R. v. Krannenburg, [1980] 1 SCR 1053

Supreme Court of Canada

R. v. Krannenburg, [1980] 1 S.C.R. 1053

Date: 1980-03-03

Her Majesty The Queen in right of the Province of Alberta Appellant;

and

Konnie Adriana Krannenburg Respondent.

1979: October 17; 1980: March 3.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and McIntyre JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal law—Failure of Court to proceed with case at appointed time and place—Resulting loss of jurisdiction—Jurisdiction over offence not saved by curative section of Code—Criminal Code, s.440.1 [en. 1974-75-76, c. 93, s. 43].

On February 9, 1977, the respondent was charged with unlawfully driving a motor vehicle while impaired. The case was adjourned from time to time until finally set for trial on April 21, 1977, at 2:00 p.m. in Courtroom No. 5 of the Provincial Court Building in the City of Edmonton. Due to a mix-up, the case was called that morning in Courtroom No. 1 and, the respondent not being present, the provincial judge issued a warrant for her arrest. Unaware of these developments, the respondent and her counsel duly appeared at Courtroom No. 5 at 2:00 p.m. Her name did not appear on the list of cases scheduled to be heard that afternoon. Crown counsel told respondent’s counsel that he knew nothing about the charge. The respondent and her counsel departed.

Thereafter, the respondent applied to the Trial Division of the Supreme Court of Alberta for an order (i) setting aside the warrant, and (ii) prohibiting the Provincial Court from dealing further with the information. The order was granted. The Crown conceded that the warrant had been improperly issued, but challenged, in the Appellate Division, that part of the order which prohibited further proceedings on the information. The Appellate Division in a unanimous judgment maintained the order of prohibition. Subsequently, leave to appeal to this Court was granted. The narrow question was whether s. 440.1 of the Criminal Code, a curative section proclaimed in force April 26, 1976, remedies a loss of jurisdiction resulting from the failure of a court to proceed with a case at the appointed time and place.

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Held: The appeal should be dismissed.

The language of s. 440.1(1), read in its grammatical and ordinary sense, is simply not wide enough to cover the situation, as here, where there is failure on the part of the court to proceed. The language of s. 440.1 (2) is equally inapposite.

Section 440.1(1), on a plain reading, contemplates three elements, precedent to the operation of the section, namely, (i) a proceeding before a court, judge, magistrate or justice; (ii) failure to comply with the provisions of the Code relating to adjournments or remands; (iii) non-appearance of the accused or defendant at any such proceeding or adjournment thereof. It is doubtful if any one of these elements is present in circumstances where the accused or defendant appears at the time and place appointed, but the court fails to appear and nothing is done.

Section 440.1 is directed to the situation where there has been a procedural defect or irregularity in respect of adjournments or remands. The court may purport to adjourn the trial or remand the accused, but inadvertently breach some provision of the Criminal Code in so doing. A good example is the case in which the magistrate contravenes the eight-day time limitation by adjourning the matter beyond eight days without consent or sine die. In those circumstances, the proceedings are not to be held to be invalid. Section 440.1, in effect, gives statutory recognition to the earlier practice of issuing a summons or warrant to bring an accused person before the court where there had been an improper adjournment and the accused failed to appear.

The problem in the instant case was not one of contravention of the requisites of the Code relating to adjournments. There was no failure to comply with any provision of the Code. The imbroglio arose because the court failed to appear and nothing was done at the time and place set for trial.

In the case of Doyle v. The Queen, [1977] 1 S.C.R. 597, the Court evidenced a willingness to abandon the distinction between loss of jurisdiction over the person (as in improper adjournments) and loss of jurisdiction over the offence (as in a failure to proceed). Section 440.1, however, cannot be interpreted as embracing both eventualities. It is not so worded as to save jurisdiction over the offence when the court has not acted. The decision in Trenholm v. Attorney-General of Ontario, [1940] S.C.R. 301, affirmed in Doyle, governs this appeal.

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APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], dismissing the Crown’s appeal from the granting of an order of prohibition. Appeal dismissed.

