R v G 1997

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Between
Her Majesty the Queen, respondent, and G, applicant
[1997] O.J. No. 1053 • Court File No. U 1027/96
Ontario Court of Justice (General Division) Toronto, Ontario
Then J.
March 18, 1997. (6 pp.)

Counsel:
Joanne Dunlap, for the respondent.
Cynthia Fromstein, for the applicant
  1. THEN J.:— The accused, applicant, who was charged with impaired driving and with driving with over 80 milligrams of alcohol in his blood, appeared with his counsel before the assignment court judge in the provincial division in Etobicoke on October 3, 1996.
  2. The proceedings before the Court are transcribed as follows:

    MR. BIRNBAUM:  Page 9, #220, G. MS FROMSTEIN:  I appear for Mr. G, Your Honour. There is a Judicial Pretrial set up for next week, it was originally support to be called last week.  I would ask that the matter come back October 21st.
    THE COURT: Thank you.
  3. In my view, the certified transcript of the proceedings of October 3, 1996 indicates that the accused was remanded by the judge to October 21, 1996. This is confirmed by the reminder slip which was also given to the accused on October 3, 1996. However, on October 3, 1996 the information was endorsed by the judge in error remanding the accused to October 31, 1996.
  4. On October 21, 1996 the accused through his counsel attended at court pursuant to the remand made on October 3, 1996. However, there was no record of the accused's matter on the court calender nor was the information in court. In short, nothing was done with respect to the accused. In my view, the court lost jurisdiction over the person of the accused on October 21, 1996. (See: Regina v. Rachuk (1986), 71 A.R. 218 (Alta. Q.B.); Re Inverarity and The Queen (1984), 18 C.C.C. (3d) 74 (Sask Q.B.) at 77-78; Regina v. Wick (1974), 20 C.C.C. (2d) 203 (Sask. Q.B.) at 209; Regina v. Krannenberg (1980), 51 C.C.C. (2d) 205 (S.C.C.) at 209-211.)
  5. The proceedings before the Court on October 31, 1996 are transcribed as follows:

    MR. BIRNBAUM: Page 5, No. 118, G.
    MR POTTS: Good morning, Your Honour. With leave of the
    Court I would like to appear as amicus curiae.  Mr. G -- the Information was, I believe, mistakenly
    marked for today's date.  It was actually supposed to be
    for October the 21st.  I have a copy of the transcript as
    well as a copy of his reminder notice.
    MR. BIRNBAUM: What's the Information say?
    MR. POTTS: October 21st.
    MR. BIRNBAUM: And the date of counsel?
    THE COURT: What do you want to do?
    MR. BIRNBAUM: I have to go on the Information when it
    says the 31st of October.  That's the official document.
    THE COURT: Well, Ms. Fromstein stood here and said there
    was a judicial pre-trial or something.  She is not here
    now.
    MR. POTTS: No. Ms. Fromstein feels that there is no
    jurisdiction for him to be here, because it was supposed
    to be on the 21st.  He appeared on the 21st, but there is
    no Information before the Court on that date.
    THE COURT: With the greatest respect to Ms. Fromstein,
    you have got -- this was in front of the Honourable
    Justice Couto.  And it's got here that it is for October
    31st, together with the Information.  So jurisdiction
    does exist, Mr. G is not here and, therefore, do you
    know where he is?
    MR. POTTS: I don't.
    THE COURT: So there will be a warrant for Mr. G's
    arrest.  Thank you.
    MR. POTTS: Thank you, Your Honour.
    (my emphasis)
  6. On October 31, 1996 the accused did not attend but both the transcript of October 3, 1996 and the reminder slip issued to the accused indicating the remand date of October 21, 1996 were produced to the same assignment court judge by a representative of the accused. Notwithstanding, the judge held that he had jurisdiction over the accused in view of the date (Oct 31/96) marked on the face of the information and accordingly, purported to issue a warrant for the arrest of the accused presumably exercising his powers under either Section 512 or 524 of the Criminal Code since these are the applicable sections to be utilized if the judge has jurisdiction over the accused. The accused has moved before me to quash the warrant for his arrest.
  7. In this court, the Crown attempts to support the reliance of the judge upon the information as indicating the appropriate remand date by, in turn, relying upon the "presumption of regularity". In such cases as R. v. Kapoor (1989), 52 C.C.C. (3d) 41 (H.C.J.) at pp. 68-71 and R. v. Peavoy (1974), 15 C.C.C. (2d) 97 (H.C.J.) at p. 105 the presumption of regularity is said to derive from the common law which posits that the process of the court is presumed to be rightly and duly performed until the contrary is shown. The presumption is rebuttable with the burden resting upon the party seeking to displace the presumption on a balance of probability. In my view, any presumption that October 31, 1996 was the appropriate remand date has been displaced in the circumstances of this case by the transcript of October 3, 1996 and the reminder notice given to the accused both of which indicate that October 21, 1996 was the remand date. There is no reason in law or policy to perpetuate the mistake understandably made by a very busy judge dealing with hundreds of cases in assignment court in respect of his endorsement of the information in this case.
  8. While, as I have stated, jurisdiction over the person of the accused was lost on the October 21, 1996 remand date because nothing was done, the judge could, nevertheless, have regained jurisdiction over the person of the accused by utilizing the remedial provisions of Section 485(2) of the Criminal Code to either issue a summons or a warrant of arrest in consideration of the public interest in respect of an accused over whom jurisdiction has been lost.
  9. There is no reference by the judge in the transcript of October 31, 1996 to either s. 485, 512 or 524 of the Code. However, after close scrutiny of the remarks of the judge contained in this transcript, I have concluded that the judge found that jurisdiction over the person of the accused had not been lost. Once the judge found that he had jurisdiction over the accused, he then purported to issue a warrant of arrest presumably under s. 512 or 524 of the Code as these are the sections available to a judge, who has jurisdiction over an accused, to compel the appearance of the accused. In contrast s. 485 is available to the court to compel the appearance of the accused when jurisdiction over the person of the accused has been lost.
  10. In my view, since jurisdiction over the person of the accused had been lost because nothing had been done on October 21, 1996, the judge on October 31, 1996 had no jurisdiction to issue process under either s. 512 or s. 524 as he purported to do, but, was confined to utilizing s. 485 in order to regain jurisdiction, and, this he did not do.
  11. This is not a case such as Hartmann v. R. (1986), 30 C.C.C. (3d) 286 (H.C.J.) where an accused in custody was not conveyed to court by the authorities and where the justice, in order to preserve the jurisdiction of the court issued a warrant of arrest. In that case it was held that the judge, who had jurisdiction over the accused, could issue a warrant of arrest under s. 512, notwithstanding the accused was in custody, in order to preserve the jurisdiction of the Court.
  12. In the case at Bar, the court lost jurisdiction by doing nothing on October 21, 1996, and accordingly, only section 485(2) was available to the judge in order to regain the jurisdiction which had been lost. Section 485(2) was not utilized. Instead on October 31, 1996 the judge relied upon the remand date mistakenly entered by him upon the face of the information, found that he had jurisdiction over the accused, and then purported to exercise that jurisdiction, which in the circumstances he did not possess, i. e., to issue a warrant of arrest for the accused either under s. 512 or s. 524.
  13. Despite the able argument of Ms Dunlap, the warrant of arrest issued by the judge below must be quashed. In the circumstances it is not necessary to consider whether the judge properly considered the public interest in issuing a warrant of arrest rather than a summons.

THEN J.

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