Her Majesty the Queen - v. -, 2019 SKPC 47

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 47 Date: August 13, 2019 Information: 90168161 Location: Wakaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan Doyle Rohovich Appearing: Jennifer Souter For the Crown Peter A. Abrametz For the Accused D ECISION ON APPLICATION I.J. CARDINAL, J Introduction [ 1 ] Mr. Rohovich is charged on a two-count information concerning the impaired and over 80 operation of a motor vehicle on December 16, 2018, contrary to the provisions of the Criminal Code , RSC, 1985, c C-46 [ Code ].

The matter was adjourned from time to time and is currently scheduled for trial in the fall of 2019. [ 2 ] He has brought this application for a judicial stay of proceedings, alleging the Crown has

deliberately breached section 789(2) of the Code by this notation entered on an endorsement sheet attached to the information on February 12, 2019: Possibility of custodial sentence- notice situation. [ 3 ] For the following reasons, I find there was no breach of section 789(2) . However, even if I had found a breach, I find the appropriate remedy is not a judicial stay of proceedings but correcting the record. Issues 1. Was the endorsement of February 12, 2019 that there was a “possibility of custodial sentence-notice situation” in violation of section 789(2) of the Criminal Code ? 2. If so, what, if any, remedy is appropriate? Positions of the Parties [ 4 ]

Section 789, contained in

Part XXVII of the Code , titled “Summary Convictions” states: 789.

(1) In proceedings to which this Part applies, the information (

a) shall be in writing and under oath; and (

b) may charge more than one offence or relate to more than one matter of complaint, but where more than one offence is charged or the information relates to more than one matter of complaint, each offence or matter of complaint, as the case may be, shall be set out in a separate count.

(2) No information in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall contain any reference to previous convictions. (Emphasis added) [ 5 ] Counsel for Mr. Rohovich argues that the endorsement sheet, being attached to the information, forms part of the information. Thus, the notation stating “Possibility of custodial sentence-notice situation” violates section 789(2) because it contains a reference to previous convictions.

He argues this was a deliberate violation of the statutory provision by the Crown, and mandates a judicial stay of proceedings. [ 6 ] In support of his position, he has filed the decision of R v Charles , 2003 SKPC 15 [ Charles ] in which the learned trial judge, at paragraph 13, found that endorsements are part of an information. The Court directed a stay of proceedings because the endorsement sheet read, “Crown gives notice that they will be proceeding by way of second conviction”.

The learned trial judge reviewed case law and distinguished between deliberate and inadvertent divulgence by the Crown of previous convictions. Deliberate actions include where the reference to a previous conviction or notice of the intention to seek greater punishment is endorsed on the information itself. Such action results in a breach and the only appropriate remedy is the termination of the proceedings brought by a judicial stay of proceedings.

However, inadvertent disclosure by the Crown, such as through the evidence of a witness or in an affidavit, does not result in a breach. [ 7 ] Crown counsel maintains there was no breach. In the alternative, she argues that if a breach of section 789(2) is found, the appropriate remedy is to strike or sever the offending words from the endorsement, or correct the endorsement to reflect that the Crown is now not seeking a custodial sentence.

I note that a notation as to the latter was entered on the endorsement sheet of March 12, 2019. [ 8 ] In support, she has filed the case of R v Rathgeber , 2010 SKCA 58 , 350 Sask R 234 [ Rathgeber ] wherein the Crown had conceded that one count in a four count information offended section 789(2) of the Code . There the offending count read that the accused “did operate a motor vehicle while disqualified from doing so by reason of an order pursuant to

Section 253 and 254 of the Criminal Code ”. The trial judge refused an application to quash, and instead found the information could be amended to strike out the offending words, or the defect cured by severing that count. He severed the count and proceeded to trial on the

remaining three counts. On appeal to the

summary conviction appeal court, the trial judge’s decision was upheld. [ 9 ] On appeal to the Court of Appeal, the accused contended that an apprehension of bias arose when the judge elected to proceed on the first three counts, after he had learned of a previous conviction in the course of severing the “drive while disqualified” count (see para. 13). The Court of Appeal held: [15] In our opinion, Mr. Rathgeber’s argument cannot succeed. We are in general agreement with the decision of the Chambers judge. In dealing with count 4, the trial judge learned only of the Crown’s allegation that Mr.

Rathgeber had driven while disqualified pursuant to ss. 253 and 254 of the Code . This was not enough to give rise to a reasonable apprehension of bias. [16] It is inevitable that accused persons will appear before judges who know of their criminal histories. The community rightly trusts that such information will play no

part in judicial decision making. Accordingly, at least in the normal course, mere knowledge of an accused’s criminal record does not automatically disqualify a judge from presiding at a trial. ( Case citations omitted ) [ 10 ] Defence counsel indicates that he is not relying upon an argument that the notation on the endorsement gives rise to a reasonable apprehension of bias. Rather, he submits it is a simple argument that section 789(2) , a statutory provision, has been breached and a judicial stay of proceedings is the appropriate remedy.

Facts [ 11 ] I note that as this is a defence application, it is incumbent on the defence to prove its application on a balance of probabilities. When pressed how this endorsement came about, and why defence counsel was referring to it as “deliberate” on the part of the Crown, defence counsel said he did not listen to the recording of the proceedings; nor did he file a transcript. He maintained that the endorsement exists and is sufficient evidence by itself. [ 12 ] Ms. Souter advised she had listened to the court recording and that the Crown was responding to an inquiry by the presiding provincial court judge.

