R. v. Qaunaq, 2020 NUCJ 3

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Qaunaq, 2020 NUCJ 03 Date: 20200206 Docket: 08-18-765 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Damian Qaunaq ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): M. Tooke Counsel (Accused): S. Boydell Location Heard: Iqaluit, Nunavut Date Heard: September 13, 2019 Matters: Application to dismiss charge under the Criminal Code of Canada, RSC 1985, c C-46 , for want of prosecution REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] This is an application by the defence to dismiss the charge against Mr. Qaunaq for want of prosecution. [ 2 ] In this decision I will use “pre-charge” to refer to the time period before an Information is sworn and “post-charge” to refer to the time period after an Information is sworn. I will use “release documents” to refer collectively to Appearance Notices, Promises to Appear and Recognizances given to police officers. II. BACKGROUND [ 3 ] Mr. Qaunaq was arrested on November 21, 2016 for sexual assault.

He was released on November 22, 2016, by a peace officer on a Promise to Appear and an Undertaking. He was required to attend court on December 15, 2016. [ 4 ] Mr. Qaunaq appeared in court on December 15, 2016 but there was no Information before the court. In fact, no Information had been sworn. That was the last Mr. Qaunaq heard about the matter until January 11, 2019, when he was served with a Summons requiring him to appear in court on January 14, 2019. The Information before the court was sworn on November 7, 2018. [ 5 ] In

summary, the significant dates are as follows: • November 21, 2016: arrested • November 22, 2016: released on process, with court date • December 15, 2016: appeared in court, no Information • November 7, 2018: Information sworn • January 11, 2019: served with Summons to appear • January 14, 2019: appeared in court III. POSITIONS OF THE PARTIES A. Defence [ 6 ] The Defence submits that when Mr. Qaunaq appeared before the court on December 15, 2016 and no Information was before the court, jurisdiction was lost over Mr. Qaunaq. The court could regain jurisdiction over Mr.

Qaunaq but only by following the procedure set out in s. 485 of the Criminal Code , which requires that once jurisdiction is lost it can be regained by issuing a summons or arrest warrant within three months of jurisdiction having been lost. If process does not issue within three months then the matter is dismissed for want of prosecution and can only be recommenced pursuant to s. 485.1, which requires the consent of the Attorney General. The Defence relies upon the case of R v Ferreira , 2014 ONCJ 617 . B. Crown

[7] The Crown submits that Ferreira is wrongly decided. The Crown submits that the Court did not gain jurisdiction over Mr. Qaunaqprior to December 15, 2016 because no Information was sworn. The Crown submits that jurisdiction over an accused is gained onlywhen there is both an Information sworn and process compelling an accused to attend court. The Crown relies upon the case of R vClark, (BC SC), 1992 CanLII1274 (BCSC). IV. ISSUE [8] The issue is: What gives the court jurisdiction over an accused; release documents that require an accused to attend court, thelaying of an Information, or both? V. LEGISLATION [9] Criminal Code,

Part XVI: 496 Where, by virtue of subsection 495(2), a peace officer does not arrest a person, he may issue an appearance notice to the person ifthe offence is: (

a) an indictable offence mentioned in

section 553; (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction; or (

c) an offence punishable on

summary conviction. [10] This

section provides that peace officers may issue Appearance Notices for persons who have not been arrested but who will becharged with offences that are within the absolute jurisdiction of a provincial/territorial court, are hybrid offences (may be proceededwith either summarily or by indictment, at the option of the Crown) or straight

summary conviction offences. [11] Criminal Code: 497 Subject to subsection (1.1) [sets out the grounds upon which a peace officer may detain a person], if a peace officer arrests a personwithout warrant for an offence described in paragraph 496(a), (b), or (c), the peace officer shall, as soon as practicable, (

a) release the person from custody with the intention of compelling their appearance by way of summons; or (

b) issue an appearance notice to the person and then release them. [12] This

section provides for the release by a peace officer and before the laying of an Information, of persons arrested for absolutejurisdiction offences, hybrid offences, and

summary conviction offences. [13] Criminal Code: 498

(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if aperson who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of apeace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described inparagraph 496(a), (b), or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been takenbefore a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, assoon as practicable, (

a) release the person with the intention of compelling their appearance by way of summons;

