R. v. Jerrett, 2017 NLCA 65

Her Majesty the Queen (appellant) v. Jennifer Jerrett (respondent) (16/110) Indexed As: R. v. Jerrett 2017 NLCA 65 2 C.A.N.L.R. 315 Court of Appeal of Newfoundland and Labrador White, Harrington and Hoegg JJ.A. November 9, 2017

Summary: Jennifer Jerrett was charged with three violations of the Highway Traffic Act, RSNL 1990, c. H-3 ( HTA ) for operating a motor vehicle without a valid driver’s license and insurance. She did not appear on the date set for her to enter pleas. A warrant for her arrest was issued. She eventually turned herself in and was charged with a breach of section 145(2) (

b) of the Criminal Code for failing to appear in court as required. That charge was dismissed by a Provincial Court Judge who found that a person charged with breaching a provincial regulatory offence cannot be convicted for failing to attend court as required under section 145(2) (

b) of the Criminal Code . The Crown appealed the Judge’s decision to the

Summary Conviction Appeal Court (SCAC), which upheld the decision of the Provincial Court Judge. The Crown appealed to the Court of Appeal. Held: Appeal allowed. Hoegg J.A. (White and Harrington JJ.A. concurring): Section 839(1) of the Code stipulates that leave is required to appeal a SCAC decision. Such an appeal must be taken on a ground that involves a question of law alone and should either: (

i) have a reasonable possibility of success, or (ii) the proposed question of law should have significance to the administration of justice. The issue in this case is significant to the administration of justice. Leave to appeal was granted. The Provincial Offences Act, SNL 1995, c. P-31.1 (the Act ) governs proceedings respecting offences under the HTA .

Section 6 of the Act provides that the provisions of the Code respecting

summary conviction offence proceedings apply to provincial regulatory offences.

Section 803 of the Code addresses adjournments of

summary conviction proceedings and the consequences for a defendant who does not appear on an adjourned date. Both the Judge and the SCAC Justice reasoned that the provincial statute under which Ms. Jerrett was charged (the HTA ) provided a specifically stated process to occur on the non-appearance of a defendant, and also that there was no separate offence for failing to appear in respect of a charge under the HTA . The conduct underlying the charge of failing to appear as required under section 145(2) (

b) is the failure of a defendant to appear after he or she has made an initial appearance in court and was ordered by the court to return for continuation of the proceedings. Whether the defendant to a section 145(2) (

b) charge is charged with a

summary conviction offence, or a regulatory offence under a provincial statute is irrelevant to a charge under section 145(2) (b). Ms. Jerrett’s case does not involve a question of a criminal consequence attaching to a breach of a provincial statute. The Code offence, or criminal consequence, in this case is for failing to appear as ordered by the Court, a stand-alone offence separate from the charges under the HTA offences. Consequently, the appeal was allowed, a finding of guilt in respect of the section 145(2) (

b) charge entered and an absolute discharge granted.

Cases cited: R. v. Newfoundland Recycling Ltd., 2009 NLCA 28, 284 Nfld. & P.E.I.R. 153 R. v. Shephard, 2009 SCC 35, [2009] 2 S.C.R. 527 R. v. Boggs, (SCC), [1981] 1 S.C.R. 49, 120 D.L.R. (3d) 718 R. v. Clarke, 2000 ABCA 246, 84 Alta. L.R. (3d) 321 Counsel: Vikas Khaladkar, for the appellant; Appearing on her own behalf, the respondent. This appeal was heard on September 19, 2017 before White, Harrington and Hoegg JJ.A.

The following judgment was delivered on November 9, 2017 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [1] This appeal concerns whether a person charged with breaching a provincial regulatory offence can be convicted for failing toattend court as required under section 145(2)(

b) of the Criminal Code (Code). BACKGROUND [2] Jennifer Jerrett was charged with three violations of the Highway Traffic Act, RSNL 1990, c. H-3 (HTA) in relation to heroperation of a motor vehicle without a valid driver’s license and insurance. She was issued an appearance notice to appear in ProvincialCourt on June 19, 2015 to respond to the charges. On June 19, 2015 the Court set the charges over to November 4, 2015 so Ms. Jerrettcould seek legal advice, and ordered her to appear on that date to enter pleas. Ms. Jerrett did not appear on November 4, 2015.

Accordingly, the Court issued a warrant for her arrest. [3] On December 12, 2015 Ms. Jerrett was arrested after turning herself in to the police. She was subsequently charged with abreach of section 145(2)(

b) of the Code for failing to appear in court as required on November 4, 2015. On March 28, 2016, Ms. Jerrettappeared and pleaded guilty to two of the three HTA offences and the Code offence of failing to appear in court as required. (The Crownwithdrew the third HTA offence.) The Provincial Court Judge (Judge) convicted her of the two HTA offences, but declined to accept herguilty plea in relation to the Code offence of failing to appear as required on November 4, 2015 and dismissed the charge.