J. Watson, for the appellant.

Brian Burrows, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—It has long been recognized in our law that an inferior court may suffer loss of jurisdiction by reason of some procedural irregularity, as for example, when the date to which an accused is remanded or to which a case is adjourned for trial comes and goes without any hearing or appearance, “with nothing done”. The narrow question in this appeal is whether s. 440.1 of the Criminal Code, a curative section proclaimed in force April 26, 1976, remedies a loss of jurisdiction resulting from the failure of a court to proceed with a case at the appointed time and place.

The facts are short and simple. On February 9, 1977, the respondent was charged with unlawfully driving a motor vehicle while impaired. The case was adjourned from time to time until finally set for trial on April 21, 1977, at 2.00 p.m. in Courtroom No. 5 of the Provincial Court Building in the City of Edmonton. Due to a mix-up, the case was called that morning in Courtroom No. 1 and, the respondent not being present, the provincial judge issued a warrant for her arrest. Unaware of these developments, the respondent and her counsel duly appeared at Courtroom No. 5 at 2.00 p.m. Her name did not appear on the list of cases scheduled to be heard that afternoon. Crown counsel told respondent’s counsel that he knew nothing about the charge. The respondent and her counsel departed.

Thereafter, the respondent applied to the Trial Division of the Supreme Court of Alberta for an order (i) setting aside the warrant, and (ii) prohib-

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iting the Provincial Court from dealing further with the information. The order was granted. The Crown conceded that the warrant had been improperly issued, but challenged, in the Appellate Division, that part of the order which prohibited further proceedings on the information. The Appellate Division in a unanimous judgment maintained the order of prohibition.

In circumstances of a failure to act, the leading decision is Trenholm v. Attorney-General of Ontario[2], in which the applicant sought a writ of habeas corpus. He had appeared before a magistrate on January 3, 1938, and was remanded to January 10, 1938. An inquiry into his mental condition was being conducted in the interim. By warrant dated January 12, he was detained at a mental institution. It was held the warrant was not validly issued because the remand had expired on the tenth, at which time no steps were taken. Thus, there was no authority under which the warrant could have been issued. There was “no criminal cause or charge in existence”: per Kerwin J. at p. 308. The justice became functus: per Davis J. at p. 313. Loss of jurisdiction over the offence occurred when the date of adjournment or remand passed and “nothing was done”. Such procedural defect destroyed the jurisdiction of the court. The indictment or warrant became invalid and of no effect. R. v. Lights[3]; Ex p. Peters[4]; R. v. Mack[5].

In a more recent judgment of this Court, Doyle v. The Queen[6], Trenholm was affirmed. Where a court fails to proceed with a hearing, jurisdiction over the information charging the accused with the offence is lost, and thereafter “that information is to be treated as if it had never been laid”: per Ritchie J. at p. 610.

The question for determination in the case at bar, however, is whether s. 440.1 of the Code has changed all of this. Does the section have the

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result of saving the jurisdiction which would otherwise have been lost? Section 440.1 reads:

(1) The validity of any proceeding before a court, judge, magistrate or justice is not affected by any failure to comply with the provisions of this Act relating to adjournments or remands, and where such failure has occurred and an accused or a defendant does not appear at any such proceeding or upon any adjournment thereof, the court, judge, magistrate or justice may issue a summons or, if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant.

(2) Where, in the opinion of the court, judge, magistrate or justice, an accused or a defendant who appears at a proceeding has been misled or prejudiced by reason of any matter referred to in subsection (1), the court, judge, magistrate or justice may adjourn the proceeding and may make such order as it or he considers proper.

(3) The provisions of Part XIV apply mutatis mutandis where a summons or warrant is issued under subsection (1).

The Crown contends that where an adjournment expires with no valid action taken by the court, s. 440.1(1) preserves the court’s jurisdiction on the information charging the accused. Reliance is place upon Doyle v. The Queen, supra.

