R. v. Geauvreau, [1982] 1 SCR 485

Supreme Court of Canada

R. v. Geauvreau, [1982] 1 S.C.R. 485

Date: 1982-04-05

Her Majesty The Queen (Plaintiff) Appellant;

and

Dennis Charles Geauvreau (Defendant) Respondent.

File No.: 15851.

1981: February 23; 1982: April 5.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Powers of Court of Appeal—Information—Conviction of possession of goods obtained by crime—Crown seeking to amend information at appellate level to conform to evidence—Distinction between “obtained by the commission of an indictable offence” and “derived directly or indirectly from the commission of an indictable offence”—Conviction quashed and new trial ordered on the amended information—Whether criminal appeal court can amend the information—Criminal Code, ss. 312(1)(a), 610(3), 613(8).

Accused was convicted of having in his possession an outboard motor knowing it to have been “obtained by the commission of an indictable offence”. On the accused’s appeal, the Crown sought to have the information amended—to read “derived indirectly from” rather than “obtained by”—to conform to the evidence and to affirm the conviction. As the evidence did not support the charge, the Court of Appeal allowed the appeal, quashed the conviction and ordered a new trial on the amended information.

Held (McIntyre and Lamer JJ. dissenting in part): The appeal should be dismissed.

Per Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey and Chouinard JJ.: An appellate court would require the clearest statutory basis to materially amend the information and uphold a conviction based on the information as amended. There was no such clear statutory basis in this case, but justice could be done by following the course adopted by the Court of Appeal, i.e. to allow the appeal (s. 613(1)(a)), order a new trial (s. 613(2)(b)) and make any order that justice requires (s. 613(8)), including an order directing a new trial on the amended information. This procedure ensured that

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the accused is informed of the charge against him before his trial commenced and provided him with a continuing opportunity to meet the amended charge as the trial progresses.

Per McIntyre and Lamer JJ., dissenting in part: While appellate courts may order a new trial on an amended charge, they should not use their discretion to assist the Crown in overcoming the effect of its prosecutorial shortcomings to the detriment of the accused by ordering a second trial where the first has failed solely through Crown’s error. The Crown’s failure to seek to cure the defect in its information at trial should inure to the benefit of the accused.

[Elliott v. The Queen, [1978] 2 S.C.R. 393; R. v. MacKenzie, Ont. C.A. unreported, released October 15, 1975, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario (1979), 51 C.C.C. (2d) 75, allowing accused’s appeal from his conviction and directing a new trial on an amended information. Appeal dismissed, McIntyre and Lamer JJ. dissenting in part.

W.J. Blacklock, for the appellant.

Marc Rosenberg, for the respondent.

The judgment of Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey and Chouinard JJ. was delivered by

RITCHIE J.—This is an appeal brought as of right by the Attorney General for the Province of Ontario from a judgment of the Court of Appeal for that Province pursuant to the provisions of s. 621(1)(a) of the Criminal Code which read as follows:

621. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 603 or 604 or dismisses an appeal taken pursuant to paragraph 605(1)(a) or subsection 605(3), the Attorney General may appeal to the Supreme Court of Canada

(a) on any question of law on which a judge of the court of appeal dissents,…

The respondent was convicted at trial of the offence that he

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…did have in his possession a 150 horsepower mercury outboard motor, of a value exceeding two hundred dollars, knowing it to have been obtained by the commission in Canada of an indictable offence

CONTRARY TO SECTION 312 Subsection (a) OF THE CRIMINAL CODE.

(Emphasis is mine.)

The judgment of the Court of Appeal for Ontario allowing the respondent’s appeal from this conviction provided as follows:

THIS COURT DID ORDER that the said appeal should be and the same was thereby allowed and that the Information should be and the same was thereby amended, the conviction quashed and a new trial directed on the amended Information.

The question of law upon which Mr. Justice Jessup founded his dissent is expressed in the Notice of Appeal in the following terms:

Did the majority of the Court of Appeal for the Province of Ontario err in law in holding that it had no power, where there was a variance between the evidence led at trial and the allegation contained in the information, to amend the information to conform to the evidence, to affirm the conviction and to dismiss the appeal?

