IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Osmond, 2006 NSPC 52
Date: 20060704
Docket: 1532292
Registry: Antigonish
Her Majesty the Queen
v.
Dwayne Garland Osmond
Judge: The Honourable Judge John D. Embree
Heard: May 31, 2006, in Antigonish, Nova Scotia
Decision: July 4, 2006 (Orally)
Decision Released
in Writing: October 25, 2006
Charge: That on or about the 6th day of December, 2004, at or near Antigonish, in the County of Antigonish, Province of Nova Scotia, did having appeared before a Judge, to wit: a Provincial Court Judge in and for the Province of Nova Scotia, on the 22nd day of November, 2004, did unlawfully fail to attend Court on the 6th day of December, 2004, at 9:30 in the forenoon at Antigonish Justice Centre, Courtroom #2, 11 James Street, Antigonish, Nova Scotia, as required by the said Judge, contrary to Section 145(2)(b) of the Criminal Code.
Counsel: Allen Murray, for the Crown
Lawrence O’Neil, QC, for the Defence
Embree, J.P.C. (Orally):
[1] Mr. Osmond is charged that:
On or about the 6th day of December, 2004, at or near Antigonish, in the County of Antigonish, Province of Nova Scotia, he did, having appeared before a Judge, to wit: a Provincial Court Judge in and for the Province of Nova Scotia, on the 22nd day of November, 2004, did unlawfully fail to attend Court on the 6th day of December, 2004, at 9:30 in the forenoon at Antigonish Justice Centre, Courtroom 2, 11 James Street, Antigonish, Nova Scotia, as required by the said Judge, contrary to Section 145(2)(b) of the Criminal Code.
[2] The Crown bears the burden of proving all of the elements of that offence beyond a reasonable doubt.
[3] The evidence in this matter is as follows.
[4] The case for the Crown consisted of a brief statement of admitted facts. Those admitted facts were that the defendant before the Court had appeared in Court on November 22nd, 2004, in connection with an alleged offence. He was ordered to return to Court on December 6th, 2004, and he did not appear on that day. Jurisdiction of the Court was acknowledged.
[5] The defendant was the only witness. He testified that he didn’t mean to forget about Court on December 6th. He said that two days before his Court date he was informed that his grandmother had had a stroke and had no feeling on the left side of her body. He was close to his grandmother. He said this knowledge took over his mind. He was wondering whether she would live. On December 6th, 2004, he was just thinking of her. He said he was mourning or grieving. He didn’t make a decision to come or not to come to Court. These concerns just overtook his thoughts. He didn’t mean to miss Court. It slipped his mind on that day he said.
[6] He acknowledged that he was in Court on November 22nd and the Judge told him to come to Court on December 6th. He remembered after November 22nd that he had to come to Court on December 6th. He had a paper with the Court date on it. He kept that paper in such a way that it wouldn’t be misplaced and he knew where it was all the time. It was in a folder with other Court papers which apparently was in the bottom of a drawer. He said he found the Court paper the next day, December 7th, but that he didn’t do anything to contact the Court or police after that.
[7] He said he had never been charged with anything before that assault charge that he was supposed to be in Court on. He also stated that the news about his grandmother, while distressing, would not have prevented him from coming to Court.
[8] The defendant’s evidence can be fairly summed up as, before December 6th he knew he had to be in Court on December 6th; however, on December 6th he was so distracted or mentally preoccupied by the news of his grandmother’s stroke that he didn’t remember that that was the day he was required to appear in Court on. It slipped his mind. He forgot. On December 6th he still knew of the requirement that he attend Court, he just didn’t associate it in his mind with that day when that day arrived.
[9] Having listened to the defendant’s testimony, I accept his description of the relevant events surrounding his non-appearance in Court. Thus, on December 6th, 2004, the defendant was not in the position of someone who remembered he had to be in Court that day and intentionally decided not to attend the Court that day.
[10] The principal issues arising from these facts are:
1. What is the mens rea associated with this offence?
2. Did the defendant possess the requisite mens rea?
3. At what stage does the Court consider the possible presence of a lawful excuse and does the defendant have one?
[11] Section 145(2)(b) of the Criminal Code states:
Every one who, having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge, or to surrender himself in accordance with an order of the court, justice or judge, as the case may be, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.
