HIS MAJESTY THE KING Appellant – v. –, 2023 NBKB 144

2023 NBKB 144 BCA-1-2023 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: HIS MAJESTY THE KING Appellant – and – CHRISTIAN HACHÉ Respondent BEFORE: The Honourable Mr. Justice Ivan Robichaud AT: Bathurst, New Brunswick DATE OF HEARING: August 1, 2023 DATE OF DECISION: August 11, 2023 APPEARANCES: Marc A. Bourgeois, for the appellant;

Christian Haché, per se . [TRANSLATION] Robichaud, J.: I – OVERVIEW [ 1 ] In an information sworn on December 14, 2021, the respondent Christian Haché faced two counts, one of having driven a motor vehicle while his ability to drive was impaired by alcohol, in violation of paragraph 320.14(1) (

a) of the Criminal Code of Canada , and the other, of having, within two hours after ceasing to operate a motor vehicle, a blood alcohol concentration that exceeds 80 mg of alcohol in 100 mL of blood, in violation of paragraph 320.14(1) (b). [ 2 ] After the respondent entered a plea of not guilty, his trial was scheduled for April 5, 2023. On that day, both the Crown and the respondent, who was present and self-represented, were ready for trial. [ 3 ] The Provincial Court judge commenced the hearing of the matter against the respondent by saying: [TRANSLATION] […] this is a scenario, here, that is a bit unusual.

Mr. Haché, Ms. McGraw, the Court has no file under Christian Haché, no information. That is, I see that a file was opened at some point, a file number was assigned to this Christian Haché matter, but I was informed earlier this week that we are unable to track down or find this information that was purportedly filed against Christian Haché. Again this morning, I received confirmation that we are unable to find this file, this information. Therefore, to my knowledge, this morning, this information does not exist in the Provincial Court files.

Which means that, to my understanding, I have no information before the Court in the name of Christian Haché that I can address this morning. [...] If I don’t have an information or a file that I can address, I believe that I, I have no jurisdiction over the person or the offence or offences that would be alleged against Mr. Christian Haché.

Therefore, I cannot make any decision [...] with respect to this matter. [ 4 ] Having found that there was a loss of jurisdiction, the judge ceased to hear the matter. [ 5 ] On April 12, 2023, the Crown, having learned that the file had been found, requested that it be brought back before the court. From the outset, the judge stated that he did not have jurisdiction, that he would listen to the Crown’s submission, but that it would not change the situation.

He stated that he decided on April 5 that he no longer had jurisdiction and that he can no longer revisit the matter. [ 6 ] The Crown submitted that what happened was an irregularity that can be rectified under

section 485 of the Criminal Code of Canada . The Crown requested that the Court regain jurisdiction by using the mechanism provided by subsection 485(2). The judge stated that

section 485 could not remedy the situation and that jurisdiction cannot be regained. II – THE STANDARD OF REVIEW [ 7 ] The ground of appeal raised by the appellant is that, and I quote, [TRANSLATION] “the trial judge erred in law in his

interpretation and application of

section 485 of the Criminal Code of Canada when he declared a loss of jurisdiction in the present case.” [ 8 ] The appeal involves a question of law. It is well established that for an appeal on a question of law, the standard of review is correctness. Housen v. Nikolaisen . [1]

III – THE LAW [9] In R. v. City of Toronto , [2] the Ontario Court of Justice stated the following: In R. v Veltri (1986), 17 OAC 81 , a justice of the peace held she had no jurisdiction to proceed with a matter as the information at issue was not physically before her. Speaking for the Court, Dubin, J.A. (as he then was), determined that the justice had, … erred in law since it is well established that, provided that there is an information in existence, the Court’s jurisdiction does not depend on the information being physically present in the Courtroom. [10] In R. v.

Martyn , [3] the Superior Court of Justice of Ontario issued a similar decision, stating that the law is clear that it is an error to find a loss of jurisdiction over an offence where the Court is satisfied that the information exists, though it might not be in the courtroom. [11] In R. v. Hampton , [4] the Court of Queen’s Bench of Alberta (as it was then called) adopted the same principle. At paragraph 13, it states: [13] The Accused concedes that jurisdiction over the offence is not an issue in this case.

The loss of the Information upon which an accused person is committed to stand trial does not result in “loss of jurisdiction over the indictment” preferred in accordance with the committal for trial. This is so where there is independent proof that the accused person had been committed for trial in respect of the charges in the indictment, as the Accused concedes in this case.

Furthermore, the failure of a committing justice (in this case the Provincial Court Judge) to transmit the Information to the superior court, in accordance with his duty to do so pursuant to s 551of the Criminal Code , constitutes, at most, a “procedural irregularity”. Section 485(1) applies in respect of the procedural irregularity: E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, looseleaf, 2nd ed., vol. 3 (Aurora: Canada Law Book, 2020) (Ewaschuk) at 11:0132; R v Meng , 2019 ONCJ 250 ; and R v City of Toronto , 2011 ONCJ 131 .

The Accused is therefore correct that jurisdiction over the offence is not an issue in this case. [12] In

summary, the fact that the file containing the information could not be found on the day of the trial does not result in an automatic loss of jurisdiction over the offence. That jurisdiction will be maintained if the judge is satisfied that the information exists. [13] At trial, the judge did not have the file. Therefore, he did not have the court’s notes from the previous appearances, nor with respect to the other documents on file.

I have to assess the situation while considering what was before the judge. [13] In City of Toronto , supra , the judge was satisfied that an information existed, although the original could not be found.

In making that finding, he considered the following facts: • A photocopy of the sworn information, complete with the jurat, which had been kept by the Investigating Officer, was provided to him. • There was evidence that an appearance notice had been issued. • The judge had evidence of numerous previous appearances by counsel for the accused. • The Court had been informed that the original information could no longer be found, which implied that it existed. • There was no evidence that the information had been destroyed or cancelled.

• The presumption of conformity. [14] Those elements are not all found in this matter. The elements that tend to establish the existence of an information are the following: • A file had been created and a number assigned to it. That implies the swearing of an information, which is the document filed with the Court to create the file. • The Court had been informed that the original information could no longer be found, which implied that it existed. • There was no evidence that the information had been destroyed or cancelled.

Rather, the information conveyed that it had been lost after its transfer from Caraquet to Bathurst. [15] For the trial judge, the fact that the information was not available at trial amounted in law to its non-existence. With respect, I believe that was an error. Although it would have been preferable that he be provided with a copy of the information, if such a copy had been available, the fact remains that the judge had enough information before him to conclude that the information, which had been lost, existed. [16] The trial judge therefore erred in finding he had lost jurisdiction over the offence.

Moreover, the fact that the judge did not proceed with the case on April 5, 2023, does not in itself constitute a loss of jurisdiction over the offence. See R. v. Veltri. [5] [17] As for the jurisdiction over the accused, it was not lost since the accused appeared before the Court. Furthermore, if it had in fact been lost, the loss of jurisdiction over the accused may be regained under subsection 485(2) of the Criminal Code of Canada . IV – CONCLUSION [18] The appeal is therefore allowed. The trial judge’s decision to stay the proceedings for loss of jurisdiction is set aside and the information is reinstated.

The case is remanded to the Provincial Court to set a new trial date. DATED at the City of Bathurst, New Brunswick, this 11th day of August 2023. ___________________________ Ivan Robichaud, J.C.K.B.