Crown:   H. Bayley, Office of the Crown Attorney, Oshawa
Defence:  Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1  THE COURT:  In this matter, C.M., is charged that on or about the thirteenth day of February, 2002, at Oshawa, having been named in a promise to appear that has been confirmed by a justice under Section 508 of the Criminal Code, unlawfully did fail, without lawful excuse, to attend court in accordance therewith by not appearing at Oshawa contrary to the Criminal Code and the amendments thereto.

¶ 2  The defence at the close of the Crown's case, which was essentially a paper case, applied for dismissal via non-suit motion saying that the Crown had failed to put forward a prima facie case [editor's note - that is, a case on its face]. On the one ground I find no merit whatsoever. That is an argument that there was no proof that the C.M. before the court was the person who was involved in the alleged failure to appear or, looked at another way, that there was no evidence of identification vis-a-vis the charge. I think the case law on that matter is overwhelming against the defence. Different considerations might apply if the name of the accused was, for example, John Smith and there was nothing to tie the party otherwise to the court. In this case I have a variety of ways of determining that the C.M. before the court is the person referred to in the information and I do not wish to belabour that point.

¶ 3  The main part of the defence argument deals with the assertion that no fail to appear charge could be properly laid on this information, upon failure to attend at a first appearance, because the process was fatally flawed. The defence draws my attention to Section 505 of the Criminal Code which reads as follows: "Where (a) an appearance notice has been issued to an accused under Section 496, or (b) an accused has been released from custody under Section 497 or 498, an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court."

¶ 4  The cases cited in dealing with this issue have included R. v. Naylor (1978), 42 C.C.C. (2d) 12 (Ont. C.A.). In that case the issue before the court was dealt with in obiter but it was the considered obiter of the majority. In that case the accused had been arrested and released on April 8, 1975 on a promise to appear that was returnable eight days later, on April 16. The defence in that case urged that the information was a nullity because of the requirement that that information be laid under the predecessor to Section 505 as soon as practicable and, in any event, before the time stated in the promise to appear. The charge, of course, being laid on April 16, that is, the information being sworn on April 16, it was said did not comply with that requirement. At page 18 of that decision the court determined that both branches of the time requirement had to be met, that is to say, the information had to be laid as soon as practicable and, in any event, before the time stated in the promise to appear. The application before the court was actually to quash the information on the basis of non compliance with the predecessor to Section 505. The court said the following at page 19: "Are the time limits in Section 455.1 mandatory? I think it is clear from the wording of the section that they are. If, therefore, the time-limits are not observed, and if the accused fails to appear pursuant to an appearance notice, promise to appear or recognizance, he cannot be charged with an offence under s. 133(5)" and a number of citations are set out. "In the present case, however, the accused was present in Court. Was this sufficient, as the lower Court Judges held, to give jurisdiction? I believe it was. In order for the appellant to be obligated to attend Court the provisions of s. 455.1 had to be followed; but the failure to follow that procedure did not, in my opinion, invalidate the information or result in loss of jurisdiction over the offence" and again a number of citations are set out.

¶ 5  The Court, if I may say, seems to back into saying that in that case the eight days between April 8 and April 16 did not satisfy the statutory requirements of "as soon as practicable". In the final analysis that was not really the issue because Mr. Naylor had appeared and was thereafter bound by the information.

¶ 6  The topic was discussed again in R. v. Gougeon, R. v. Haesler and R. v. Gray (1980), 55 C.C.C. (2d) 218 (Ont. C.A.). That case adopted and applied Naylor. The facts varied as between the circumstances relevant to the three different accused, Gougeon, Haesler and Gray. It was Gray that had the fact situation most relevant to the matters before this Court. Once again in Gray the information was sworn on the date of the first appearance. The arrest and release in that case had occurred on January 24 of 1978 and the first appearance was February 10, 1978, seventeen days later. It turned out that the information, as I say, was sworn on the morning of February 10, 1978. Once again the court, to some extent in obiter, was dealing with this point because once again the issue was whether the charge and process involving Mr. Gray were valid. And once again applying Naylor the Court of Appeal held that the Gray information was not sworn as soon as practicable and process was not confirmed as soon as practicable. Nevertheless, jurisdiction over the appellant, Gray, had been obtained by his appearance and that was the critical point in the case.

¶ 7  In R. v. Riley, (1981), 60 C.C.C. (2d) 193 (Ont. C.A.) the facts were somewhat different. In that case the accused was arrested on December 19, 1980 on drinking and driving charges, and he was released on a promise to appear saying that he was to appear in court on January 13, "1980". Obviously, that could not be done as January 13, 1980, was already past by December 19 of 1980. The information charging the offence was sworn on January 9, 1981. The accused did not appear in court on January 13, 1981. However, subsequently, an identical information was sworn and a warrant in the first instance was issued for the accused's arrest. So in this case, that is in Riley, the accused applied to quash the warrant on the second information. It was held that there had been non-compliance with the "as soon as practicable" requirement. The issue of whether there was compliance with Section 455.1 in terms of whether the information was laid as soon as practicable, again, was a matter that was obiter because there was a new information before the Court, and it was held in Riley that the second information was valid and the process on it, i.e. the warrant, was valid.

