R. v. Webster, [1993] 1 SCR 3

R. v. Webster, [1993] 1 S.C.R. 3

 

A. Gary Webster         Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Webster

 

File No.:  22856.

 

1992:  November 3.*

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.

 

on appeal from the prince edward island supreme court, appeal division

 

                   Criminal law ‑‑ Extraordinary remedies ‑‑ Certiorari ‑‑ Availability ‑‑  Provincial Court Judge dismissing accused's application, brought prior to election, to quash information on grounds of insufficiency ‑‑ Whether certiorari available to review Provincial Court Judge's decision.

 

                   Criminal law ‑‑ Information ‑‑ Validity ‑‑ Provincial Court Judge dismissing accused's application, brought prior to election, to quash information on grounds of insufficiency ‑‑ Whether information an absolute nullity ‑‑ Whether certiorari available to review Provincial Court Judge's decision.

 

                   The accused was charged with several sexual offences.  Prior to election, he applied to the Provincial Court for an order quashing the information on the basis, among others, that it failed to specify the place or the time of the offences so as to satisfy the sufficiency requirements of s. 581(3)  of the Criminal Code .  The Provincial Court Judge concluded that while "some measure of insufficiency exist[ed] in each of the charges, . . . it [was] not of such a degree as would vitiate the charges" and dismissed the application.  The Prince Edward Island Supreme Court, Trial Division, dismissed the accused's application for certiorari to quash the Provincial Court Judge's decision and the Appeal Division upheld the judgment.

 

                   Held:  The appeal should be dismissed.

 

                   A provincial court judge conducting a preliminary hearing has jurisdiction to determine the validity of the information and the correctness of his ruling in that regard cannot generally be challenged by certiorari.  Here, the information was not an absolute nullity ‑‑ it was not so badly drawn up as to fail to give the accused fair notice of the charge ‑‑ and in deciding whether or not to quash, the Provincial Court Judge was exercising jurisdiction he undoubtedly had under s. 601  of the Criminal Code .  This case thus falls within the general rule and certiorari was not available to review the Provincial Court Judge's decision.  Certiorari, however, could be available in certain rare and highly exceptional circumstances.

 

Cases Cited

 

                   Applied:  R. v. Moore, [1988] 1 S.C.R. 1097; referred to:  Re Bahinipaty and The Queen (1983), 5 C.C.C. (3d) 439; R. v. Burke (1988), 71 Nfld. & P.E.I.R. 217;  Re Volpi and Lanzino and The Queen (1987), 34 C.C.C. (3d) 1; R. v. Jarman (1972), 10 C.C.C. (2d) 426.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 156 [am. 1972, c. 13, s. 70; rep. 1980‑81‑82‑83, c. 125, s. 9], 157 [rep. 1987, c. 24, s. 4].

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 581(3) , 601(1)  [rep. & sub. c. 27 (1st Supp.), s. 123 ], (3) [am. idem], (4).

 

Authors Cited

 

Salhany, Roger E. Canadian Criminal Procedure, 5th ed. Aurora, Ont.:  Canada Law Book, 1989.

 

                   APPEAL from a judgment of the Prince Edward Island Supreme Court, Appeal Division (1991), 14 W.C.B. (2d) 689, dismissing the accused's appeal from a judgment of Campbell J. dismissing his application for certiorari.  Appeal dismissed.

 

                   John L. MacDougall, Q.C., for the appellant.

 

                   Darrell E. Coombs, for the respondent.

 

//Lamer C.J.//

 

                   The judgment of the Court was delivered by

 

                   Lamer C.J. ‑‑ The issue in this appeal is a narrow one.  The accused moved before a Provincial Court Judge to quash an information on the basis that it did not contain sufficient detail to give him reasonable information with respect to the act or acts alleged against him.  The Provincial Court Judge dismissed the application to quash, and the accused sought certiorari to set aside that ruling.  The issue is whether the Prince Edward Island courts were correct in holding that certiorari is not available in these circumstances.

 

The Facts

 

                   The appellant was charged in an information with twelve offences contrary to s. 156 or s. 157 (since repealed) of the Criminal Code, R.S.C.  1970, c. C-34, specifically indecent assault, buggery and gross indecency.  Each offence was alleged to have been committed over a period of time, ranging from approximately one year to roughly nine years.   All twelve counts were alleged to have been committed "at or near Charlottetown and at or near Sherwood, County of Queen's, in the Province of Prince Edward Island and at other places in the Province of Prince Edward Island".  No more specific location was alleged for any of the twelve counts.

