2002 SKQB 131 Q.B.A. A.D. 2001 No. 15 J.C.B. IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF BATTLEFORD BETWEEN: HER MAJESTY THE QUEEN and DENNIS HAROLD FAULKNER RESPONDENT Michel Piche for the appellant (Crown) R. J. Smith for the respondent JUDGMENT April 8, 2002 KRUEGER J. [1] This summary conviction appeal by the Crown was brought when the trial judge dismissed charges of impaired driving and driving with a blood alcohol level exceeding .08 percent. The trial judge held that the circumstances supported special plea of “autrefois acquit” and that the manner of proceeding by the Crown was an abuse of process at common law. [2] No hearing was conducted, but the facts were agreed to by counsel. On December 29, 2000, the respondent was driving on highway number 17 in Lloydminster. That highway runs in north/south direction on the Saskatchewan side of the border between Saskatchewan and Alberta. Police from the Kitscoty detachment of the R.C.M.P. investigated and charged the respondent with the drinking and driving offences. He was issued an Appearance Notice (Recognizance) requiring his attendance in Lloydminster, Alberta, Provincial Court on February 6, 2001. An information charging the two offences was sworn on January 19, 2001, but was not available in the Alberta court when the respondent appeared. Nothing happened. [3] On February 8, 2001, an Alberta prosecutor wrote to the R.C.M.P. in Lloydminster, Saskatchewan, suggesting that the same two charges against the respondent be “re-laid” in Saskatchewan. An information was sworn in Saskatchewan on March 1, 2001, and brought before the Provincial Court in Lloydminster, Saskatchewan, on March 5, 2001. The respondent had not been summonsed and was not present on that date. Again nothing happened. [4] second Saskatchewan information charging the same offences was sworn on March 29, 2001. The respondent was summonsed to appear and did appear with counsel on May 7, 2001. At that time special plea of autrefois acquit was entered and the matter was adjourned for hearing. On September 20, 2001, after hearing from both counsel the provincial court judge accepted the special plea and dismissed the charges. He went on to state that the procedure adopted by the Crown also amounted to an abuse of process. [5] The Crown now appeals on the following grounds: 1. The learned trial judge erred in law in finding that the court had lost jurisdiction as he specifically found that if there was loss of jurisdiction it was over the offence, but in dismissing the Information he relied on the provisions of s. 485(2) of the Criminal Code which relate to loss of jurisdiction over the accused and not the offence; 2. The learned trial judge erred in law in finding that the court had lost jurisdiction under the provisions of s. 485(2) of the Criminal Code as the record is clear that Justice had issued summons within three months of the loss of jurisdiction, so that jurisdiction over the accused had been maintained; and 3. The learned trial judge erred in law in finding that the Information should be dismissed for an abuse of process as no abuse of process at law had occurred in these circumstances. ISSUES [6] The issues before the Court are:1) Was jurisdiction of the court lost in Alberta? (2) If jurisdiction was lost in Alberta did it give rise to a plea of autrefois acquit in Saskatchewan? (3) Apart from any loss of jurisdiction did the police procedure adopted amount to an abuse of process at common law? [7] The relevant portions of the Criminal Code are as follows: S. 476 For the purposes of this Act,... (b) where an offence is committed on the boundary of two or more territorial divisions or within five hundred metres of any such boundary, or the offence was commenced within one territorial division and completed within another, the offence shall be deemed to have been committed in any of the territorial divisions; S. 485 (1) Procedural Irregularities 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, or by reason of failure to comply with any of the provisions of this Act respecting adjournments or remands. (1.1) Where accused not present Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as paragraph 537(1)(j) or subsection 650(1.1) applies and the accused is to appear by counsel. (2) Summons or warrant Where jurisdiction over an accused or defendant is lost and has not been regained, court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue summons, or if it or he considers it necessary in the public interest, warrant for the arrest of the accused or defendant. (3) Dismissal for want of prosecution Where no summons or warrant is issued under subsection (2) within the period provided therein, the proceedings shall be deemed to be dismissed for want of prosecution and shall not be recommenced except in accordance with section 485.1. (4) Adjournment and order Where, in the opinion of the court, judge, provincial court judge or justice, an accused or defendant who appears at proceeding has been misled or prejudiced by reason of any matter referred to in subsection (1), the court, judge, provincial court judge or justice may adjourn the proceeding and may make such order as it or he considers appropriate. (5) Part XVI to apply The provisions of Part XVI apply with such modifications as the circumstances require where summons or warrant is issued under subsection (2). S. 485.1 Recommencement where dismissal for want of prosecution Where an indictment in respect of transaction is dismissed or deemed by any provision of this Act to be dismissed for want of prosecution, new information shall not be laid and new indictment shall not be preferred before any court in respect of the same transaction without (a) the personal consent in writing of the Attorney General or Deputy Attorney General, in any prosecution conducted by the Attorney General or in which the Attorney General intervenes; or (b) the written order of judge of that court, in any prosecution conducted by prosecutor other than the Attorney General and in which the Attorney