



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Ladouceur, 2013 ONCA 328

DATE: 20130521

DOCKET: C54831

Simmons and Hoy JJ.A. and Speyer J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Benjamin Ladouceur

Respondent

David Finley, for the appellant

Philip B. Norton, for the respondent

Heard: December 4, 2012

Application by the Crown for leave to appeal and, if
    leave is granted, appeal from the judgment of Justice Mark Edwards of the Superior
    Court of Justice dated December 7, 2011, affirming the Order of Justice Nancy
    Dawson of the Ontario Court of Justice dated November 9, 2010, quashing an
    information.

Speyer J. (
ad hoc
):

[1]

What effect does non-compliance with s. 508 of the
Criminal Code

have on the validity of an information? Is the information a nullity,
    resulting in loss of jurisdiction over the offence, or does non-compliance with
    s. 508 simply result in a loss of jurisdiction over the person? These questions
    of law are at the heart of this appeal.

[2]

There has been a significant lack of judicial consensus on the effect of
    non-compliance with s. 508, illustrated by multiple conflicting decisions in
    both the Superior Court of Justice and the Ontario Court of Justice. The issues
    of law in this appeal are matters of general importance to the administration
    of criminal law and require clarification. Leave to appeal is granted.

FACTS

[3]

On October 30, 2009, the respondent was stopped by police and charged
    with care and control over 80. He was released from the police station on a
    promise to appear that required him to attend court at the Ontario Court of
    Justice in Barrie on Monday, December 28, 2009. The officer who issued the
    promise to appear did not foresee that court was not scheduled to sit that day:
    Monday, December 28
th
was a non-juridical day due to Christmas
    falling on Friday the 25
th
and Boxing Day on Saturday the 26
th
.

[4]

On December 4, 2009, twenty-four days before the respondent was required
    to appear in court, the information was sworn by a police officer before a
    justice of the peace. The same day, the same justice issued a summons that
    required the respondent to appear in court on a new return date of December 21,
    2009. While it is not entirely clear from the record, it is reasonable to infer
    that the justice was alert to the fact that court was not scheduled to sit on
    December 28, 2009. Accordingly, rather than confirm the promise to appear, the
    justice decided to substitute a summons to compel the respondent to attend
    court on a different date.

[5]

Where an accused is released on a promise to appear prior to the laying
    of the information, s. 508 of the
Criminal Code
provides for judicial
    screening of the promise to appear before the accused is required to attend at
    his or her first court appearance. Once the information is sworn, s. 508
    provides the justice of the peace with the following statutory options:

i.

to confirm the promise to appear issued by the police, by so endorsing
    the information (which includes ticking off the appropriate box on the face of
    the information) (s. 508(1)(b)(i));

ii.

to cancel the promise to appear and issue a summons or warrant
    compelling the citizen to attend court and endorse on the warrant or summons
    that the promise to appear has been cancelled (s. 508(1)(b)(ii)); or

iii.

where the judicial officer considers that the case is not made out, to
    cancel the promise to appear altogether and cause the citizen to be notified
    forthwith of the cancellation (s. 508(1)(c)).

[6]

In the instant case, the justice did not confirm the promise to appear,
    presumably because the return date on the promise to appear fell on a
    non-juridical day. Accordingly, the specific box on the front page of the
    information indicating that the process is confirmed is blank and that part of
    the information which provides for the signature of the justice is also blank.

[7]

Instead, the justice sought to substitute a summons with a new return
    date to compel the respondents first appearance in court. The flaw in the
    confirmation process stems from the justices failure to endorse on the summons
    that the original promise to appear was cancelled (see s. 508(1)(b)(ii)).

[8]

On December 21, 2009, in accordance with his summons, the respondent
    personally appeared in the Ontario Court of Justice. Although the respondent
    had retained counsel, counsel was unable to attend at the first appearance;
    instead, duty counsel spoke to the matter on behalf of the respondent. The
    transcript of the respondents first appearance discloses that the Crown
    elected to proceed by way of summary conviction and that Crown disclosure had
    been provided. Not surprisingly, with the respondents counsel not in
    attendance, there was no mention of jurisdictional issues.

[9]

The case was remanded on four further occasions before the trial date of
    November 9, 2010. The first complaint concerning the failure to comply with the
    confirmation process took place at trial. Prior to arraignment, the respondents
    counsel brought a 
Gougeon
 motion before Dawson J. arguing,
    successfully, that the failure to adhere to the statutory options set out in s.
    508 deprived the court of jurisdiction over the offence. Dawson J., alive to
    the conflicting authorities, ruled that the
obiter dicta
of Morden
    J.A. in
R. v. Gougeon
(1980), 55 C.C.C. (2d) 218 (Ont. C.A.),
    indicating that a failure to confirm process results in loss of jurisdiction
    over the offence, is the authoritative statement of the law in Ontario, and quashed
    the information for want of compliance with the confirmation process.