 

                   Prior to election, the appellant applied to the Provincial Court for an order quashing the information on the basis, among others, that it failed to specify the place of the offence or the time of the offence so as to satisfy the sufficiency requirements of s. 581(3)  of the Criminal Code, R.S.C., 1985, c. C-46 .  That subsection provides:

 

                   581. ...

 

                   (3)  A count shall contain sufficient detail of the 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.

 

                   The Provincial Court Judge dismissed the application to quash, and the Supreme Court of Prince Edward Island, Trial Division, dismissed an application for an order in the nature of certiorari to quash the information  which decision was upheld on appeal to the Supreme Court of Prince Edward Island, Appeal Division.

 

Judgments Below

 

Provincial Court (Chief Judge Fitzgerald)

 

                   The appellant submitted that the information did not comply with the sufficiency requirements of s. 581(3)  of the Criminal Code .  The Provincial Court Judge determined that he had the requisite jurisdiction to hear a motion to quash the information.  He went on to find the following:

 

                   On the issue of sufficiency, in all of the various aspects of it relevant to the charges before the court, I am of the view that some measure of insufficiency exists in each of the charges, but it is not of such a degree as would vitiate the charges.

 

Consequently, he dismissed the application.

 

Supreme Court of P.E.I. (Campbell J.)

 

                   The appellant applied to the Supreme Court of Prince Edward Island, Trial Division, for an order in the nature of certiorari quashing the decision of the Provincial Court Judge.

 

                   In brief oral reasons, Campbell J., dismissed the appellant's application, based on the authority of Re Bahinipaty and The Queen (1983), 5 C.C.C. (3d) 439 (Sask. C.A.).

 

Court of Appeal (Carruthers C.J. for the Court)

 

                   Carruthers C.J. concluded that a Provincial Court Judge has jurisdiction prior to election on a preliminary inquiry to determine the validity of the counts in an information and certiorari does not lie to quash the decision of the Provincial Court Judge.

 

                   In so concluding, Carruthers C.J. applied the case of R. v. Burke (1988), 71 Nfld. & P.E.I.R. 217 (P.E.I.S.C., App. Div.), wherein it was decided that a Provincial Court Judge has jurisdiction to rule on such a motion and to determine the validity of the counts in an information and that certiorari does not lie to quash the decision of the Provincial Court Judge acting within his jurisdiction.

 

Statutory Provisions

 

Criminal Code, R.S.C., 1985, c. C-46 

 

                   581.  ...

 

                   (3)  A count shall contain sufficient detail of the 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.

 

                   601. (1) An objection to an indictment or to a count in an indictment for a defect apparent on the face thereof shall be taken by motion to quash the indictment or count before the accused has pleaded, and thereafter only by leave of the court before which the proceedings take place, and the court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect.

 

                                                                    ...

 

                   (3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears

 

(a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament;

 

(b) that the indictment or a count thereof

 

(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,

 

(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 preliminary inquiry or on the trial; or

 

(c) that the indictment or a count thereof is in any way defective in form.

 

                   (4) The court shall, in considering whether or not an amendment should be made to the indictment or a count thereof under subsection (3), consider

 

(a) the matters disclosed by the evidence taken on the preliminary inquiry;

 

(b) the evidence taken on the trial, if any;

 

(c) the circumstances of the case;

 

(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and

 

(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

 

Analysis

 

                   The nub of the appellant's argument is that this information is a nullity, and that any proceeding on a nullity is itself a nullity and open to certiorari if no appeal remedy is then available.

 

                   In my opinion, the learned Provincial Court Judge was correct in his conclusion that while "some measure of insufficiency exists in each of the charges, ... it is not of such a degree as would vitiate the charges".

 

                   In refusing to quash the information in this case, the learned Provincial Court Judge was, in my opinion, acting in conformity with the decision of this Court in R. v. Moore, [1988] 1 S.C.R. 1097.  The main issue in that case was whether quashing an information, after plea, for failure to allege a material averment constitutes a verdict of acquittal for the purpose of pleading autrefois acquit to a new information.  However, there is to be found in both the majority and the dissenting reasons in that case, considerable discussion about the circumstances under which a judge of first instance should quash an information or indictment.  Dickson C.J., in his dissenting reasons, stated the following, at p. 1109:

 

If the document gives fair notice of the offence to the accused, it is not a nullity and can be amended under the broad powers of amendment s. 529 [now s. 601 ] gives to the courts.  Only if a charge is so badly drawn up as to fail even to give the accused notice of the charge will it fail the minimum test required by s. 510(2)(c) [now s. 581(2)(c)].  A charge that is this defective would have to be quashed.

