R. v. McKenzie, [1972] SCR 409

Supreme Court of Canada

R. v. McKenzie, [1972] S.C.R. 409

Date: 1971-10-05

Her Majesty The Queen Appelant;

and

Richard Anthony McKenzie Respondent.

1971 May 18; 1971: October 5.

Present: Fauteux C.J. and Judson, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Charge of theft—Averment of essential ingredients—Evidence of failure to account—Charge complies with Code—Criminal Code, 1953‑54 (Can.), c. 51, ss. 269, 276, 280, 492, 497.

The respondent was employed to drive one of his employer’s taxis upon terms which entitled him to retain 45 per cent of the daily receipts and required him to account for the balance, less the cost of gasoline and oil, to his employer. In accounting for a trip in which he picked up five passengers bound for different addresses, he only recorded one trip for one passenger. He was charged that he “…did commit theft of the approximate sum of $16.50 the property of Dominic Louis Christian contrary to the form of the statute in such case made and provided.” He was convicted of theft by the trial judge, but acquitted by a majority judgment of the Court of Appeal. That Court expressed the view that this form of charge lacked any averment of the essential ingredients of an offence under s. 276(1) of the Criminal Code. The Crown appealed to this Court.

Held: The appeal should be allowed and the conviction restored.

The provisions of s. 492(2) (b) are to be read disjointly and envisage two alternative methods in which an indictment may be phrased so that a charge may be laid either “in the words of the enactment that describe the offence” or those of the enactment which “declares the matters charged to be an indictable offence”. The charge in the present case complied with the Criminal Code in that it was in the words of s. 280 which declares “theft” to be an indictable offence. The respondent’s failure to account to his employer was “theft” within the meaning of s. 276(1). If there had been any doubt as to the conduct to which the charge related, further particulars describing the means by which the offence was

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alleged to have been committed could have been sought under s. 497(1) (f).

The argument that the money misappropriated belonged to the passengers and not to the taxi owner must be rejected, because if the respondent overcharged a passenger he did so as the taxi owner’s employee and as such he was accountable to him for all the moneys he collected in the course of his employment for the use of the cab.

APPEAL by the Crown from a judgment of the Court of Appeal for British Columbia[1], setting aside the conviction of the respondent for theft. Appeal allowed.

G.L. Murray, Q.C., for the appellant.

M.R.V. Storrow, for the respondent.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal brought by the Attorney-General of British Columbia pursuant to the provisions of s. 598(1) (a) of the Criminal Code from a judgment of the Court of Appeal¹ of that Province, (Davey C.J. dissenting) which set aside the conviction of the respondent for theft and directed his acquittal.

On the night of March 30-31st, 1970, the respondent, who is a taxi driver, was employed by Dominic Louis Christian to drive one of his taxis upon terms which entitled the respondent to retain 45 per cent of the daily receipts and required him to account for the balance and to pay 55 per cent of the total receipts, less the cost of gasoline, to his employer. The accounting was carried out by means of what has been referred to as a “trip sheet” on which is recorded the starting point, destination and fare charged for each trip, and a record is also made of the amount retained by the driver, which is referred to as “wages”, the amount paid for gas and oil and the “net cash” due to the owner.

At about 3:30 on the morning of March 31st, the respondent had driven Christian’s car to the airport where he picked up five passengers, two of whom were destined for addresses in the City of

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Vancouver, two for West Vancouver and one for North Vancouver. The two Vancouver passengers were charged $4.50 and $4.75 respectively, and the West Vancouver passengers were charged $8.55 and $9.50. The North Vancouver passenger, who was dropped last did not give evidence, but I think the learned trial judge was justified in expressing the hope “that she had a good purse full of money with her.”

In accounting for the 3:30 A.M. trip from the airport, the respondent only recorded one trip for one passenger with a total cash fare of $6.35. It is quite apparent that, without giving any consideration to the North Vancouver passenger, the respondent received cash charges of at least $26.95 for the use of Christian’s car in making this trip and I agree with the learned Provincial Judge that the evidence supports the conclusion that the respondent failed to account for or pay approximately $16.00 dollars and fifty cents to his employer for which he was required to account under the terms of his employment.

The respondent was charged that he:

At the City of Vancouver, on the 31st day of March, A.D. 1970, unlawfully did commit theft of the approximate sum of $16.50 the property of Dominic Louis Christian contrary to the form of the statute in such case made and provided.

Mr. Justice Tysoe in the course of the reasons for judgment which he delivered on behalf of the majority of the Court of Appeal expressed the view that this form of charge lacks any averment of the essential ingredients of an offence under s. 276(1) of the Criminal Code and he concluded by saying:

My opinion is that it does not charge an offence under section 276 and a conviction for such an offence cannot rest upon it. The fact is the appellant was not charged with the offence of which the evidence shows that he might perhaps have been guilty.

In so holding the majority of the Court of Appeal gave effect to the contention, made on behalf of the respondent, that in the case of “theft”, which is described in one way in s. 269 and another in s. 276, an indictment or information is invalid as failing to comply with s. 492(3)

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unless it contains an averment of all the essential ingredients contained in the section of the Code describing the offence disclosed by the evidence.