(

b) release the person on their giving a promise to appear; (

c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or (

d) if the person is not ordinarily resident in province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs. [ 14 ] Section 503 (2.1) of the Criminal Code provides for pre-charge release by a peace officer by having the accused enter into an Undertaking, with conditions. [ 15 ] In

summary, the Criminal Code provides for both pre-charge and post-charge release of accused persons. [ 16 ] Pre-charge release with conditions by a police officer consists of two components. One component (release document) is aimed at compelling the accused to attend court on a specific date. The second component (Undertaking) is to restrict the accused’s liberty and behaviour until the matter going to court is concluded. [ 17 ] If a person has been released before the laying of an Information, s. 508 of the Criminal Code sets out the next step to be taken.

It requires the police officer to attend before a judicial officer for the issuance of an Information. It is important to remember that this step in the process is the first step in an independent review by a judicial officer. It is not a “rubber stamp”; it is an inquiry into the sufficiency of the grounds for laying an Information. [ 18 ] If the judicial officer is not satisfied that there are reasonable and probable grounds to lay a charge, he will vacate the release documents issued to an accused.

The accused is then not required to attend court nor is he any longer bound by conditions. [ 19 ] If the judicial officer is satisfied that there are reasonable and probable grounds to lay a charge, he will “confirm” the release documents (Appearance Notice, Promise to Appear or Recognizance) and proceed to issue the Information. [ 20 ]

Section 145 provides that an accused may be charged with failure to attend court if he fails to appear in accordance with a release document that has been confirmed by a Justice. If the release document has not been confirmed by a Justice and the accused does not appear, he cannot be charged with failure to attend court.

Thus, the Criminal Code requires that judicial intervention and review occur prior to criminal consequences flowing from non-compliance with release documents. [ 21 ] This is not the case with Undertakings. [ 22 ] Section 145(5.1) of the Criminal Code provides that a person who “fails to comply with any condition of an Undertaking entered into pursuant to subsection 499(2) or 503(2.1) ” is guilty of an offence. [ 23 ] A person released pre-charge on an Undertaking with conditions is bound by those conditions immediately, despite no Information having yet been issued and without the benefit of independent judicial review.

There is a practical reason for this. If it were otherwise, the purpose of the pre-charge release provisions would be undermined and more accused would be detained pending the issuance of an Information so that conditions could be imposed on their release. The process of pre-charge release on an Undertaking with conditions benefits an accused as he is not detained while steps are taken to lay an Information before a Justice of the Peace.

It also benefits the police, as it saves them from having to serve a Summons on an accused once the Information has been laid. [ 24 ] It is useful to note that the authority of police officers to release accused persons on Undertakings with conditions was not

available until the Criminal Code was amended in 1994 ( The Law of Bail , 3 rd ed, G. Trotter). Prior to the 1994 amendments police officers could release accused persons pre-charge but they could not place conditions on them and, as we have seen, no criminal consequences flowed from the release documents until there had been judicial intervention. [ 25 ] This changed after the 1994 amendments. An accused is now in jeopardy the moment he is released on an Undertaking with conditions.

If the accused breaches his conditions prior to an Information being placed before a Justice, he can be charged and convicted of a criminal offence. This can occur even if the Information never issues. [ 26 ] I mention this because in my view it impacts the perspective one should bring to cases on the issue before the court which pre-date the 1994 amendments. [ 27 ] There are many reported cases which address the issue of the validity of release documents if there is a failure to comply with the timelines in s. 508 . The settled law appears to be that such a failure renders the release document unenforceable.

However, the Information remains valid and a voluntary appearance by the accused is sufficient for the court to have jurisdiction. [ 28 ] There are few cases that deal with a situation such as the one before us. [ 29 ] A court will have jurisdiction over a person when the court has the authority to make an order or judgment against the person. In the context of a criminal case, once an Information is sworn, the accused is in jeopardy and is subject to the authority of the court.

