R v Jordon

R. v. Jordon Ontario Court (Provincial Division) — J.P. Squires November 23, 1998 | Brantford, Ontario | s. 130 HTA — Careless Driving

Background

Andrew Jordon was originally issued a Part I certificate of offence for careless driving under s. 130 of the Highway Traffic Act, arising from an incident on October 5, 1997 in Brantford. The original certificate was issued by Officer Cushman.

That Part I charge was subsequently withdrawn in Provincial Offences Court on January 28, 1998. On the same day, a Part III information was laid for the identical offence — same date, same location, same charge. The shift from Part I to Part III triggered the consent requirement in s. 21(2) of the Provincial Offences Act, which provides that where a summons or offence notice has been served under Part I, no proceeding shall be commenced under Part III in respect of the same offence except with the consent of the Attorney General or his or her agent.

That consent was provided by Chris Szoke, the provincial prosecutor. The problem, as defence counsel Mr. Lagden saw it, was that Szoke didn't have the authority to give it.

Issues

1. Is a provincial prosecutor an "agent of the Attorney General" for the purpose of granting consent under s. 21(2) of the Provincial Offences Act?
2. If not, does the Crown Attorney have authority to delegate the provincial prosecutor as such an agent?
3. What is the consequence if the consent was granted by someone without authority?

The Legal Framework

Section 21(2) of the POA is a gate. Once a Part I offence notice or summons has been served, the Crown cannot simply pivot to Part III and start fresh. The Legislature put a sentry at that gate: only the Attorney General or an agent of the Attorney General can wave it through. The rationale is straightforward — switching charging streams after Part I process has been engaged is a significant step, and it requires a commensurately significant authorization.

The defence argument turned on the precise scope of agency. Provincial prosecutors derive their authority to prosecute from the Crown Attorney's Act, specifically s. 7(4), which authorizes them to conduct prosecutions for provincial offences as delegated by the Crown Attorney, subject to the Crown Attorney's direction and supervision. Section 10 (section 11 as referenced in the submissions) of the same Act makes provincial prosecutors agents of the Attorney General — but only for the purposes of the Criminal Code. The Crown Attorney's Act does not extend that agency to the Provincial Offences Act.

The POA defines "prosecutor" in s. 1(1)(h) as the Attorney General or, where the Attorney General does not intervene, the person who issues a certificate or lays an information, including counsel or agent acting on their behalf. Provincial prosecutors can prosecute under the POA by qualifying as "counsel or agent" for the person who laid the information. But that is prosecutorial authority — not consent authority under s. 21(2). The right to conduct a prosecution is not the same thing as the right to authorize the commencement of one.

J.P. Squires' Analysis

J.P. Squires accepted the defence position without qualification. The Crown Attorney's Act does not supersede the POA — the two run together — but the agency created by s. 10 of the Crown Attorney's Act is purpose-specific. It makes provincial prosecutors agents of the AG for Criminal Code summary conviction matters. It says nothing about the POA. And the POA itself does not adopt the summary conviction provisions of the Criminal Code by reference.

The court was direct: a provincial prosecutor has clear authority to conduct POA prosecutions as delegated by the Crown Attorney. That is different from having authority to act as the Attorney General's agent for the purpose of s. 21(2) consent. Section 21(2) is not a prosecutorial function — it is a gatekeeping function that Parliament reserved for the Attorney General or a specific delegate.

The Crown argued that the law of agency would extend the proposition — that whoever the AG appoints as an agent is an agent for all purposes. J.P. Squires agreed with the general principle but rejected its application here. The legislation is not that broad. And critically, the fact that the Crown Attorney had provided Szoke with a written letter specifically authorizing him to consent to Part III re-lays — a letter whose existence the Crown relied on as part of its argument — actually undermined the Crown's position. If a provincial prosecutor automatically had that authority by virtue of the role, the letter was unnecessary. The fact that the Crown Attorney felt compelled to grant it in writing was its own admission that the authority did not exist by default.

Only the Attorney General has the authority to delegate someone as an agent for s. 21(2) purposes. That delegation had not been established here. The provincial prosecutor had no authority to give the consent. The consent was therefore invalid.

Decision

The court found it had no jurisdiction over the matter. The Part III information was a nullity and was marked as such. The defendant was free to go.

Key Takeaways

Jordon is a clean, precise decision on the limits of provincial prosecutor authority under s. 21(2) of the POA. It does one specific thing well: it draws a hard line between the authority to prosecute and the authority to authorize prosecution.

A provincial prosecutor can stand up in court and conduct a POA prosecution. What they cannot do — absent specific delegation by the Attorney General directly — is give themselves permission to initiate that prosecution by consenting to a Part III re-lay of a charge that started as Part I. Those are different functions, and the legislative framework treats them differently.

The practical lesson is immediate. When a Part I certificate is withdrawn and a Part III information is laid in its place, s. 21(2) consent is not a formality. It is a jurisdictional precondition. Who gave it, what authority they had, and whether that authority traces back to the Attorney General — not just the Crown Attorney — are questions worth asking before the matter goes any further. If the consent can't be traced to the right source, the court has no jurisdiction, and the information is a nullity.

The existence of a written delegation letter doesn't fix the problem if it came from the wrong person. And the absence of one confirms the problem entirely.