In my opinion the evidence in the present case discloses the commission of an offence under s. 276(1) which reads as follows:

276(1). Everyone commits theft who, having received anything from any person on terms that required him to account for or pay it or the proceeds of it or a part of the proceeds to that person or another person, fraudulently fails to account for or pay it or the proceeds of it or the part of the proceeds of it accordingly.

The effect of the judgment of the Court of Appeal is that although the information alleges “theft” in the City of Vancouver at a specified date from a named person, it lacks any averment of fraudulent failure to account and is therefore invalid by reason of the following provisions of s. 492(3):

492(3). A count shall contain sufficient circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count.

In the course of his dissenting reasons for judgment, Davey C.J. pointed out that theft is not the only offence which is capable of being committed in more ways than one under the provisions of the Criminal Code, and he referred to s. 135 describing four different kinds of behaviour which may constitute the crime of “rape”. In this latter regard he cited the as yet unreported case of Regina v. LeBlanc where the indictment charged that at a certain time and place he, LeBlanc “did rape (a named woman) contrary to the form of statute in such cases made and provided” and Mr. Justice Lord, speaking on behalf of the Court of Appeal of British Columbia said:

Counsel has referred to section 135 of the Code which is the section dealing with rape and submits that inasmuch as the section describes more than one form of sexual intercourse with a female person

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which would constitute rape, that there should have been an averment in the charge as to the manner in which the accused is alleged to have committed the offence. Was it by impersonating her husband or by fear of bodily harm or in any other of the ways in which rape can be an offence. As my brother Branca pointed out in the course of the argument, surely this is a matter for particulars.

In approving this passage as being relevant to the main question raised in the present case, Davey C.J. stated:

In my respectful opinion that method of pleading is as applicable to a charge of theft as to a charge of rape, and the fact that the several ways in which theft may be committed are defined by separate sections of the Code instead of by several clauses of the same section, is a mere variation in detail and does not affect the principle.

I agree with this statement of the law and it follows, as will be seen, that in my view the decision of this Court in The Queen v. Harder[2], has a direct bearing on the question of the validity of the present charge.

In order to appreciate the argument now advanced on behalf of the appellant it is necessary to consider the provisions of s. 492(1) and (2) which read as follows:

492(1). Each count of an indictment shall in general apply to a single transaction and shall contain and is sufficient if it contains in substance a statement that the accused committed an indictable offence therein specified.

(2) The statement referred to in subsection (1) may be:

(a) in popular language without technical averment or allegation of matters that are not essential to be proved,

(b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence,…
(the italics are my own).

In brief, the contention advanced on behalf of the appellant is that the provisions of s. 492(b) are to be read disjunctively and that they envisage two alternative methods in which an indictment may be phrased so that a charge may be laid

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either “in the words of the enactment that describe the offence” or those of the enactment which “declares the matters charged to be an indictable offence”.

The offence described in s. 276(1) is characterized as “theft” by that section itself and the words of the enactment declaring theft to be an indictable offence are those of s. 280 which reads as follows:

280. Except where otherwise prescribed by law, everyone who commits theft is guilty of an indictable offence…

In the case of The Queen v. Harder, to which I have already referred, the accused was charged with having had carnal knowledge of a woman not his wife “without her consent against the form of the statute in such case made and provided”. The evidence disclosed that while the accused had not had carnal knowledge of the woman, he had aided another person in so doing and was therefore guilty of the offence by virtue of the provisions of the then s. 69 (now s. 21 (2)) of the Code, and Harder was convicted at trial. The majority of the Court of Appeal of British Columbia was however of opinion that as there was no averment of his having aided another in committing the offence, the indictment must be held to have charged Harder as having himself physically raped the complainant; and there being no evidence to support the indictment as so construed, an acquittal should be entered.

The dissent upon which the appeal was taken to this Court is described in the following terms by Kellock J. at page 499:

That the indictment charging the accused as a principal was sufficient notwithstanding that it did not aver that the accused aided and abetted Kie Singh to assault the woman criminally.

This Court allowed the appeal in accordance with this dissenting view and Mr. Justice Fauteux (as he then was), who spoke also for Kerwin C.J. and Taschereau J. (as he then was) had this to say of the indictment at page 492:

The indictment. An indictment cannot properly be construed without regard to the substantive and pro-

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cedural provisions of the criminal law related to its substance and its form. As stated by Willes J., with the concurrence of all the Judges who advised the House of Lords, and with the approval of the latter, in the case of Mulcahey v. The Queen (1868) L.R. 3 H.L. 306 at 321:

…an indictment only states the legal character of the offence and does not profess to furnish the details and particulars. These are supplied by the depositions, and the practice of informing the prisoner or his counsel of any additional evidence not in the depositions, which it may be intended to produce at the trial. To make the indictment more particular would only encourage formal objections upon the ground of variance, which have of late been justly discouraged by the Legislature

I am of opinion that the charge in the present case complies with the Criminal Code in that it is in the words of s. 280 which declares “theft” to be an indictable offence and the respondent’s failure to account to his employer was, in my opinion, “theft” within the meaning of s. 276(1). It follows that I agree with the dissenting view expressed by Davey C.J. that this “was a good charge of theft under that section”.

