HER MAJESTY THE QUEEN — v. —, 2021 ONCJ 493

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. A.S ., 2021 ONCJ 493 DATE: 2021 09 23 COURT FILE No.: Brampton 21-4275 BETWEEN: HER MAJESTY THE QUEEN — AND — A.S. Before Justice Paul F. Monahan

Heard on September 10, 2021 Reasons for Judgment released on September 23, 2021 R. Raeesi............................................................................................... counsel for the Crown R. Singh Bal............................................................................. counsel for the accused A.S. MONAHAN J.: Introduction and Overview [ 1 ] The defendant brings this application for an order dismissing this proceeding for want of prosecution pursuant to the provisions of

section 485 and 485.1 of the Criminal Code . [ 2 ] At the outset of the hearing of this application I raised the question as to what the evidence was on the application. The applicant/defendant had served an unsworn affidavit from an employee of the defendant’s law firm and the Crown had filed a factum in response making various allegations of fact but filed no evidence. The parties ultimately agreed that paragraphs 4, 5, 6 and 7 of the Crown’s factum dated September 2, 2021 accurately summarized some of the agreed facts.

Further, paragraphs 2, 3 and 4 of the unsworn affidavit filed by the defence as well as a copy of the undertaking entered into on July 7, 2020 were agreed to properly form part of the record as further agreed facts. [ 3 ] With those agreements in place, the facts can be summarized as follows: [ 4 ] A.S. was arrested by Peel Regional Police on July 7, 2020 and released on an undertaking in form 10 from the police station with a first appearance date of September 14, 2020 at the Brampton courthouse.

The undertaking indicates that it is alleged that A.S. has committed the offences of sex assault, extortion, identity theft and fraud over. [ 5 ] On September 14, 2020, the defendant’s counsel’s agent appeared in the Brampton Ontario Court of Justice but there was no information before the court and no trace of any existing information on the Court’s database. [ 6 ] On March 30, 2021, Peel Regional Police uncovered the fact that due to an administrative failure, no information had been laid. An information was sworn for the first time and a summons was issued compelling the applicant’s attendance.

Justice of the Peace Brar issued the summons on March 30, 2021 returnable May 18, 2021. [ 7 ] The applicant was served with the summons on March 30, 2021. On May 18, 2021, the applicant’s counsel’s agent appeared in courtroom 104 in Brampton. The matter was adjourned and this application subsequently scheduled. Positions of the Parties [ 8 ] The defendant submits that there was a loss of jurisdiction in this case by reason of the failure to have a sworn information before the court on September 14, 2020.

The defendant, relying on s. 485 (2) submits that the prosecution had three months after that time to regain jurisdiction through the swearing of an information and the issuance of a summons or a warrant for the arrest of the defendant. Having not done so, the defence submits that there is deemed dismissal for want of prosecution, relying on s. 485(3).

The defence submits that the Crown’s only option is to seek the consent of the Attorney General or the Deputy Attorney General for the laying of a new information pursuant to the provisions of s. 485.1. [ 9 ] The Crown submits that for jurisdiction to be lost, there must be an information in existence. The Crown submits that no information was sworn until March 30, 2021 and a summons was issued at that time returnable May 18, 2021. The Crown submits that jurisdiction was not lost on September 14, 2020 or at anytime because jurisdiction was not acquired until the information was sworn.

The Crown submits that the remedy that the defendant has in this case is a claim for pre-charge delay pursuant to

section 7 and/or

section 11(

b) of the Charter . Discussion and Analysis [ 10 ] There are two types of jurisdiction: jurisdiction over the person and jurisdiction over the charge. Requiring a person’s attendance at a future date amounts to an exercise of jurisdiction over the person. The remanding of a charging document is an exercise of jurisdiction over the charge: see R. v. Martyn 2017 ONSC 5430 at para 12 . [ 11 ] In this case, the defendant was arrested on July 7, 2020 and released on an undertaking. This release presumably occurred pursuant to the provisions of s. 498(1)(c). [ 12 ] I have set out in the Appendix to these reasons the relevant provisions of the Code .

