Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Qaunaq, 2020 NUCJ 03

Date: 20200206
Docket: 08-18-765
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Damian Qaunaq

________________________________________________________________________

Before: Madam Justice Cooper

Counsel (Crown): M. Tooke

Counsel (Accused): S. Boydell

Location Heard: Iqaluit, Nunavut

Date Heard: September 13, 2019
Matters: Application to dismiss charge under the Criminal Code of
Canada, RSC 1985, c C-46, for want of prosecution

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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I. INTRODUCTION

[1] This is an application by the defence to dismiss the charge against

Mr. Qaunaq for want of prosecution.

[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.

[5] In summary, the significant dates are as follows:

• November 21, 2016: arrested
• November 22, 2016: released on process, with court date
• December 15, 2016: appeared in court, no Information
• November 7, 2018: Information sworn
• January 11, 2019: served with Summons to appear
• January 14, 2019: appeared in court
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III. POSITIONS OF THE PARTIES

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?
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V. LEGISLATION

[9] Criminal Code, Part XVI:

496 Where, by virtue of subsection 495(2), a peace officer does not

arrest a person, he may issue an appearance notice to the person if
the offence is:
(a) an indictable offence mentioned in section 553;
(b) an offence for which the person may be prosecuted by
indictment or for which he is punishable on summary
conviction; or
(c) an offence punishable on summary conviction.

[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.

[11] Criminal Code:

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.

[13] Criminal Code:

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
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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.

[16] Pre-charge release with conditions by a police officer consists of two

components. One component (release document) is aimed at
compelling the accused to attend court on a specific date. The second
component (Undertaking) is to restrict the accused’s liberty and
behaviour until the matter going to court is concluded.

[17] If a person has been released before the laying of an Information, s.

508 of the Criminal Code sets out the next step to be taken. It
requires the police officer to attend before a judicial officer for the
issuance of an Information. It is important to remember that this step
in the process is the first step in an independent review by a judicial
officer. It is not a “rubber stamp”; it is an inquiry into the sufficiency of
the grounds for laying an Information.
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[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.

[21] This is not the case with Undertakings.

[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.

[23] A person released pre-charge on an Undertaking with conditions is

bound by those conditions immediately, despite no Information having
yet been issued and without the benefit of independent judicial review.
There is a practical reason for this. If it were otherwise, the purpose of
the pre-charge release provisions would be undermined and more
accused would be detained pending the issuance of an Information so
that conditions could be imposed on their release. The process of pre-
charge release on an Undertaking with conditions benefits an
accused as he is not detained while steps are taken to lay an
Information before a Justice of the Peace. It also benefits the police,
as it saves them from having to serve a Summons on an accused
once the Information has been laid.
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[24] It is useful to note that the authority of police officers to release

accused persons on Undertakings with conditions was not available
until the Criminal Code was amended in 1994 (The Law of Bail, 3rd ed,
G. Trotter). Prior to the 1994 amendments police officers could
release accused persons pre-charge but they could not place
conditions on them and, as we have seen, no criminal consequences
flowed from the release documents until there had been judicial
intervention.

[25] This changed after the 1994 amendments. An accused is now in

jeopardy the moment he is released on an Undertaking with
conditions. If the accused breaches his conditions prior to an
Information being placed before a Justice, he can be charged and
convicted of a criminal offence. This can occur even if the Information
never issues.

[26] I mention this because in my view it impacts the perspective one

should bring to cases on the issue before the court which pre-date the
1994 amendments.

[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.
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[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)

[30] In Ontario the approach is different. In R v Oliveira, 2009 ONCA 219,

247 OAC 156, the court takes the position that failure to comply with
the timelines in s. 508 result in a loss of jurisdiction over the person
(see para 23).

[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:

During argument counsel submitted that if the undertaking survived

after the promise to appear was rendered invalid, an accused could
remain subject to an undertaking issued by a peace officer for an
indefinite period of time when there were no longer any charges
against that accused. I disagree. The undertaking cannot survive if the
charges giving rise to the undertaking are no longer before the court.
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There may be cases where non-compliance with a provision or

provisions in Part VI of the Criminal Code raises a genuine question as
to whether a charge on which a person was released on an undertaking
was still before the courts as of the date of the alleged breach of the
undertaking. (at para 34)

[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.

[33] In my view the situation of an accused on pre-charge release which

includes an Undertaking with conditions is quite different. There are
conditions on liberty which can be quite significant. There are serious
criminal consequences if those conditions are breached. The purpose
of Criminal Code s. 508 which requires police officers to go before a
justice in a timely manner when they have released someone pre-
charge is intended to ensure that criminal allegations are dealt with in
a timely manner and do not languish. The prejudice to an accused by
delay in criminal matters is well recognized in the context of other
proceedings such as those alleging a breach of an accused person’s
right to be tried within a reasonable time.

[34] An accused in a situation such as this has limited remedies available.

Neither the Criminal Code nor the case law provides for the lapsing of
an Undertaking for failure to lay an Information. It would be unfair to
expect an accused to bring an application to vacate an Undertaking
because of the prosecution’s failure to lay an Information. An accused
is entitled to certainty as to what their obligations are to the court.

VI. CONCLUSION

[35] In the circumstances of this case, where an accused is on both

release documents and an Undertaking or Recognizance with
Conditions, I find that the court loses jurisdiction over the person if an
Information is not sworn at the time of the initial court appearance.
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[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.

[37] The prosecution may be recommenced with the consent of the

Attorney General, pursuant to s. 485.1 of the Criminal Code.

[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.

Dated at the City of Iqaluit this 6th day of February, 2020

___________________
Justice S. Cooper
Nunavut Court of Justice