Well in advance of the scheduled first appearance, an information was sworn by a police officer before a justice of the peace. That same day, the justice issued a summons for the respondent to appear in court on December 21 instead of confirming the promise to appear for the original date.
As clearly set out by Justice Speyer “[w]here 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)).”
Here, a “technical” problem arose when the justice of the peace issued a summons, the justice failed to endorse on the summons that the original promise to appear was cancelled.
In response to the summons the accused appeared on the new date of December 21. Although Ladouceur had retained a lawyer, he appeared by himself at the first appearance and did not raise any jurisdictional issue until the day of trial at the point of arraignment.
At trial, Dawson J. of the Ontario Court of Justice noted that she was aware of the competing authorities in this area. One line of cases, derived from the obiter in an OCA case of Gougeon, suggested that the failure to confirm process resulted in a loss of jurisdiction over the offence. The other line of cases suggested that the failure to confirm the process resulted in a loss of jurisdiction over the person (it is important to note the real difference between the two from a pragmatic point of view: A loss of jurisdiction over the person can be remedied by the prosecution. A loss of jurisdiction over the offence effectively ends the prosecution). She found this line of cases to be authoritative and quashed the information as a result of the justice of peace’s failure to confirm the process. The Crown failed to overturn the ruling at the Summary Conviction Appeal Court, and so, appealed to the Court of Appeal.
At the Ontario Court of Appeal, this issue was resolved. The panel of the Court found that the failure to confirm process only results in loss of jurisdiction over the person: 2013 ONCA 328.
They came to this conclusion for three reasons:
- First, the Court held that s. 508 must be interpreted in light of the court’s treatment of ss. 505 and 507. The failure to follow the requirements of either of those provisions does not invalidate the information. The Court could not see a reason for treating a failure to follow the requirements of s. 508 any differently. [Paras. 20-24].
- 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. The Court in Ladouceur felt that in spite of this important purpose, what a justice scrutinizing the confirmation process does not have is the power to dismiss the charge. [Paras. 25-27].
- Third, leave to appeal in Ladouceur was granted to remove conflicts and uncertainty in the law as it pertains to the consequences of non-compliance with s. 508. Recent jurisprudence from the OCA court, by way of clear obiter dicta, indicated 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. [Paras. 28-30].
Ultimately, the Court of Appeal in Ladouceur was persuaded that there was no principled reason why non-compliance with the confirmation process in s. 508 should affect the validity of a properly laid information. It concluded that the failure resulted in a defect in process that causes a loss of jurisdiction over the person and that this loss of jurisdiction over the person can be regained if the accused attends in court. There was no reason to depart from that well-established principle. [Para. 31]