Vézina and Côté v. The Queen, [1986] 1 SCR 2

Supreme Court of Canada

Vézina and Côté v. The Queen, [1986] 1 S.C.R. 2

Date: 1986-01-30

Gérard Vézina Appellant;

and

Her Majesty The Queen Respondent.

and Between

Donald Côté Appellant;

and

Her Majesty The Queen Respondent.

and Between

Her Majesty The Queen Appellant;

and

Donald Côté and Gérard Vézina Respondents.

File Nos.: 17378, 17377, 17376.

1984: December 12; 1986: January 30.

Present: Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law — Trial — Absence of accused — Trial judge examining two jurors in chambers in absence of accused and counsel — Inquiry relating to impartiality of certain jurors — Whether trial judge's examination to determine the impartiality of jurors need be in the presence of the accused — Criminal Code, R.S.C. 1970, c. C-34 as amended, s. 577.

Criminal law — Fraud — Indictment — Indictment describing the "Bank of Montreal" as the victim of the conspiracy to defraud and the attempted fraud — No case vis-à-vis the Bank of Montreal — Motion to amend the indictment denied by trial judge because of irreparable prejudice to accused — No evidence of prejudice — Indictment amended and new trial ordered — Criminal Code, R.S.C. 1970, c. C-34 as amended, ss. 338, 529.

The accused were charged with (1) unlawful possession of stolen Government of Canada bonds, (2) conspiracy to defraud the Bank of Montreal and (3) attempt to defraud the Bank of Montreal. The evidence adduced at trial indicated that the accused and two associates attempted unsuccessfully to cash the bonds with a bank in Switzerland. The Swiss Bank counselled them to deposit the bonds in that Bank's account with the Bank

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of Montreal. The latter, however, would not credit the Swiss Bank with the proceeds of the bonds until it had received the money from the Bank of Canada. The proceeds were never credited because the Bank of Canada informed the Bank of Montreal that they were dealing with stolen bonds.

At the close of the Crown's case, the trial judge allowed the motion of the accused for a directed verdict of acquittal on counts 2 and 3 on the ground that there was no evidence supportive of a conspiracy to defraud or an attempt to defraud the Bank of Montreal. The Bank, as agent of the Swiss Bank, would not make any payment from its own funds and consequently would not have suffered any prejudice from the transaction. The trial judge denied the Crown's motion to amend the indictment by deleting the reference to the Bank of Montreal because the accused would suffer serious prejudice and because there was no case establishing a risk of prejudice to the economic interests of anyone, except the owner of the bonds. The jury as directed returned a verdict of not guilty on counts 2 and 3.

During the course of the jury's deliberations with respect to the first count, the trial judge received notes from two jurors questioning the impartiality of two other jurors. After consulting the counsel for the parties and failing to obtain any consent as to what steps should be taken, the trial judge questioned the two complaining jurors in his chambers in the sole presence of a court reporter and concluded that their complaint was without foundation. He decided that there was no reason for the jury not to continue its deliberations. The jury found the accused guilty of unlawful possession.

The Court of Appeal allowed both the Crown's appeal from the directed verdicts of acquittal and the appeals of the accused from their conviction for possession and in all cases ordered a new trial. The Crown and the accused now appeal to this Court.

Held: The appeals should be dismissed.

(1) The appeal by the Crown: The examination of the two jurors by the trial judge in his chambers, without the presence of the accused, constituted a violation of s. 577  of the Criminal Code . The right of an accused to be present at his trial means that he has the right to have direct knowledge of anything that occurs in the course of his trial which could involve his vital interests. If on the

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facts of a case it is uncertain whether the accused's vital interests are involved, the judge may, in the absence of the accused, investigate the matter. This would include questioning the jurors. But as of the moment it appears those vital interests are in issue, the issue must be determined in the presence of the accused. Where a judge is being told by jurors that the integrity of other jurors is in doubt, the accused's vital interests are in issue, and the investigation and determination of that issue must be conducted in the presence of the accused.

(2) The appeals by the accused: Although there was evidence of an attempt to defraud someone, there was no case to put to the jury as regards the Bank of Montreal. The accused did not conspire to or attempt to defraud that Bank. The two concerns with fraud are dishonesty and deprivation. The element of deprivation is satisfied on proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim. It is not essential that there be actual economic loss as to the outcome of the fraud. Hiding the fact from the Bank of Montreal that the bonds were stolen and representing one's self as the lawful holder of the bonds satisfies the requirement of dishonesty. The Bank of Montreal, however, was not, on the facts of this case, asked to disburse any money for the bonds. The Bank was induced through deceit into becoming, albeit innocently, instrumental to a fraudulent scheme. As wide as the notion of deprivation may be, it does not encompass the kind of prejudice that might flow from such a situation. Any deprivation to the Bank of Montreal would be speculative and too remote.

On a charge of conspiracy to defraud or of an attempt to defraud, there is no need to establish the identity of the victim and the reference to the "Bank of Montreal" was unnecessary and mere surplusage. The surplusage rule, like ss. 510(3) and 529, cannot be invoked in cases where its application may prejudice the accused in his defence. Here, the trial judge felt that, after an eight month trial, the prejudice to the accused was irreparable. He gave no reason for that finding and there was no indication from the evidence that the accused were misled in their handling of the case. The trial judge refused the Crown's amendment and granted the motion for a directed verdict because in his view there were no possible target victims of their deceit. The amendment therefore had no useful purpose. Even though a trial judge's finding should not be lightly interfered with, the appeal judge was justified in reviewing that finding and rightly concluded that there had been no prejudice. The indictment should be amended by deleting reference to

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the Bank of Montreal and a new trial held on the indictment as amended.

