SUPREME COURT OF CANADA
The Queen v. Côté, [1978] 1 S.C.R. 8
Date: 1977-02-08
Her Majesty The Queen Appellant; and
Wilfrid James Côté Respondent.
1976: October 20; 1977: February 8.
Present: Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Criminal law — Form of information — Whether accused reasonably informed of allegation against him — Whether accused had opportunity to adduce full defence on fair trial — Criminal Code, ss. 510, 732(1) and (3) and 755(4).
The accused was charged with failing to provide a breath sample contrary to s. 235(2) of the Criminal Code, the words "without reasonable excuse" being omitted from the information. No objection was made to this omission and a defence of reasonable excuse was tendered and rejected by the magistrate. The accused appealed to the District Court on the ground inter alia, that the magistrate erred in holding that he did not have a reasonable excuse and a trial de novo was ordered. At the second hearing the accused tendered the same defence and again made no objection to the information as laid. The accused was convicted a second time and appealed to the Court of Appeal for Saskatchewan on the ground that the judge erred in holding that his excuse was not reasonable. At the hearing the Court of Appeal gave the accused leave to add the ground that the information was incomplete and on that basis quashed his conviction. Leave to appeal to the Supreme Court was granted on the question of law whether the Court of Appeal for Saskatchewan erred in failing to consider the application of ss. 732(1) and (3) and 755(4) of the Code.
Held: The appeal should be allowed and the conviction restored.
Per Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ.: An accused must be reasonably informed of the charge against him. In the case at bar the information complied with the requirements of s. 510(5) of the Criminal Code in that all the relevant facts were cited and were related to the offence defined in s. 235(2) of the Code. The accused was clearly informed of the true nature of the charge and therefore had the opportunity to adduce a full defence. Furthermore,
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in the case of The Queen v. Major, decided by this Court fourteen months after the decision of the Court of Appeal for Saskatchewan, a similar situation, somewhat more favourable to the accused, arose and it was held by this Court that if an essential element that was omitted from a charge has been proved and there has been no substantial wrong or miscarriage of justice, a conviction should be confirmed. In the case at bar the factual situation is so similar that the result must be the same and the question of law defined in the order granting leave must be answered in the affirmative: the Court of Appeal for Saskatchewan erred in failing to consider ss. 732(1) and (3) and 755(4) of the Code. Although leave to appeal on the ground that the Court of Appeal also erred in holding that the words "without reasonable excuse" were required in the information was refused, this does not mean that the views of the Court of Appeal on that point are confirmed. Section 730 of the Criminal Code might lead to another conclusion.
Per Spence and Dickson JJ.: The information complied with the requirements of s. 510(5) of the Criminal Code, the accused was reasonably informed of the charge against him and he had the opportunity to adduce a full defence. The Queen v. Major [1977] 1 S.C.R. 826, referred to.
APPEAL from a judgment of the Court of Appeal for Saskatchewan, allowing an appeal by the respondent from the dismissal of his appeal by way of trial de novo following his conviction for refusing to provide a breath sample contrary to s. 235(2) of the Criminal Code. Appeal allowed and conviction restored.
E. G. Ewaschuk, for the appellant. Orest Rosowsky, for the respondent.
The judgment of Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ. was delivered by
DE GRANDPRÉ J.—The respondent was charged with the following summary conviction offence:
THE INFORMANT SAYS THAT he has reasonable and probable grounds to believe and does believe that Wilfred James COTE, Carpenter of Kamsack, Saskatchewan, on or about the 20th day of SEPTEMBER A.D. 1973, at Canora in the Province of Saskatchewan
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did refuse to comply with a demand by a peace officer to provide a sample of breath suitable for analysis to determine if any, the proportion of alcohol in his blood, contrary to Section 235(2) of the Criminal Code.
The information, it will be seen, omits any reference to the words "without reasonable excuse" which are contained in s. 235, subs. 2 of the Criminal Code. No objection was made to the information by the respondent who tendered a defence of reasonable excuse, which was rejected by the magistrate.
The respondent appealed his conviction to the District Court. Several grounds were mentioned in the notice of appeal, the only relevant one alleging error in the holding that Côté "did not have a reasonable excuse to refuse to comply with the demand". At the trial de novo, the respondent again made no objection to the information and again tendered the same defence of reasonable excuse, which was rejected.
In the notice of appeal to the Court of Appeal for Saskatchewan, the only ground is stated in the following terms:
The learned Judge erred in holding that a person upon which a demand for a sample of breath has been made does not have a reasonable excuse to refuse to supply the sample even when he has affirmatively shown that he had not been driving the motor vehicle nor had he been in care or control of the motor vehicle.
