Crown: M. Moorcraft, Office of the Crown Attorney, Cobourg
Defence: Craig Penney, Toronto Criminal Lawyer
¶ 1 THE COURT: This the application of Mr. S.W. He is saying that for two grounds the hearing on November 26th, 2003, by Justice of the Peace McHenry, I believe it is ...
¶ 2 CROWN: Yes.
¶ 3 THE COURT: ... was deficient. Firstly, that the oath was improper. With respect to the oath, what is required for an oath is that it be solemn affirmation of the truth of a statement and that it must refer, in some way, to what is about to be said. Mr. Penney, quite properly I state, has conceded that Officer Bagshaw's most recent affidavit sworn on August 27th, 2004, was credible. That being the case, the contents of it I must find to be accurate. From paragraphs six and seven of that affidavit it is clear that the two requirements with respect to an oath at that meeting; that it was a solemn affirmation of the truth of a statement and that it refers in some way to about what was to be said, have both been met. Therefore, I find that ground of the application does not succeed.
¶ 4 The second ground of the application is that the hearing conducted by Justice of the Peace McHenry on November 26th, 2003, prior to issuing process was insufficient. On September 24th, 2003, the Justice of the Peace heard sufficient evidence to establish a prima facia case with respect to the over 80 and impaired charges. The level of alcohol consumption alleged does that. On November 26th, 2003, Officer Bagshaw swore the truthfulness again relating to what had previously been said. I therefore find that there was no problem with respect to counts one and two of the November 26th, 2003, information.
¶ 5 On both September 24th, 2003, and November 26th, 2003, in the hearings conducted by Justice of the Peace McHenry with respect to the informations of Officer Bagshaw at no time were sufficient facts sworn and testified to by Officer Bagshaw to establish even a prima facia case of forcible entry. I find that this is a jurisdictional failing and that the Justice of the Peace exceeded her jurisdiction in issuing process on count three.
¶ 6 The next issue I must address is whether or it was timely, the objection in this case. The transcripts of both hearings, we are advised by Mr. Penney, were received by him in July of 2004. This application issued soon thereafter. Therefore, I find the objection has been made in a timely fashion. For these reasons count three of the November 26th, 2003, information is quashed and the Ontario Court of Justice is prohibited from further proceeding with respect to count three.