General does not intervene. [Emphasis added] REVIEW Loss of Jurisdiction [8] The Crown position is that the special plea of autrefois acquit cannot be maintained because the respondent was never in jeopardy in Alberta. The Saskatchewan court did not lose jurisdiction over the offence(s) when nothing happened on March 5, 2001, and the subsequent appearance on May 7, 2001, (within three months) regained any lost jurisdiction over the person. Further, even if jurisdiction over the person was lost in Alberta, that jurisdiction was regained, according to the Crown, when the respondent attended court in Saskatchewan on May 7, 2001, as result of summons that must have issued within three months of February 6, 2001 (date of loss of jurisdiction in Alberta). [9] The respondent argued that because the Alberta court did not have before it an information on February 6, 2001, it lost jurisdiction over the respondent on that date. By the time the respondent appeared in court in Saskatchewan (May 7, 2001) the charges in Alberta were already deemed to have been dismissed for want of prosecution. That, it was suggested, justified the special plea of autrefois acquit. Alternatively, the respondent says the procedure in the circumstances of this case amounted to an abuse of process. judicial stay is justified. [10] The trial judge in rendering his decision stated at page 23 of the transcript: Yeah. Well, agree with Mr. Smith on both of his arguments. Certainly, the Crown here has to be, in fairness to the accused, considered as one Crown. can’t have the Crown of Alberta and the Crown of Saskatchewan. It’s one Crown, the Crown. And according to the regime set up in the Criminal Code, when that three months goes by, after the loss, it’s deemed to have been dismissed for want of prosecution, and that’s certainly, in my view, squarely underpins the plea of autrefois acquit. [11] When the Alberta information was not available in the Alberta Provincial Court on February 6, 2001, the recognizance (Appearance Notice) not confirmed, and the matter not dealt with by the court, jurisdiction over the respondent was lost: R. v. McGinnis (1980), 1979 ABCA 322 (CanLII), 51 C.C.C. (2d) 301 (Alta. C.A.). The court could have regained jurisdiction by issuing summons or warrant within three months of February 6, 2001. It failed to issue summons until August 14, 2001. The information was by then deemed to have been dismissed for want of prosecution pursuant to s. 485(3). “Deemed” in s. 485(3) does not mean “presumed until otherwise proven”; it means that the information is dismissed without any action by the court. Once dismissed the proceeding could only be recommenced with the consent of the Attorney General or leave of the court. Alberta still had jurisdiction over the offence and could have proceeded, but new information could not be preferred before any court (in that province) in respect of the same offence without the consent of the Attorney General or leave of the court. No such consent or leave was obtained. The information remained dismissed for want of prosecution. Jurisdiction in Saskatchewan [12] Section 476(b) of the Code grants concurrent jurisdiction to any province in which the offence may have been committed or when committed within 500 metres of any province. The purpose of this section is to prevent charge from failing because of uncertainty as to the location where it occurred. See R. v. Moore (1970), 1970 CanLII 1037 (BC CA), C.C.C. (2d) 521 (B.C.C.A.). The section was not intended to permit simultaneous prosecutions in two provinces or in second province in the event of failure in the first. [13] I am unable to agree that appearance by the respondent in a Saskatchewan court as a result of a summons issued here before May 7, 2001, revived jurisdiction over the respondent in Alberta. The Alberta proceeding was deemed to have been dismissed for want of prosecution on May 6, 2001. [14] In R. v. Van Rassel (1990), 1990 CanLII 124 (SCC), 53 C.C.C. (3d) 353, the Supreme Court of Canada assumed, but did not find, that foreign acquittal may be basis for successful plea of autrefois acquit. If the Saskatchewan court had jurisdiction to proceed with the same charges that had been laid in Alberta, it did not lose jurisdiction over either the offence or the respondent. The special plea by the respondent was based solely on the deemed dismissal for want of prosecution in Alberta. Does that deemed dismissal support plea of autrefois acquit? [15] Special pleas of autrefois acquit result from an adjudication by the court that ends in an acquittal or dismissal on the merits. In those circumstances, the accused has been placed in jeopardy. See R. v. Hatherley (1971), 1971 CanLII 560 (ON CA), C.C.C. (2d) 242 at 243; R. v. Karpinski (1957), 1957 CanLII (SCC), S.C.R. 343. The only remedy left is an appeal. In Alberta the charges were deemed to be dismissed for want of prosecution. The court had not lost jurisdiction over the offence and could have regained jurisdiction over the person by following the procedure set out in s. 485.1 of the Code. The deemed dismissal did not preclude recommencing the proceedings in Alberta. [16] am of the view that dismissal for want of prosecution as provided for in s. 485(3) of the Code does not give rise to successful plea of autrefois acquit. The charges have not, in those circumstances, been disposed of by the court within the meaning of s. 730(3) of the Code. There has been no finding in respect of which an appeal can be taken. Section 485.1 permits the charges to be recommenced. No acquittal or dismissal on the merits has occurred. The special plea of autrefois acquit is not available in the circumstances of this case. Abuse of Process [17] Having found that the plea of autrefois acquit was successful defence to proceeding with the charges in Saskatchewan the trial judge nevertheless went on to rule on the common law abuse of process application. At pages 24 and 25 of the transcript he stated: also agree with him (respondent) that this prosecution would be abusive