[10]

The
    Crown appealed. Edwards J. dismissed the appeal, concluding:

The learned justice was quite correct in my view to follow
Gougeon
.
    If
Gougeon
is not to be followed in the future, it will require a
    decision of our Court of Appeal or an amendment to the
Criminal Code
.

Two divergent lines of authority

(1)

The
Gougeon
line of cases

[11]

Many
    judges in this province have felt bound by, and have followed, the
obiter
    dicta
expressed in
Gougeon
at pp. 227-28:

Accepting the principle that process is not essential to the
    jurisdiction of the Court (although with respect to some aspects of process
    this statement is probably too broad, as I shall indicate) and that its
    purpose, as far as we are concerned in these matters, is to bring the accused
    before the Court, I am not able to accept the submissions made on behalf of the
    accused persons. The situation would be otherwise, of course, if the objections
    related to defects of a jurisdictional nature  depending on the nature of the
    defect and when the objection is made.



While this is not intended to be an exhaustive list of
    jurisdictional defects respecting process to which a valid objection may be
    made, I would also include a failure to obtain prior judicial sanction under
    ss. 455.3(1) [now s. 507]
[1]
or 455.4(1) [now s. 508] of the
Code
, where the Crown purports to rely
    upon the kinds of process referred to in those provisions to bring the accused
    before the Court. I appreciate that there is not judicial unanimity on this
    point but it appears to me that the fundamental purpose of these provisions,
    which is to protect persons from having to appear in Court to answer charges
    where a judicial officer does not consider that a case for the issuing of
    process has been made out, would be thwarted if the law did not allow their breach
    to be raised on a timely objection to the Courts jurisdiction. In my view, the
    legislative policy underlying these provisions overrides the principle of
    acquisition of jurisdiction by mere appearance.

[12]

For
    example, in
R. v. Smith
, [2008] O.J. No. 381 (S.C.), Belobaba J. of
    the Superior Court of Justice, following
Gougeon
,

agreed that
    the failure to confirm the form of release on the information as required by s.
    508(1)(b)(i) resulted in a loss of jurisdiction over the offence, and
    accordingly ruled that the information was properly quashed for jurisdictional
    defect. In arriving at his conclusion, Belobaba J. recognized but distinguished
    a competing line of cases arriving at a contrary conclusion. He found the
    authority of
Gougeon
to be strong and compelling, no doubt because of
    the thoroughness of Justice Mordens analysis in
Gougeon
and because
    of the composition of the Court
[2]
(at para. 8). Moreover, like Edwards J. in the present case, Belobaba J. was of
    the view that a departure from the
Gougeon
dicta
would require
    a decision from this court to change the law.

[13]

Similarly,
    A. Campbell J. in
R. v. Sandoval
, [2000] O.J. No. 5591 (S.C.), at
    para. 1, citing
Gougeon
, was not persuaded that it was open to him to
    set aside the settled judicial understanding in this province that
    noncompliance with Code s. 508  is capable of affecting the jurisdiction of
    the trial judge to enter upon a trial.

[14]

Smith
,
Sandoval
and the present appeal are but a small sample of cases that
    illustrate the important pedigree accorded to the
Gougeon

dicta
and its influence in determining much of the s. 508 jurisprudence of this
    province where courts have found that a deficiency in the confirmation process
    does affect the validity of an information.

(2)

The Oliveira line of authority

[15]

A

second body of authority has confronted and rejected the view that a defect
    in the confirmation process affects the validity of an otherwise valid
    information. Two recent decisions declining to follow the
Gougeon
line
    of cases are Code J.s decision in
R. v. Millar
, 2012 ONSC 1809, 285
    C.C.C. (3d) 208, and Trotter J.s decision in
R. v. Duran
, 2011 ONSC
    7346, 285 C.C.C. (3d) 46. These decisions draw upon the
dicta
of
    Doherty J.A. in
R. v. Oliveira
, 2009 ONCA 219, 243 C.C.C. (3d) 217, at
    para. 30:

The purpose of the promise to appear is to secure the initial
    attendance of the accused in court. Subsequent court attendances are pursuant
    to court orders.
A defect in the promise to appear, or the process
    required to confirm a promise to appear, will not affect the validity of the
    information charging the offences referred to in the promise to appear. Nor
    will those defects affect the Crowns ability to proceed 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. [Emphasis added; footnotes omitted.]

