’s Bench of Alberta Citation: R. v. Loutitt, 2011 ABQB 545 Date: 20110916 Docket: 100741925S1 Registry: Ft. McMurray Between: Her Majesty the Queen Crown (Respondent) - and - Erok Scott Loutitt Accused (Appellant) _______________________________________________________ Memorandum of Oral Decision of the Honourable Mr. Justice A.W. Germain _______________________________________________________ 1. Introduction [ 1 ] This

Summary Conviction appeal raises the issue of whether an individual can attract a criminal conviction for failing to appear in court ( Criminal Code , R.S.C. 1985, c. C-46, s. 145(5)) when he simply forgets to do so. The learned Provincial Court Judge thought so, and convicted. An appeal was taken. I reverse the Provincial Court and conclude that the offense of failing to appear is not one of strict liability, nor the codification of a negligence standard offense, such as careless use of a firearm ( Criminal Code , s. 86). There must be a mental intention to commit the offense to attract a s. 145(5) criminal conviction. 2. The Background

[ 2 ] The case proceeded to trial on an agreed statement of facts. They were succinctly stated by defense counsel as follows: The facts are that on June 16, 2010 .... the accused was bound by a promise to appear in court on ... an impaired driving charge. He failed to attend on that date. Late June 16 he surrendered himself to the Fort McMurray RCMP and stated that he was turning himself in because he had forgotten to appear in court that afternoon. (Provincial court transcript: page 1, lines 33 to 37.) The Crown adopted those facts. That was the only evidence before the provincial court. 3.

The Judgment Below [ 3 ] The docket was crowded, requiring the learned trial judge to deliver an oral judgment after brief research. The learned trial judge also observed that the narrowness of the agreed statement of facts prevented him from noting the circumstances of the accused’s forgetfulness that would help him address some of the factual issues raised by other cases.

In short, acquittals are easier to understand where there is a sympathetic reason for the forgetfulness, often because a “reasonable excuse” is accepted as a “lawful excuse”, making the technical analysis of the legal elements of the offence moot. In this case, however, we are limited by the agreed statement of facts that accepts genuine forgetfulness but without explanation of the underlying cause of that forgetfulness. [ 4 ] The key portion of the judgment under appeal is contained on page 11 lines 37 to 41 and on page 12 line 1 to 9.

That portion of the transcript is as follows: I am persuaded that in a situation like this the logic of Judge Langdon, in Preshaw et al and Judge Addison in Postama , is correct and where one is placed under the obligation of attending in court, the mens rea for failure to appear can be found not merely in intentional failing to appear, but also in the neglecting to take such steps as would be reasonable to ensure that one didn’t forget .

Whether it’s making a note of things or otherwise diarizing things by way of reminder that would prevent this and that bare simple forgetfulness, “it slipped my mind” is not in and of itself, barring supervening causes, medical causes or otherwise, sufficient and therefore, following Postama and following Preshaw and with the greatest of respect my learned brother, not following the Eby , I hold that the mere bare forgetfulness, for no particular reason and without any indication that there’s been any reasonable steps to avoid forgetting, is not enough to constitute a defense .

Doesn’t raise any doubt in my mind as to the mens rea and therefore I will convict the accused. It may well be that this is one the defense wants to take up the Queen’s bench so we can have a definitive answer, but that’s my answer for now. [Underlining for emphasis.] 4. The Position of the Parties [ 5 ] The Appellant’s position is that despite the thorough reasoning of the learned trial judge, and his

summary of the conflicting legal literature, he came down on the wrong side of the legal issue and that he was in legal error in not preferring a line of cases that concluded that failure to appear in court is a mens rea offense, and that a mental element must be proven beyond a reasonable doubt.

In doing so, the Appellant submits, that the learned trial judge turned s. 145(5) into a strict liability offense, or alternatively equated the mental element to a failure to take steps to remember, a type of negligence. [ 6 ] The Crown adopted the position of the learned trial judge and concluded that his analysis made eminent sense. [ 7 ] At trial neither litigant referred the court to R. v.

Josephie [2010 NUCJ 07], a recent decision of senior Justice Kirkpatrick of Nunavut, who analysed Criminal Code , s. 145(5), and concluded that provision was not a strict liability offense, and that the Crown must prove a mental element to achieve a conviction. 5. Standard of Review and Issues [ 8 ] The standard of review on questions of law is correctness, on findings of fact is “palpable and overriding error” and on questions of mixed fact and law is generally “palpable and overriding error”, unless the error amounts to an error of law in which case the standard

is correctness: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. [9] Here, the chief issue is a question of law: what is the mens rea requirement for the Criminal Code, s. 145(5) offense of failing toappear? If I conclude that the learned trial judge applied an incorrect mens rea standard then this court must evaluate whether the agreedfacts prove that the Crown has proven that the Appellant had the mental element to prove a Criminal Code, s. 145(5) offense. 6.