[12] This section, along with others in the Criminal Code, creates a legal requirement to attend Court as required by the Court. It is a central feature to most criminal Court proceedings that a defendant appear in Court as directed. In most circumstances, the administration of justice comes to a halt if a defendant is not before the Court or represented before the Court in some fashion when his case is to be dealt with. Given this, and the frequency with which charges of this type come before Courts across the country, it is somewhat surprising that the law relating to the principal issues here is not completely settled.
[13] The issues here involve some fundamental principles of criminal law that the Supreme Court of Canada and many other Courts have addressed. There are a number of judgments from across the country from various Courts that deal with the specific offence before me or a comparable offence, some of which I will be referring to. The fundamental principles I speak of and the leading authorities enunciating them are usually cited in these judgments.
[14] I will start with two judgments I consider to be logical and persuasive. Firstly, The Queen and Preshaw, Lutz, LeBlanc and Ball (1976), 31 C.C.C. (2d) 456, a judgment of the Ontario Provincial Court, Judge Langdon. These were four separate cases before the Court together, where the defendants were all charged with failing to appear in Court under either Section 133(2) or 133(5) which are now Sections 145(2) and 145(5).
[15] As stated by Judge Langdon at page 461, and I quote:
The common question raised by all of these fact situations is whether or not mere forgetfulness coupled with the complete absence of any intention to fail to appear in Court constitutes a defence to the charge.
[16] The facts of each are summarized in the judgment. The facts related to Mr. Ball and Mr. LeBlanc bear some similarities to those of the defendant before me. In the course of his reasons Judge Langdon says the following. I quote first from page 462, starting in mid-sentence where Judge Langdon is saying:
...the offence which is created by s. 133(2) and (5) is the failure to attend Court. Since the failure to attend Court without lawful excuse is an offence it follows that the effect of s. 133(2) and (5) is to impose upon the accused the obligation to appear in Court and this necessarily comprehends that the sections impose upon an accused the obligation to remember the date for his appearance. If, therefore, it is accepted that the section does impose upon an accused person an obligation to take reasonable steps to remember the date of his Court appearance, it is difficult to understand how an accused can discharge that obligation simply by forgetting. Stated simply the question may be raised “How can an accused person discharge an obligation to remember by forgetting?”
[17] Further, on the same page, Judge Langdon says, and I quote:
It cannot be doubted that Parliament intended that some importance should be attached to the Court process which requires the appearance of an accused person to stand his trial. Such a date is not only important to the accused but is important to the administration of justice as a whole.
[18] And further at page 463:
The dilemma in which the Court accordingly finds itself is that on the one hand the Court finds it repugnant to convict an accused of a criminal offence which requires for its commission mens rea when the circumstances in existence at the time of the commission of the actus reus were that there was a complete absence of intention on the part of the accused. In other words, there was nothing deliberate in connection with the failures to attend but rather they were the result of simple forgetfulness. In each of the cases at bar, if the accused had been reminded, it is undoubted that each would have immediately left whatever he was doing and attended Court.
On the other hand if mere forgetfulness or carelessness in recollection or recording of the Court date is to be accepted routinely as a complete defence to the charge, much of the force which Parliament must have intended to attach to the obligation to answer the process of the Court will be lost.
[19] Judge Langdon concludes that genuine forgetfulness cannot constitute a defence to the charges. After citing the Ontario Court of Appeal judgment in The Queen and Lock (1974), 18 C.C.C. (2d) 477, Judge Langdon proposes this test in cases where the defendant has failed to appear, and I quote:
Did the accused use honest and reasonable efforts to recall his trial date and to attend Court in accordance therewith?
Judge Langdon concludes all four defendants before him were careless or negligent and that negligence is a sufficient basis for liability.
[20] The second judgment I refer to is the British Columbia Court of Appeal judgment in The Queen and Ludlow (1999), 136 C.C.C. (3d) 460. There the accused was charged with failing to attend Court under Section 145(2). He was charged with assault and claimed that he didn’t attend because he had spoken to the complainant who told him the charge had been dropped.
