R. v. Ladzinski, 2012 ONCJ 205

Citation: R. v. Ladzinski , 2012 ONCJ 205 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JACEK LADZINSKI Before Justice P.

Harris Motion to Quash Judgment delivered on April 13, 2012 Mihael Cole and Ruth Kleinhenz-Neilson................................................................for the Crown Jonthan Rosenthal.............................................................................................. for the Defence HARRIS J.: [1] The Applicant, Jacek Ladzinski is charged that on November 19 th , 2010, he did commit the offences of operating a motor vehicle while his ability was impaired by alcohol or a drug, and while the concentration of alcohol in his blood exceeded 80 mgs. of alcohol in 100 mls. of blood.

At the commencement of the trial on these charges the defence brought an application to quash the information on the grounds that it is a nullity. Submissions have been made by the Defence and the Crown and the matter is now before me for a ruling. [2] The Applicant was arrested and released from custody on a Promise to Appear by the officer in charge and that document required that he appear on December 21, 2010 at Old City Hall, Toronto. An information in this case was sworn on December 7, 2010 before a Justice of the Peace and instead of the P.T.O. being confirmed, the Justice did not confirm the P. To A.

And instead issued a summons to the Applicant returnable on December 21, 2010. The defence argues that the issuance of a summons was not permitted under s. 507 of the Code because s. 507 expressly excludes situations where an accused “ has already been arrested with or without a warrant ”. [3] It is argued that the only other procedure available in the Code for the receipt of an information is s. 507.1 which requires, inter alia, that the Justice may issue a summons only if (

a) the Justice has heard and considered the allegations of the informant and witnesses; (

b) the Justice is satisfied that the Attorney General has received a copy of the information; (

c) the Justice is satisfied that the Attorney General has been given reasonable notice of the hearing; (

d) the Justice has given the Attorney General an opportunity to attend the hearing and cross examine and call witnesses etc. That

section also requires a transcribed record of the proceedings and following a lengthy delay in this case it was established that no transcription of the proceedings before the Justice was ever made. Accordingly, since there is no evidence that these statutory steps were undertaken by the Justice, the Defence position is that a summons could not have issued. Under s. 507.1(5) if a summons does not issue, the information is deemed never to have been laid. Even though a summons did issue in this case, because the procedures in the

section were not followed, a summons could not have been issued and it is therefore argued that the summons was unlawful and the result is the same as if a summons had not issued ─ the information is deemed never to have been laid. Consequently, it is argued that there is no jurisdiction upon which a court can proceed and there can be no voluntary attornment. [4] The Crown argues that the expression “ has already been arrested with or without a warrant ” in s. 507 refers to an individual who has been arrested and held in custody and not merely arrested and released by police after the investigation.

Further the Crown argues that if there has been any defect of process in bringing the Applicant before the Court, any such defect has been cured by the attornment of the Applicant to the Court’s jurisdiction. ANALYSIS

[5] The Criminal Code sets out requirements for the swearing of an information and the issuance of process to bring a person before the court. Those provisions are set out in Sections 505 , 507 , 507.1 of the Criminal Code.

Section 505 states as follows: s. 505 . Where (

a) an appearance notice has been issued to an accused under

section 496, or (

b) an accused has been released from custody under

section 497 or 498, an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court. R.S., c. 2 (2nd Supp.), s. 5 s. 507(1 ) ... [A] justice who receives an information laid under

section 504 by a peace officer ... other than an information laid before the justice under

section 505, shall, except if an accused has already been arrested with or without a warrant, (

a) hear and consider, ex parte , (

i) the allegations of the informant, and (ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and (

b) where he considers that a case for so doing is made out, issue ... a summons ... to compel the Accused to attend before him or some other justice ... to answer to a charge of an offence. s. 507.1 ( 1 ) A justice who receives an information laid under

section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge ... or to a designated justice, to consider whether to compel the appearance of the accused on the information. ( 2 ) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information. ( 3 ) The judge or designated justice may issue a summons or warrant only if he or she (

a) has heard and considered the allegations of the informant and the evidence of witnesses; (

b) is satisfied that the Attorney General has received a copy of the information; (

c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph ( a ); and (

d) has given the Attorney General an opportunity to attend the hearing under paragraph (

a) and to cross-examine and call witnesses and to present any relevant evidence at the hea ring;

(4) The Attorney General may appear at the hearing held under paragraph (3)(

a) without being deemed to intervene in the proceeding.