Section 505 provides as follows: If an appearance notice has been issued to an accused under

section 497, or if an accused has been released from custody under

section 498 or 503, 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 them shall be laid before a justice as soon as practicable after the issuance or release, and in any event before the time stated in the appearance notice or undertaking for their attendance in court . (my emphasis)

[13]

Section 508 contemplates that an information will be placed before a Justice under

section 505 and the Justice will either confirmthe appearance notice or undertaking and endorse the information or cancel the appearance notice or undertaking and issue a summons orwarrant. [14] The Ontario Court of Appeal in R. v. Ladouceur 2013 ONCA 328 at paragraph 18 had this to say about the failure to complywith the time limit for the laying an information under

section 505: In the event of a failure to comply with the time limit for laying an information under

section 505, the law is well settled that thepromise to appear is defective and non-compliance with

section 505 provides a complete defence to a charge of failure to appear asdirected by the promise to appear. However, the defect does not affect the validity of the information. In a nutshell, jurisdiction is lostover the person but not over the offence; that is, the validity of the information survives a defect in the process. See R. v. Naylor(1978), (ON CA), 42 C.C.C. (2d) 12 (Ont. C.A.) and R.

Markovic (2005), (ON CA), 200 C.C.C.(3d) 449 (Ont.C.A.) (my emphasis). [15] The Court of Appeal made a similar point at paragraph 19 of Ladouceur when it said “a failure to conform to the requirements ofsection 508 results in a defect in the process and a loss of jurisdiction over the person” (my emphasis). [16] There are some similarities in the case at bar to the Markovic case. In Markovic, the person was arrested March 29, 2003 andreleased on a promise to appear returnable at 10 am on May 2, 2003.

A student for counsel for the defendant appeared on May 2, 2003 at10 am and there was no information before the Court. The student filed a designation and was excused.

Later in the day on May 2, 2003at 2 pm, an information was sworn, a promise to appear confirmed, the information endorsed and a discretionary bench warrant issuedfor May 6, 2003 at which time the student appeared for counsel for the defendant and took the position the Court had no jurisdiction.The justice of the peace remanded the case to another day. [17] The Court of Appeal in Markovic held that the failure to comply with s. 505 did not invalidate the information or result in a lossof jurisdiction over the offence (see paragraph 25).

However, the Court does acknowledge that a failure to comply with s. 505 can resultin loss of jurisdiction over the person which can be cured if accused appears at their trial (see paragraph 11 which contains a Crownadmission in that case and paragraph 24).

In Markovic, the loss of jurisdiction over the person was apparently cured by the defendant’ssubsequent appearance in response to the bench warrant. [18] In Markovic and Ladouceur there were losses of jurisdiction over the person, but these were remedied when the person attendedcourt, and this was done within days after the loss of jurisdiction (see for example Ladouceur at para. 31).

Neither of these casesaddressed the role of s. 485 when there is a loss of jurisdiction over the person nor do they address a situation like here where theinformation is sworn more than 6 months after the return date on the undertaking. [19] Here, an undertaking was given by the defendant on July 7, 2020 with a court date of September 14, 2020. Following the Courtof Appeal in Ladouceur and Markovic, the failure to put in information before the Court on September 14, 2020 and no informationbeing in existence, resulted in a loss of jurisdiction over A.S.

The Crown/police could have remedied that loss of jurisdiction by havingan information sworn and summons issued (or warrant) within three months of the loss of jurisdiction thereby complying with theprovisions of s. 485(2). [20] I note that s. 485(2) specifically refers to a loss of jurisdiction “over an accused or defendant”. In my view, the Crown finds itselfsquarely within s. 485(2) and they have failed to comply with it. [21] The Crown submits that no jurisdiction could be lost over the defendant because no jurisdiction was ever acquired over him asthere was never an information before the Court.

This is not consistent with observations of the Court of Appeal in Ladouceur andMarkovic which specifically say there is a loss of jurisdiction over the person when there is a failure to comply with s. 505. I note that inMarkovic the situation was similar to the case at bar, as there was no information in existence at the time the promise to appear wasreturnable. This resulted in a loss of jurisdiction over the person in Markovic which was quickly regained.