Counsel informed us that only that point was argued before the Court of Appeal, Côté not raising the contention that the information did not disclose an offence known to law. Nevertheless, the Court of Appeal, without calling upon the parties, granted leave to amend the notice of appeal so as to raise this additional ground and quashed the conviction. The reasons for that conclusion are contained in the following paragraph (21 C.C.C. (2d) 474 at p. 475):
It is to be noted that the information does not contain the words "without reasonable excuse". The mere failure or refusal to comply with a demand made pursuant to s. 235(1) does not constitute an offence under s. 235(2); to constitute an offence the failure or refusal must be "without reasonable excuse". As the information does not include this essential averment, it does not
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allege an offence under s. 235(2) and therefore the conviction thereon cannot stand.
It is indeed unfortunate that the Court of Appeal did not have the benefit of the arguments in depth submitted to this Court and for which we are indebted to counsel. As it is, we are left in the dark as to the views of that Court on the question of law upon which leave to appeal was granted by this Court:
Did the Court of Appeal err in failing to consider the application of the provisions of subss. (1) and (3) of s. 732 and subs. (4) of s. 755 of the Criminal Code in the circumstances of the appeal to that Court?
Subsections (1) and (3) of s. 732 and subs. (4) of s. 755 of the Criminal Code read:
732. (1) An objection to an information for a defect apparent on its face shall be taken by motion to quash the information before the defendant has pleaded, and thereafter only by leave of the summary conviction court before which the trial takes place.
…
(3) A summary conviction court may, at any stage of the trial, amend the information as may be necessary if it appears
(a) that the information has been laid
(i) under another Act of the Parliament of Canada instead of this Act, or
(ii) under this Act instead of another Act of the Parliament of Canada; or
(b) that the information
(i) fails to state or states defectively anything that is requisite to constitute the offence,
(ii) does not negative an exception that should be negatived, or
(iii) is in any way defective in substance,
and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the trial; or
(c) that the information is in any way defective in form.
755. (4) The following provisions apply in respect of appeals, namely,
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(a) where an appeal is based on an objection to an information or any process, judgment shall not be given in favour of the appellant
(i) for any alleged defect therein in substance or in form, or
(ii) for any variance between the information or process and the evidence adduced at the trial,
unless it is shown
(iii) that the objection was taken at the trial, and
(iv) that an adjournment of the trial was refused notwithstanding that the variance referred to in subparagraph (ii) had deceived or misled the appellant; and
(b) where an appeal is based on a defect in a conviction or order, judgment shall not be given in favour of the appellant, but the court shall make an order curing the defect.
In their present form, these texts were introduced by the amendments of 1953-54 (the numbers were then ss. 704 and 727). The previous enactments were somewhat different. For that reason, judgments rendered on the prior legislation should be used with great care.
It is apparent that s. 732 is meant to be a replica in the case of defective informations of s. 529 dealing with defective indictments. Accordingly, both parties have referred us to practically every reported case dealing with one or the other of these sections. It is unnecessary to make a review of these cases; suffice it to say that, in my view, the judgments applying the rule against duplicitous informations and indictments constitute a class by themselves and cannot really help in the determination of the case at bar.
Of course, s. 732 comes into play only if there is a defect in the information. Appellant submits that none exists, the words "without reasonable excuse" being brought to the attention of the accused by the specific reference to the section of the Criminal Code creating the offence. Appellant invokes subs. 5 of s. 510, which also applies to informations:
A count may refer to any section, subsection, paragraph or subparagraph of the enactment that creates the offence charged, and for the purpose of determining
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whether a count is sufficient, consideration shall be given to any such reference.
I agree with that submission; the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial. When, as in the present case, the information recites all the facts and relates them to a definite offence identified by the relevant section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to the extreme technicality of the old procedure.
The foregoing is enough to dispose of the appeal. However, the parties have studied in depth the question defined in the order for leave and I feel bound to express my views on their submissions. Assuming a defect in the information and given the silence of the accused as to that point both in the Magistrate Court and in the District Court, was the Court of Appeal right in quashing the conviction?
The judgment of the Court of Appeal was rendered on December 23, 1974. On February 25, 1976, in The Queen v. Major unreported, this Court dealt with the question raised by this appeal, namely the omission of an essential element of the offence in the information. In my opinion, the factual situation in Major and that in the case at bar are so similar that the result must be the same. It is even possible to hold that in Major, the circumstances were more favourable to the accused. They are to be found in the judgment of the Appeal Division of the Supreme Court of Nova Scotia reported at 25 C.C.C. (2d) 62, particularly in the opinion of the Chief Justice. For my purpose, it is sufficient to summarize them as follows:
1) the information was seriously defective omitting entirely a vital averment (the information, instead of alleging failure to report to anyone at the scene, alleged only failure to report to the other driver);
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2) no motion to quash was made before plea at the trial before the magistrate or before the trial de novo in County Court;
3) the trial was conducted by both Crown and defence as if the missing averment had been present.
On these facts, the Court of Appeal was unanimously of the view that the conviction should be affirmed if the absence of the averment had caused no substantial wrong, nor miscarriage of justice, provided, however, that this essential element of the offence omitted from the charge had been proven. The majority of the Court of Appeal, Macdonald J.A. concurring, were of the opinion that there was no such evidence whereas Cooper J.A., dissenting, was of the view that there was enough evidence to support the conviction.