(5) If the judge or designated justice does not issue a summons or warrant under subsection (2), he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to have been laid.

(6) If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.

(7) If a hearing in respect of an offence has been held under paragraph (3)(

a) and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held. (8) Subsections 507(2) to (8) apply to proceedings under this section. (9) Subsections (1) to (8) do not apply in respect of an information laid under

section 810 or 810.1.

(10) In this section, “designated justice” means a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec.

(11) In this section, “Attorney General” includes the Attorney General of Canada and his or her lawful deputy in respect of proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of that Government.

[6] The essence of the defence argument is that the Applicant had already been arrested without a warrant andconsequently the procedure set out in that

section 507 is unavailable. He further submits that where this particular procedure isunavailable, then the only remaining means of compelling his attendance in this case is set out in

section 507.1 of the Criminal Code.However, he argues, that pursuant to

section 507.1, the summons was issued without compliance with an extensive set of statutoryduties. Therefore, the Applicant submits that the summons was not properly issued resulting in an information that has been statutorilydeemed never to have been laid (s. 507.1(5)) and a jurisdiction that has been lost with the necessary result that the information should bequashed. [7] A related argument is that the Code requires that the Justice cancel the Promise to Appear before a summons can beissued. The P. to A. in this case was neither cancelled nor confirmed. The confirmation or the cancellation of the P.

To A. is, it issubmitted, a prerequisite for the use of process as set out in s. 508 of the Criminal Code and the failure to do so renders the s. 508 processunavailable as a basis for the establishment of jurisdiction for the information. Once again, since ss. 507 and 508 are unavailable insupport of jurisdiction for the information, by default, it is argued that the only available foundation for the court’s jurisdiction overthese charges must built on s. 507.1.

Section 508 provides : s. 508.

(1) A justice who receives an information laid before him under

section 505 shall (

a) hear and consider, ex parte, (

i) the allegations of the informant, and (ii) the evidence of witnesses, where he considers it desirable or necessary to do so; (

b) where he considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearancenotice, promise to appear or recognizance or to an included or other offence, (

i) confirm the appearance notice, promise to appear or recognizance, as the case may be, and endorse the information accordingly, or (ii) cancel the appearance notice, promise to appear or recognizance, as the case may be, and issue, in accordance with

section 507,either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the sameterritorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice, promise toappear or recognizance, as the case may be, has been cancelled; and (

c) where he considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice, promise to appear orrecognizance, as the case may be, and cause the accused to be notified forthwith of the cancellation. STATUTORY

INTERPRETATION [8] Statutory

interpretation is concerned with doctrines that direct how courts should interpret legislative will. The leadingdecision in this area of law is Re: Rizzo and Rizzo Shoes Ltd. (SCC), [1998] 1 SCR 27. The Supreme Court held that: ... today there is only one principle or approach ─ namely that the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. [9] The linchpin of the defence position is that s. 507 and s. 508, for the reasons stated, cannot provide the Crown with ajurisdictional foundation for a valid information in this case and s. 507.1 has not been complied with resulting in an information that isstatutorily “deemed never to have been laid”. I have concluded that this

interpretation of the Code gives rise to an absurd result andcannot be consistent with the intention of Parliament for the following reasons:

(1) In my view the police could not have used

section 507.1 to issue process to secure the Applicant’s attendance because the

section isexclusively restricted to an “information... other than an information referred to in section 507(1)”. In other words it precludes the optionof a police-laid information. The Code sections operate together as a cohesive system that permits the policing authorities to have processissued on an information (s. 507), that provides for a procedure to have process issued on a private complaint (s. 507.1) and provides fora procedure to permit a peace officer to apply to a Justice to confirm or cancel process that has already been issued by a peace officer orofficer in charge (s. 508).