 

Although these were dissenting reasons, Dickson C.J. 's discussion in this regard was adopted without any reservation in my reasons on behalf of the majority of the Court, at p. 1126.

 

                   In the same case, writing for the majority, I said, at p. 1128:

 

                   Since the enactment of our Code in 1892 there has been, through case law and punctual amendments to s. 529 [now s. 601 ] and its predecessor sections, a gradual shift from requiring judges to quash to requiring them to amend in the stead; in fact, there remains little discretion to quash.  Of course, if the charge is an absolute nullity, an occurrence the conditions of which the Chief Justice has set out clearly in his reasons, no cure is available as the matter goes to the very jurisdiction of the judge.  ... But, if the charge is only voidable, the judge has jurisdiction to amend.  Even failure to state something that is an essential ingredient of the offence (and I am referring to s. 529(3)(b)(i) [now s. 601(3)(b)(i)]) is not fatal; in fact, it is far from being fatal, as the section commands that the judge "shall" amend.  [Emphasis added.]

 

Once the information in this case is examined in light of these principles, it is clear that the information here was not so badly drawn up as "to fail even to give the accused notice of the charge".  It was, therefore, not an absolute nullity within the meaning of R. v. Moore.

 

                   In reaching the conclusion that he did, the learned Provincial Court Judge was exercising jurisdiction which he undoubtedly had under s. 601  of the Criminal Code .

 

                   The information not being a nullity, the major premise of the appellant's argument is therefore not made out.

 

                   With respect to the availability of certiorari, the general rule is that the Provincial Court Judge conducting the preliminary hearing has jurisdiction to determine the validity of the information and that the correctness of his or her ruling in that regard cannot be challenged by certiorari.  See, for example, the decision of Martin J.A. in Re Volpi and Lanzino and The Queen (1987), 34 C.C.C. (3d) 1 (Ont. C.A.), at p. 13, and the decision of Schroeder J.A. in R. v. Jarman (1972), 10 C.C.C. (2d) 426 (Ont. C.A.), at p. 429.  To the same effect is the following passage from R. E. Salhany, Canadian Criminal Procedure (5th ed. 1989), at p. 482:

 

The general view has been that certiorari (or any other extraordinary remedy) will not lie to review the decision of a trial judge dealing with the validity of an information or indictment since that decision is within his jurisdiction. [Citations omitted; emphasis added.]

 

                   In the instant case, the information was not an absolute nullity and in deciding whether or not to quash the learned Provincial Court Judge was exercising jurisdiction he undoubtedly had under s. 601  of the Criminal Code .  It therefore follows that this case falls within the general rule just described and that certiorari was not available to review the learned Provincial Court Judge's decision in this regard.

 

                   I would not, however, wish to foreclose entirely resort to certiorari in certain rare and highly exceptional circumstances.  It may well be that in those rare circumstances described in R. v. Moore, in which the charge is an absolute nullity, certiorari may be available.   The existence of some charge of an offence known to the law, albeit very imperfectly described, is the basis of the judge's jurisdiction.  There may be rare circumstances in which an information is so faulty that it fails to meet this basic requirement.  There may also arise situations in which having failed to quash a defective information, a Provincial Court Judge finds himself or herself without jurisdiction.  For example, if a charge does not indicate where the offence occurred and the Provincial Court Judge refused to quash or order particulars his or her decision would not be open to review through certiorari.  However, if as the result of evidence adduced it is revealed that the alleged offence took place outside the court's jurisdiction, certiorari would then be available if the judge persisted in continuing exercising a jurisdiction he or she did not have.  But it would be for that reason, not because of the decision arrived at under s. 601  that certiorari would be an appropriate remedy.

 

                   For these reasons, I would not go so far as to say that certiorari will never be available, but instances in which certiorari may be had to attack a Provincial Court Judge's ruling concerning the sufficiency of an information will be rare and exceptional.

 

                   As the Court indicated at the conclusion of argument, the appeal is dismissed.

 

                   Appeal dismissed.

 

                   Solicitors for the appellant:  MacLeod, MacDougall, Crane & Parkman, Charlottetown.

 

                   Solicitor for the respondent:  The Crown Attorney's Office, Charlottetown.