R. v. K.(R.), 2011 ONCJ 129

Citation: R. v. K.(R.), 2011 ONCJ 129 ONTARIO COURT OF JUSTICE This is the matter of an application brought ex parte by the Crown pursuant to s. 810.2 of the Criminal Code of Canada seeking anorder. B E T W E E N: HER MAJESTY THE QUEEN -and- R. K. DECISION (ex parte) Delivered on February 17, 2011 WRIGHT, J.: Paragraph s. 810.2(1) provides that “Any person who fears on reasonable grounds that another person will commit a serious personalinjury offence, as that expression is defined in

section 752, may, with the consent of the Attorney General, lay an information before aprovincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed arenamed. The applicant Crown’s office in this case takes the position that the above-noted subsection requires that the information in support ofthe application under the subsection must be sworn before a judge of the provincial court. The applicant takes this position because of the wording in the subsection which stipulates that the applicant may lay an informationbefore a provincial court judge.

The various sections of the Criminal Code authorizing orders or warrants does not apply a uniform wording.

For example, under s. 487.01 (1) the so called information for a general warrant, the application can be brought before a provincial courtjudge or a judge of the superior court or a judge defined under s. 552 who may in turn issue a warrant if, (a) “the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this orany other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the useof the technique, procedure or device or the doing of the thing;” A similar wording to our

section however can be found under

section 505 which provides “an information relating to the offence allegedto have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laidbefore a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear orrecognizance issued to or given or entered into by the accused for his attendance in court.” For those who have observed criminal proceedings for any length of time will have seen the difficulties which may have beenencountered at subsequent court proceedings where an informant appears before a justice with an unsworn information has the justice ofthe peace swear the information and proceed to issue the process being sought.

The difficulty is that in many cases this may be done“off the record” and memories being what they are, the informant subject to cross-examination months or potentially years down theroad may not be able to provide any kind of adequate record of any questions or answers asked or given falling outside the “four corners”of the information. This issue was dealt with in a decision of R. v. Thurston

(1998) O.J. 1731. This was a case where the focus of the inquiry was a warrantissued by a justice. The justice had been provided with an unsworn information and proceeded to question the informant andamendments were provided, however the exchanges between the justice and the informant police officer were not recorded. JusticeMcGowan of our court held that it was the justice’s duty to critically review the information to search and to indicate possibledeficiencies but that the justice must also be aware that there is a fine line acting as an independent judicial officer and as an agent topolice.

She pointed out that changes or an amendment to an information to search must be subject to scrutiny. She suggested that “itwould be preferable for a justice to receive an information already sworn, review it and either issue or decline to issue the warrant”. In so ruling, Justice McGowan was making a very practical suggestion, so that there could be no suggestions raised at a later date that theissuing justice considered anything outside of the four corners of the affidavit material in support of the information.

This case has beenfollowed in practice by many but not all judges of our court since the import and significance of Justice McGowan’s suggestion becamereadily apparent. Likewise, R. v. Thurston has been followed by two British Columbia decisions R. v. Hallman (2001) 2001 BCSC 1355 , B.C.J.No. 1966 and R. v. Martens (2004) 2004 BCSC 1450 , B.C.J. No. 2300. See also R. v. Gray (MAN. CA) (1993) (MB CA), M.J. No. 248. Two approaches follow therefore, 1. In which a sworn document is “presented” to the issuing justice who may then either choose to issue the warrant order as the case

may be or decline to do so within the four corners of the materials submitted and without the necessity of seeing the informant orcounsel. 2. The other approach might be to open court and hear the ex parte application under oath and on the record so that a record would beavailable of the evidence presented for future reference. Obviously the practical approach suggested in the first procedure is preferable in that it does not require scheduling of court time, a courtreporter and does not take up the time and attendance of the justice, Crown and informant in having to come to court.

Rather theinformation can be reviewed together with Crown counsel and left at judges’ chambers and over the course of appearances in and outwhat is often a busy court the justice will have the opportunity of reviewing and making a determination. This commends itself inparticular to a court location where a number of orders may be sought in such a fashion ex parte on a regular basis. If the

interpretation advanced by crown counsel in this case is a correct one that the “laying of an information” requires that theinformation be sworn before the issuing court judge then this first procedure would not be available, but the second more cumbersomeoption would be available. With respect, I do not agree with this

interpretation. I do not think that “laying of an information” means that the information must besworn by the issuing justice. Before providing my reasons for this opinion, I think in fairness, that the

interpretation by Crown counselis not an uncommon one. Many of those working in the criminal justice system are of the view that “laying of an information” meansswearing the information. Where does this view come from? Over the years a practice has developed in many jurisdictions in this province, in particular in thesmaller court locations for the informant to present them before the justice as a convenience have the justice swear the information whichis presented. There may have been in some locations no other officer who was available to swear the supporting documentation.

