B. Issues within Compelling Appearance
| Author | Steve Coughlan - Glen Luther |
| Profession | Professor, Schulich School of Law, Dalhousie University - Associate Professor, College of Law, Saskatchewan |
| Pages | 157-200 |
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A common feature to all of the methods of compelling appearance is the requirement for some person, at some point, to lay an information before a justice.47Several issues are worth noting in this regard.
The most important thing to stress about the process for laying informations and issuing process is its two-step nature. Many cases have noted the important distinction to be drawn between laying an information under section 504 and asking a justice to act on that information under section 507.
In the former task, the justice of the peace is acting "ministerially" or "administratively." That is, in receiving the information, the justice is making sure that it is valid on its face: that it is in writing, that it sufficiently describes the accused person so as to make him identifiable, that it alleges an offence known to law, that the jurisdictional requirements are met, and so on. Provided these technical requirements are satisfied, the justice has no choice but to accept the information.48
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However, that merely means that the first step has been taken - an information has been laid. Generally speaking, unless the justice carries on to issue a summons or warrant or confirm the appearance notice, there are no consequences for the accused from the simple fact that an information has been laid. It is at the second step, deciding whether process should be issued based on the information, that an accused begins to face potential consequences, and it is at this stage that a justice is required to act judicially.49Note that, although the wording of the section implies that the same justice undertakes both roles, this is not necessarily the case, and a second justice can decide whether to issue process based on an information laid before the first.50This is one of the reasons that justices of the peace "occupy a critical role as the point of entry into the criminal justice system."51It is the role of the justice to act as a check on state power, in this particular context by preventing the police from bringing to court anyone they choose. However, institutional structures have not always made it easy for justices of the peace to genuinely play this role. The Supreme Court of Canada has noted that
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the whole concept, that the office should stand as a safeguard of the civil rights of the individual against the exercise of arbitrary police power, is in many cases, and probably in most cases, little more than a sham. In saying this we do not want to be taken as condemning individuals. We are condemning a system under which many conscientious and dedicated individuals are required to work.52As a result, in relatively recent years provinces have taken steps to improve the qualifications and other aspects of the role of the justice of the peace, in order to allow them to act more independently.53The Court has held that the concept of judicial independence does apply to justices of the peace because of the role they play. Legislative change has been intended to help protect that. Legislation varies from province to province, of course, but typically there are now two categories of justices of the peace: sitting and non-sitting, or presiding and non-pre-siding. We will not here pursue the details of each province’s scheme,
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but the essential distinction that has been drawn has been to separate out those justices who are required to act judicially by issuing process such as summons, arrest warrants, or search warrants, and to create different qualifications for them: often the requirement that they have a law degree, among other things.
We will now consider in turn the ministerial and judicial aspects of the justice’s role. First, note that section 504, dealing with the ministerial act of receiving the information, requires that it be laid by someone who "on reasonable grounds, believes that a person has committed an indictable offence." The question of what constitutes reasonable grounds has been discussed above, in Chapter 2, Section C(2).The point to note here is that the requirement that the informant personally believes is also crucial.
The laying of an information is an important point in the criminal justice process. It is the point at which, at least conceptually, the state ceases to investigate an offence and begins to try to prove that a particular person is guilty of it.54The rules therefore demand that the process of laying an information not, to the extent possible, merely be seen as a matter of paperwork to be got out of the way.
In Pilcher, for example, the accused, two police officers, were charged with theft of firearms.55At trial they called as their witness the police officer who had sworn the information. He testified that he had been instructed by a superior officer and a senior Crown attorney to go before a justice of the peace and lay the information, but that he was not given any details about it. His normal practice before swearing an information was to read the police reports and summaries of the investigation prepared by other officers, in order to have reasonable grounds to believe the offence had been committed. In this case he testified that he knew nothing beyond what was stated in the information itself. The trial judge held that, on these facts, the information was invalid and had to be quashed. The informant was entitled to rely on information provided by others in order to form reasonable grounds, but he was required to actually form them personally: simply being told by someone
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else that the grounds existed was not sufficient. As the Ontario High Court of Justice put it in Peavoy:
Recognizing that the pressure of duties and administration upon police forces may quite naturally cause them, when under pressure, to manage the laying of informations as a form of routine ‘paperwork,’ I feel obliged to add the following comments. A person swearing an information, particularly a law enforcement officer, is not at liberty to swear the information in a perfunctory or irresponsible manner with a reckless disregard as to the truth of his assertion. To do so is clearly an affront to the Courts and is at variance with the right of the citizen to be left alone by the authorities unless there is reasonable and probable grounds for invading his liberty by compelling his attendance before the Courts. The police officer who does not satisfy himself that he can personally swear to the truth of the information according to its terms (i.e., personal knowledge or reasonable and probable grounds), yet does so, jeopardizes his personal position and also does a disservice to the upholding of law in the community. His oath must be beyond reproach. He need not, of course, have personal knowledge of all the facts or even most of the facts that support the allegation; indeed much of what would be available to him will, so far as he is concerned, be hearsay. He must, however, be satisfied, even if it be on the basis of reliable reports made by other persons in the course of an investigation, that there is some evidence to support the charge, that that evidence in fact constitutes reasonable and probable grounds for believing that the accused committed the offence and that he believes that the accused did so.56Similarly, for the information to be valid on its face, it must adequately identify the accused. Buchbinder presented a rather odd situation in which the informant (the matter was a private prosecution) alleged that four RCMP members were in possession of documents which had been stolen from him, but he did not know the identity of the particular officers who had taken them. The information was laid against "an unknown person that can be pointed out": the informant’s intention was then to rely on the power of a justice in section 507 to hear the evidence of witnesses, in order to compel testimony from a former RCMP superintendent who would be able to identify the particular officers.57The Court of Appeal held, however, that the information was fatally flawed, and so could not satisfy the earlier section 504
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stage: in that event there was no jurisdiction to issue subpoenas or otherwise call witnesses for a section 507 proceeding. It rejected the suggestion that there might be some sort of "halfway house" whereby an information that was not sufficient to allow process to be issued might be sufficient to allow a hearing to be held.
On the other hand, the court in Buchbinder did note that something less than the accused’s name might be sufficient, and that an information could be valid as long as it sufficiently described the accused. Without deciding the point, the court seemed to suggest that a narrower description than "unknown person that can be pointed out" - something that identified where the officers worked, when they worked there, and other details - might be sufficient. In concluding that a name was not always necessary, the court held:
If a description was given in an information that the accused was short, swarthy, had a prominent scar on his left cheek, and was referred to as "Marty," surely the Justice of the Peace could "receive" such an information and permit witnesses to be brought forth by the complainant who could further identify him for the purpose of greater specificity in the information and subsequent warrant or summons. An example closer to home would be the case of an unidentified police officer who commits an assault. The victim knows the force he belongs to, his rank and badge number, and states that he can identify him. Is the entire process of the law then to be frustrated because the Chief of Police refuses to tell the complainant the name of the police officer to whom that...
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