because he has suffered penalty in Alberta, and if he were to turn around and be convicted of this offence here in Saskatchewan, he would start all over again with differing levels of and different levels of administrative considerations. He’d start and be punished all over again from square one in the Province of Saskatchewan, not only from the Criminal Code, the minimal punishment set out there, but the administrative punishments that would flow from conviction like this in Saskatchewan, would start anew and fall on Mr. Faulkner, whatever they may be in all their details, driving prohibitions, provincial suspensions, et cetera, would fall upon him again in Saskatchewan, and he would effectively get hit twice for the same one offence, and thus the movement of it back and forth would be abusive under those circumstances. [18] The province of Alberta did not withdraw or abandon its charges. Effective January 21, 2001, Alberta suspended the respondent’s driving privileges for three months. That province requested S.G.I. to suspend the Saskatchewan driving privileges of the respondent pursuant to s. 78 (c) of The Vehicle Administration Act, S.S. 1986, c. V-2.1, and S.G.I. complied. [19] In addition for almost year the respondent was obliged to defend identical charges arising out of the same incident in two provinces. If convicted in Saskatchewan he will be subject to further administrative suspensions in addition to court sanctions. The cost and stress has been substantial. [20] The prosecutorial conduct of the police in proceeding simultaneously in two provinces amounted to an abuse of process. Not only was the respondent obliged to incur legal expenses defending both charges, he has been subjected to the possibility of administrative penalties in both provinces. Had the police in Alberta withdrawn or stayed the Alberta charges on February 8, 2001, when asking that charges be laid in Saskatchewan much of the expense and emotional trauma could have been avoided. [21] On the evidence before me am unable to conclude that the police in either province acted with malice or improper motive. The police did, however, act with an arbitrary purpose and without regard for the principles of fundamental justice. The lack of malice or improper motive does not preclude finding of abuse of process. See R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] S.C.R. 657. This is one of those “clearest of cases” that justifies stay. CONCLUSION [22] The trial judge erred in finding that the special plea of autrefois acquit was applicable in this case. He was correct in concluding that the Alberta Provincial Court had lost jurisdiction over the respondent. Any reference by the trial judge to loss of jurisdiction over the offence was unintentional. Clearly the trial judge was referring to loss of jurisdiction as contained in s. 485(2) of the Code. His conclusion that the proceedings were abusive was in accordance with the information before him. The informations sworn on March 1, 2001, and March 29, 2001, in this proceeding are stayed.
The Crown appealed the dismissal of charges of impaired driving and driving with a blood alcohol level exceeding .08. The trial judge held the circumstances supported a special plea of autrefois acquit and that the manner of proceeding by the Crown was an abuse of process at common law. Alberta did not withdraw or abandon the charges and suspended his driving privileges for 3 months. Upon request, SGI also suspended his Saskatchewan driving privileges. At issue was whether the Alberta court lost jurisdiction; if so, whether that gave rise to a plea of autrefois acquit in Saskatchewan; apart from any loss of jurisdiction did the police procedure amount to an abuse of process at common law. HELD: The Informations were stayed. The trial judge erred in finding a plea of autrefois acquit was applicable but was correct in concluding Alberta lost jurisdiction. 1)The Information remained dismissed for want of prosecution. Jurisdiction over the respondent was lost when the information was not available in the Alberta Provincial Court, the appearance notice was not confirmed and the matter could not be dealt with (R. v. McGinnis). The Alberta court could have regained jurisdiction by issuing a summons or warrant within 3 months of February 6, 2001. A summons was not issued until August. The information was by then deemed to have been dismissed for want of prosecution pursuant to s.485(3). 'Deemed' in s.485(3) does not mean 'presumed until otherwise proven'. It means that the information is dismissed without any action by the court. Once dismissed the proceeding could only be recommenced with consent of the Attorney General or leave of the court, neither of which were obtained. 2)With respect to jurisdiction in Saskatchewan, s.476(b) grants concurrent jurisdiction to any province in which the offence may have been committed or committed within 500 metres of any province in order to prevent a charge from failing because of uncertainty as to location. The section was not intended to permit simultaneous prosecutions in two provinces or in a second province in the event of a failure in the first. 3)The respondent's appearance in a Saskatchewan courtroom as a result of a summons did not revive jurisdiction in Alberta. The Alberta proceeding was deemed to have been dismissed for want of prosecution on May 6, 2001. The charges have not been disposed of within the meaning of s.730(3). There was no finding in respect of which an appeal can be taken. The special plea of autrefois acquit is not available in these circumstances. 4)The prosecutorial conduct of the police in proceeding simultaneously in two provinces amounted to an abuse of process. The respondent was obliged to defend identical charges arising out of the same incident in two provinces for almost a year at substantial cost and stress. The police acted with arbitrary purpose and without regard for the principles of fundamental justice. The lack of malice or improper motive does not preclude a finding of abuse of process.