The “variance between the evidence led at trial and the allegation contained in the information” is founded on the conclusion unanimously reached by the Court of Appeal that the evidence at trial did not support a finding that the outboard motor which was found in the respondent’s possession had been obtained by the commission of an indictable offence but rather that it could, at worst, be said to have been “derived directly or indirectly” from the commission in Canada of such an offence.

The distinction to be drawn between having possession of something knowing it to have been obtained by the commission of an indictable offence and having such possession knowing that the article was derived directly or indirectly from the commission of such an offence is illustrated by the following passage from the reasons for judgment rendered by Martin J.A. in the Court of Appeal of Ontario in the case of R.v. MacKenzie

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released October 15, 1975. Mr. Justice Martin there said:

We are all of the view that the word ‘obtained’ in the section, refers to things that constitute the subject-matter of the crime by which they were obtained. For example, things obtained by theft, false pretences or extortion. The offence must be committed in respect of the thing obtained. Money, of course, constitutes ‘anything’ within the meaning of section 312. Money, however, which has been knowingly and voluntarily paid by a purchaser to a vendor, with respect to an illegal transaction, which constitutes an indictable offence, is not ‘obtained’ by such indictable offence within the meaning of section 312. The offence committed in the offence of trafficking in a narcotic drug, or a controlled drug, is not in respect of the property transferred as the consideration for the illegal transaction, but against the public welfare, in the interests of which the transaction is made criminal. The fact that money was derived from the commission of a crime does not necessarily constitute an ‘obtaining’ of the money by the crime, within the meaning of section 312.

This case was followed by the Criminal Law Amendment Act, 1975, 1974-75-76 (Can.), c. 93, s. 29 which reads:

312. (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from

(a) the commission in Canada of an offence punishable by indictment;…

The facts of this case are not seriously in dispute and they are concisely summarized in the dissenting reasons for judgment of Mr. Justice Jessup which were in this regard adopted by the majority of the Court of Appeal. Mr. Justice Jessup there said [at p. 78]:

Three men entered into a conspiracy for two of them to take the outboard motor from the third who was its owner and the owner then falsely claimed against his insurer for loss by theft. The two who had taken the motor sold it to the appellant and the learned trial Judge found that the appellant knew of the scheme at the time of the sale.

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In fact the trial judge found that Geauvreau knew how the outboard motor had been acquired at the time when he made the purchase and moreover that he knew “exactly what the deal was”.

It was the submission of the Crown before the Court of Appeal and before this Court that the information should be amended “to allege that the appellant was in possession of an outboard motor knowing that it was derived indirectly from the commission in Canada of an indictable offence”, and it was further submitted that the Court of Appeal should affirm the conviction based on the amended information. It is this submission which gave rise to the dissenting judgment of Mr. Justice Jessup and it must in my view be examined in light of the proposition stated by Mr. Justice Zuber on behalf of the majority of the Court of Appeal [at p. 84]:

It is part of our law of criminal procedure that a person accused of crime is entitled to know the charge against him, whether contained in an information or an indictment, in reasonably specific terms and he is tried on that charge. This principle retains its vitality even though the formalism of an earlier era has been diminished and trial Courts now possess reasonably wide powers of amendment. However, even though criminal procedure has become less technical and more flexible, the concept of an amendment at an appellate stage involves difficult considerations. An amendment at trial contemplates a continuing ability by the accused to meet an amended charge; the appellate stage occurs long after the evidence has been led, arguments made and facts found. In my view, it would be an extraordinary step for an appellate Court to materially amend the charge and uphold a conviction based on the charge as amended. I would think that such an extraordinary step would require the clearest statutory basis.

It is however further contended on behalf of the Crown that the amendment sought in the present case is a mere alteration in a particular of the offence and as to this contention I agree that the source of the property and the manner by which it was acquired relate only to the mode of the commission of the offence, but, as Mr. Justice Zuber has observed [at p. 85]:

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…the possession of property by itself is not an offence. The Crown must allege as a necessary element of its case the unlawful source of the goods. In the information as drawn in this case the allegation that the motor was ‘obtained by the commission in Canada of an indictable offence’ is an essential averment. The Crown now seeks to delete that essential averment and substitute another, i.e. ‘derived indirectly from the commission of an indictable offence’.