Cases Cited

R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C. (2d) 510, applied; R. v. Grimba (1980), 56 C.C.C. (2d) 570; Meunier v. The Queen (1965), 48 C.R. 14 (Que. Q.B.), aff'd [1966] S.C.R. 399; R. v. Mitchell, [1964] S.C.R. 471; R. v. Cooper, [1978] 1 S.C.R. 860; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Fenton (1984), 11 C.C.C. (3d) 109; R. v. Olan, [1978] 2 S.C.R. 1175; R. v. Adduono (1940), 73 C.C.C. 152; Brodie v. The King, [1936] S.C.R. 188; R. v. Elliott, [1976] 4 W.W.R. 285; R. v. Little and Wolski (1973), 14 C.C.C. (2d) 531 (Man. C.A.), aff'd [1976] 1 S.C.R. 20; R. v. Greene (1962), 133 C.C.C. 294; R. v. Maclean and Maclean (1981), 58 C.C.C. (2d) 318; R. v. Simard (1980), 55 C.C.C. (2d) 306; R. v. O'Connor, [1963] 1 C.C.C. 229; R. v. Coote (1903), 8 C.C.C. 199; Libman v. The Queen, [1985] 2 S.C.R. 178; R. v. Wines (1953), 37 Cr. App. Rep. 197; Adcock v. Archibald, [1925] J.C. 58, referred to.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C-34, ss. 338 [am. 1974-75-76 (Can.), c. 93, s. 32], 510(1), (3), 512(c), 515, 529 [am. 1974-75-76 (Can.), c. 105, s. 29, item 6], 577 [am. 1972 (Can.), c. 13, s. 50], 613(1)(b)(iii).

Authors Cited

Ewaschuk, E. G. Criminal Pleadings and Practice in Canada, Aurora Ont., Canada Law Book Ltd., 1983.

Gordon, G. H. The Criminal Law of Scotland, 2nd ed., Edinburgh, W. Green & Son Ltd., 1978.

Holdsworth, W. S. A History of English Law, vol. 3, 5th ed., London, Methuen & Co., 1942.

Radzinowicz, L. A History of English Criminal Law, vol. 1, New York, MacMillan Co., 1948.

Stephen, J. F. A History of the Criminal Law of England, vol. 1, London, MacMillan & Co., 1883.

APPEAL by the Crown from a judgment of the Quebec Court of Appeal, [1982] C.A. 419, 3 C.C.C. (3d) 155, 32 C.R. (3d) 47, allowing the appeals of the accused from their conviction for illegal possession of stolen bonds and ordering a new trial. Appeal dismissed.

APPEALS by the accused from a judgment of the Quebec Court of Appeal (1982), 3 C.C.C. (3d)

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557, setting aside their acquittal and ordering a new trial on the counts of attempted fraud and conspiracy. Appeals dismissed.

Michel Proulx, for Côté.

Robert Doré, for Vézina.

Yves Berthiaume, for Her Majesty The Queen.

The judgment of the Court was delivered by

LAMER J.—Donald Côté, Gérard Vézina and Claude Benloulou were tried before a jury of the Montréal Assizes on an indictment comprising three counts: illegal possession of stolen bonds, and as a result of having attempted to negotiate said bonds, of attempted fraud and of conspiracy to commit fraud. Lamb J. granted a motion for a directed verdict of acquittal on the latter two counts but denied the motion as regards the count of possession.

The jury as directed returned a verdict of not guilty on the two counts, deliberated on the first and found all three accused guilty of unlawful possession. The Crown appealed the directed verdicts of acquittal, and the accused appealed their conviction for possession. Prior to the judgment of the Court of Appeal, Benloulou died. In a unanimous decision the appeals of the Crown were allowed and a new trial was ordered on the counts of attempted fraud and of conspiracy: (1982), 3 C.C.C. (3d) 557. The appeals of the accused Côté and Vézina were also allowed, L'Heureux-Dubé J.A. dissenting: [1982] C.A. 419, 3 C.C.C. (3d) 155, 32 C.R. (3d) 47. The Crown and the accused all appeal to this Court as of right, the Crown by virtue of L'Heureux-Dubé J.A.'s dissent, the accused because of the reversal of their acquittal.

The Crown's Appeal

The Facts

The facts relevant to the Crown's appeal are conveniently found in Lamb J.'s report on the

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matter to the Court of Appeal, and concern, he says:

… two written communications I received during the course of the jury's deliberations from each of two female jurors indicating their belief that two male members of the jury were being or had been influenced by one of the accused.

Having informed the accused and counsel of these communications and having asked for and failed to obtain agreement of counsel as to what steps should be taken, and since in my opinion there was, at that stage of the trial, only one course to follow, I conducted my own inquiry, which is fully documented in the Record of the case, and interviewed each accusing juror in turn exclusively as to the reasons for her suspicions. I satisfied myself that these were without foundation. I therefore permitted the jury's deliberations to continue, rejecting the two alternative courses of (a) removal from the jury of the two jurors against whom the accusations had been made, or (b) declaring a mistrial. I formally advised the accused and counsel of my decision.

The two notes sent to the judge by the two jurors read as follows:

[TRANSLATION] Your Honour, I have doubts with respect to the honesty of two jurors, may I meet with you? Yours truly, Pauline Charbonneau.

Your Honour, We are in a state of panic caused by the behaviour of Daniel and Denis (juror numbers 9 and 4), who do not want to listen to anyone. They are like wild beasts, and I accuse them of doing everything possible to influence in a diabolical manner the weaker jurors; and they are doing this in their own interest, and I believe I know the source of that interest. I will have much more to say at a more appropriate time and place. Yours respectfully, Janette Trudel.