He explainedhis reason for doing so at paragraph 20 of his decision: In this case, while the accused has failed to attend court in so doing she has not committed a criminal offence. The information is worded“At or near St. John’s in the province of Newfoundland and Labrador having appeared before a Judge did fail, without lawful excuse, toattend court as required on Wednesday, the 4th day of November AD 2015 at 9:45 A.M. thereby committing an offence contrary tosection 145(2)(

b) of the Criminal Code.” The Provincial Offences Act provides a process to deal with non-attendance of an accused. The court can proceed ex parte and impose sentence or issue a warrant of arrest. In this case, there is no underlying or predicate criminalconduct to ground the section 145(2)(

b) charge. The Act does not create a separate offence of failure to attend court and I cannot, as aresult, accept the accused’s guilty plea. The section 145(2)(

b) charge is dismissed. [4] The Crown appealed the Judge’s decision to the

Summary Conviction Appeal Court (SCAC), where a Justice of that Courtagreed with the Judge’s reasoning and upheld his decision, saying at page 36 of the transcript of the SCAC proceedings: … I disagree with the Appellant’s submissions and I agree with Judge Orr’s decision that an underlying or predicate criminal conduct isrequired to ground a section 145(2)(

b) charge. More specifically, the failure to appear charge under

section 145 must, in my view, be inrelation to a failure to appear to answer to a criminal offence not a regulatory offence as is the case here. To elaborate, section 6(1) of the Provincial Offences Act merely adopts a proceeding relating to an offence. Adopting the proceedingdoes not mean a charge under

section 145 of the Code may apply to non-attendance in court under an appearance notice issued inconjunction with charges under the Highway Traffic Act. To do so, in my view, indeed has the effect of attempting to create a criminaloffence by adopting portions of the Criminal Code. Rather, I accept and endorse Judge Orr’s analysis and reliance on the Boggs and theWholesale cases as being applicable to this matter…

ISSUE [ 5 ] The issue is whether the SCAC Justice erred in holding that section 145(2) of the Code does not apply to the failure to attend court as required where the offence in respect of which attendance is required is a provincial or regulatory offence. LEAVE TO APPEAL [ 6 ] Section 839(1) of the Code stipulates that leave is required to appeal a SCAC decision. In R. v. Newfoundland Recycling Ltd. , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 at para. 9 , this Court stated that such an appeal must “be taken on a ground that involves a question of law alone” and that the ground(

s) must be such that either: (

i) there is a “reasonable possibility of success”, or (ii) the “proposed question of law has significance to the administration of justice”. [ 7 ] The applicability of a legal standard to the facts of a case is a question of law ( R. v. Shephard , 2009 SCC 35 , [2009] 2 S.C.R. 527 at para. 20 ). Whether the facts of Ms. Jerrett’s case establish, at law, a breach of section 145(2) (b), is a question of law. Given the prevalence of provincial regulatory offences in our courts, the issue is significant to the administration of justice. Leave to appeal was accordingly granted at the hearing. LEGISLATION [ 8 ] Section 145(2) (

b) of the Code reads:

(2) Everyone who, … (

b) having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge, … is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on

summary conviction. [ 9 ] The Provincial Offences Act, SNL1995, c. P-31.1 (the Act ) governs proceedings respecting offences under the HTA .

Section 6 of the Act provides that the provisions of the Code respecting

summary conviction offence proceedings apply to provincial regulatory offences:

(1) Except where and to the extent that it is otherwise specifically enacted, the provisions of the Criminal Code respecting

summary convictions and the proceedings relating to them apply, with the necessary changes, in respect of offences and orders and proceedings relating to the offences and orders made or to be made under this Act .

(2) Without restricting the generality of subsection (1), the provisions of sections 21 and 22 and Parts XVI, XVIII, XXII, XXIII, XXVI and XXVII and sections 463 to 465, 484 to 490, 492.1 and 492.2, 770 to 773 and 783 of the Criminal Code apply, with the necessary changes, to matters to which this Act [applies]. … [ 10 ]

Section 803 of the Code addresses adjournments of

summary conviction proceedings and the consequences for a defendant who does not appear on an adjourned date:

(1) The

summary conviction court may, in its discretion, before or during the trial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsel or agents.

(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1), the

summary conviction court (

a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or (

b) may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant.

(3) If the

summary conviction court proceeds in the manner described in paragraph (2)(a), no proceedings under

section 145 arising out of the defendant’s failure to appear at the time and place appointed for the trial or for the resumption of the trial shall, without the consent of the Attorney General, be instituted or be proceeded with. [ 11 ] In

summary, the province has adopted the provisions of the Code relating to adjournments of

summary conviction offence proceedings and has stipulated that they apply to proceedings respecting provincial regulatory offences unless otherwise specifically stated. The adoption and application of the proceedings respecting

summary conviction offences to proceedings respecting provincial regulatory offences is a well-established practice of Canadian provincial legislatures. Such a practice is an efficient way for provinces to legislate practice and procedure while enabling those charged with breaching provincial offences to avail of the principles of Canadian criminal law as they develop. The practice is also helpful in fostering consistency in the application of law across the country. ANALYSIS

