R. v. Park (S.J.), 2009 ABQB 374

• Judge: Topolniski, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 28, 2009
• Citations: 2009 ABQB 374;(2009), 480 A.R. 358 (QB)

R. v. Park (S.J.) (2009), 480 A.R. 358 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AU.050

Her Majesty the Queen (respondent) v. Scott James Park (appellant)

(071476642S1; 2009 ABQB 374)

Indexed As: R. v. Park (S.J.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Topolniski, J.

June 19, 2009.

Summary:

Park, a lawyer, was charged with breach of recognizance, namely, a curfew imposed as one of several bail conditions. He contended that the recognizance, originally made in proceedings taken under an information, was a nullity since he did not enjoy a de novo bail hearing after a direct indictment was filed. The trial judge rejected that proposition, finding that a consent order transferring "all process" from the information to the direct indictment effectively saved the recognizance. He found Park guilty and levied a fine of $1,000. Park appealed the summary conviction and sentence.

The Alberta Court of Queen's Bench dismissed the conviction appeal. Section 565(3) of the Criminal Code supported the proposition that "the flow of documentation between the provincial court and the Court of Queen's Bench is simply an administrative matter. What counts is the promise, not the paper". The court allowed the sentence appeal. Park's status as a lawyer should not be considered an aggravating fact. A fit and proper sentence was a fine of $450.

Courts - Topic 2221

Jurisdiction - Consent - General - In this summary conviction appeal, the accused relied on the maxim that consent could not give jurisdiction - The Alberta Court of Queen's Bench set out the considerations that tempered the maxim, including that unless objection to jurisdiction was taken promptly, it might be considered to have been waived and the court might acquire jurisdiction - The court also considered the case law for the proposition that the maxim was too broadly stated - In that case, the following also featured in the present appeal: (a) the objecting party had been represented by counsel; (b) the jurisdictional concern was not raised in a timely fashion; (c) the attack on the impugned order was a collateral attack; and (d) there was no fundamental unfairness to the accused - In the result, it could not be said that if there was a jurisdictional error, that there was unfairness or violence to the fundamental principles of justice - The accused's actions removed the notion of jurisdictional deficiency - See paragraphs 26 to 28.

Courts - Topic 2261

Jurisdiction - Waiver of objection to - General - [See Courts - Topic 2221 ].

Criminal Law - Topic 135

General principles - Rights of accused - Waiver of rights - At the heart of this summary conviction appeal was the trial judge's finding that a consent order transferring "all process" from the information to the direct indictment effectively saved the recognizance at issue - The accused contended that his consent was meaningless since he was ignorant of his right to a de novo bail hearing - He was a lawyer who was represented by a criminal defence lawyer - The Alberta Court of Queen's Bench set out the primary considerations in determining whether there was waiver and concluded that "[t]here is nothing to suggest that he did not have an operating mind when he gave his consent. No evidence to support his contention of ignorance of the law is proferred. ... [A]n objective observer would reasonably assume that the Appellant waived his right to object to the Transfer Order on a jurisdictional basis, and, ... that he also waived his right to a de novo bail hearing" - See paragraphs 24 and 25.

Criminal Law - Topic 3314.3

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Hearing - Right to new hearing - [See second Criminal Law - Topic 6705 ].

Criminal Law - Topic 3385

Compelling appearance, detention and release - Arrest of accused on interim release - Following direct indictment - The accused on this summary conviction appeal contended that the only mechanism by which bail could be addressed once a direct indictment was filed was under s. 578 of the Criminal Code, and that the section thus "strips the Court of Queen's Bench of jurisdiction to address bail by other means" - The Alberta Court of Queen's Bench stated that "the language of s. 578 is clear - it is designed to equip the Court with the means to compel an accused person, if it considers it necessary. It cannot logically be interpreted to mean that accused persons may not appear voluntarily ... The arguments advanced on this appeal could clearly be avoided by the Crown taking the most prudent course of conduct; the immediate apprehension of persons released on bail to speak to bail de novo" - In this case, "the Crown's choice of a more temperate route in this case did not avoid the Court's jurisdiction" - See paragraphs 15 to 17.