The judge, in the presence of the accused and of counsel, read the notes and made the following request:

[TRANSLATION] Might I just request the consent of counsel for the defence to my examining-without the presence of counsel and without the presence of the accused-to my meeting at her request with juror No. 5 to hear what she has to say?

While consented to by the Crown, this was clearly objected to by the defence. There ensued a discussion, and, after a recess for lunch, counsel for the defence made a motion for mistrial. This motion was based on the fact that given the nature of the accusation the jury could not enjoy the

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serenity required to fulfill its duties. Furthermore, there was some concern that if jurors No. 9 and No. 4 knew of the nature of the suspicion entertained by some of the jurors, they would be pressured into giving a verdict that would dispel these suspicions. The defence asked, in the alternative, that the two jurors who sent the notes be excluded from the panel. The motions were denied.

Lamb J. met together with these two jurors in his chambers, in the sole presence of a court reporter. It was only once the verdict was pronounced that counsel and the accused were informed in open court of his meeting with the jurors and given a transcript of the exchange that took place in the judge's chambers. The record does not reveal whether the judge's disposition of the motions was made prior to his meeting with the jurors. In fact, as was revealed in the Court of Appeal and referred to by Owen J.A. in his judgment:

When asked by counsel for defence whether he had conducted an inquiry with respect to the two jurors who had written notes, the presiding judge replied:

[TRANSLATION] I can tell you that I have come to the conclusion that there is no valid reason that the jury cannot, will not, be able to or should not continue its deliberations in order to arrive at their verdict.

The Judgments of the Court of Appeal

Owen and Malouf JJ.A. both found a violation of s. 577. Owen J.A. adopted the views of the Court of Appeal of Ontario in two cases, those expressed by Martin J.A. in R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C. (2d) 510 and those of Zuber J.A. in R. v. Grimba (1980), 56 C.C.C. (2d) 570. L'Heureux-Dubé J.A. dissented and found that on the facts of the case there was no violation of the section. She was of the view that a preliminary investigation determining the impartiality of the jurors need not be in the presence of the accused.

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The Law

The relevant facts are in regard of s. 577:

577. (1) Subject to subsection (2), an accused other than a corporation shall be present in court during the whole of his trial.

(2) The court may

(a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible,

(b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper, or

(c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is, on account of insanity, unfit to stand his trial where it is satisfied that failure to do so might have an adverse effect on the mental health of the accused.

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.

Until Hertrich, supra, the courts considered that the test as to the scope of s. 577 was to be found in the words of the judgment of Casey J.A. in Meunier v. The Queen (1965), 48 C.R. 14 (affirmed by this Court, [1966] S.C.R. 399), where he said, at p. 17:

Our problem is whether the Court proceeded, whether it did anything of a nature to advance the case, in the absence of the appellant. If it did not appellant's argument must be rejected; if it did the conviction must be quashed.

In R. v. Grimba, supra, Zuber J.A. questioned whether the words " 'of a nature to advance the case' were intended to be definitive". In my view, they were not. The question as put by Casey J.A. was befitting the issue and the facts of that case. I think the proper test is to be found in Martin J.A.'s judgment in Hertrich, supra.

In Hertrich, a case also involving meetings with jurors, the judge was informed by the sheriff that a juror had conveyed to one of his officers that he had received phone calls about the case. Prior to

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questioning the jurors in the absence of the accused the judge had met with counsel in his chambers to discuss whether an investigation was necessary, and if so, whether it should be conducted in the presence of the accused. Over objections of counsel for some of the accused, the judge decided that an investigation was necessary and examined the jurors in the presence of counsel, but in the absence of the accused.

In his reasons, Martin J.A., said that the accused's right to be present at his trial means that he has the right "to have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests". This obviously includes (at p. 527):

… proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empanelling of the jury, the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, arguments of counsel, addresses of counsel to the jury, the judge's charge, including requests by the jury for further instructions, the reception of the verdict and the imposition of sentence if the accused is found guilty.

This would also include "proceedings" conducted by the judge during the trial for the purpose of investigating matters which have occurred outside the trial but which may affect its fairness. This would however exclude events which (at p. 529):

… although in one sense part of the trial, cannot reasonably be considered to be a part of the trial for the purpose of the present principle, because they cannot reasonably be said to have a bearing on the substantive conduct of the trial, or the issue of guilt or innocence.

Applying these principles to the facts of that case, the court found that the in-chambers examination of the jurors was part of the trial. Martin J.A., illustrating what would not be part of the trial said, at p. 539:

… the communication by the deputy sheriff to the judge of the information with respect to the anonymous telephone call, and the preliminary in-chambers conference with counsel to determine the necessity for an

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inquiry and the form that it should take clearly did not constitute part of the trial.

The Issue

Is the presence of the accused required when the judge is determining whether there is an issue involving his vital interests, or only as of the moment that that issue having been found to exist is being determined? This is how I see the question to be addressed on the facts of this case and given the judgments below. Indeed, it appears to me that all three judges below agree with the principles and the rules set out in Hertrich, supra. L'Heureux-Dubé J.A., in her dissenting reasons, quotes at length the reasons of Martin J.A., including the passage to which I have just referred, where he states that the discussion in-chambers with the sheriff and then with counsel was not part of the trial, and she then emphasized the passage immediately following those comments, where he reformulates the issue to be decided by the Court of Appeal in that case:

Therefore the question resolves itself to this: When it had been decided that an investigation was necessary, did the examination of the jurors under oath constitute part of the trial for the purpose of the rule that the accused is entitled to be present at his trial?