Both parties agreed I could review the recording of the proceedings for February 12, 2019 and I did so. [ 13 ] It is clear from the official court recording that the presiding judge read the charges to Mr. Rohovich and inquired if he had spoken to counsel. A conversation ensued as to whether the accused was planning to hire private counsel or apply for Legal Aid. The judge inquired of the Crown if this was a situation where custody was possible. The Crown indicated it was a possibility. The judge inquired if it was a “notice situation” and the Crown confirmed it was. The judge explained to Mr.

Rohovich he was asking the Crown these questions because Legal Aid would only represent him if the Crown was seeking jail time or in a notice situation. There was further discussion and the matter adjourned to March 12, 2019. On that date, the Crown advised they were not seeking a jail sentence. [ 14 ] The notation in the remarks

section of the endorsement sheet of February 12, 2019 accurately reflects the discussion in court that there was a possibility of a custodial sentence. While the abbreviated term “notice situation” was used, it was understood that this was in reference to a situation where the Crown had provided “Notice of Intention to Seek Greater Punishment”. Such notice is required pursuant to

section 727 of the Code , which provides that a greater punishment may be imposed by reason of previous convictions. Analysis [ 15 ] The crux of the issue in this case is whether endorsement sheets attached to an information form part of the information itself or whether they are simply part of the court record.

[16] The Code is specific with respect to the form and content of an information.

Section 785 defines “information” in

Part XXVII as including a count in an information. Section 789(1) provides for the formalities of aninformation including that it be in writing and under oath, and allows for separate counts. [17] Section 788(1) states that proceedings in

Part XXVII “shall be commenced by laying an information in Form 2”. When one looks at Form 2, it is clear it is the charging document only. There is no mention or indication of anendorsement sheet as forming part of the information. It is interesting to note that the information on which Mr. Rohovich is chargedhas, on the back side of the information, a pre-printed form titled “Endorsements”. There is nothing endorsed on that side of theinformation. Form 2 does not show any sheet titled “Endorsements”, and it appears it is included as a matter of convenience rather thansubstance. [18] As well, on the front of the Rohovich information there is a

section below the jurat referring to confirming an appearance notice and other release documents. This appears to be provided as a convenience respectingsection 508 of the Code, which allows the justice to endorse the information concerning certain release documents.

Again, Form 2 doesnot show such a section. [19] While the Code contains various references to an information, I could find no reference therein to endorsement sheets forming part of the information nor did either counsel direct me to any such references. [20] My brother judge in the Charles decision followed the Nova Scotia Court of Appeal decision in R v Deal (NS CA), 1978, 38 CCC (2d) 425 (NS CA) where it held that “an information includes the faceand back thereof”. I do not necessarily disagree with this statement, but it does not follow that the information includes the endorsementsheets.

It also does not follow that every notation on the front or back of the information is relevant or forms part of a count or chargetherein. [21] In my opinion, the endorsement sheets do not form part of the “information”. Rather, they are part of the court record, and provide an easy reference for the court and parties as to the status of the charges before the court. [22] In this instance, the Crown at no time in these proceedings acted deliberately.

The Crown prosecutor was responding to direct questions posed by the presiding judge on February 12, 2019 as reflected by the courtrecording. [23] Nor is the Crown responsible for filling out the endorsement sheets. That responsibility lies with the court clerk.

Usually notations are made at the request of the judge, such as whether the accused is waiving trial delay or thelike, but the clerk is also at liberty to add remarks if she feels they are appropriate and may assist the court or the parties withoutresorting to the official court recording. [24] It has always been a practice of the Court, and perhaps more especially so in the post- Jordan landscape, that judges take an active interest in ensuring a matter is proceeding in a timely manner.

Often, the parties and thepresiding judge carry on an open dialogue to determine how to address issues, as for example when it comes to the availability of LegalAid and the jeopardy the accused faces. This usually includes asking if the Crown is seeking a sentence of incarceration upon conviction,as if it is not, it is highly likely that Legal Aid will not represent the accused, regardless of whether other criteria are met.

Thisinformation can assist the accused in determining his/her next steps concerning retaining counsel. [25] As noted in Rathgeber, judges are often aware that an accused person appearing before them has a criminal record. This knowledge does not impact the impartiality of the court or the rights of an accused, or displace thepresumption of innocence. Judges routinely hear and determine issues of admissibility of evidence. Judges are called upon to disabuse

themselves of non-admissible evidence and to not use it in determining the final verdict. There is no reason to think a judge cannot put out of their mind that the Crown may be seeking a greater punishment or a custodial sentence. Decision [ 26 ] I dismiss the application. I find Mr. Rohovich has not proven on a balance of probabilities that section 789(2) of the Code has been violated.

As endorsement sheets are not part of the information, I find that references in the endorsement sheets as to previous convictions or notice that the Crown is seeking a greater punishment are not a violation of section 789(2) of the Code . [ 27 ] Even if I am mistaken and endorsement sheets do form part of the information, and there is a breach of section 789(2), I would find that the appropriate remedy is to strike the endorsement of Feburary 12, 2019 as this is a defect in form, not substance. [ 28 ]

Section 795 provides that the provisions of

Part XX apply, in so far as they are not inconsistent, to

summary conviction proceedings, with any necessary modifications.

Part XX includes section 601(3)(c), which permits the court to amend the information at any stage of the proceedings where it is in any way defective in form. Given the circumstances of this case and considering the factors enumerated in section 601(4) of the Code , this is clearly a case where the appropriate remedy would be to cure the defect in the information by striking the impugned endorsement of February 12, 2019. [ 29 ] I would note in passing that there was no mention of

section 601 in the Charles decision relied upon by Mr. Rohovich. Nor is there any indication that the Crown in that case put forward “amending the information to cure the defect” as a suitable alternative remedy to the requested judicial stay of proceedings. A judicial stay of proceedings should be imposed only in the clearest of cases, and such is not the case in this matter. _______________________ I.J. Cardinal, J