R. v. Poole, 2019 BCPC 219

Citation: R. v. Poole 2019 BCPC 219 Date: 20190318 File No: 8845 Registry: Tsay Keh Dene IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GILBERT POOLE RULING ON APPLICATION OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: M. West Counsel for the Defendant: S. Grey Place of Hearing: Tsay Keh Dene , B.C. Date of Hearing: February 27, 2019 Date of Judgment: March 18, 2019 [ 1 ] Gilbert Poole is charged on Tsay Keh Dene Information 8845 with impaired driving and with driving with a blood alcohol concentration in excess of 80 mg of alcohol in 100 mL of blood. Mr. Poole appeared in Tsay Keh Dene Provincial Court on October 24,

2018. His case was adjourned to February 20, 2019. [2] Tsay Keh Dene Provincial Court is a circuit court. The court sits in that community three times each year, generally inFebruary, June and October. Court sittings are scheduled in advance, and typically do not change once scheduled. When Mr. Pooleappeared in court, the circuit court was next scheduled for the week of February 18. [3] In this instance, however, the circuit court sitting for the month of February was rescheduled from the week of February 18 tothe week of February 25. The decision to reschedule the February sitting was made sometime after Mr.

Poole appeared on October 24.As a result, the Court was not sitting in Tsay Keh Dene on February 20, 2019, and nothing was done with respect to Mr. Poole'sInformation. [4] Mr. Poole's Information was in court on February 27, 2018, though. When the case was called, he did not appear. His counselwas present, but she had no instructions from him. Crown Counsel asked that a warrant for the arrest of Mr. Poole be issued undersection 512 of the Criminal Code. Mr.

Poole's counsel questioned whether the court had jurisdiction over the offence, or whether thatjurisdiction had been lost when nothing was done on February 20. [5] It has long been the law that a statutory court (like the BC Provincial Court) may lose jurisdiction when an accused person isremanded or an Information is adjourned to a date on which the court fails to proceed. See, for example, Trenholm v. A.G.

Ont., (SCC), [1940] SCR 301, in which the court lost jurisdiction over the offence when the date of adjournment or remand passedand nothing was done. [6] The law drew a distinction between a loss of jurisdiction over the accused, and a loss of jurisdiction over the offence. A courtmight lose jurisdiction over the accused when an adjournment was made in a manner that did not comply with the Criminal Codeprovisions regarding adjournments and remands.

By contrast, the court might lose jurisdiction over the offence when the date to whichthe Information is adjourned comes and goes without any hearing or appearance, or "with nothing done." [7] Parliament addressed the problem of loss of jurisdiction generally when it enacted

section 440.1 by S.C. 1974-75-76, c. 93, s.43 on May 7, 1976. At the time of enactment, that

section read in part: s. 440.1(1) The validity of any proceeding before a court, judge, magistrate or justice is not affected by any failure to comply with theprovisions of this Act relating to adjournments or remands, and where such failure has occurred and an accused or a defendant does notappear at any such proceeding or upon any adjournment thereof, the court, judge, magistrate or justice may issue a summons or, if it orhe considers it necessary in the public interest, a warrant for the arrest of the accused or defendant. [8] The Supreme Court of Canada was called upon to interpret

section 440.1(1) in R. v. Krannenburg, (SCC),[1980] 1 SCR 1053. The facts were quite similar to the case at bar, and in the result the Court held that the trial court had lost jurisdictionover the offence. [9] Ms. Krannenburg was charged with driving with a blood alcohol concentration that exceeded 80 mg of alcohol in 100 mL ofblood. Her case was adjourned to trial at 2:00 p.m. in a particular courtroom on a particular date. When that date arrived, however, hercase was called at 10:00 a.m. in a different courtroom. When the case was called and Ms. Krannenburg did not appear, a warrant wasissued for her arrest.

Unaware of that development, Ms. Krannenburg appeared at 2:00 p.m. in the courtroom she had been scheduled toappear in. Her name was not on the court list. Crown Counsel told Ms. Krannenburg's counsel that he knew nothing about the charge.Ms. Krannenburg and her counsel left the courthouse. [10] Mr. Justice Dickson (as he then was) delivered the judgment of the Court. He confirmed the distinction between the loss ofjurisdiction over the person of the offender and the loss of jurisdiction over the offence, but also held that

section 440.1 could not beinterpreted as embracing both eventualities. "It was not so worded as to save jurisdiction over the offence when the court had not acted."(Krannenburg, supra, para 18.) [11] If that was the end of the story, this court would have lost jurisdiction over the offence in the case at bar on February 20, 2019,because the judgment in Krannenburg would be binding on this Court. That is not the end of the story, however. [12]

Section 440.1 was re-enacted as

section 485, and then subsequently repealed and replaced by the Criminal Law Amendment Act, RSC 1985 c. 27 (1st Supp.) in 1985. Section 485 (1) was replaced with the following: S. 485(1) Jurisdiction over an offence is not lost by reason of the failure of any court, judge, provincial court judge or justice to act in theexercise of that jurisdiction at any particular time, or by reason of a failure to comply with any of the provisions of this Act respectingadjournments or remands. [13] That

section has not been amended since 1985. [14] On February 20, because of rescheduling, there was a failure of this court to act. The question in Mr. Poole's case is whether thejudgment of the Supreme Court of Canada in Krannenburg continues to apply, or whether the

section as amended can be interpreted ascovering both improper adjournments (leading to loss of jurisdiction over the offender) and failures to act (leading to loss of jurisdictionof the offence). [15] I am satisfied that the plain meaning of section 485 (1) extends that section's application to remedy the possible loss ofjurisdiction from a failure to act, as well as the possible loss of jurisdiction from an improper adjournment. [16] I was not provided with authorities when this issue arose on February 27.

Given the limited resources available to counsel atTsay Keh Dene Provincial Court, this is not at all surprising. Although I could not find cases from this province, I have read severalcases from other provinces which support this

interpretation, including R. v. Jarvis, (NS CA), [1986] NSJ No. 429(NSCA).

[ 17 ] Accordingly, I find that this Court did not lose jurisdiction over the offence on February 20, and that it is appropriate to consider the Crown's application under

section 512 . [ 18 ] The Crown applied for a warrant for the arrest of Mr. Poole. There is no suggestion that he is wilfully avoiding the court process, or even that he did not come to Tsay Keh Dene on February 20 to deal with these charges. He has no significant record of convictions for failing to attend court in the past. In all the circumstances, there are reasonable grounds to believe that it is in the public interest to issue a summons for the next sitting of the circuit court, but not a warrant for his arrest. [ 19 ] A summons will issue for Mr.

Poole to attend court in the Tsay Keh Dene Provincial Court at 2:00 p.m. on Wednesday, June 26, 2019. ____________________________ The Honourable Judge R. Hewson Provincial Court of British Columbia