Академический Документы
Профессиональный Документы
Культура Документы
________________________________________________________________________
I. INTRODUCTION
[2] In this decision I will use “pre-charge” to refer to the time period
before an Information is sworn and “post-charge” to refer to the time
period after an Information is sworn. I will use “release documents” to
refer collectively to Appearance Notices, Promises to Appear and
Recognizances given to police officers.
II. BACKGROUND
[3] Mr. Qaunaq was arrested on November 21, 2016 for sexual assault.
He was released on November 22, 2016, by a peace officer on a
Promise to Appear and an Undertaking. He was required to attend
court on December 15, 2016.
[4] Mr. Qaunaq appeared in court on December 15, 2016 but there was
no Information before the court. In fact, no Information had been
sworn. That was the last Mr. Qaunaq heard about the matter until
January 11, 2019, when he was served with a Summons requiring
him to appear in court on January 14, 2019. The Information before
the court was sworn on November 7, 2018.
A. Defence
[6] The Defence submits that when Mr. Qaunaq appeared before the
court on December 15, 2016 and no Information was before the court,
jurisdiction was lost over Mr. Qaunaq. The court could regain
jurisdiction over Mr. Qaunaq but only by following the procedure set
out in s. 485 of the Criminal Code, which requires that once
jurisdiction is lost it can be regained by issuing a summons or arrest
warrant within three months of jurisdiction having been lost. If process
does not issue within three months then the matter is dismissed for
want of prosecution and can only be recommenced pursuant to s.
485.1, which requires the consent of the Attorney General. The
Defence relies upon the case of R v Ferreira, 2014 ONCJ 617.
B. Crown
[7] The Crown submits that Ferreira is wrongly decided. The Crown
submits that the Court did not gain jurisdiction over Mr. Qaunaq prior
to December 15, 2016 because no Information was sworn. The
Crown submits that jurisdiction over an accused is gained only when
there is both an Information sworn and process compelling an
accused to attend court. The Crown relies upon the case of R v Clark,
1992 CanLII1274 (BCSC).
IV. ISSUE
[8] The issue is: What gives the court jurisdiction over an accused;
release documents that require an accused to attend court, the laying
of an Information, or both?
4
V. LEGISLATION
[10] This section provides that peace officers may issue Appearance
Notices for persons who have not been arrested but who will be
charged with offences that are within the absolute jurisdiction of a
provincial/territorial court, are hybrid offences (may be proceeded with
either summarily or by indictment, at the option of the Crown) or
straight summary conviction offences.
497 Subject to subsection (1.1) [sets out the grounds upon which a
peace officer may detain a person], if a peace officer arrests a
person without warrant for an offence described in paragraph
496(a), (b), or (c), the peace officer shall, as soon as practicable,
(a) release the person from custody with the intention of
compelling their appearance by way of summons; or
(b) issue an appearance notice to the person and then release
them.
[12] This section provides for the release by a peace officer and before the
laying of an Information, of persons arrested for absolute jurisdiction
offences, hybrid offences, and summary conviction offences.
498 (1) Subject to subsection (1.1), if a person who has been arrested
without warrant by a peace officer is taken into custody, or if a
person who has been arrested without warrant and delivered to a
peace officer under subsection 494(3) or placed in the custody of a
peace officer under subsection 163.5(3) of the Customs Act is
detained in custody under subsection 503(1) for an offence
described in paragraph 496(a), (b), or (c), or any other offence
that is punishable by imprisonment for five years or less, and has
5
not been taken before a justice or released from custody under any
other provision of this Part, the officer in charge or another peace
officer shall, as soon as practicable,
(a) release the person with the intention of compelling their
appearance by way of summons;
(b) release the person on their giving a promise to appear;
(c) release the person on the person’s entering into a
recognizance before the officer in charge or another peace
officer without sureties in an amount not exceeding $500 that
the officer directs, but without deposit of money or other
valuable security; or
(d) if the person is not ordinarily resident in province in which
the person is in custody or does not ordinarily reside within
200 kilometres of the place in which the person is in custody,
release the person on the person’s entering into a
recognizance before the officer in charge or another peace
officer without sureties in an amount not exceeding $500 that
the officer directs and, if the officer so directs, on depositing
with the officer a sum of money or other valuable security not
exceeding in amount or value $500, that the officer directs.