[21] While there was a dissenting view by Esson J.A. on the outcome of the appeal the statements of law made by Hall J.A. for the majority I consider are concurred in by all three Justices. Justice Hall gives the following interpretation of Section 145(2) at page 473, and I quote:
As I interpret Code section 145(2), it provides that when the Crown establishes non-attendance by an accused contrary to an undertaking or recognizance, the accused should be found guilty unless he can point to some evidentiary basis supportive of a lawful excuse for his failure to appear. The section speaks of “the proof of which lies upon him”.
[22] Justice Hall goes on to refer to four Supreme Court of Canada judgments and concludes that conviction for certain offences on the basis of negligent conduct is constitutionally permissible provided an accused has available the defence of due diligence. Justice Hall then says at page 475, and I quote:
It must not be overlooked that an obligation is imposed by statute on a person bound by an undertaking or recognizance to attend at court as required or directed by the terms of the operative document. Forgetting to appear seems to me a very marked departure from the requirement imposed on an accused at liberty on an undertaking or recognizance to faithfully observe the requirement to attend. Most people would and should recognize that a serious obligation concerning the proper administration of justice is thereby imposed on an accused and a failure to attend, absent a compelling reason, or as in the instant case, an honest and reasonably based belief that no attendance is required, should usually result in a finding of a breach of the section. I would say the fault or mens rea requirement for this class of offence has a large element of the objective about it. Conviction can be avoided if an accused establishes a lawful excuse by a showing of due diligence to satisfy the obligation, including an honest and reasonable belief in a state of facts that would excuse non-attendance.
[23] Justice Hall had earlier quoted at page 474 McLachlin J., as she then was, in the Supreme Court of Canada judgment in The Queen and Creighton, [1993] 3 S.C.R. 3 at page 58 where she said the following about objective mens rea, and I quote from the Ludlow judgment:
Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably.
[24] For some other comments about hybrid subjective/objective mens rea, I also point out the judgment of Mr. Justice Bastarache in the Supreme Court of Canada judgment of The Queen and Kerr, [2004] 2 S.C.R. 371.
[25] I have considered other approaches to the issues here in other judgments. In The Queen and Legere (1995), 95 C.C.C. (3d) 555, the Ontario Court of Appeal was considering, among other things, mens rea for a charge of failing to comply with conditions in a recognizance. That Court held, without apparent analysis when the Crown conceded, that failing to comply with a condition of a recognizance was a mens rea offence for which carelessness, negligence or failure to take all precautions a reasonable person would take, could not support a conviction.
[26] The British Columbia Court of Appeal in Ludlow does not agree with Legere on these issues as set out at page 473 and 474 in Ludlow. In addition, Justice Hall makes the point of saying on page 474, and I quote:
I prefer the reasoning in a case cited to us, R. v. Preshaw (1976), 31 C.C.C. (2d) 456 (Ont. Prov. Ct.), a judgment of Langdon P.C.J., holding that simply forgetting the date is not generally going to amount to a lawful excuse contrary to the conclusion reached in the earlier cases adverted to in Legere. Those cases found that a failure to remember the date could be a defence.
[27] I recognize that Preshaw was decided prior to the Supreme Court of Canada judgment in Sault Ste. Marie; however, I still consider that Preshaw provides a sound and valuable approach and can stand in light of Sault Ste. Marie. I point out, as just referred to, that the British Columbia Court of Appeal in Ludlow approves Preshaw in 1999, long after Sault Ste. Marie. I also suggest that the conclusions of the Learned Mr. Justice Martin in his decision in R v. Lock, relied on by Judge Langdon in Preshaw, are ultimately very similar to those stated by the Supreme Court of Canada in its judgment in Sault Ste. Marie and later decisions, although Justice Martin may use different words to describe the various categories of offences.
[28] While all Court of Appeal judgments deserve considerable respect and due consideration, Ludlow and Legere take different approaches to issues relevant before me here and I prefer the reasoning in Ludlow and I decline to follow Legere.