Prior to the decision in Doyle, there was a respectable body of authority which drew a distinction between loss of jurisdiction over the person and loss of jurisdiction over the offence, i.e. the indictment or information. Loss of jurisdiction over the person was considered to arise when the court failed to follow the prescriptions of the Criminal Code pertaining to adjournments and remands. Although jurisdiction over the person was said to be lost, it could be regained when the accused appeared before the court voluntarily or in response to a summons or warrant. Proceedings then continued on the original information or indictment. See R. v. Bence et al, Ex p. Regina Oral Arts Ltd.[7]; Re Kuhn and the Queen[8]; R. v. Stedelbauer Chevrolet Oldsmobile Ltd.[9]; Re

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Groves Certiorari Application[10]; but see also St-Pierre v. The Queen[11], and Kolot v. Hemsworth[12].

The judgment in Doyle cast doubt upon the validity of a distinction between jurisdiction over the person and jurisdiction over the offence. Very briefly, these were the circumstances in Doyle. There had been a number of delays and adjournments, each of which had been met by protest from counsel representing Doyle. Although the information had been initiated December 8, 1973, it was not until April 1, 1974, that the charge was read to the accused. At that time, the Court further adjourned the trial to a time four months later. Doyle then brought an application for a writ of mandamus declaring void his recognizance. Mr. Justice Ritchie, writing for this Court, held that the failure to put the accused to his election “involved the loss of jurisdiction over the accused” (p. 607); and, by adjourning the case for more than eight days, “jurisdiction over the person of the accused was accordingly lost” (p. 608). Later in the judgment, in obiter dicta, Mr. Justice Ritchie, had this to say:

In the present case if the magistrate had granted an adjournment for eight days and then done nothing, the situation would have been exactly within the Trenholm decision and I cannot see that the affirmative violation of the Code by adjournment for more than eight days which occurred here affords any distinction in principle from the acquiescence in allowing an eight-day adjournment to expire which is what occurred in Trenholm. (p. 609)

It is this language which has been interpreted as removing the distinction between loss of jurisdiction over the information or indictment and loss of jurisdiction over the person. See the annotation “The Wonderful World of Practice”, 35 C.R.N.S. 14 at p. 19; also “Criminal Law and Procedure”, (1977) 9 Ott.L.R. 568 at p. 648.

It should be observed at the outset that this case approximates the situation in Trenholm, where “nothing is done”, rather than in Doyle, where there was a clear contravention of a specific provision of the Code relating to adjournments. Doyle

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did nothing to erode the view expressed in Trenholm that when the assigned date passes, without action taken, jurisdiction is lost. Doyle had the effect of recognizing a like loss of jurisdiction when there has been an irregular adjournment or remand. If the dicta in Doyle could be said to have suppressed the distinction between jurisdiction over the person and jurisdiction over the offence, s. 440.1 may be seen as restoring that distinction, in the sense that it permits the court, judge, magistrate or justice to issue a summons or warrant to secure attendance of an accused or defendant where there is any failure to comply with the provisions of the Code relating to adjournments or remands. The validity of the proceeding is not affected by such failure.

The Crown advances two main arguments. First, it is said that in setting an adjournment to a certain time and place, and allowing it to expire without the court taking steps to extend the adjournment or otherwise deal with the matter, there has been a failure to comply with the provisions relating to adjournments. When the court does nothing on the ‘adjourned’ date, it has failed to comply with the terms of the adjournment and is therefore within the curative scope of s. 440.1.

Second, it is argued that the section ought to be given a liberal construction; taking a fair and liberal reading, failure to deal with a matter on the adjourned date is a failure relating to an adjournment. The spirit in which s. 440.1 was enacted was that of resolving procedural irregularities and losses of jurisdiction. If Doyle teaches that there is no difference in principle between the two sets of circumstances in which formerly there would have been a loss of jurisdiction, then s. 440.1 ought to be applied equally to cover losses of jurisdiction over the person and the offence. More particularly, it is urged that the section can be used to remedy a failure by the court to attend proceedings set for a particular day.