Legal Analysis [10] Criminal Code, s. 145(5) makes it an offense for a person to not appear in court at the required time, unless the person has alawful excuse: 145(5) Every person who is named in an appearance notice or promise to appear, or in a recognizance entered into before an officer incharge or another peace officer, that has been confirmed by a justice under

section 508 and who fails, without lawful excuse, the proof ofwhich lies on the person, to appear at the time and place stated therein, if any, for the purposes of the Identification of Criminals Act, orto attend court in accordance therewith, is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (

b) an offence punishable on

summary conviction. [11] The mental element for this offense, or for allegedly analogous offenses, has been the subject of considerably court commentary.There are essentially two approaches to this offenses, which are well summarized by Allen P.C.J. in R. v. Eby, 2007 ABPC 81 at para.88-96, 415 A.R. 273, whether the offense is:

a) objective, and can be proven simply by conduct: ie. not being present at the court hearing, or

b) subjective, and may be negated by evidence of forgetfulness, carelessness, belief that a court hearing is set for the incorrect date, orother fact that supports an intention to attend a court hearing. [12] R. v. Eby involved a breach of probation order offense (Criminal Code, s. 733.1), however Judge Allen concluded the s. 145(5)and s. 733.1 offenses operate in an analogous manner.

He concluded that a breach of probation order offense was not proven unless theCrown demonstrated the accused knowingly acted contrary to the probation order, or was willfully blind and engaged in conduct thatwas contrary to the probation order. This is the “subjective” standard of proof. [13] A number of other judgments interpret the mens rea requirement for s. 145(5) and related offenses in the same way: • Criminal Code, s. 145(1): R. v. Manuel (2000), (NS SC), 182 N.S.R. (2d) 193 at para. 12, 74 C.R.R.(2d) 75 (N.S.C.S.); • Criminal Code, s. 145(2): R. v. Blazevic (1997), 31 O.T.C. 10, 34 W.C.B. (2d) 282 (Ont.

Ct. (Gen. Div.)); R. v. Mullin,2003 YKTC 26 at para. 22, 13 C.R. (6th) 54; • Criminal Code, s. 145(3): R. v. Custance, 2005 MBCA 23 at para. 13, 192 Man.R. (2d) 69, leave refused [2005] S.C.C.A.No. 156; R. v. Legere (1995), (ON CA), 22 O.R. (3d) 89, 77 O.A.C. 265 (Ont. C.A.); R. v. Smith, [2005] O.J. No.

1316 at para. 10 (QL), 64 W.C.B. (2d) 651 (Ont. Sup. Ct. J.), reversed on other grounds 2008 ONCA 101, 233 O.A.C. 145; • Criminal Code, s. 145(5) (and its pre-1985 equivalent s. 133(5)): R. v. Bender (1976), (BC SC), 30C.C.C. (2d) 496 (B.C.S.C.); R. v. Hutchinson (1994), (AB KB), 160 A.R. 58, 25 W.C.B. (2d) 51 (Alta. Prov. Ct.); R.v. Nedlin, 2005 NWTTC 11 at para. 43, 32 C.R. (6th) 361; R. v. Stuart (1981), (BC SC), 58 C.C.C. (2d) 203, 5 W.C.B.506 (B.C.S.C.); R. v. Blazevic (1997), 31 O.T.C. 10, 34 W.C.B. (2d) 282 (Ont. Ct. (Gen. Div.)); R. v. Hurlbert, 2003 ABPC 54 at para.14, 340 A.R. 192; R. v.

Weishar, [2003] O.T.C. 719, 13 C.R. (6th) 59 (Ont. Sup. Ct. J.); R. v. Fitzgerald (1995), (NL SC), 129 Nfld. & P.E.I.R. 174, 27 W.C.B. (2d) 82 (Nfld. S.C. (T.D.)); R. v. Josephie at para. 30; • Criminal Code, s. 145(5.1): R. v. Brown, 2008 ABPC 128 at para. 30, 445 A.R. 211; and • Criminal Code, s. 733.1(1): R. v. Stanny, 2004 ABPC 149 at paras. 26-28; R. v. Eby. [14] A separate set of cases has taken a more strict approach and conclude that negligence or the absence of ‘due diligence’ is a basison which a court can convict: • Criminal Code, s. 145(2): R. v.

Ludlow, 1999 BCCA 365 at paras. 37-38, 136 C.C.C. (3d) 460; R. v. Osmond, 2006 NSPC52 at para. 40, 248 N.S.R. (2d) 221; R. v. Parent-Quinn, [1995] O.J. No. 4668 (QL); • Criminal Code, s. 145(5) (and its pre-1985 equivalent s. 133(5)): R. v. Preshaw; R. v. Bell; R. v. Lutz; R. v. LeBlanc(1976), (ON CJ), 31 C.C.C. (2d) 456, 35 C.R.N.S. 331 (Ont. Co. Ct.); R. v. Postama, [1982] O.J. No. 682 (QL) (Ont.Prov. Ct. (Crim. Div.); and • Criminal Code, s. 732.1(5): R. v. Bremmer, 2006 ABPC 93 at paras. 6, 19, 79 W.C.B. (2d) 166.

