R. v. 1283499 Ontario Inc.

R. v. 1283499 Ontario Inc. Collection Decisions of the Court of Appeal Date 2003-06-30 Docket numbers C39710 Judges Doherty, David H.; MacPherson, James C.; Sharpe, Robert J. Subject Criminal Decision Content DATE: 20030630 DOCKET: C39710 COURT OF APPEAL FOR ONTARIO DOHERTY, MACPHERSON and SHARPE JJ.A. BETWEEN: HER MAJESTY THE QUEEN Appellant - and - 1283499 ONTARIO INC., OPERATING AS WIRED NIGHTCLUB Respondent Robert Kelly and Leanne Salel for the appellant Gino Morga for the respondent Heard: June 26, 2003 On appeal from the judgment of Thompson J. of the Superior Court of Justice on February 27, 2003. DOHERTY J.A.: [1] The respondent (Wired Nightclub) was charged under the Liquor Licence Act in the Provincial Offences Court. The proceedings were adjourned from time to time until July 29, 2002. [2] On July 26, 2002, the Regional Senior Justice of the Peace issued the following written direction: Due to bereavement leave resulting from the passing of Her Worship Brode's father last evening, the P.O.A. court scheduled for Friday, July 26, 2002, Monday, July 29, 2002 and Tuesday, July 30, 2002 are directed closed due to insufficient judicial resources. The clerk of the court is hereby directed to adjourn all matters … [3] On July 29, 2002, counsel for the respondent appeared in Provincial Offences Court. The court clerk was present, but there was no Justice of the Peace in the courtroom. A court reporter kept a record of the proceedings. After some discussion with counsel, the clerk suggested a date of September 16, 2002. Counsel agreed and the matter was adjourned to that date. [4] The same counsel appeared for the respondent on September 16, 2002. He indicated that he was present only to contest the jurisdiction of the court. He argued that jurisdiction was lost on July 29, 2002 when the matter was adjourned by a clerk of the court. The Justice of the Peace held that she had jurisdiction. [5] On October 11, 2002, the respondent moved for an order in the Superior Court in the nature of prohibition seeking an order prohibiting any further proceedings in the Provincial Offences Court. In February 2003, the Superior Court judge allowed the application and issued an order prohibiting further proceedings in the matter. [6] The Crown appealed. The court allowed the appeal with reasons to follow. I agree with the application judge that there is no authority for the procedure followed in Provincial Offences Court on July 29, 2002. There is nothing in the Provincial Offences Act, R.S.O. 1990, c. P.33 comparable to s. 474(2) of the Criminal Code authorizing such a procedure. The court, meaning the presiding judicial officer, not a member of the court staff designated by the court or by a Regional Senior Justice of the Peace, has the jurisdiction to adjourn a proceeding. Section 146 of the Courts of Justice Act, R.S.O. 1990, c. C.43, does not create jurisdiction: R. v. Sztuke (1993), 16 O.R. (3d) 559 (C.A.). [7] Although I am satisfied that the procedure followed on July 29, 2002 was not authorized by law, the events of July 29 constitute a failure by the Provincial Offences Court to exercise its jurisdiction over the offence and the offender on that day. Section 31 of the P.O.A. has direct application. It reads in part: The court retains jurisdiction over the information or certificate even if the court fails to exercise its jurisdiction at any particular time … [8] The application judge held that s. 31 did not apply because the clerk of the court and not the court had purported to act on July 29, 2002. He said: Section 31 speaks of the "court" doing or not doing something, to wit, a judge or justice of the peace making an active judicial determination in open court on the record. There must be an active judicial hearing or trial where the court is represented by a judge or justice of the peace. The section does not speak about a clerk doing the work of a judicial officer. If the judge or justice of the peace fails to exercise his or her jurisdiction or does not comply with the Provincial Offences Act respecting adjournments, then this section acts to prevent a loss of jurisdiction. [9] With respect, the application judge's reasoning is inconsistent with the language of s. 31. Section 31 does not require "an active judicial determination in open court" or "an active judicial hearing". To the contrary, s. 31 specifically contemplates a failure to act. In my view, the phrase "fails to exercise its jurisdiction" contemplates a case where the court does nothing. The fact that another entity, in this case the clerk of the court, purported to act in the place of the court does not change the fact that the court failed to exercise its jurisdiction. [10] In concluding that s. 31 of the P.O.A. did not address a situation like that which occurred on July 29, 2002, the application judge relied heavily on R. v. Krannenburg (1980), 51 C.C.C. (3d) 205 (S.C.C.). As Crown counsel points out, Krannenburg, supra, interpreted a jurisdictional curative provision in the Criminal Code that was much more limited than 31 of the P.O.A. [11] The Criminal Code has now been amended and the present curative jurisdictional provision may be found in s. 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 … [12] Section 485(1) of the Criminal Code cannot be distinguished from s. 31 of the P.O.A. Several courts have held that s. 485(1) preserves the jurisdiction over the offence where a court fails to act on a remand date: R. v. Jarvis (1986), N.S.J. No. 429 (C.A.); R. v. Fogarty (1988), 46 C.C.C. (3d) 289 (N.S.C.A.); R. v. Chisan, [1988] A.J. No. 935 (C.A.), leave to S.C.C. refused (1989), 100 N.R. 239; R. v. Okemajsim (1989), 77 Sask. R. 247 (Q.B.). I agree with those authorities. [13] Jurisdiction over the offence with which the respondent was charged was not lost by virtue of s. 31 of the P.O.A. If jurisdiction over the person was lost, it was regained when counsel appeared on September 16, or alternatively it could be, and still can be regained by the issuance of a summons. [14] The appeal is allowed, the order prohibiting further proceedings in the Provincial Offences Court is set aside and the matter is remitted to the Provincial Offences Court. In doing so, it should be made clear that the practice of having a non-judicial officer adjourn the court on any given day is not authorized by law and should not continue. It may be that the practice makes administrative sense, but unless and until the relevant legislation is amended, it is improper. RELEASED: "JUN 30 2003" "DD" "Doherty J.A." "I agree J.C. MacPherson J.A." "I agree Robert J. Sharpe J.A."