[14] Section 503 (2.1) of the Criminal Code provides for pre-charge
release by a peace officer by having the accused enter into an
Undertaking, with conditions.
[15] In summary, the Criminal Code provides for both pre-charge and
post-charge release of accused persons.
[18] If the judicial officer is not satisfied that there are reasonable and
probable grounds to lay a charge, he will vacate the release
documents issued to an accused. The accused is then not required to
attend court nor is he any longer bound by conditions.
[19] If the judicial officer is satisfied that there are reasonable and
probable grounds to lay a charge, he will “confirm” the release
documents (Appearance Notice, Promise to Appear or Recognizance)
and proceed to issue the Information.
[20] Section 145 provides that an accused may be charged with failure to
attend court if he fails to appear in accordance with a release
document that has been confirmed by a Justice. If the release
document has not been confirmed by a Justice and the accused does
not appear, he cannot be charged with failure to attend court. Thus,
the Criminal Code requires that judicial intervention and review occur
prior to criminal consequences flowing from non-compliance with
release documents.
[22] Section 145(5.1) of the Criminal Code provides that a person who
“fails to comply with any condition of an Undertaking entered into
pursuant to subsection 499(2) or 503(2.1)” is guilty of an offence.
[27] There are many reported cases which address the issue of the validity
of release documents if there is a failure to comply with the timelines
in s. 508. The settled law appears to be that such a failure renders the
release document unenforceable. However, the Information remains
valid and a voluntary appearance by the accused is sufficient for the
court to have jurisdiction.
[28] There are few cases that deal with a situation such as the one before
us.
8
[29] A court will have jurisdiction over a person when the court has the
authority to make an order or judgment against the person. In the
context of a criminal case, once an Information is sworn, the accused
is in jeopardy and is subject to the authority of the court. The Crown’s
position that the court does not obtain jurisdiction over the person until
an Information is sworn is supported by some of the case law. For
example, the court in R v Clark, supra stated:
The court has not jurisdiction over the person of the accused until an
information has been laid before a justice under s. 505 and the justice
has endorsed the appearance notice pursuant to s. 508. Upon that
happening the sections of the Criminal Code by which the court
exercises its jurisdiction over the person of an accused come into play.
Up to that point the court has not jurisdiction over the person of the
accused... (at para 13)
[31] Oliveira acknowledges the issue that has arisen in this case. In
Oliveira the accused was arrested and released on a Promise to
Appear and an Undertaking. The Information was laid prior to his first
appearance but not “as soon as practicable”. Subsequent to his first
appearance the accused breached his Undertaking and was charged.
At trial on the breach charge he took the position that both the
Promise to Appear and the Undertaking were invalid as they were not
brought before a Justice “as soon as practicable”. The Crown agreed
that the Promise to Appear was invalid, but argued that the
Undertaking was not. The Court of Appeal held that the promise to
Appear and the Undertaking were not inextricably linked and that the
invalidity of one does not affect the validity of the other. The
documents serve different purposes. The life of an Undertaking is tied
to the life of the charges giving rise to the Undertaking. The court
stated:
[32] Prior to the 1994 amendments, the approach adopted by the court in
Clark would be of no concern because an accused did not have his
liberty restricted in any way and was not in jeopardy (including the
potential of being charged with failure to attend court) until after
judicial intervention. The court’s authority over the accused
crystallized with the swearing of an Information.
VI. CONCLUSION
[36] The court may regain jurisdiction by following the procedure set out in
s. 485(2) of the Criminal Code by issuing a summons or warrant for
the accused within three months of the loss of jurisdiction. Failure to
do so results in the proceedings being deemed dismissed for want of
prosecution, pursuant to s. 485(3). The loss of jurisdiction occurs on
the date of the first appearance. The deemed dismissal would be
three months from that date. The proceedings having been deemed
dismissed, the accused would no longer be bound by his Undertaking.
[38] The Information against Mr. Qaunaq was deemed dismissed for want
of prosecution as of March 15, 2017. The Information before the court
was not laid with the consent of the Attorney General. Accordingly, it
is a nullity.
___________________
Justice S. Cooper
Nunavut Court of Justice