Further on L'Heureux-Dubé J.A. said:

[TRANSLATION] This brings us back to the crux of the question. In the Hertrich case, Mr. Justice Martin set out in the following manner the question to be decided (at p. 529):

The narrow question presented then by this branch of the appeal is whether an examination of a juror with respect to the effect on him of an anonymous telephone call received by or communicated to him is part of the trial.

In the present case, the parameters of the debate can be delimited as follows:

During the deliberations of the jury, does the examination of a juror form part of the trial when this examination has as its sole purpose the verification of the correctness of suspicions which a juror holds with respect to the impartiality of other members of the jury as evidenced by a note received from this juror by the judge and the effect that these suspicions may have on the ability of the juror to continue deliberations?

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Unlike in the Hertrich case, in the present case, the facts do not reflect on the impartiality of the jury. The examination revealed no fact whatsoever of a nature capable of influencing the jury, but rather revealed simple gossip among jurors possibly exhausted by the long trial or seized with panic when faced with the difficulty of their task or even simply upset as a result of being subjected to the influence of other jurors in the difficult task of arriving at a unanimous decision. These anxieties are surely not foreign to any jury deliberations. Generally, however, nothing arises out of them. In the present case, two jurors informed the judge of them.

I would note immediately that if the examination carried out by the judge had revealed facts of a nature which might have influenced the impartiality of the jury or, one of the jurors, the situation would surely have been different. The case which the court is presently faced with constitutes somewhat of a preliminary step, the first phase of a process which could have contained several others if facts had been discovered bearing on the vital interests of the accused, their guilt or innocence. If there was no reason to proceed farther in the present case it was because the preliminary step proved sufficient to assure the judge that no fact or incident had occurred having any effect on the result of the trial.

It is by keeping in mind the nature of the communication received from the jurors as well as what was revealed in the examination that the court will proceed to the examination of the jurisprudence with respect to s. 577  of the Criminal Code .

L'Heureux-Dubé J.A. equated the trial judge's in-chambers investigation into the partiality of the jurors to the preliminaries conducted by the trial judge in the Hertrich case. With respect I cannot agree with L'Heureux-Dubé J.A.'s qualification of what transpired in the trial judge's chambers.

I am of the view that if on the facts of a case it is uncertain whether the accused's vital interests are involved, the judge may, in the absence of the accused, investigate the matter. This would include questioning the jurors and, if the judge determines that these vital interests of the accused are not in issue that ends the matter, subject of course to a record being kept of the proceedings in order to determine whether he erred as regards there being uncertainty of what was in issue at the outset and as regards his final determination of the matter.

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This is what occurred in the Hertrich case. But as of the moment it appears those vital interests are in issue, the issue must be determined in the presence of the accused.

If the judge had received a note saying: "I must speak to you about something serious and in private", I see nothing wrong with the judge's informing counsel and meeting the juror to find out what the matter is all about. But upon being told by the juror that the integrity of another juror is in doubt, the accused's vital interests are in issue, and the investigation and determination of that issue must be conducted in the presence of the accused.

In this case it is abundantly clear from the written messages that the partiality of jurors was in issue. L'Heureux-Dubé J.A. concluded that this is not so relying in part on what was eventually reported in the transcripts of the exchange between the judge and the jurors in chambers. This analysis, in my respectful view, misses the point. For it is confusing the determination of whether partiality was in issue with the further determination of the issue of partiality. Finding the jurors impartial does not mean that their impartiality was not in issue. It merely means that the issue was determined in favour of their impartiality. The events of this case well illustrate the need for the issue of partiality to be determined in the presence of the accused, specifically when one considers that counsel for the accused argued their motion for a mistrial without knowing what the jurors had to say as regards the partiality of others, not knowing whether the jurors had conveyed to their fellow jurors including the suspects, their suspicions, and not even knowing whether the judge had met with those jurors. I would therefore dismiss the Crown's appeal.

Before addressing the accused's appeal, I think it desirable that something should be added with regard to certain comments made by Owen J.A. in his reasons on the appropriateness of the application of s. 613(1) (b) (iii) to a violation of s. 577. In addressing this question Owen J.A. expressed the view that this Court's decision in the Meunier case went too far and he expressed the hope that we do

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as we did in other cases (R. v. Mitchell, [1964] S.C.R. 471; R. v. Cooper, [1978] 1 S.C.R. 860; Vetrovec v. The Queen, [1982] 1 S.C.R. 811) and reconsider Meunier. Owen J.A. is not the only one who has expressed such views. The most recent complaint as to the rigidity of the Meunier rule as regards the unavailability of s. 613(1) (b)(iii) was expressed by the British Columbia Court of Appeal in R. v. Fenton (1984), 11 C.C.C. (3d) 109. In the case at bar the Crown in her factum also invited us to reconsider our adoption of Casey J.A.'s views in Meunier. This issue would be within our reach had the appeal below been dismissed. Indeed, the finding of a violation of s. 577 by this Court for the first time would then have raised, as a question originating in this Court, the question whether the proviso is applicable to such an error of law and afforded us an opportunity to reconsider Meunier. Unfortunately, we are precluded from doing so in this case. This is an appeal as of right based on L'Heureux-Dubé J.A.'s dissent. The question of law on which she dissented was not the applicability of s. 613(1) (b) (iii) following a violation of s. 577. Furthermore leave was sought by the Crown on that issue and was denied by a panel of this Court. As a last comment on the matter I should not want it to be taken that, when adopting Martin J.A.'s views in Hertrich, the issue of whether the proviso in s. 613(1) (b)(iii) was available, has been inferentially reconsidered and the reasoning in Meunier on that point reaffirmed in this case.