Logic dictates that the information in the instant case was laid under s. 504 and a summons was issued under s.507 because it could not have been presented by a police officer under s. 507.1 because the latter

section only applies to “privateprosecutions” and it could not have been laid under s. 505 with a summons issuing under s.

section 508 because that procedure provides

for the confirmation or cancellation of process that has already issued and in this case the P. To A. was neither confirmed nor cancelledas that

section requires.

Section 507.1 clearly relates to private informations that must be subjected to a pre-enquette. The statutorypurpose of

section 507.1 is to screen out potentially vexatious private prosecutions, which is why the

section has such elaborateprotections involving notice to the Attorney General etc. It would be absurd to expect police officers to undertake such time-consumingand complicated procedures in order to bring an accused before the court to face charges. Such a protracted process could hardly havebeen Parliament's intention.

(2) I agree with the

interpretation of s. 507 helpfully articulated by Swarzl J. in R. v. Drozd [2011] O.J. No. 616 (OCJ) who concludedthat the phrase "except if an accused has already been arrested with or without a warrant" in section 507(1) “refers to someone who iscurrently under arrest when the Information is laid”. I would add the implied phrase after the word “arrested”: “and detained at the timethe information is laid”. Any other

interpretation would render the police procedure under s. 507 a purposeless anomaly reserved foronly the most minor offences where there has been no arrest whatsoever. For example, virtually every accused facing drinking anddriving charges is arrested and detained at least briefly for the purpose of an investigation of blood alcohol levels, and if the defenceinterpretation were correct the unencumbered process in s. 507 would hardly ever be available to police authorities intending to bring animpaired driver to justice.

If an accused is still in detention after arrest when an information is laid, he or she will likely proceed to a bailhearing and accordingly, the issuance of process is unnecessary and s. 507 should properly be excluded for an accused for whom s. 507does not apply. He or she is a person who “has already been arrested with or without a warrant" (and is still detained). Any otherinterpretation would be illogical and render

section 507 pointless and ineffectual.

(3) The battle continues as to whether the Gougeon line of authority or the Oliveira line of authority will prevail. (See: R. v. Gougeon,Haesler and Gray, (1980), (ON CA), 55 C.C.C. (2d) 218 (Ont. C.A.); R. v. Oliveira 2009 ONCA 219 ,(2009), 243 C.C.C. (3d) 217 (Ont. C.A.). In my view the body of case authorities that support the quashing of charges for proceduralirregularities is currently on life support, particularly where there has been a subsequent attornment to the court’s jurisdiction.

I am of theview that the Ontario court of appeal in Oliveira has decided the issue correctly in its finding that, (at para. 30): The purpose of the promise to appear is to secure the initial attendance of the accused in court. Subsequent court attendances arepursuant to court orders. A defect in the promise to appear, or the process required to confirm a promise to appear, will not affect thevalidity of the information charging the offences referred to in the promise to appear.

Nor will those defects affect the Crown’s ability toproceed on the charges referred to in the promise to appear, or the ultimate disposition of those charges: see Criminal Code, ss.485(2),(3). In short, after the first appearance of an accused, the promise to appear is largely irrelevant to the criminal process.

If I am incorrect in my view that there has been no procedural irregularity in this case, on the authority of Oliviera, the defendant’ssubsequent attornment to the jurisdiction of the court over the course of some three appearances before this Application was brought, hasthe effect of curing any defective procedure and as the Ontario Court of appeal in Oliveira stated: the procedure involving the laying ofthe charge and the issuance of process is largely irrelevant at the trial stage of proceedings. To give effect to an application to quash atthis stage would constitute a triumph of form over substance: R. v.

Jennifer Millar 2012 ONSC 1809 (Ont S.C.). [10] Accordingly, as a result of the above conclusions, the motion to quash is dismissed. Released: April 13, 2012 P. A. Harris J.