Take notice, jurisdiction is predicated on it!

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Andrew McCann, Jamie Masse and Patrick Thompson blocked a cattle truck from leaving the Frontenac Penitentiary. The blockade was part of a peaceful protest. They were convicted of mischief and received conditional discharges. Their appeal to the summary conviction appeal court was dismissed. They appealed to the Ontario Court of Appeal: 2015 ONCA 451.

On appeal the appellants presented arguments that ultimately were based on the assertion that “the court below erred in finding that their peaceful protest was not protected expression under s. 2(b) of the Charter” [@3]. The court rejected this argument:

The impediment to this argument is that the appellants did not serve a notice of constitutional question as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. A Charter argument was not made at first instance and in fact the appellants, who were self-represented, disclaimed a Charter argument. [@4].

The failure to serve notice was fatal the court held:

Notice of a constitutional question is not simply a technicality. The jurisprudence of this court confirms that it is mandatory: Paluska, Jr. v. Cava (2002), 59 O.R. (3d) 469 (C.A.); R. v. Briggs (2001), 55 O.R. (3d) 417 (C.A.). Section 109(2) of the Courts of Justice Act provides that where notice has not been given, a remedy under s. 24(1) of the Charter shall not be granted. The notice requirement is important for the reasons expressed in Briggs at para. 44 – to put the government on notice that the legislation is being challenged and to give it a full opportunity to support its validity. It also ensures that the court has the benefit of a full factual record.

We agree with the respondent that the appellants’ submissions raise the constitutional applicability of s. 430(3) of the Code. This court has no jurisdiction to grant relief in the absence of notice or in the absence of the circumstances discussed in para. 23 of Paluska, none of which exist here. Moreover, the appellants concede that the record before us does not permit us to assess the Charter arguments or to grant a Charter remedy. [@6-7].

McCann is a helpful decision which clearly recognizes that notice is not merely a procedural formality, it is a substantive pre-requisite to the consideration of a constitutional issue. In the absence of notice the court lacks jurisdiction to grant a remedy. This principle has universal application; it is unaffected by the importance or prevalence of the issue at hand. While the issue is well settled law, it seems that remains at issue in some cases: see Nicholson, 2014 OJ No 3860 (where the court overturned a constitutional ruling by the lower court which proceeded in the absence of notice). McCann therefore offers a helpful reminder from the Ontario Court of Appeal.

DM

You've been served

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Redford had a criminal blood alcohol concentration (BAC) while driving. The Crown established this by calling the qualified breath technician to testify about the breath testing procedure and results. Redford had no substantive defence for his crime, rather he argued that the Crown had not satisfied the Court beyond a reasonable doubt that they had complied with the notice requirements found at section 258(7) of the Code. The trial judge disagreed and convicted Redford who in turn successfully appealed to the summary conviction court. In a 2-1 decision the Alberta Court of Appeal restored the conviction: 2014 ABCA 336.

Section 258(7) stipulates that “no certificate shall be received into evidence … unless the party intending the produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.”

At trial the qualified breath technician testified that after completing the breath testing “he took a document containing the Certificate of Analyses and Notice of Intention to Produce Certificate, completed the portion of the document consisting of the Notice of Intention to Produce, and gave a copy of the certificate to” Redford. The breath tech handed the paperwork to Redford and explained its contents. Because Redford was facing other charges and was going to be taken into custody, the officer then took the certificate back and placed it with Redford’s other property. The officer testified that he completed a Personal Property Report where he itemized Redford’s personal effects including the certificate; Redford signed this report. The officer completed an affidavit of personal service on the back page of the certificate.

No evidence was adduced at trial about whether upon his release Redford had ever received his personal property, including the certificate.

At trial Redford argued that it had not been proven beyond a reasonable doubt that section 258(7) had been complied with.  The trial judge was satisfied on a balance of probabilities that section 258(7) had been complied with, however also indicated that if he was in error and the applicable standard of proof was beyond a reasonable doubt, he would not have been so satisfied.  The summary conviction appeal court held that the trial judge had erred in concluding that the Crown had only an evidentiary burden to meet and that the applicable standard was beyond a reasonable doubt.

The Alberta Court of Appeal framed the issues as follows: first, did the trial judge err in concluding that the standard of proof for the service of the Certificate of Analyses under section 258(7) was a balance of probabilities. Second, was that section complied with?

With respect to the first question the majority of the Court held that:

(t)he purpose of s 258(7) is to provide an accused with reasonable notice of the Crown's intention to introduce into evidence the Certificate of Analyses and to provide a copy of the certificate to the accused. The provision governs only admissibility; it does not, without more, trigger any presumption. It is purely procedural. To take the benefit of a presumption, the Crown must go on to prove compliance with the prerequisites under s 258(1)(g) and then compliance with the prerequisites under s 258(1)(c). Section 258(7) does not establish facts which trigger a presumption with respect to a vital issue relating to innocence or guilt. It is only the threshold for admissibility. @para 35.

Thus, the trial judge was correct in concluding that the burden was no higher than a balance of probabilities.

The Court then turned its attention to whether in the circumstances of this case section 258(7) had been complied with.

The Court held that the breath tech had served Redford with the Certificate and Notice when he sat down handed it to him and explained the contents. They went on to note that:

(w)hat transpires with the documents after that does not render service invalid. The law does not require the respondent to retain personal control or possession of the certificate. What is important, functionally, is that before trial, the respondent receives a copy of the certificate and reasonable notice that it will be tendered as evidence by the Crown. This requirement is to ensure that the accused can make full answer and defence. Compliance can be accomplished in numerous ways, including by personal service or through counsel by means of disclosure as required by R v Stinchcombe, [1991] 3 SCR 326.

Beyond this, the Crown has no addition evidentiary burden under s 258(7) to establish that the respondent retained the certificate in his possession for a certain period of time, or received it again after he was released from custody. To suggest otherwise is to confuse the issue of standard of proof with the legal requirements of the section, adding the requirement of possession to that of notice for some uncertain amount of time, requirements that currently do not exist. @paras 41-42

Thus, even if the trial judge had found that Redford had not been properly served at the station, so long as the Crown provided the Certificate at some reasonable point before trial (which would usually be done in the normal course of the disclosure process) the Crown would have complied with the section 258(7) requirement. 

LT