Criminal Law - Topic 5629

Punishments (sentence) - Fines, penalties and compensation orders - Considerations on imposing fine (incl. ability to pay) - [See Criminal Law - Topic 5848.5 ].

Criminal Law - Topic 5848.5

Sentencing - Considerations on imposing sentence - Proper considerations - The accused, a lawyer, was charged with breach of recognizance, namely, a curfew imposed as one of several bail conditions - The trial judge found him guilty and levied a fine of $1,000, observing that the accused being a lawyer imparted a heightened awareness of the importance of obeying his recognizance - The Alberta Court of Queen's Bench held that the sentence was demonstrably unfit, and that a fit and proper sentence was a fine of $450 - "There is persuasive authority that an accused's status as a lawyer should not be considered an aggravating fact" - See paragraphs 33 and 34.

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5848.5 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court - The accused appealed his sentence for breach of recognizance - The Alberta Court of Queen's Bench stated that "an appellate court may intervene to vary a sentence if it is demonstrably unfit, or where there has been an error in principle, a failure to consider a relevant factor, or an overemphasis of the appropriate factors. This applies to both the length and type of the sentence imposed" - In the end result, the court allowed the sentence appeal - See paragraph 8.

Criminal Law - Topic 6705

Recognizances and undertakings - General - Validity of recognizance - The accused was charged with breach of recognizance, namely, a curfew imposed as one of several bail conditions - He contended that the recognizance, originally made in proceedings taken under an information, was a nullity since he did not enjoy a de novo bail hearing after a direct indictment was filed - The trial judge rejected that proposition, finding that a consent order transferring "all process" from the information to the direct indictment effectively saved the recognizance - The accused appealed the conviction - The Alberta Court of Queen's Bench discussed the legal backdrop, including the relevant statutory provisions of the Criminal Code and the jurisprudence, namely, the principles about the effect of a direct indictment on prior proceedings (specifically, bail) and about the limits on the court's inherent jurisdiction - In the end result, the court dismissed the conviction appeal - See paragraphs 10 to 14.

Criminal Law - Topic 6705

Recognizances and undertakings - General - Validity of recognizance - This summary conviction appeal concerned a breach of recognizance, namely, a curfew imposed as one of several bail conditions - The accused contended that the recognizance, originally made in proceedings taken under an information, was a nullity since he did not enjoy a de novo bail hearing after a direct indictment was filed - The trial judge had found that a transfer order effectively saved the recognizance - The accused's position rested on what occurred at the May 2, 2007 hearing when the transfer order was made: there was no specific reference to bail - The Alberta Court of Queen's Bench stated that the May 2, 2007 hearing could not be viewed in isolation - At the March 20, 2007 hearing, the accused, through designated counsel, agreed that bail applied on the same terms as before - When viewed in context, on March 20, 2007, a de novo bail hearing was held for which the accused voluntarily submitted, and this was implicitly confirmed on May 2, 2007 - See paragraphs 18 to 22.

Criminal Law - Topic 6705

Recognizances and undertakings - General - Validity of recognizance - This summary conviction appeal concerned a breach of recognizance - The accused contended that his recognizance could not have effect since it was embodied in a document issued by the provincial court that was never re-executed under the direct indictment - The Alberta Court of Queen's Bench held that the argument overlooked that: (a) a recognizance did not create the accused's obligation; and (b) the obligation arose when he appeared before the provincial court judge and acknowledged the conditions of his release - That acknowledgement was recorded in Form 32 - While Form 32 might have been rendered void after the stay of the information was entered, it did not affect the accused's acknowledgement of his obligations before the court having jurisdiction under the indictment - The accused agreed that bail applied on the same terms as before and he consented to the transfer order - In any event, he submitted to the court's jurisdiction to make the transfer order - In the result, the direct indictment did not affect the validity of the recognizance - See paragraphs 29 to 32.

Criminal Law - Topic 7652

Summary conviction proceedings - Appeals - Grounds - Error of law - This summary conviction appeal concerned a breach of recognizance, namely, a curfew imposed as one of several bail conditions - The accused contended that the recognizance, originally made in proceedings taken under an information, was a nullity since he did not enjoy a "de novo" bail hearing after a direct indictment was filed - The Alberta Court of Queen's Bench stated that, by virtue of s. 822(1) of the Criminal Code, it "may allow the appeal if it is of the opinion that the verdict is unreasonable, that the trial judge erred in law, or that a miscarriage of justice has occurred" - In the present case, where the alleged error was a question of law, the standard of review was correctness - See paragraph 7.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 7].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 8].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 8].

