Notification of adjournment dates in POA matters not required

R. v. Borges, 2011 ONCA 621 deals with adjournments in Provincial Offences matters. When a case is adjourned is notice of the adjournment to be sent to the defendant?

Some Justices of the Peace require prosecutors to tell absent defendants of any new date. This is a proper (and ethical) practice. It is not, however, a required practice and the Court has not obligation to tell a defendant of a new date for trial.

The Court holds:

[15]         Proceedings under Part III are commenced by information. A defendant, such as the applicant, must receive notice of the charge and the first appearance date by a summons issued under s. 22 or 24. Section 26 prescribes the content of such a summons and how it must be served. Section 26(1) reads:

26(1) A summons issued under section 22 or 24 shall,

(a) be directed to the defendant;

(b) set out briefly the offence in respect of which the defendant is charged; and

(c) require the defendant to attend court at a time and place stated therein and to attend thereafter as required by the court in order to be dealt with according to law. [Emphasis added.]

[16]         Section 32 of the Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200 prescribes that a summons under s. 22 shall be in form 104 and a summons under s. 24 shall be in form 106. Both of these forms contain the language set out above in s. 26(1)(c) of the POA:

Therefore you are commanded in Her Majesty's name to appear before the Ontario Court (Provincial Division) at [blank] on the [date] at [time] at [courtroom] and to appear thereafter as required by the court in order to be dealt with according to law. [Emphasis added.]

[17]         Section 49 of the POA deals with adjournments. It gives the Ontario Court of Justice, and in specific cases the clerk, the power to adjourn matters from time to time. There is nothing in s. 49 that requires a defendant to be notified of an adjourned date.

[18]         Section 50 of the POA speaks to how a defendant may appear in court and provides that he may do so in person or by representative.

[19]         Finally, s. 54 of the POA specifically deals with convictions in absentia. Section 54(1) reads as follows:

54(1) Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may,

(a) proceed to hear and determine the proceeding in the absence of the defendant; or

(b) adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant.

[20]         As can be seen, s. 54 requires the prosecutor to prove that the defendant had notice of the original trial date. It does not require the prosecutor to prove that the defendant received any notice of an adjourned date.

[21]         There is nothing in the POA that requires that notice be given to a defendant of dates subsequent to those set out in the initial summons, or gives a defendant any expectation of receiving such notice. It is implicit in the wording of the summons under s. 26(1)(c), and the scheme of the POA, that the defendant receive notice of further appearances and trial dates directly from the court in court either in person or through his representative. The court does not bear the responsibility of providing formal notice of court dates beyond those contained in the initial summons.

[22]         The constitutionality of s. 54 and its predecessor, s. 55(1), were upheld in R. v. Felipa (1986), 55 O.R. (2d) 362 (C.A), and more recently in R. v. Jenkins, 2010 ONCA 278. This court held that these provisions do not deprive the defendant of the right to be present at his or her trial. The defendant may exercise that right by appearing at the time and place fixed for the trial. Section 54 merely provides the machinery to be employed if the defendant does not avail himself of his or her right to appear at trial. The court has the discretion to proceed with the trial in the absence of the defendant, or the court can adjourn the matter and, if it thinks fit, issue a further summons or a warrant for the arrest of the defendant.

[23]         The court observed in Felipa, at p. 363, that:

The appellant was not served with any notice of the adjourned date. If he had inquired, he could have ascertained the date from the court office and appeared on December 4th.