On appeal to this Court, the Crown, of course, had only one point to submit, namely that Cooper J.A. was right in his dissenting opinion, the evidence being sufficient to support a conviction. On the other hand, respondent, as was undoubtedly his right, supported the conclusion of the majority as to the lack of evidence and raised again with considerable vigour the defence that the omission of an essential element of the offence in the information is fatal. He developed the submission in his factum and referred to the major decisions on the point, namely Brodie and Barrett v. The King; R. v. Leclair, R. v. Wixalbrown and Schmidt; R. v. Breland and George; R. v. Hunt, Nadeau and Paquette. He also referred to the judgment of the Court of Appeal in the case at bar. At the conclusion of the submissions by appellant and by respondent, the Chief Justice, speaking for the full bench, stated:
We do not need to hear you in reply, Mr. Gale. We agree with Mr. Justice Cooper and, accordingly, this appeal is allowed, the judgment of the Nova Scotia Appeal Division is set aside and the conviction is restored.
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In my view, this recent decision of our Court settles the matter with the result that the question of law defined in the order granting leave must be answered in the affirmative. It was an error on the part of the Court of Appeal to fail to consider the application of the relevant provisions of s. 732 and s. 755 of the Criminal Code in the circumstances of the case and to hold that the information did not disclose an offence known to law.
Before leaving the matter, I wish to make two observations, both related to our decision in Major.
First, the Court of Appeal in that case did not feel that the reference in the information to the relevant section of the Criminal Code is in itself sufficient to make an information complete when it does not in words recite all the elements of the offence. In the context of that appeal, this Court did not have to deal with that precise point, being of the opinion that the conviction had been properly entered, the information and the evidence being sufficient for the purpose. In my view, for the reasons mentioned above, particularly in the light of s. 510 of the Criminal Code, this particular conclusion of the Court of Appeal of Nova Scotia does not truly represent the law.
The second point. Cooper J.A., in his dissenting reasons, concluded not only that the evidence was sufficient but also that the information should be amended to include the omitted averment. In allowing the appeal and restoring the conviction, we did not see the need of amending the information. This is in accord with the text of s. 732, subs. 1, of the Criminal Code. Any information which omits words found in the relevant enactment creating the offence, contains a defect apparent on its face. If no objection is taken by motion to quash before the defendant has pleaded, and if a defence on the merits is tendered, the matter ends there and there is no need to amend the information.
A further point. The respondent never alleged that he was prejudiced by the omission of the words "without reasonable excuse" from the information and the Court of Appeal has made no
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finding of prejudice. The case at bar has been argued by respondent on the basis that no valid proceedings could flow from an information void ab initio. No question of miscarriage of justice was raised.
Finally I must note that the Crown in its motion for leave had also submitted that the Court of Appeal had erred in holding that the words "without reasonable excuse" were required to be set out in the information. Leave was refused as to that point. This refusal does not amount to a confirmation of the views of the Court of Appeal thereon. Section 730 of the Criminal Code might lead one to another conclusion. However, because of this refusal, I have examined the question defined in the order granting leave as if the words "without reasonable excuse" did not amount to an "exception, exemption, proviso, excuse or qualification prescribed by law", thus not entering upon an examination of s. 730. I wish to make it clear, however, that in my mind this point is still open.
I would allow the appeal and restore the conviction.
The judgment of Spence and Dickson JJ. was delivered by
SPENCE J.—I have the privilege of reading the reasons to be delivered by my brother de Grandpré and I am in agreement with his conclusion that the appeal should be allowed. I do so for the reasons first outlined in the judgment of my brother de Grandpré, namely, that the particular form of the information in the present appeal complied with the provisions of s. 510 of the Criminal Code in that it referred to a section and subsection of the Criminal Code and also outlined all the facts. I am also in agreement that the accused had been reasonably informed of the transaction alleged against him and had the opportunity to adduce a full defence upon a fair trial. In my opinion, as my brother de Grandpré points out, the above conclusion is sufficient to dispose of the appeal.
Unlike my brother de Grandpré, I am not of the opinion that I should deal with the other matters outlined in the question upon which leave to appeal was granted.
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The Queen v. Major, a judgment rendered by this Court on February 25, 1976, and apparently unreported, was an oral judgment delivered after the argument and, in my view, dealt only with the difference of opinion between the majority and minority in the Appeal Division of the Supreme Court of Nova Scotia. That difference of opinion was, as my brother de Grandpré pointed out, upon the question of whether there had been sufficient evidence adduced to prove an essential element of the offence charged. In allowing the appeal, this Court, in my view, dealt only with that question of sufficiency of evidence so I am not ready in this appeal to express any view upon the effects of ss. 732 and 755 of the Criminal Code.
As I have said, I would allow the appeal.
Appeal allowed; conviction restored.
Solicitor for the appellant: E. G. Ewaschuk, Regina.
Solicitor for the respondent: O. Rosowsky, Kamsack.
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