[29] Similarly, I respectfully decline to follow The Queen and Stuart (1981), 58 C.C.C. (2d) 203 cited in Legere, The Queen and Neal (1982), 67 C.C.C. (2d) 92, The Queen and Mullin, [2003] Y.J. No. 37, and The Queen and Pacey, [1988] M.J. No. 665. All of those last four decisions accept that genuine forgetfulness of a Court date can allow an acquittal on a 145(2), or related charge, because such forgetfulness demonstrates an absence of mens rea.
[30] I point to the recent Alberta Provincial Court judgment in The Queen and Bremmer, [2006] A.J. No. 392. The charge there was breach of probation by failing to report to a probation officer. The defendant said that after he was released from imprisonment it never crossed his mind to report or, alternatively, that he forgot. Judge Fraser follows the judgments of Ludlow and Preshaw and applies the analysis in those decisions to the breach of probation charge. So does the British Columbia Provincial Court in The Queen and Leftley, [2003] B.C.J. No. 1358.
[31] A good review of the law on the issues before me was carried out by Judge Gorin of the Northwest Territories Territorial Court in The Queen and Nedlin, [2005] N.W.T.J. No. 71. There the defendant was charged with failing to attend Court, contrary to Section 145(5). Judge Gorin ultimately follows the Northwest Territories Supreme Court judgment in The Queen and Selamio, [2002] N.W.T.J. No. 12, which was binding on Judge Gorin. Selamio also dealt with a failure to attend Court charge under Section 145(5).
[32] In Selamio Justice Vertes says, at paragraph 14, that the requisite mens rea for this offence is:
... that the accused committed the prohibited act intentionally, or recklessly, or with wilful blindness. This necessarily imports a higher standard than mere negligence.
[33] In both Nedlin and Selamio the defendants were found guilty based on the mens rea being established through proof of recklessness.
[34] Some additional support for Judge Langdon’s judgment in Preshaw is also found in The Queen and Parent-Quinn, [1995] O.J. No. 4668. There Judge Walker of the Ontario Court of Justice, Provincial Division, was dealing with an offence of failing to attend Court under Section 145(2)(a). Judge Walker considered that the Neal judgment was binding and had to be followed. However, it’s clear Judge Walker prefers the judgment in Preshaw over both Neal and Stuart.
[35] At paragraph 14 of Parent-Quinn Judge Walker says, and I quote:
I agree with Judge Langdon in the Preshaw case which I referred to earlier at 31 C.C.C. (2d) 456 because he comes to the conclusion that “Where a person through their own negligence does not attend court, that falls within the wording of this section.” Namely, they have failed to attend court without a lawful excuse and it is not required upon the Crown to prove beyond a reasonable doubt that they intended not to come to court on the day in question in order to avoid the court process.
[36] Finally, I want to deal with the decision referred to me by counsel for the defendant; namely, The Queen and Manuel, [2000] N.S.J. No. 27. Manuel was a decision by Mr. Justice Goodfellow as a Summary Conviction Appeal Court Judge hearing an appeal from acquittal on a charge of being at large without lawful excuse before the expiration of a term of imprisonment contrary to Section 145(1)(b). The issues before the Court in Manuel are stated in the grounds of appeal as set out in paragraph 5, and I quote:
1. THAT the Learned Trial Judge erred in law in ruling that the reverse onus provision in Section 145(1)(b) of the Criminal Code was unconstitutional;
2. THAT the Learned Trial Judge erred in law in his interpretation of “without lawful excuse” as found in Section 145(1)(b) of the Criminal Code;
3. THAT the transcript of the trial indicates admission by the trial judge acknowledging that he may not have given the decision the amount of time it required.
[37] Ground two, dealing with reasonable excuse, only dealt with the applicable burden and whether it was to raise a reasonable doubt or on a balance of probabilities. Thus, the issues in Manuel are clearly distinguishable from the issues before me.
[38] As well, it appears from the decision that Justice Goodfellow only deals with ground one as he addresses that issue after paragraph 5 and then does not specifically point out that he addresses grounds two or three. Therefore, the appeal was decided on ground one and anything said about ground two is obiter to granting the appeal.