The Appeal of the Accused Côté and Vézina

The Facts

The two counts of the indictment we are concerned with here read as follows:

[TRANSLATION] CLAUDE BENLOULOU, GÉRARD VÉZINA and DONALD CÔTÉ, in Montréal, District of Montréal, between October 5, 1973 and October 17, 1973 did unlawfully conspire together and with Charles

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Dolansky, to commit indictable offences not provided for in paragraphs (a), (b) or (c) of Section 423(1)  of the Criminal Code , to wit: to defraud by deceit, lies or other fraudulent means, the Bank of Montréal, 119 St-James St. West, Montréal, of a sum of money of approximately $975,000, thereby committing an indictable offence as set out in Section 423(1)  (d) of the Criminal Code .

On or about October 16, 1973, CLAUDE BENLOULOU, DONALD CÔTÉ and GÉRARD VÉZINA did unlawfully attempt to commit an indictable offence, to wit: defraud by deceit, lies or other fraudulent means, the Bank of Montreal, 119 St-James St. West, Montréal, of a sum of money, approximately $975,000, thereby committing an indictable offence as set out in Section 421 (b) of the Criminal Code .

It was admitted at trial that General Accident Fire and Life Assurance Corporation Limited, hereinafter referred to as GAFLAC, purchased thirty-four Government of Canada bearer bonds. The due date of those bonds was October 1, 1973. They were stolen. The evidence involving the accused in relation to these bonds, as assessed by Malouf J.A. of the Quebec Court of Appeal is as follows:

Testifying for the prosecution, one John Feller stated that he was present at a meeting which took place on the evening of October 11, 1973, between a Montreal businessman, one Charles Dolansky and a Swiss national, Fritz Zueger, who together discussed the encashment of certain bonds in Switzerland. The serial numbers given to Feller by Dolansky turned out to be exactly the same as the serial numbers of the bonds owned by GAFLAC. During the evening of October 12th, Feller, who was at Zueger's apartment in Montreal, received a telephone call from someone identifying himself as Donald who wished to know if he was aware of the conversation which had taken place between Zueger and Dolansky concerning the bonds. The same evening Donald appeared at the apartment wishing to know if Zueger intended to leave immediately for Switzerland. The latter stated that he was unable to leave due to business commitments in Montreal. Donald, later identified by Feller as respondent Donald Côté, was disappointed because the matter was taking too long and he could no longer wait. On Monday, October 15th, Donald placed a second telephone call asking Zueger and Feller to continue their attempts to encash the bonds in Switzerland. It was then that Zueger telephoned a representative of the Neue Bank in Switzerland giving him the numbers of the bonds. The representative of the Neue Bank

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counselled Zueger to deposit the bonds with the Bank of Montreal for the account of the Neue Bank. The following day, Donald Côté was informed of these events and he told Zueger that a carrier, later identified as respondent Vézina, would bring the bonds to the apartment. After receiving the bonds, Feller and Zueger checked the serial numbers with the list of numbers given to them by Dolansky and went to the Bank of Montreal where Feller alone deposited the bonds, receiving a receipt therefor from Simpson, an employee of the bank. Feller says that, on the same day, he and Zueger met respondent Vézina and Benloulou in a room where Dolansky had been hospitalized since October 12th. It was at this meeting that Benloulou informed them that he would be going to Switzerland to obtain the proceeds of the bonds. In the meantime, Simpson told Feller that the Bank of Montreal would not credit Neue Bank with the proceeds of the bonds until it had received the proceeds from the Bank of Canada. As a matter of fact the proceeds were never credited to the Neue Bank because Simpson, in communicating with the Bank of Canada, discovered that they were dealing with stolen bonds.

That same evening, Feller and Zueger were arrested at an airport in Montreal when Simpson identified Feller as the person who had deposited the bonds with the bank.

This summary reflects the facts as described by the trial judge, except as hereinafter explained. Indeed, as regards the accused's relationship with the Bank of Montreal, the trial judge took a different view of the evidence, crucial, in my view, to the disposition of this case. Lamb J. was of the view that when Feller started transactions with the Bank of Montreal, he and his associates already knew that the Bank was not being called upon to disburse any monies but to act solely as a conveyor of the Bank of Canada's money to the Neue Bank.

The Judgments

At the close of the Crown's case, the accused made a motion for a directed verdict, on the ground that there was no evidence supportive of a conspiracy or of an attempt to defraud the Bank of Montreal. All the Bank of Montreal was asked to do, it was argued, was to obtain the money and send it to the Neue Bank in Switzerland. The

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Crown sought leave to amend the indictment by deleting reference to the Bank of Montreal. Counsel for the accused objected arguing that no one, except the owner of the bonds, could have been deprived as a result of the conduct of the accused. Not the Neue Bank, because it would pay only once it had received the money; nor the Bank of Montreal as it was only a conveyer of the money from the Bank of Canada to the Neue Bank in Switzerland. The Bank of Canada would incur no loss, as it pays only once for the redemption of its bonds. As for GAFLAC, appellants argued that their loss would be the result of the theft and not of the conduct of the accused.

Lamb J. agreed with the accused that there was no case to put to the jury as regards the Bank of Montreal and accordingly granted a motion for a directed verdict of acquittal. He previously had denied the motion to amend saying that:

[TRANSLATION] There can be no question, at this stage of the proceedings, of an amendment substituting someone else for the Bank of Montreal. This would cause serious hardship to the accused.

He then went on to add that there could be no other victim:

[TRANSLATION] In any case, so far as the Neue Bank is concerned, the evidence shows that even if the latter had paid the $975,000 in Zurich it would have lost nothing, because it would already have received from the Bank of Canada $975,000 from the redemption of these bearer bonds, through the intermediary of the Neue Bank, namely the Bank of Montreal.