The Crown submits that a narrow reading of s. 440.1 will revive the dichotomy of loss of jurisdiction and that the section should receive such large

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interpretation as will save jurisdiction in a case such as the one at bar. It might be noted that a broad interpretation was given in Magna v. R.[13]; in R. v. Griffin, Whyte, Porter, and Bruce (Ont. Weekly Court, August 15, 1978, unreported); and in Craven and National Aviation Consultants Ltd. v. R. (Toronto Weekly Court, March 26, 1979, unreported). A narrow interpretation was preferred by the Supreme Court of Prince Edward Island sitting in banco in R. v. Barry (October 11, 1978, unreported).

In my view, the interpretation the Crown would give to the word “adjournment”, in order to use s. 440.1 to cure a loss of jurisdiction consequent upon a failure of the court to attend, is both artificial and contrived. The language of s. 440.1(1), read in its grammatical and ordinary sense, is simply not wide enough to cover the situation, as here, where there is failure on the part of the court to proceed. The language of s. 440.1(2) is equally inapposite.

Section 440.1(1), on a plain reading, contemplates three elements, precedent to the operation of the section, namely, (i) a proceeding before a court, judge, magistrate or justice; (ii) failure to comply with the provisions of the Code relating to adjournments or remands; (iii) non‑appearance of the accused or defendant at any such proceeding or adjournment thereof. In my view, it is doubtful if any one of these elements is present in circumstances where the accused or defendant appears at the time and place appointed, but the court fails to appear and nothing is done.

Section 440.1 is directed to the situation where there has been a procedural defect or irregularity in respect of adjournments or remands. The court may purport to adjourn the trial or remand the accused, but inadvertently breach some provision of the Criminal Code in so doing. A good example is the case in which the magistrate contravenes the eight-day time limitation by adjourning the matter beyond eight days without consent (R. v. Dupras Ltd.; R. v. Latraverse[14]) or sine die (Queen v.

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Morse[15]; Queen v. Quinn[16]; R. v. Moore[17]). In those circumstances, the proceedings are not to be held to be invalid. Section 440.1, in effect, gives statutory recognition to the earlier practice of issuing a summons or warrant to bring an accused person before the court where there had been an improper adjournment and the accused failed to appear.

The problem in the instant case was not one of contravention of the requisities of the Code relating to adjournments. There was no failure to comply with any provision of the Code. The imbroglio arose because the court failed to appear and nothing was done at the time and place set for trial.

In the case of Doyle, the Court evidenced, as I have indicated, a willingness to abandon the distinction between loss of jurisdiction over the person (as in improper adjournments) and loss of jurisdiction over the offence (as in a failure to proceed). Section 440.1, however, cannot be interpreted as embracing both eventualities. It is not so worded as to save jurisdiction over the offence when the court has not acted. The Trenholm decision, affirmed in Doyle, governs this appeal.

I add this caveat. The Appellate Division was of opinion that the Court had lost jurisdiction over the offence, but that a new information was available, if one could be laid within the limitation period for summary conviction cases. The question of whether a new information may be laid after jurisdiction has been lost is not before us, and I refrain from any extended discussion on the point, in the absence of argument and on the narrow facts of this case. It is manifest, however, that there will be occasions on which the laying of a new information will not be available. Time limitations may preclude it. Indeed, the laying of another information may amount to nothing less than an abuse of process. The successful challenge

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to jurisdiction may not come until after trial on the merits and conviction. The full effect of s. 440.1(2) and possible prejudice to the accused, through the laying of a new information, would require consideration. The dicta in Doyle should not therefore, in my opinion, be taken as authority for the proposition that in every case it will be possible, when jurisdiction over the offence is lost, to lay another information in the same jurisdiction charging the same offence.

I would dismiss the appeal. Pursuant to the order granting leave to appeal to this Court, the appellant will pay the costs of the respondent on a solicitor and client basis.

Appeal dismissed.

Solicitors for the appellant: The Attorney General for Alberta, Edmonton.

Solicitors for the respondent: McLennan, Ross, Taschuk & Ponting, Edmonton.