I thinkin practice this has changed with many police offices having commissioners for oath and we regularly see orders for the production ofprisoners, for example, sworn “in house” by police commissioners. Likewise for orders like that being sought before this court onewould expect that all material would be reviewed in advance by assigned crown counsel who are again commissioners for taking ofoaths. So that in the past where as a convenience justices would have routinely sworn the information which was being presented tothem that historical process does not mean that it is necessary to continue to do so.

Section 785 of the Criminal Code defines an “informant” as a person who lays an information and an “information” as, “(

a) a count in an information, and (

b) a complaint in respect of which a justice is authorized by

an Act of Parliament or an enactment made there under to make an order.” The Criminal Code does not define “laying”.

In Allen Mewett’s, An Introduction to Criminal Process in Canada, states that “often, the only material he has before him is theinformation and a police officer’s statement; sometimes he will require a sworn statement; sometimes he will examine the informantunder oath or hear other evidence.” In Salhany’s, Criminal Procedure “the expression to lay an information means essentially no more than to present an accusation inwriting before a justice of the peace.” In Ewaschuck’s, Criminal Pleadings and Practice in Canada we see “the laying of Information is the “first step”, by way of a hearingbefore a judicial officer.

Clearly there must be seen as a distinction between a justice signing the process or order and signing or swearing the document insupport of the order. They are clearly two different steps: the information is presented, and it may be a sworn statement or theexamination of the informant under oath or other evidence. Black’s Law Dictionary defines “lay” as to allege or to assert not to swear. The Canadian Oxford Dictionary defines “lay” as place orpresent for consideration (a case, proposal, etc.). The French language found under s. 810.1 (1) uses “peut deposer une denunciationdevant juge d’une cour provinciale”.

Deposer again does not equate as swearing but to lay down, to put down, to deposit, to drop off, toleave, to register, to file. See R. v. Longmire

(1992) N.S.J. No. 626 and R. v. Ingram

(2005) A.J. 448. Both stand for the proposition that an informant is notrequired to physically sign an information in the presence of a justice but in fairness in both cases the justice purports as well to swear theinformant. I am further reinforced in my view by a decision of our Court of Appeal in R. v. Allen (1974) (ON CA), O.J. No. 998,at paragraph 2, “The factual background is not in dispute. The informant, one Ronald Maguire, appeared before a Justice of the Peace on April 16,1974 and swore two informations. A hearing was held by that Justice of the Peace on April 28, 1974, under

section 455.3 of the Criminal Code, and at that time the Justice of the Peace refused to issue a summons on the informations and indeed purported to cancel them.”

And further at paragraph 6, “In our view the determination which is made by the Justice under

section 455.3(1) is a determination, to be made judicially, whether onthe evidence which is placed before him upon that hearing a case for the issue of a summons has been made out. It has no further effect.

If he refuses to issue a summons, the information still stands, and the complainant is entitled to attend before the same oranother Justice of the Peace on a subsequent occasion with additional evidence, and to request the issue of a summons on the basis of theevidence which is presented on that subsequent day.” In this decision even though one justice had “sworn” the information there was no concern or confusion whatsoever on the part of theCourt of Appeal that a second justice receiving the information was entitled to issue process.

This could not be so if “the laying of theinformation” required that the justice in this case, the second justice swore the information. A similar conclusion was reached in R. v. Bachman (1979) (BC CA), B.C.J. No. 1974 (B.C.C.A.). For these reasons, I am of the view that “the laying of an information” does not mean that a provincial court judge is required to meetwith the informant and to swear the basis upon which the process is sought. I am of the view rather that the procedure advocated byJustice McGowan would still apply to this particular

section of the code and that a judge of the provincial court may choose to meet withthe information if he or she wishes to, that the judge may convene a court to protect the integrity of the process or they may choose thefirst procedure suggested by Justice McGowan of having the documentation received completed and sworn so that the determination canbe seen on the record to be made within the four corners of the application. For these reasons, I am of the view that the procedure being advanced today by the Crown does not follow from a reading of the codeand the authority cited.

Accordingly, I am of the view that I am not in any way precluded from declining to swear the informant and Iam returning the materials to the office of the crown attorney so that they may have a proper affidavit prepared and sworn, or in thealternative, to request that the matter be dealt with in open court or to take whatever further and other steps they may deem appropriateand necessary in the circumstances in light of this ruling. Dated at Ottawa, Ontario this 17th day of February, 2011. _______________________________________ Honourable Justice J. Peter Wright