In redeeming the bonds the Bank of Canada would simply be paying its own debt, because according to Mr. Pritchard's testimony it is required to pay the bearer of the bonds, whoever that may be, except of course where to the Bank of Canada's knowledge the bearer has stolen the bonds.

The real victim, the real loser according to the evidence appears to have been the person who paid for the bonds: however, his loss also appears to have been the result not of the alleged conspiracy against the accused

[Page 18]

but of the theft of the bonds on or before October 5, 1973, a crime with which the accused were not charged.

In summary, with respect to the second count, there is no evidence before the jury which would permit them to find the accused guilty. As a result, the defence motions brought on behalf of each of the three accused for a directed verdict of acquittal are manifestly well founded.

It is perhaps worth adding that there is at least a serious doubt as to the prosecution evidence on the other essential component of this count in the indictment, namely the deceit, falsehood or other fraudulent means by which the accused intended to defraud the Bank of Montreal, according to the wording of this count.

However, in view of the aforementioned conclusions regarding the total absence of any evidence of fraud, it is not necessary for the Court to rule on this additional point.

Lamb J. therefore refused the motion to amend on two grounds: because of irreparable prejudice to the accused and, though expressed in different terms, because there was, on the facts tendered in evidence by the Crown, to use the words of Dickson J. (as he then was) in R. v. Olan, [1978] 2 S.C.R. 1175, at p. 1182, no case establishing a "risk of prejudice to the economic interests" of anyone, except GAFLAC. As regards GAFLAC, I should underline in passing, without further comment, the fact that the Crown chose not to charge the accused with conspiracy or an attempt to steal (by a trick) from GAFLAC the sum of $975,000.

On appeal, all three judges agreed, albeit for varying reasons, that Lamb J. erred in granting the directed verdicts.

Owen and L'Heureux-Dubé JJ.A. were both of the opinion that, as proof as to the identity of the victim of any conspiracy to defraud or of an attempted fraud is not essential, naming the Bank of Montreal in the indictment was surplusage. L'Heureux-Dubé J.A. also added that the Bank of Canada would have been defrauded had matters been successfully completed. Malouf J.A. took the view that whilst the banks would not have been deprived, the owner would have, and that the

[Page 19]

person deprived need not be the person deceived. As for the prejudice caused to the accused by the counts specifying the wrong victim, Malouf J.A., the only justice in appeal to address that other ground upon which Lamb J. rested his decision to deny leave to amend the indictment, said:

In the present instance, the first count, that of illegal possession, contains the name of the owner of the bonds as well as the name of the person having a special interest therein. The proof reveals that the bonds referred to in counts 2 and 3 are the same bonds referred to in count 1. The fact that counts 2 and 3 do not mention the name of the owner of the bonds is not, in my opinion, fatal in the present instance for the reasons just given. Accused were fully aware of the transaction complained of, knew that GAFLAC was the owner of the bonds, and that Girard Trust Bank had a special interest therein. These facts were placed before the jury during the trial. Accused therefore had sufficient details to appreciate the nature and quality of the transaction complained of.

In my respectful view Lamb J. erred as regards both of the grounds upon which he rested his decision to refuse the amendment and grant the motion for directed verdict.

The Law

The two concerns with fraud are dishonesty and deprivation. "The element of deprivation is satisfied on proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim. It is not essential that there be actual economic loss as to the outcome of the fraud" (per Dickson J., as he then was, in R. v. Olan, supra, at p. 1182).

Fraud consists of being dishonest for the purpose of obtaining an advantage and which results in prejudice or a risk of prejudice to someone's "property, money or valuable security". There is no need to target a victim to commit fraud, and the victim may not be ascertained.

As regards the second ground upon which Lamb J. rested his decision, namely, the lack of any

[Page 20]

conspiracy to defraud or an attempt to defraud, I cannot agree. To begin with, the fact that the accused conspired to obtain money from the Swiss Bank and commenced the execution of the scheme by contacting the Bank in Switzerland is, in my opinion, sufficient evidence of a possible victim other than the Bank of Montreal. The fact that the victim would have been deprived in Switzerland, is, under the circumstances of this case, of no effect on the Canadian courts' jurisdiction to try the matter, for the reasons given by this Court in Libman v. The Queen, [1985] 2 S.C.R. 178.

In any event, clearly there was evidence of an attempt to defraud someone in the amount of $975,000. Had the Crown not undertaken to ascertain a victim and then further undertaken to prove that the Bank of Montreal was the target of the accused, Lamb J. would have been wrong in granting the motion for a directed verdict.

But the Crown did make those undertakings, and therefore two questions need to be addressed: Did the conduct of the accused amount to a conspiracy or an attempt to defraud the Bank of Montreal? If so, then Lamb J. was wrong in granting the motion for a directed verdict. If not, then one must address the consequences of a failure to prove that target, which leads us to Lamb J.'s first ground for a directed verdict of acquittal, irreparable prejudice to the accused.

First question: Was there evidence to go to the jury as to whether the accused conspired or attempted to defraud the Bank of Montreal?