[12] For the reasons that follow, it is my view that the SCAC Justice erred in upholding the Judge’s decision that Ms. Jerrett could notbe found guilty under section 145(2)(

b) of the Code for failing to appear in court on November 4, 2015. [13] Both the Judge and the SCAC Justice reasoned that the provincial statute under which Ms. Jerrett was charged (the HTA)provided a “specifically stated process” to occur on the non-appearance of a defendant, and also that there was no separate offence forfailing to appear in respect of a charge under the HTA. They reasoned that there had to be related underlying criminal conduct involvedin the breaches of the HTA in order to ground the charge of failing to appear, and because the HTA charges did not involve criminalconduct, Ms. Jerrett could not be convicted under s. 145(2)(

b) of the Code. [14] With respect, I must disagree. The conduct underlying the charge of failing to appear as required under section 145(2)(

b) is thefailure of a defendant to appear after he or she has made an initial appearance in court and was ordered by the court to return forcontinuation of the proceedings. The predicate or underlying conduct is not the failure to appear to initially answer a HTA charge. Whether the defendant to a section 145(2)(

b) charge is charged with mischief or assault punishable on

summary conviction, any othersummary conviction offence, or a regulatory offence under a provincial statute is irrelevant to a charge under section 145(2)(b). Asection 145(2)(

b) offence involves a failure to appear in court after being required by the court to do so. Why and in respect of whatcharge a defendant is required to appear are immaterial. [15] In this case, Ms. Jerrett was charged and given a notice to appear in court on June 19, 2015. On that date she appeared andrequested time to seek legal advice in relation to the charges against her. The Judge acceded to her request and set the matter over toNovember 4, 2015, and ordered her to appear on that date. Ms.

Jerrett was present in court on June 19, 2015 when the proceedings wereadjourned, for her benefit, and by virtue of the Judge’s adjournment of the matter to November 4, 2015, knew she had to appear on thatdate for continuation of the proceedings. She did not do so. [16] The Judge relied on

section 25 of the Act to support his view that the statute had provided a specific process to occur when adefendant charged with the offences Ms. Jerrett was facing failed to appear. The Act does provide for a specific process to obtain when aperson fails to appear in relation to a provincial regulatory charge under the HTA. However, that specific process does not apply to Ms.Jerrett’s case. If Ms. Jerrett had not appeared in court to answer the charge having been noticed to appear, I would agree with the Judgesbelow that a charge under section 145(2)(

b) would not be supportable. But this is not what happened. [17] There was an intervening event – Ms. Jerrett’s initial appearance in court on June 19, 2015 and a court order for her to return onNovember 4, 2015. Her failure to appear when directed to do so by the Court - her contravention of the Court’s order – is the underlyingor predicate conduct of the section 145(2)(

b) charge against her – not her failure to appear initially. [18] The purpose of section 145(2)(

b) is to enable courts to control their own process. Failing to give effect to a judge’s order to adefendant to return for continuation of proceedings against him or her would undermine the judge’s authority to control the process of thecourt and render judges’ procedural orders ineffective and unenforceable, thereby impugning the integrity of the justice system. [19] Both the Judge and SCAC Justice relied on the decisions in R. v. Boggs, (SCC), [1981] 1 S.C.R. 49, 120 D.L.R.(3d) 718 and R. v. Clarke, 2000 ABCA 246, 84 Alta. L.R. (3d) 321 to support their reasoning.

These cases are distinguishable from Ms.Jerrett’s situation. [20] In Boggs, the defendant had been disqualified from driving under a provincial statute. He was charged with two Code offencesof driving while disqualified. The Supreme Court held that the sections of the Code under which he was charged were ultra viresParliament because they added criminal consequences to provincial license suspension. The Court stated that federal penal consequencescould not attach to the breach of a provincial statute without the necessary relationship to the conduct that led to such an order.

Asimilar situation presented in Clark where the offence of driving while disqualified was held not to apply to persons disqualified fromdriving under provincial legislation. The Alberta Court of Appeal stated that absent a connection between the underlying criminalconduct and the license suspension there could not be a criminal conviction. [21] The Boggs and Clark cases differ materially from that of Ms. Jerrett’s case as her case does not involve a question of a criminalconsequence attaching to a breach of a provincial statute (the HTA).

The Code offence, or criminal consequence, in this case is forfailing to appear as ordered by the Court. The criminal conduct in question is disobeying a court order, which is a stand-alone offenceseparate from the charges under the HTA offences. Again the underlying or predicate conduct which relates to the section 145(2)(b)charge against Ms. Jerrett was her failure to appear in court in contravention of a judge’s order. The relationship between her conductand the charge is clear.

Accordingly, her guilty plea ought to have been accepted by the Judge and the SCAC Justice ought to haveallowed the Crown’s appeal to the SCAC. DISPOSITION [22] In the result, I would allow the Crown’s appeal, enter a finding of guilt in respect of the section 145(2)(

b) charge and grant anabsolute discharge to Ms. Jerrett as requested by the Crown. Appeal allowed.