Alternatively, this case-law can be characterized as concluding that these offenses are “strict liability” offenses, as that category isdefined in R. v. Sault Ste. Marie (City), (SCC), [1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161, and that the act itself provesthe intention to commit an offense. These two expressions distill down to the same standard; a ‘reasonable person’ would objectivelytake steps to ensure they found themselves in court at the correct time and place. [15] The most recent case to evaluate the mens rea component of Criminal Code, s. 145(5) is R. v. Josephie.

I am persuaded by theanalysis of Senior Justice Kirkpatrick of Nunavut that the offense of failure to appear under Criminal Code, s. 145(5) is not a strictliability offense but instead an offense that requires a mental element. That mental element is deliberate failure to appear, recklessness,or willful blindness (para. 30). [16] Additionally, to avoid criminalizing accused persons who have a lawful excuse, s. 145(5) also allows a judge to acquit if anaccused has committed the offense knowingly, but if the excuse is lawful.

This additional element in s. 145(5) does not make it a strictliability offense but operates only once the Crown has proven the crime beyond a reasonable doubt. In that sense the “lawful excuse”component is a defence that needs to be proven to a balance of probabilities (para. 28). [17] Submissions that implicitly evolve this charge into the notional realm of strict liability may be reacting ad terrorem. The learned

provincial court judge specifically rejected that concept. An accused who fails to appear in court to answer a summons exposes himselfto extensive legal jeopardy including arrest, imprisonment, and in some cases a conviction absent his opportunity to make full answerand defense. The sky will not fall if the Crown has to prove a mental element.

As Justice Kilpatrick noted at para. 20, failing to appear incourt has serious legal consequences. [18] Secondly, in the absence of evidence from the accused, a trial judge may reasonably assume (as juries are constantly instructed)that ‘sane and sober’ individuals generally intend the consequences of their actions: R. v. Seymour, (SCC), [1996] 2S.C.R. 252, 135 D.L.R. (4th) 225. Thus when the Crown readily and easily proves the failure to appear in court the mental element will essentially be inferred except in therare and few cases such as the one before the court.

Again, from a Crown tactical position the sky is not falling. The learned trial judgewas wise and correct to reject these inferential arguments that appear threading through some of the legal literature. [19] Here, in my respectful view, the learned trial judge erred in law by excluding genuine forgetfulness as a factor that negates themental element of the s. 145(5) offense of failure to appear in court. [20] I note here that it is not necessary for me to go further and apply the facts of the case to that legal standard as the Crown acceptedthat the Appellant had honestly forgotten his court appearance.

In any case I would have concluded that his immediate surrender later inthat day to the RCMP provides a reasonable doubt that the Appellant had intentionally, recklessly, or with willful blindness failed tomake his June 16, 2010 court appearance. [21] It was open for the Crown attorney in this case to reject the proposed agreed statement of facts and strategically force theAppellant to present evidence and be exposed to cross examination. The learned trial judge lamented about this lack of an evidentiarybase.

However, once the threshold fact is established, that the forgetfulness was genuine and not willful blindness, in my respectful viewthe logical reasoning of the Hon. Mr. Justice Kirkpatrick and the reasoning of his Honour Judge Allan in R. v.

Edy persuade me that thedecision here is incorrect. [22] Where a trial judge receives and accepts, or becomes obliged to accept by virtue of it being made an agreed fact, evidence offorgetfulness that is genuine and not willful blindness, or that raises a doubt about those issues, the Crown has not proven the mentalelement of the Criminal Code, s. 145(5) failure to appear charge.

The Appellant therefore had no obligation to bring forward areasonable explanation which may trigger an acquittal, as there had been no proof of the crime. [23] Further, in this particular case if the learned trial judge felt that an explanation was necessary in light of the agreed statement offacts entered into between the parties it would have been reasonable for him to conclude that the Crown, who had the burden, had notdischarged it. To simply convict the Appellant after accepting the agreed fact that the forgetfulness was genuine and not willfully blindturned this charge into a strict liability offense. 7.

Conclusion [24] The appeal is allowed, the conviction is set aside and an acquittal entered. Heard on the 10th day of August, 2011. Dated at the City of Ft. McMurray, Alberta this 16th day of September, 2011.

A.W. Germain J.C.Q.B.A. Appearances: Steven Hinkley, Esq. for the Crown (Respondent) Graham M. Johnson for the Appellant