ANALYSIS

[16]

More
    than four decades ago, Parliament enacted the
Bail Reform Act
, S.C.
    1970-71-72, c. 37, which conferred upon police, in appropriate circumstances,
    the power to release a citizen following his arrest and to compel his
    attendance in court. A promise to appear, like an appearance notice, is a form
    of process that gives discretionary powers to the police to release a citizen
    in advance of any judicial scrutiny.

[17]

Where
    a promise to appear is issued before the swearing of an information, as
    occurred in this case, two requirements must be met before the accused is legally
    compelled to attend at his or her first court appearance. First, s. 505 of the

Code
requires that an information be laid as soon as practicable
    and, in any event before the time stated in the  promise to appear. Second,
    the issuance of process must be properly confirmed by a justice of the peace
    under s. 508 of the
Code
.

[18]

In
    the event of a failure to comply with the time limit for laying an information
    under s. 505, the law is well settled that the promise to appear is defective
    and non-compliance with s. 505 provides a complete defence to a charge of
    failure to appear as directed by the promise to appear. However, the defect
    does not affect the validity of the information. In a nutshell, jurisdiction is
    lost over 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),
    42 C.C.C. (2d) 12 (Ont. C.A.) and
R. v. Markovic
(2005), 200 C.C.C.
    (3d) 449 (Ont. C.A.).

[19]

So,
    if an information survives a defect in the time limit imposed by s. 505, the
    crucial issue raised in this appeal is whether there is any reason, based in
    logic or policy, why a deficiency in the confirmation process set forth in s.
    508 ought to operate differently so as to nullify a valid information. I am of the
    view that a defect in the confirmation process does not affect the validity of
    an information. The legal consequence of a deficiency in the confirmation
    process set forth in s. 508 is to provide a complete defence to a charge of
    failing to appear as directed by the promise to appear and to prohibit a
    warrant from issuing for the accuseds arrest. A failure to conform to the
    requirements of s. 508 results in a defect in the process and a loss of
    jurisdiction over the person; it does not result in loss of jurisdiction over
    the offence. I come to this conclusion for several reasons.

[20]

First,
    I agree with Trotter J. in
Duran
, at para. 11, as to the harmonious
    relationship between ss. 505 and 508. In view of the close connection between
    these two sections, he reasoned that a flaw in the confirmation process in s.
    508 should not produce a different result than that flowing from a deficiency
    in respect to s. 505. Trotter J. put it this way:

[T]hese sections must be considered together, hand-in-hand.
    Section 505 imposes a temporal requirement for swearing informations, not for
    its own sake, but for the purpose of ensuring that the confirmation process
    takes place in a timely fashion. Practically speaking, the swearing of the
    information (s. 505) and the confirmation process (s. 508) take place virtually
    simultaneously. Deficiencies touching on either aspect of this procedure should
    not lead to different results in terms of whether the state should be
    prohibited from continuing with a prosecution.

[21]

Moreover,
    just as ss. 505 and 508 should be considered together, hand-in-hand, there is
    also a significant overlap between ss. 507 and 508. Both sections govern the
    issuance of process in the case of police-laid informations. In the case of s.
    507, a justice issues process (a summons or a warrant) after the information
    has already been laid. With respect to s. 508, the laying of the information
    and the confirmation process occur subsequent to process having been issued by
    police. The main difference between the sections is the order in which events
    take place. In one case, the information is laid prior to the issuance of
    process; in the other, process is issued and then the information is laid and
    the process confirmed.

[22]

In
    the case of a s. 507 deficiency, the law is clear that an information is not
    rendered a nullity for want of process. In
R. v. Allen
(1974), 20
    C.C.C. (2d) 447 (Ont. C.A.), two informations were laid by a complainant and a
    hearing was conducted before a justice of the peace. The justice, after hearing
    the allegations, refused to issue process, specifically, a summons. The justice
    also purported to cancel the informations.

[23]

This
    court held that even though a justice of the peace, acting judicially, refused
    to issue a summons, the informations remained valid and, absent an abuse of
    process, the complainant was entitled to appear before another justice to
    request, on evidence presented, the issuance of a summons.

It is
    difficult to rationalize how a valid information can survive a failure of
    process under s. 507 and yet be considered a nullity for want of confirmation
    under s. 508.

[24]

In
    sum, s. 508 must be interpreted in light of the courts treatment of ss. 505
    and 507. The failure to follow the requirements of either of those provisions
    does not invalidate the information. I cannot see a reason for treating a
    failure to follow the requirements of s. 508 any differently.

