R v. Ferguson, 2013 NBPC 1

IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF WOODSTOCK Citation: R v. Ferguson, 2013 NBPC 1 Date: January 2, 2013 Docket: 03836507 Between: Her Majesty, The Queen, - and – Thomas Joseph Travis Ferguson Before: Chief Judge R.Leslie Jackson Date(

s) of Hearing: December 4, 2012 Appearances: Lindsay J. Paul - for the Crown Sylvain Pelletier - for the Defendant JACKSON, C.P.C.J. Introduction: [ 1 ] The question before the Court is: Does an Undertaking Given to a Judge (Form 12) continue to be in full force and effect once the charge in respect of which the undertaking was given has not been proceeded with, and in fact has been withdrawn? A secondary question is: Is it of any legal consequence that the original Information has been replaced with another alleging a different, but not included, offence?

Facts [ 2 ] On July 13, 2012 the Accused was arrested on a charge that he did in committing an assault on a named person use a weapon; an offence contrary to

section 267 (

a) of the Criminal Code of Canada ( the “Code”) . As this occurred on a weekend, he was remanded on that charge on July 14, 2012 to appear before a Judge of the Provincial Court in Woodstock on July 16, 2012 at which time the Crown would attempt to show cause why his continued detention was necessary.

[3] Following that hearing, the Accused was released on an Undertaking Given to A Judge (the “Undertaking”), which said in part “I…understand that I have been charged that: …July 13, 2012 - s.267(a)CCC – did commit an assault on …with a weapon, to wit; a knife-…”. [4] On the same date, the original Information noted above was withdrawn on Crown motion; another Information was swornalleging that on July 13, 2012 the Accused, in committing an assault on the same named person, caused bodily harm to him contrary to s.267(

b) of the Code. [5] It is conceded that on July 31, 2012 the Accused did not appear in Court as required by his Undertaking and it is further conceded that between July 27th and September 10, 2012 the Accused failed to abide by other conditions imposed on him by the Undertaking. Analysis and Decision [6] Counsel for the Accused asserts that one essential element of the charge which the Crown is obligated to prove in order to securea conviction, is that at the time of the alleged offence the Undertaking was still in effect. In doing so he relies on the decision of theOntario Court of Appeal in R. v.

Oliveira 2009 ONCA 219. [7] Crown Counsel counters that what Defence Counsel is doing amounts to collateral attack on a court order which may only bemade in proceedings “whose specific object is the reversal, variation, or nullification of the order or judgment” relying on R. v. Cook1998 BCPC 10 , 1998 BCPC 0010 which quotes from the decision of the Supreme Court of Canada in R. v.

Litchfield (SCC), 86 C.C.C. (3d) 97 at pages 109-110. [8] In Cook (Supra), the defendant was charged with driving while prohibited contrary to the Motor Vehicle Act of British Columbia.At trial, he argued that as the issuing Judge did not comply with all of the requirements of sections 90(4)(

b) and (

c) of the B.C. MotorVehicle Act, then the prohibition order was invalid, thus affording a defense to a charge of driving while prohibited. That is quite clearlya collateral attack on the prohibition order which Judge Maughan quite properly rejected. [9] In this case, the Accused does not challenge the making of the Undertaking, but posits that all undertakings have a finite term andthat in order for an accused to be convicted of breach of an undertaking, one of the constituent elements to be proven in that theundertaking was still in effect. That situation is closer to the fact situation in R. v.

Han 2008 ONCJ 688, in which Mr. Han was accusedof breaching a recognizance entered into before a Justice of the Peace. Justice Wakefield decided that the presumption of regularity didnot apply saying: “[11] …the continued existence of the underlying charge is not a mere formality but the foundation for the undertaking to be infull force and effect.

This is not an example of a probationer signing an acknowledgment of having been informed of theconsequences of a breach or an attack on a particular term of a probation order that has not been appealed. [12] Indeed, unlike a probation order or a subpoena ( R. v Young, O.C.A., August 12, 1999, Docket C31839) which on its facesets out an expiration date, the Recognizance is open ended and its life is dependent on the status of the underlying charges.

I do notaccept that the presumption of regularity applies in this case. [13] In the Crown submissions reliance is placed on the wording of s. 523(1) of the Criminal Code setting out that the releasestays in force until the trial is completed and if convicted, sentencing is completed. I understand this to mean that once the underlyingmatter is disposed of, the release is no longer in effect.

Proof that the trial is still ongoing would appear to be essential to showingthe current validity and enforceability of the release terms.” (underlining added). [10] That conclusion was approved of by the Ontario Court of Appeal in Oliveira (Supra), where at paragraphs 27 and 28 DohertyJ.A. said: “[27] Where the prosecution charges the crime of breaching an undertaking, it must prove beyond a reasonable doubt that theundertaking was in force on the date of the alleged breach: Trotter, The Law of Bail in Canada, 2nd ed., at p. 440.

The respondent’sdefence does not collaterally attack the validity of any order, but takes issue with an essential component of the actus reus of the crime charged by the prosecution. [28] The respondent’s defence is no different than a defence advanced by an accused who is charged with breaching anundertaking the day after his acquittal on the charges that gave rise to the undertaking. Clearly, that accused would be entitled todefend on the basis that the undertaking was not in effect on the date of the alleged breach. This respondent’s defence is the same.

Ialso see no distinction between the respondent’s defence and a defence to a charge of failure to appear based on the contention thatthe promise to appear was invalidated by the failure to swear the information “as soon as practicable”. That defence has beenrepeatedly acknowledged by this court: see, for example, Markovic at paras. 15, 24. The rule against collateral attack is not engaged

by the defence put forward on behalf of the respondent.” He continued at paragraphs 32 and 34: “[32] The purpose of an undertaking, and the rationale underlying the peace officer’s power to release on an undertaking, link that document, not to the initial attendance in court of the accused, but to the criminal charges on which the accused was released as those charges progress to disposition. Viewed purposively, the life of the undertaking should be tied to the life of the charges giving rise to the undertaking. The language of s. 523(1) (

b) makes that link. … [34] 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. As indicated above, no one suggests that the charges on which the respondent was released on his undertaking were not properly before the court as of September 9. There may be cases where non- compliance with a provision or provisions in

Part XVI 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. That is not this case. It would not be helpful to speculate on the potential outcome of other hypothetical cases involving different factual scenarios.” (Underlining added) [ 11 ]

Section 523 of the Code provides that an undertaking entered into by an accused continues in force and applies in respect of any new Information charging “the same offence or an included offence” that was received after the undertaking was given; however, as I have already noted, the new Information laid on July 16, 2012 was in respect of a different offence, which is not an included offence. [ 12 ] I have therefore come to the conclusion that the Crown has not established that the Undertaking Given to a Judge signed by the Accused was in effect, either on July 31, 2012 when the Accused failed to appear in court, or between July 27 th and September 10, 2012 when he allegedly failed to abide by other terms of his undertaking.

Indeed it appears to me that legally the Undertaking ceased to exist the moment that the Crown withdrew the original Information alleging an offence contrary to

section 267 (

a) of the Code . For the reasons set out above I find the Accused not guilty of the charge contrary to s. 145(2)(a), and also of the charge contrary to s. 145(3)(a). ______________________________ R. Leslie Jackson, C.P.C.J.N.B