¶ 8  At page three of the Quicklaw printing of R. v. Riley, C.C.C. at page 196, we find the following: "Naylor and Gougeon et al hold that non-compliance with the time requirements of s. 455.1 does not affect the validity of the information (in Naylor, Dubin J.A. who concurred in the result, did not agree on this) and also, generally, that jurisdiction over the accused can be acquired by his personal appearance before the Court. With respect to the Court's power to issue further process, if the accused should fail to appear in response to the process initially relied upon to obtain his appearance before the Court, Houlden, J.A. in Naylor said that a warrant could not be issued under s. 456.1(2) of the Code. In a more generally phrased statement he said: "In order for the appellant to be obligated to attend Court the provisions of s. 455.1 had to be followed ...." (p. 19). The appellant particularly replies upon this statement. In Gougeon et al. this Court adopted Houlden, J.A.'s approach in Naylor to these issues and held that failure to comply with s. 455.1 would result in the ineffectiveness of the Bail Reform Act, R.S.C. 1970, c. 2 (2nd Supp.), process, e.g., an appearance notice or a promise to appear, for the purposes of ss. 133(5) [and further citations] of the Code (pp. 230-1). In the particular circumstances in Gray failure to comply with s. 455.1 did not preclude, in the view of the Court, resort to the warrant procedure provided for in s. 455.1(1)."

¶ 9  And the Court goes on to observe that nothing in Naylor and Gougeon decided the issues that were to be decided in Riley.

¶ 10  In the case before me I may have the first time that this issue has been engaged directly as there is, apparently, no reported decision in which the current type of fact situation is engaged as ratio decidendi. The facts in this case are as follows: it is alleged that the underlying offence of assault occurred on January 15, 2002. Ms. C.M. entered into a promise to appear dated January 19, 2001, which will be read by the Court as having actually been issued in 2002, since the surrounding circumstances make it clear that it was not issued in 2001. The return date on this promise to appear was February 13, 2002. The date set out in the promise to appear for Ms C.M. to attend for the taking of fingerprints and photographs under the Identification of Criminals Act was January 31, 2002. The information was sworn, and the promise to appear confirmed, February 6, 2002. February 13 the accused failed to appear on her first appearance and a bench warrant was issued. The failure to appear charge before the court resulted. Clearly, the information was sworn before the return date of the promise to appear. The issue before me is whether the information was sworn as soon as practicable. It is clear from the dicta in Naylor and Gougeon if it was not sworn as soon as practicable then the process was invalid notwithstanding that it was eventually confirmed, and the failure to appear charge before the Court could not proceed.

¶ 11  The cases on "as soon as practicable" under the drinking-and-driving provisions of the Criminal Code are not really helpful. The timeline there is measured from the time of driving and is always measured in minutes and hours. "As soon as practicable" does not mean immediate but involves urgency measured in minutes. Reasonable or small interruptions or delays are permitted in those cases. In Section 505 of the Criminal Code the goal is to ensure that the person accused knows on a timely basis whether he or she must answer the promise to appear or, in the more extreme example, comply with the terms of the officer in charge undertaking. It is no answer that empirically it can be observed, that virtually every process presented for confirmation is confirmed by a justice. It seems to me that as soon as practicable in this context must be measured forward from the date of release and backward from the date of intended first appearance. The first gap must be reasonably quick and the second gap must be reasonably and relatively long. Here in terms of clear days the information was sworn and the process confirmed eighteen days after release and seven days before the first appearance. It is noteworthy that the information was sworn some six full days after the date for attendance under the Identification of Criminals Act. The Naylor and Gray cases give us little assistance as the first gaps of eight days and seventeen days respectively were overtaken by the absence of any second gap.

¶ 12  The fact that officer-in-charge undertakings are also subject to the same relevant sections of the Criminal Code bears further comment. Someone who is subject to particularly restrictive conditions as part of a process which will not be confirmed by a justice, needs to be released from those conditions at an early reasonable moment, as soon as practicable. Further, as Mr. Penney pointed out this morning, the provisions of Section 503, dealing with the ability of someone who is subject to terms on an officer in charge undertaking to apply before a court for amendment of some of those terms, must be kept in mind. It is important that the information be before the court because otherwise the application to amend those terms cannot be brought.

¶ 13  There is no principle in the construction of statutes that would allow a timeframe such as "as soon as practicable" to be interpreted differently depending on the degree of restriction on the person subject to process. That is to say, in my view, the context in which "as soon as practicable" appears does not make it possible to say that there is one time period which would be as soon as practicable for an appearance notice, or a promise to appear which contains no additional condition, and a different time period for someone subject to an officer in charge undertaking. The language makes it clear that as soon as practicable has to have a common meaning vis-a-vis those different forms of release.

¶ 14  I consider that the language of the section is not conducive to a hard and fast numerical formula. "As soon as practicable" does not equal "as soon as possible" but it does not mean "as soon as convenient", in part because "as soon as convenient" could be abused. It would be possible, for example, in a particular case to impose highly restrictive terms under an officer in charge undertaking and then simply not put the information before the court for an undue length of time or conversely, not raise the question of whether the officer in charge undertaking should be confirmed by a justice in time for the justice to quickly set it aside.

¶ 15  Without laying down a numerical formula I find that here, eighteen days after the release, fully six days after the date for the taking of photographs and fingerprints under the Identification of Criminals Act and seven days before the first appearance, was not as soon as practicable. This does not invalidate the original assault information but it means that Ms C.M. was not required to account for not appearing on her first appearance. Accordingly, the bench warrant should not have been issued on February 13 of 2002 and the non suit motion must succeed. The fail to appear charge against Ms C.M. is dismissed.