If there had been any genuine doubt as to the conduct to which the charge related, further particulars describing the means by which the offence was alleged to have been committed could have been sought under s. 497(1) (f) of the Code, but this was not the course which was followed.

What happened was that on arraignment the respondent, who was unrepresented by counsel, pleaded not guilty and conducted his own defence for the first day of the trial when three of the passengers were called by the Crown. The case was then adjourned for more than a month and at the adjourned hearing Mr. Storrow appeared as counsel for the respondent and at once asked “to be informed of the section under which this charge is laid?” Upon Mr. Bendrodt, the Crown counsel replying that he was proceeding on the

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charge of theft as contained in the information, the following exchange took place:

Mr. STORROW: All I want to know is what section we are dealing with. It is a common law offence. I presume my friend had laid it under the Criminal Code and I merely want to know what section.

Mr. BENDRODT: All my friend has to do is to look on the information that is before him. Is my learned friend saying the information is no good? Is he saying that the information has not got the particularity required by law? Is he moving beyond it? What is he doing? Is my learned friend saying he hasn’t had enough particulars? He has a transcript that has been provided and as I recall it I have given him not only particulars of that evidence that has not yet been called, but in fact I have given him as best I have been able the evidence which I expect to produce let alone particulars.

Mr. STORROW: Everything that my friend says is correct, but my question is rather simple and all I want to know is the section number unless it is a common law offence.

The information which he sought was not forthcoming from the Crown and the learned Provincial Judge declined to order it but there can, in my view, be no doubt that the respondent and his counsel were fully aware of the circumstances which gave rise to the charge and Mr. Storrow must have appreciated that the question at issue was whether or not those circumstances constituted theft under the Criminal Code.

In allowing this appeal in the Court of Appeal, Mr. Justice Tysoe relied on a line of cases such as Regina v. LeClair[3], The King v. Connors[4], The King v. Fraser[5] and Regina v. Trapoortan[6]. In each of these cases the charge was framed “in the words of the enactment that describes the

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offence” and failure to allege some essential ingredient of the offence so charged was found to be fatal. As I have indicated, different considerations apply to a case such as the present one where the charge is framed in the words declaring the matter charged to be an indictable offence. I accordingly share the opinion of Davey C.J. that the cases last referred to are clearly distinguishable and have no application to the question here raised.

I should observe also that there is a fundamental difference between the present case and that of Brodie and Barnett v. The King[7], upon which much reliance was placed by the respondent’s counsel. That was a case in which the charge alleged that the two accused “were party to a seditious conspiracy in conspiring” with certain named persons and with persons unknown, but there was no allegation of what the conspirators had conspired to do. At page 199, Mr. Justice Rinfret (as he then was), speaking on behalf of the Court said:

…although conspiracy to commit a crime, being in itself an indictable offence, may be charged alone in an indictment and independently of the crime conspired to be committed, it does not follow that the count charging conspiracy alone, without the setting out of any overt act, must not describe it in such a way as to contain in substance the fundamental ingredients of the particular agreement which is charged, or, in other words, in such a way as to specify, in substance, the specific transaction intended to be brought against the accused.

This was the ground on which the charge was found to be insufficient and it cannot, in my view, be seriously contended in the present case that the charge did not specify the specific transaction intended to be brought against McKenzie or that he could have been in any doubt as to what the complaint was.

In the course of his dissenting reasons for judgment, Davey C.J. referred to the argument which had been advanced by the present respon-

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dent that the proof of an offence under s. 276(1) was deficient because it showed that the money misappropriated belonged to the passengers and not to the taxi owner from whom it was alleged to have been stolen.

This argument is based on the existence of a City of Vancouver “Vehicles-for-Hire” by-law which provides that:

No driver of a taxi-cab shall convey any person or persons other than the person or persons first engaging the taxi-cab. The carrying of passengers for separate fares is prohibited.

The respondent’s submission in this regard is that any contract which required the taxi driver to account to his employer for monies obtained by carrying passengers for separate fares is illegal and void as being in contravention of the by-law and that the monies so collected were therefore not monies for which McKenzie was required to account to Christian.

As to this contention, I agree with Chief Justice Davey when he says:

If McKenzie overcharged a passenger he did so as Christian’s employee, and as such he was accountable to Christian for all monies he collected in the course of his employment for the use of the cab. Christian, as McKenzie’s employer, would be obliged to refund to the passengers through the Yellow Cab all overcharges collected by McKenzie. So in law… the overcharges were money for which McKenzie was required to account to him. The proof of the offence charged was complete.

For all these reasons I would allow this appeal and restore the conviction entered by the learned Provincial Judge.

Appeal allowed and conviction restored.

Solicitor for the appellant: G.L. Murray, Vancouver.

Solicitor for the respondent: M.R.V. Storrow, Vancouver.