Vukelich (M.) v. R. (1993), 32 B.C.A.C. 81; 53 W.A.C. 81; 22 W.C.B.(2d) 57 (C.A.), dist. [para. 12].

R. v. Garoufalis (T.) (1996), 110 Man.R.(2d) 176; 118 W.A.C. 176; 107 C.C.C.(3d) 173 (C.A.), dist. [para. 12].

R. v. Jones (E.M.) and Francis (G.G.) (1997), 97 O.A.C. 290; 32 O.R. 365 (C.A.), dist. [para. 12].

R. v. Lawson (D.J.) (1994), 92 Man.R.(2d) 125; 61 W.A.C. 125; 22 W.C.B.(2d) 284 (C.A.), dist. [para. 13].

McNally v. Bass et al. (2003), 223 Nfld. & P.E.I.R. 322; 666 A.P.R. 322; 2003 NLCA 15, refd to. [para. 14].

College Housing Cooperative Ltd. et al. v. Baxter Student Housing Ltd. et al., [1976] 2 S.C.R. 475; 5 N.R. 515, refd to. [para. 14].

R. v. Keating (1973), 11 C.C.C.(2d) 133; 21 C.R.N.S. 217 (Ont. C.A.), refd to. [para. 14].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 24].

R. v. Willier (S.J.) (2008), 429 A.R. 135; 421 W.A.C. 135; 89 Alta. L.R.(4th) 22; 2008 ABCA 126, leave to appeal granted (2008), 392 N.R. 385; 469 A.R. 396; 470 W.A.C. 396 (S.C.C.), refd to. [para. 24].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 24].

R. v. Holmes (1982), 40 O.R.(2d) 707; 2 C.C.C.(3d) 471 (C.A.), refd to. [para. 26].

Cornwall (Township) v. Ottawa and New York Railway Co. (1916), 52 S.C.R. 466, affd. [1917] A.C. 399; 35 D.L.R. 468 (P.C.), refd to. [para. 26].

R. v. Selock, [1931] 2 W.W.R. 745; 25 Alta. L.R. 504 (C.A.), refd to. [para. 26].

R. v. Pellerin (1981), 62 C.C.C.(2d) 411; 24 C.R.(3d) 383 (B.C. Prov. Ct.), refd to. [para. 29].

Talbots Bail, Re (1892), 23 O.R. 65 (C.A.), refd to. [para. 29].

Bietel v. Ouseley (1921), 35 C.C.C. 386 (Sask. C.A.), refd to. [para. 29].

R. v. McDonald, [1958] O.R. 373; 120 C.C.C. 198 (C.A.), refd to. [para. 29].

R. v. Berge (H.R.), [2004] B.C.T.C. 474; 2004 BCSC 474, refd to. [para. 34].

R. v. Richard (J.), [2002] N.B.R.(2d) (Supp.) No. 29; 2002 NBQB 62, refd to. [para. 34].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 523 [para. 12]; sect. 565(2), sect. 565(3) [para. 10]; sect. 578 [para. 11].

Authors and Works Noticed:

Jacob, Jack I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23, pp. 27, 28 [para. 14].

Jackson, Georgina R., and Sarra, Janis P., Selecting the Judicial Tool to get the Job Done: An Examination of Statutory Interpretation, Discretionary Power and Inherent Jurisdiction in Insolvency Matters, in Sarra, Janis P., Annual Review of Insolvency Law 2007 (2008), p. 41 [para. 14].

Sarra, Janis P., Annual Review of Insolvency Law 2007 (2008), p. 41 [para. 14].

Trotter, Gary T., The Law of Bail in Canada (2nd Ed. 1999), p. 450 [para. 29].

Counsel:

Greg J. Worobec (Worobec Law Offices), for the appellant;

Cheryl Schlecker (Alberta Justice), for the respondent.

This summary conviction and sentence appeal was heard on May 28, 2009, by Topolniski, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment and reasons for judgment, dated June 19, 2009.