R. v. City of Toronto, 2011 ONCJ 131

ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: ) ) ) ) ) ) ) ) ) ) ) ) ) ) HER MAJESTY THE QUEEN J. Herlihy For the Crown — AND — D. Thomson CITY OF TORONTO For the Defendant Heard: March 9, 2011 Citation: R. v. City of Toronto , 2011 ONCJ 131 REASONS for RULING GREEN, J.: A. INTRODUCTION [ 1 ] Sometimes things get lost. Sometimes they are never found again. And sometimes they never existed in the first place. [ 2 ] The thing here at issue is the Information – an original, signed and sworn version of the document setting out the charges faced by the defendant corporation.

In the absence of this foundational document the defence says that this court has no jurisdiction to conduct a trial and there is no case for the defendant to answer. Crown counsel is of a different view: whether or not, he says, the original Information is irretrievably misplaced, there can be no doubt it once existed and no prejudice is occasioned the defence in proceeding on a copy in the absence of the original. B. EVIDENCE [ 3 ] I have before me a purported copy of an Information said to be sworn in Toronto on November 25, 2008. It bears the signature of one L.M.

Park, the Informant, and the signature of Justice of the Peace Lynn Tivey before whom the Information was sworn. The Information sets out two offences pursuant to the Ontario Water Resources Act , one related to the discharge of sewage and the second to the improper use or operation of a sewage works. The City of Toronto is the named defendant in both counts. Both offences relate to conduct said to have occurred in December 2006.

There is a two-year limitation period on the commencement of such proceedings. [ 4 ] David Grisbrook is a designated provincial officer under the Environmental Protection Act and a regional investigation specialist with the Investigation and Enforcement Branch (IEB) of the Ministry of the Environment (MOE). He avers that he reviewed the IEB file related to this matter and therein located a copy of an Information sworn on November 25, 2008 by an investigator then under his supervision, the now-retired Larry Park.

That Information, which Grisbrook attaches to his affidavit, is identical to the one that rests in my court. The defendant accepts that a Summons (a copy of which is also appended to Grisbrook’s affidavit) was issued that same day by Justice Tivey and promptly served on the defendant. That Summons (a copy of which includes Justice Tivey’s endorsement) asserts on its face that “a copy of [the Information] is attached”.

The Summons commanded the defendant to attend at a Provincial Offences Act (POA) courthouse in Scarborough on January 15, 2009. [ 5 ] The defendant, represented by counsel, appeared in answer to the Summons on January 15, 2009 and, pursuant to repeated remands, on many occasions thereafter. Initial disclosure was provided to the defendant’s counsel on January 23, 2009. Additional disclosure was twice subsequently provided to the defence in response to requests from the same counsel.

By notice dated December 14, 2009, the Crown advised that adjudication of the matter required the services of a judge, rather than a justice of the peace, of the Ontario Court of Justice. As such trials are held at the Old City Hall courthouse, arrangements were made to transfer the Information from the Scarborough courthouse to that at Old City Hall. A judicial pre-trial was held with Regional Senior Justice Bigelow on January 19, 2010 and the defendant, again through counsel, first appeared in an Old City Hall court on January 21, 2010. The matter was remanded to March 30, 2010.

Counsel for the Crown and the defendant were present on that date. The original Information was not. The administrative staff at Old City Hall conducted an “exhaustive search” for the original Information, but to no avail. Further searches proved equally futile. The manager of court support at Old City Hall has concluded that the original Information will not be found. No further searches are contemplated. [ 6 ] In total, the defendant has appeared in answer to the charges on at least 18 occasions, both before and after it was determined that an original Information could not be located.

In addition, some seven judicial pre-trials have been conducted with Justice Bigelow since the matter was traversed to Old City Hall courthouse.

C. ANALYSIS [7] This is hardly the first occasion in the annals of Canadian criminal and regulatory jurisprudence that an Information has gonemissing. To be clear, I am satisfied that an Information was properly sworn charging the defendant with the two aforementioned POAoffences.

My confidence in its existence, at least at one time, rests on: • The existence of a copy (replete with an endorsed jurat) as a routine business record in the files of the MOE; • The repeated, unquestioning and unqualified attendances of counsel for the defendant in the POA courthouse in Scarborough toanswer the charges; • The recognition on March 30, 2010, as attested to by Grisbrook, that that the Information was then not available, from which Iinfer that it earlier was; • The absence of any evidence that the relevant Information was destroyed or otherwise physically extinguished; • The issuance of a judicial summons.

As a sworn Information is a pre-requisite to the issuance of a summons, the summons affordsindependent evidence that the Information was in fact sworn; and • The presumption of regularity. [8] As the loss of the Information was not anticipated, no certified copy was ever made of it. The neat legal question thendevolves to whether a photostatic copy of the Information will serve as a functional surrogate for the original Information where, as here,the original has not since been located. [9] In R. v.

Veltri (1986), 17 O.A.C. 81, a justice of the peace held she had no jurisdiction to proceed with a matter as theinformation at issue was not physically before her. Speaking for the Court, Dubin J.A. (as he then was), determined that the justice had, …erred in law since it is well established that, provided that there is an information in existence, the Court’s jurisdiction does not dependon the information being physically present in the courtroom. R. v. Nedelkof (1998), 38 M.V.R. (3d) 30 (O.C.J. (G.D.), R. v. Baert (1981), 1981 ABCA 41 , 28 A.R. 313 (C.A.), at paras. 10-12; leave refd. [1981] S.C.C.A.

No. 207, Vaughn (City) v. Antorisa Investments, [2010] O.J. No. 3351 (S.C.) and (in considered obiter)R. v. Meng, 2001 CarswellOnt 3819 (Ont. S.C.), esp. at paras. 16-18, R. v. Perrault (1982), (SK CA), 65 C.C.C. (2d)279 (Sask. C.A.), and R. v. Ciulla, [2005] O.J. No. 5751 (C.J.), at para. 6, are to like effect. Given my satisfaction that “there is aninformation in existence”, I see no jurisdictional impediment to the defendant’s trial proceeding. [10] I note, in addition, that ever since R. v. City of Sault Ste.

Marie, (SCC), [1978] 2 S.C.R. 1299, our courts andlegislatures have recognized a distinction between truly criminal and regulatory offences such as those faced by the defendantcorporation. (See, by way of legislative illustration, s. 2(1) of the POA.) As said by a unanimous Supreme Court in Sault St. Marie in itsdiscussion of regulatory or public welfare offences, “the punctilio of an earlier age is no longer to bind us. We must look for substanceand not petty formalities.” (See, also, R. v. Saragosa, 2008 CarswellOnt 7114 (S.C.), at para. 28, and R. v. Scarcello, [2004] O.J.

No.1002 (S.C.), esp. at paras. 10 and 17. Further, it is difficult to conceive of any prejudice – in the sense of unfairness – being suffered bythe defendant as a consequence of proceeding on a copy of an Information that has been misplaced. To hold otherwise than as urged bythe Crown would represent a triumph of form over both substance and function. D. CONCLUSION [11] In the result, I am satisfied that I have jurisdiction to proceed with the matter before me. Released on March 22, 2011 __________________________ Justice Melvyn Green