Hiding the fact from the Bank of Montreal that the bonds were stolen and representing one's self as the lawful holder of the bonds amply satisfies the requirement of dishonesty. As regards deprivation, had the accused conspired and attempted to obtain from the Bank of Montreal $975,000 of its money in exchange for the bonds they would have intended that the Bank be induced into parting with $975,000 of its money in cash and be left with only title to cash. That the Bank of Montreal

[Page 21]

would be reimbursed by the Bank of Canada and would not lose the amount would, in my respectful view, be irrelevant as regards the potential economic detriment. An exchange of money for title to money which would not have taken place but for the dishonest conduct on the part of the accused is prejudicial. The patrimony of the bearer of money is surely in a better position than that of one who holds stolen bonds even if a holder in good faith. Good faith may be questioned and payment delayed. There would therefore have been, on those facts, as it appeared that Malouf J.A. perceived them to be, a case to put to the jury as regards the Bank of Montreal. But according to the trial judge this is not what happened nor what was attempted. At the outset, the accused wanted to cash the bonds with the Neue Bank before the theft of the bonds was discovered and reported to the Bank of Canada. This first attempt did not succeed, because the Swiss Bank referred them to the Bank of Montreal. The idea was then to get the Bank of Montreal, by not telling them that the bonds were stolen, to cash the bonds with the Bank of Canada, and then send the money to the Swiss Bank. They were not asking the Bank of Montreal to disburse any money for the bonds. The Bank was induced through deceit into becoming, albeit innocently, instrumental to a fraudulent scheme.

As wide as the notion of deprivation may be, I do not see it as encompassing the kind of prejudice to the Bank of Montreal that that Bank could have incurred. Any deprivation to the Bank of Montreal would be speculative and too remote.

This Court's reference in Olan, supra, to "risk of prejudice" must be understood in the light of the facts of that case and as meaning that, for there to be a deprivation, it is not "essential that there be actual economic loss". In Olan, the victim departed with money in exchange for title, indeed very good title to money. Prior to the deceit the victim had ownership and possession of money. As a result of the deceit the victim was left with ownership and title thereto and had lost possession of the money. The victim's patrimony was minus

[Page 22]

possession of the money, the cash, and left with only title. That is deprivation.

Applying the principles set out in Olan to the facts of this case I find that there was evidence to go to the jury that the appellants attempted to defraud the Bank of Canada of $975,000 irrespective of the fact that ultimately the Bank would not be out of that amount. The Bank held the money with the understanding that it would pay that amount under certain conditions to the lawful bearer of the bonds. It would, had the scheme succeeded, have through deceit parted with that amount and have been put to some identifiable risk of economic prejudice. The element of deprivation would have been met.

But as regards the Bank of Montreal there is no such identifiable risk of economic prejudice. The Bank of Montreal was not being asked to part with anything it owned, possessed or had any special interest in.

Reference to decisions in other jurisdictions under the common law of fraud or to English cases under their Larceny Act, 1861, and 1916, or their Theft Act, 1968, and 1978, must be read keeping in mind the fact that s. 338 of our Code is different. While I agree with the oft quoted statement in R. v. Wines (1953), 37 Cr. App. Rep. 197 at p. 199 that "decei[t] is, by falsehood, to induce a state of mind" and that "to defraud is, by deceit, to induce a course of action", we must keep in mind that in Canada s. 338 of the Criminal Code  reads on to say that that course of action must be in the nature of depriving someone of "property, money or valuable security".

In Scotland it has been found, in Adcock v. Archibald, [1925] J.C. 58, that under the common law, "any definite, practical result achieved by the fraud is enough" (per Lord Justice-General Clyde, at p. 61), and that "The essence of the offence consists in inducing the person who is defrauded either to take some article he would not otherwise have taken, or to do some act he would not otherwise have done, or to become the medium of some unlawful act" (per Lord Hunter, at p. 61). That

[Page 23]

wide notion of fraud has met with resistance in that jurisdiction (see Gordon, G. H., The Criminal Law of Scotland (2nd ed. 1978), at p. 603). Clearly that cannot be the law in Canada under our s. 338. I therefore agree with Lamb J. and Malouf J.A. that there was no case as regards the Bank of Montreal.

The second question: Should Lamb J. have granted the motion to amend, or should he simply have disregarded this specification of the victim and the Crown's failure to prove that the Bank of Montreal was the potential victim?

Owen and L'Heureux-Dubé JJ.A. rested their decision on the "surplusage rule". I agree with them that specifying the Bank of Montreal in the charge was unnecessary and surplusage. The Crown, invoking ss. 512 (c) and 515 of the Code, argues that because there was no need to establish the identity of the victim the reference to the Bank of Montreal was surplusage and should not have had any bearing on the issue of this case.

Sections 512 (c) and 515 of the Code read as follows:

512. No count in an indictment is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfils the requirements of section 510 and, without restricting the generality of the foregoing, no count in an indictment is insufficient by reason only that

…

(c) it charges an intent to defraud without naming or describing the person whom it was intended to defraud,

515. No count that alleges false pretences, fraud or an attempt or conspiracy by fraudulent means, is insufficient by reason only that it does not set out in detail the nature of the false pretence, fraud or fraudulent means.

The "surplusage rule", which has been developed by the courts over a great many years, is succinctly stated as follows, in Ewaschuk, Criminal Pleadings and Practice in Canada (1983), at pp. 222-23:

[Page 24]

If the particular, whether as originally drafted or as subsequently supplied, is not essential to constitute the offence, it will be treated as surplusage, i.e.,a non-necessary which need not be proved.

This common law rule is, in effect, the converse of s. 510(3)  of the Criminal Code , which states:

510. …

(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 of insufficiency of details does not vitiate the count.

Both the "surplusage rule" and s. 510(3) (and its predecessors) are responses to the extreme formality of the 18th and 19th century law of criminal procedure. At that time, "at common law, every material fact, that is every fact which formed an ingredient in the offence, had to be alleged to be done at a particular place and time" (Stephen, A History of the Criminal Law of England (1883), vol. 1, at p. 281). Defects or omissions in the indictment were generally fatal, as "the slightest inexactitude in the wording was capable of invalidating the indictment" (Radzi-nowicz, A History of English Criminal Law (1948), vol. 1, at p. 98).