The Crown’s submission thatthere must be an information in existence before there can be a loss of jurisdiction is inconsistent with Markovic where there was noinformation until after the first appearance (it was sworn later that day). [22] The Crown relies on some of the dicta in R. v. Wilson 2015 SKCA 58. That case was dealing with an entirely different factsituation. The Court was not addressing a situation like the case at bar where there was a clear failure to have an information before theCourt at the time of the first appearance and a subsequent failure to do anything for six months.

That case does not stand for theproposition that there can be no loss of jurisdiction over the person unless and until there is an information in existence. [23] I adopt as correct the decision of my colleague Justice Mara Greene in R. v. Ferriera 2014 ONCJ 617. In that case, there no wasinformation in the Court at the time of the first appearance either because it was mislaid or did not exist. The accused heard nothing for ayear after the first appearance date when they received a summons.

Justice Greene held that s. 485 gave rise to a deemed dismissal asthere was no summons issued within 3 months after the loss of jurisdiction. [24] In my view, there was a loss of jurisdiction over A.S. in this case on September 14, 2020 because there was a failure to complywith s. 505 as no information was sworn before the return date on the undertaking. The Crown then failed to comply with s. 485 (2). Inmy view,

section s. 485 (3) operates to deem a dismissal for want of prosecution . [25] The option for the Crown is to seek the consent of the Attorney General or the Deputy Attorney General to the laying of a newinformation. In the circumstances, there will be dismissal of the charges on the information sworn in March 2021. Released: September 23, 2021

Signed: Justice Paul F. Monahan Appendix 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 the exercise of that jurisdiction at any particular time, or by reason of a failure to comply with any of the provisions of this Act respecting adjournments or remands. When accused not appearing personally

(1.1) Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as the provisions of this Act or a rule made under

section 482 or 482.1 permitting the accused not to appear personally apply. Summons or warrant

(2) Where jurisdiction over an accused or a defendant is lost and has not been regained, a court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue a summons, or if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant. Dismissal for want of prosecution

(3) Where no summons or warrant is issued under subsection (2) within the period provided therein, the proceedings shall be deemed to be dismissed for want of prosecution and shall not be recommenced except in accordance with

section 485.1. Adjournment and order

(4) Where, in the opinion of the court, judge, provincial court judge or justice, an accused or a defendant who appears at a proceeding has been misled or prejudiced by reason of any matter referred to in subsection (1), the court, judge, provincial court judge or justice may adjourn the proceeding and may make such order as it or he considers appropriate.

Part XVI to apply

(5) The provisions of

Part XVI apply with such modifications as the circumstances require where a summons or warrant is issued under subsection (2). 485.1 Where an indictment in respect of a transaction is dismissed or deemed by any provision of this Act to be dismissed for want of prosecution, a new information shall not be laid and a new indictment shall not be preferred before any court in respect of the same transaction without (

a) the personal consent in writing of the Attorney General or Deputy Attorney General, in any prosecution conducted by the Attorney General or in which the Attorney General intervenes; or (

b) the written order of a judge of that court, in any prosecution conducted by a prosecutor other than the Attorney General and in which the Attorney General does not intervene. 498

(1) Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in

section 469, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if

(

a) the peace officer intends to compel the person’s appearance by way of summons; (

b) the peace officer issues an appearance notice to the person; or (

c) the person gives an undertaking to the peace officer. … 505 If an appearance notice has been issued to an accused under

section 497, or if an accused has been released from custody under

section 498 or 503, 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 them shall be laid before a justice as soon as practicable after the issuance or release, and in any event before the time stated in the appearance notice or undertaking for their attendance in court. 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) if the justice considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearance notice or undertaking or to an included or other offence, ▪ (

i) confirm the appearance notice or undertaking and endorse the information accordingly, or ▪ (ii) cancel the appearance notice or undertaking 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 the justice or some other justice for the same territorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice or undertaking has been cancelled; and (

c) if the justice considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice or undertaking and cause the accused to be immediately notified of the cancellation. f