[25]

Second,
    s. 508 has an important but limited purpose. Until the confirmation process is
    complete, a promise to appear does not bind an accused person. The judicial
    screening under s. 508 is aimed at protecting an accused from an unwarranted
    court appearance:
Gougeon
, at p. 227;
Millar
, at para. 48. In
    this way, the provision is a key accountability-enhancing feature of the
    police bail powers:
Duran
, at para. 5. For example, in appropriate
    circumstances, a justice may cancel the promise to appear altogether. Or, as in
    the present case, cancel the promise to appear and substitute a summons because
    no court was scheduled to sit on the return date on the promise to appear. What
    a justice scrutinizing the confirmation process does not have is the power to
    dismiss the charge.

[26]

If
    an accused is arrested and held for a bail hearing, no jurisdiction exists for
    the justice presiding at the bail hearing to inquire into the sufficiency of
    the allegations and quash the information or dismiss the charge. In such
    circumstances, there is no need to confirm process because the accused is
    already before the court:
R. v. Whitmore
(1987), 41 C.C.C. (3d) 555
    (Ont. H.C.J.), at p. 561. As Crown counsel argues in this appeal, it would be
    an incongruous situation that a flawed confirmation process could invalidate an
    information for want of jurisdiction, thereby terminating a criminal
    proceeding, yet, in the circumstances of an accused held for a bail hearing, a
    review of an informants allegations by the presiding justice would not be
    permitted.

[27]

Moreover,
    rational criminal law policy supports the finding that a justice should not
    have the power to dismiss charges under s. 508. At the time of the s. 508
    confirmation process, there is little evidence before the justice and the
    accused is not present. Furthermore, as Code J. pointed out at para. 52 of
Millar
:

[I]f there is truly no case to answer, or if the case is simply
    too weak to convict, the remedies available at trial are far more potent. 
    Failure to confirm process under s. 508, or to issue process under s. 507,
    simply means the authorities can gather further and better evidence and then
    return and try again before a different Justice of the Peace.

[28]

Third,
    as noted, leave to appeal in the present case is granted to remove conflicts
    and uncertainty in the law as it pertains to the consequences of non-compliance
    with s. 508. Recent jurisprudence from this court, by way of clear
obiter
    dicta
, indicates that a flaw in the confirmation process will result in a
    loss of jurisdiction over the person, but not a loss of jurisdiction over the
    offence. Both Cronk J.A. in
Markovic
and Doherty J.A. in
Oliveira
held that despite deficiencies of process, the informations remain valid. The
    key passages in each case are the following:

·

Accordingly, the subsequent
    flawed confirmation of the promise to appear did not operate to vitiate what,
    in the circumstances, was valid information (
Markovic
, at para. 29).

·

A defect in the promise to
    appear, or the process required to confirm a promise to appear, will not affect
    the validity of the information charging the offences referred to in the
    promise to appear (
Oliveira
, at
    para. 30).

[29]

In
    considering this
dicta
, it is important to acknowledge that the
    jurisdictional consequences of a failure to conform to the statutory requirements
    of s. 508 was not the issue requiring determination in either case, though a
    flaw in the promise to appear existed on the facts of both.

[30]

That
    said, I find the
dicta
in
Markovic
and
Oliveira
compelling and difficult to reconcile with the
dicta
in
Gougeon
.
    Interestingly, in
Millar
, at paras. 29-41, Code J., in a scholarly
    analysis of the jurisprudence at the time of the
Gougeon

decision,
    explains that a state of confusion in the law existed with respect to
    jurisdiction over the person and jurisdiction over the offence. Subsequent
    developments in the law emanating from the Supreme Court of Canada, as well as
    Parliaments enactment of s. 485 of the
Code
, had the effect, in Code
    J.s view, of reversing the
Gougeon dicta
. I find considerable merit
    in Code J.s analysis.

[31]

In
    the result, I am persuaded that there is no principled reason why
    non-compliance with the confirmation process in s. 508 should affect the
    validity of a properly laid information. It results in a defect in process that
    causes a loss of jurisdiction over the person. This loss of jurisdiction over
    the person can be regained if the accused attends in court. There is no reason
    to depart here from that well-established principle: see
Naylor
, at p.
    19, and
Markovic
, at para. 24.

[32]

The
    appeal is allowed. A new trial is ordered. In this case, the respondent has
    been obligated to retain counsel on two Crown appeals. This factor might be
    considered in the Crowns decision as to whether to pursue a new trial.

Released:

MAY 21 2013                          Speyer J. (
ad
    hoc
)

JS                                          I agree
    Janet Simmons J.A.

I agree
    Alexandra Hoy J.A.





[1]
As discussed below, s. 507 sets out the procedure for issuing process after the
    information is laid. Section 508 governs the procedure for confirming process
    where the police issue process before the information is laid.



[2]
The panel in
Gougeon
was composed of Brooke, Martin and Morden JJ.A.