[39] Even if, based on the Justice’s comments in paragraphs 12, 13 and 14, that he did deal with ground two, his reference to the Ontario Court of Appeal judgment in Legere and his acceptance of that judgment on the issue for which it was cited is obiter for his dealing with the contents of ground two before him. Similarly, Justice Goodfellow’s reference in paragraph 14 that forgetting might constitute lawful excuse is not related to any ground of appeal before him. In my view, nothing in Manuel is binding on me and no comments expressed there were meant to authoritatively address any of the issues before me.
[40] I make the following conclusions here. Proof of mens rea is required to establish an offence under Section 145(2)(b). Based on the British Columbia Court of Appeal judgment in The Queen and Ludlow, I accept that the mens rea required is largely objective. To repeat the quotation from The Queen and Creighton cited in Ludlow at page 474:
Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused’s mind but with what should have been there, had the accused proceeded reasonably.
[41] Forgetfulness is not relevant to objective mens rea because objective mens rea is not concerned with what a defendant intended or remembered. The defendant here was told when he had to return to Court and, thus, he was given the knowledge of when he had to return to Court. To the extent that there is a subjective component to the mens rea here, those facts establish that it was present. He kept the paper that said what date he had to come back to Court but there’s no evidence he ever referred to it or used it in any way that would help him remember on December 6th that he needed to go to Court.
[42] The obvious risk involved in remembering to come to Court on the day required is that the various possible events and occurrences of life or the mere passage of time will cause one to forget that obligation. A close family member afflicted by ill health caused the defendant to forget or overlook his obligation to be in Court. The defendant took no reasonable step to prevent such a thing from occurring. Even after learning of his grandmother’s stroke and knowing he had yet to appear in Court he took no steps to ensure he would remember and not lose track of the date.
[43] Even with objective mens rea, a reasonable doubt can still be present and entitle a defendant to an acquittal. No such reasonable doubt exists here. The required mens rea is proven. The actus reus of the offence consists of being aware of the requirement to appear and then failing to appear. The actus reus is proven here. The defendant was told to appear in Court on December 6th, 2004. He possessed that knowledge. He did fail to appear on that date.
[44] It is possible that some of the judgments I have referred to have inter-twined issues of mens rea with lawful excuse. I wish to make it clear that consideration of the possible existence of a lawful excuse only becomes relevant if there is, first, evidence before the Court that proves all the elements of the offence in question, see Selamio, page 5; Neal, page 94; and The Queen and Custance (2004), 194 C.C.C. (3d) 225, Manitoba Court of Appeal, paragraph 24, and the authorities referred to there.
[45] I do not need to list all the types of things that could constitute a lawful excuse. The Crown referred to some possibilities in its submissions. What can constitute a lawful excuse is usually established by judicial decisions and must be put in the context of the offence in question. Forgetting is definitely not a lawful excuse under Section 145(2)(b).
[46] Ludlow says that a lawful excuse under Section 145(2) can be demonstrated by a showing of due diligence. I am not ruling that due diligence is or is not necessarily or properly a lawful excuse for failing to appear under Section 145(2)(b); however, if it is, due diligence is not present here. The defendant did not take all reasonable steps to avoid the commission of the offence in question. Aside from keeping his Court paper with the date on it, he did nothing. Forgetting is an obvious risk to guard against.
[47] If the defendant is required to establish due diligence on a balance of probabilities, he hasn’t done so. No lawful excuse is established on the evidence. Again, the burden to do so is on the defendant on a balance of probabilities.
[48] While I have accepted the defendant’s testimony, it does not provide the defendant with any basis of entitlement to acquittal. It raises no reasonable doubt on any element of the offence. It provides no lawful excuse for failing to appear.
[49] Based on all the evidence before me, all the elements of the offence charged, including the actus reus and mens rea, as I accept it should be defined, have been proven beyond a reasonable doubt. I find the defendant guilty of the offence.
___________________________________
Judge John D. Embree
Judge of the Provincial Court of Nova Scotia