The Crown’s position that the court does not obtain jurisdiction over the person until an Information is sworn is supported by some of the case law. For example, the court in R v Clark , supra stated: The court has not jurisdiction over the person of the accused until an information has been laid before a justice under s. 505 and the justice has endorsed the appearance notice pursuant to s. 508. Upon that happening the sections of the Criminal Code by which the court exercises its jurisdiction over the person of an accused come into play.

Up to that point the court has not jurisdiction over the person of the accused... (at para 13) [ 30 ] In Ontario the approach is different. In R v Oliveira , 2009 ONCA 219 , 247 OAC 156 , the court takes the position that failure to comply with the timelines in s. 508 result in a loss of jurisdiction over the person (see para 23). [ 31 ] Oliveira acknowledges the issue that has arisen in this case. In Oliveira the accused was arrested and released on a Promise to Appear and an Undertaking. The Information was laid prior to his first appearance but not “as soon as practicable”.

Subsequent to his first appearance the accused breached his Undertaking and was charged. At trial on the breach charge he took the position that both the Promise to Appear and the Undertaking were invalid as they were not brought before a Justice “as soon as practicable”. The Crown agreed that the Promise to Appear was invalid, but argued that the Undertaking was not. The Court of Appeal held that the promise to Appear and the Undertaking were not inextricably linked and that the invalidity of one does not affect the validity of the other. The documents serve different purposes.

The life of an Undertaking is tied to the life of the charges giving rise to the Undertaking. The court stated: During argument counsel submitted that if the undertaking survived after the promise to appear was rendered invalid, an accused could remain subject to an undertaking issued by a peace officer for an indefinite period of time when there were no longer any charges against that accused. I disagree. The undertaking cannot survive if the charges giving rise to the undertaking are no longer before the court. There may be cases where non-compliance with a provision or provisions in

Part VI of the Criminal Code raises a genuine question as to whether a charge on which a person was released on an undertaking was still before the courts as of the date of the alleged breach of the undertaking. (at para 34) [ 32 ] Prior to the 1994 amendments, the approach adopted by the court in Clark would be of no concern because an accused did not have his liberty restricted in any way and was not in jeopardy (including the potential of being charged with failure to attend court) until after judicial intervention. The court’s authority over the accused crystallized with the swearing of an Information.

[ 33 ] In my view the situation of an accused on pre-charge release which includes an Undertaking with conditions is quite different. There are conditions on liberty which can be quite significant. There are serious criminal consequences if those conditions are breached. The purpose of Criminal Code s. 508 which requires police officers to go before a justice in a timely manner when they have released someone pre-charge is intended to ensure that criminal allegations are dealt with in a timely manner and do not languish.

The prejudice to an accused by delay in criminal matters is well recognized in the context of other proceedings such as those alleging a breach of an accused person’s right to be tried within a reasonable time. [ 34 ] An accused in a situation such as this has limited remedies available. Neither the Criminal Code nor the case law provides for the lapsing of an Undertaking for failure to lay an Information. It would be unfair to expect an accused to bring an application to vacate an Undertaking because of the prosecution’s failure to lay an Information.

An accused is entitled to certainty as to what their obligations are to the court. VI. CONCLUSION [ 35 ] In the circumstances of this case, where an accused is on both release documents and an Undertaking or Recognizance with Conditions, I find that the court loses jurisdiction over the person if an Information is not sworn at the time of the initial court appearance. [ 36 ] The court may regain jurisdiction by following the procedure set out in s. 485(2) of the Criminal Code by issuing a summons or warrant for the accused within three months of the loss of jurisdiction.

Failure to do so results in the proceedings being deemed dismissed for want of prosecution, pursuant to s. 485(3). The loss of jurisdiction occurs on the date of the first appearance. The deemed dismissal would be three months from that date. The proceedings having been deemed dismissed, the accused would no longer be bound by his Undertaking. [ 37 ] The prosecution may be recommenced with the consent of the Attorney General, pursuant to s. 485.1 of the Criminal Code . [ 38 ] The Information against Mr. Qaunaq was deemed dismissed for want of prosecution as of March 15, 2017.

The Information before the court was not laid with the consent of the Attorney General. Accordingly, it is a nullity. Dated at the City of Iqaluit this 6th day of February, 2020 ___________________ Justice S. Cooper Nunavut Court of Justice