In this latter regard the Crown seeks to rely on the provisions of s. 610(3) of the Criminal Code and this also forms the basis of the dissenting judgment of Mr. Justice Jessup. That section reads:

(3) A court of appeal may exercise in relation to proceedings in the court any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court but no costs shall be allowed to the appellant or respondent…

Section 610 of the Criminal Code is primarily concerned with evidentiary questions and the following passage taken from the dissenting judgment of Chief Justice Laskin in Elliott v. The Queen, [1978] 2 S.C.R. 393 at p. 409 reads as follows:

I am unable to accept the view that s. 610(3) confers any power upon a court of appeal to amend an indictment. That subsection takes its context from the preceding provisions of s. 610 which concern evidentiary questions. The opening words of s. 610(3) show its limited range; they provide that ‘A court of appeal may exercise…any powers not mentioned in subsection (1) that may be exercised…on appeals in civil matters’. The subsection cannot, therefore, be read as if it was a detached and separate provision. Although Wilson J.A. purported to find support for his view in this Court’s judgment in Kissick v. The King [1952] 1 S.C.R. 343, that case was concerned with an issue as to admissibility of evidence and thus related to the very subject-matter of s. 610. Still less can s. 610(3) be relied upon to authorize a court of appeal to substitute a different charge from the one on which the case came before it.

While the above quotation is taken from a dissenting opinion, it constitutes a thorough and authoritative statement of the true meaning to be attached to the provisions of s. 610(3) of the Criminal Code and it is to be noted that it covers a

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facet of the appeal in the case there in question which was expressly left open in the reasons for judgment of the majority of this Court.

I am further in agreement with the reasons for judgment of the majority of the Court of Appeal in holding that the present circumstances fall to be dealt with in accordance with the provisions of s. 613 of the Criminal Code, and like Mr. Justice Zuber, I find it desirable to reproduce hereunder the relevant portions of that section which reads as follows:

613. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

…

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered, or

(b) order a new trial.

…

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

The Crown sought to have the information amended to conform to the evidence and thereafter to affirm the conviction and, as I have indicated, the dissenting opinion of Mr. Justice Jessup is to the same effect. To follow this course would be to take what Mr. Justice Zuber in my opinion properly referred to as “an extraordinary step” which “would require the clearest statutory basis”.

I can find no such clear statutory basis in this case but I am satisfied that justice can be done by

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following the course adopted by the majority of the Court of Appeal which was to quash the conviction, allow the appeal and order a new trial pursuant to the authority contained in s. 613(1)(a) and s. 613(2)(b) and thereafter, pursuant to the authority contained in s. 613(8) to make any order that justice requires including in the present case an order directing a new trial on the amended information. This procedure ensures that the accused is informed of the charge against him before his trial commences and provides him with a continuing opportunity to meet the amended charge as the trial progresses.

For all these reasons I would dismiss this appeal.

The reasons of McIntyre and Lamer JJ. were delivered by

LAMER J. (dissenting in part)—I have had the advantage of reading the reasons for judgment of my brother Ritchie. I am in agreement with his comments as regards ss. 312(1) and 610(3) of the Criminal Code. I also agree with the Court of Appeal for Ontario and with the reasons given by that Court set out in my brother Ritchie’s opinion that the conviction should be quashed. I would, however, allow the appeal, set aside the order of the Court of Appeal for a new trial and enter a verdict of acquittal. I would have agreed to the ordering of a new trial on an amended information had the trial judge denied a Crown’s motion to that effect. However such did not occur as the Crown did not seek an amendment from the trial court.

The trial judge’s error was in convicting the accused as charged since the evidence could not support the essential averment that the outboard motor had “been obtained by the commission in Canada of an indictable offence”. (My underlining). The Crown’s failure to seek to cure the defect in its information at trial should in my view inure to the benefit of the accused. While appellate courts should correct judicial errors on appeal it is not generally their function to assist the Crown in overcoming the effect of its prosecutorial short-

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comings to the detriment of accused by ordering a second trial where the first has failed solely through error of the Crown. While this Court’s decision in Elliott v. The Queen, [1978] 2 S.C.R. 393, has recognized that appellate courts may order a new trial on an amended charge, provided that it not be tantamount to charging a different offence, it is a matter of discretion which, for the aforementioned reasons, I should choose to exercise by entering a verdict of acquittal in the stead of a new trial on the amended information.

Appeal dismissed, MCINTYRE and LAMER JJ. dissenting in part.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitors for the respondent: Greenspan, Moldaver & Rosenberg, Toronto.