Although the rules concerning indictments came to be described as an "extraordinary and irrational set of rules" (Holdsworth, A History of English Law (5th ed. 1942), vol. 3, p. 618), their purpose, it seems, was to alleviate the excessive harshness of the early criminal law. As Stephen has indicated (op. cit., at p. 284):

I do not think that anything has tended more strongly to bring the law into discredit than the importance attached to such technicalities as these … . Such scandals do not seem, however, to have been unpopular. Indeed, I have some doubt whether they were not popular, as they did mitigate, though in an irrational, capricious manner, the excessive severity of the old criminal law.

[Page 25]

With the abrogation of the great majority of the capital statutes in the 19th century, however, much of the rationale for the formality and strict adherence to the wording of the indictment disappeared. Consequently, the legislators and the courts sought to relax a number of the rules concerning indictments of the courts were empowered to amend defective indictments (see Stephen, op. cit., at p. 285, and Radzinowicz, op. cit., at p. 103).

The "surplusage rule", s. 510(3) of the Code, as well as s. 529, are thus designed to overcome the excessive technicalities of the former procedures and to require the accused to meet the intrinsic merits of the accusation. All three are interrelated. Section 510(3) deals with the issue of insufficient detail, the "surplusage rule" deals with additional unnecessary detail and s. 529 empowers the courts to amend defective indictments.

However, all three rules are, in my view, subject to the proviso that the accused not be prejudiced in his or her defence. Section 529(4) explicitly states that:

529. …

(4) The court shall, in considering whether or not an amendment should be made, consider

…

(d) whether the accused has been misled or prejudiced in his defence by a 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.

Section 510(3) states that a count shall provide "reasonable information" to the accused. These terms must be understood as requiring, at a minimum, sufficient information so as not to prejudice the accused in his or her defence. In R. v. Adduono (1940), 73 C.C.C. 152, Masten J.A., on behalf of the Court of Appeal of Ontario, wrote at p. 155:

My study of the existing provisions of the Code (ss. 853 and following, and including s. 908) [Note: s. 853

[Page 26]

was the predecessor of s. 510(3)] leads me to the view that their spirit and purpose is to secure to the accused, when preparing for trial such exact and reasonable information respecting the charge against him as will enable him to establish fully his defence. At the same time these sections are directed to a second purpose, namely, to nullify the old procedure with the purpose of ameliorating its extreme technicality and facilitating the administration of justice in accordance with the very right of the case.

(Emphasis added.)

Similarly, in Brodie v. The King, [1936] S.C.R. 188, Rinfret J. analysed s. 852 of the Code (the forerunner of s. 510(1)) and stated, at p. 194, that one of the main objects of the legislation was "that the accused may have a fair trial and consequently that the indictment shall, in itself, identify with reasonable precision the act or acts with which he is charged, in order that he may be advised of the particular offence alleged against him and prepare his defence accordingly".

Section 510(3), when viewed in the light of s. 510(1) and the cases interpreting these sections, is thus subject to a proviso similar to that expressed in s. 529(4), namely, that the count must contain sufficient information to allow the accused to "establish fully" his or her defence and consequently have a fair trial. Indeed, to hold otherwise would be to nullify the very purpose of a written accusation of crime.

Similarly, "the surplusage rule", which, as noted above, is the converse of s. 510(3), must also be seen as subject to the proviso that the accused not be prejudiced in his or her defence. In R. v. Elliott, [1976] 4 W.W.R. 285, Mclntyre J.A. (as he then was) stated at p. 289:

It is clear in my view that where the Crown gives material particulars in an indictment it must prove them. A long list of authorities supports this proposition.

[Page 27]

It is of course true that immaterial or non-essential averments in indictments need not be strictly proved if no prejudice results to the accused.

(Emphasis added.)

Indeed, the notion that the accused not be prejudiced by the application of the "surplusage rule" may fairly be said to be a persistent theme throughout the case-law.

In the case of R. v. Little and Wolski (1973), 14 C.C.C. (2d) 531, the accused were charged with theft from "Westwood Jewellers Limited". The evidence established that the store from which the items were stolen was known as "Westwood Jewellers". Matas J.A., speaking for the Court of Appeal of Manitoba, emphasized at pp. 537-38 that:

In the case at bar, use of the corporate name in the indictment did not mislead in any way; the accused had sufficient knowledge, by the indictment, of the circumstances of the offence; they had reasonable information with respect to the act alleged in the indictment sufficient to identify the transaction. There was no prejudice to them.

The judgment of the Court of Appeal was confirmed by the Supreme Court of Canada, [1976] 1 S.C.R. 20. De Grandpré J., for the majority, stated at p. 26:

… on the whole of the evidence, it is clear that the accused have been given sufficient information about the circumstances of the alleged offence and were at all times in a position to identify the transaction referred to in the indictment. Accordingly, it is my view that they have received a fair trial.

Dickson J. (as he then was), with whom Beetz J. concurred, agreed with the result and stated, at p. 32:

In my view, the evidence in this case reasonably identified the owner of the stolen diamond rings with the person named in the indictment as owner, and the accused were in no way misled or prejudiced in their defence by failure to prove identity with greater precision.

Similarly, in R. v. Greene (1962), 133 C.C.C. 294, MacKay J.A., on behalf of the Ontario Court of Appeal, wrote at pp. 300-01:

[Page 28]

In the present case the appellant does not allege that he was misled or prejudiced in his defence by the wrong date in the information, and while I think it might well have been the better course to amend the information when the evidence disclosed the error in the date, the failure to amend does not invalidate the conviction.

A number of other cases have expressed a similar concern, namely, that the accused not be misled or prejudiced by the use and application of the "surplusage rule". See, e.g., R. v. MacLean and MacLean (1981), 58 C.C.C. (2d) 318 (Ont. C.A.); R. v. Simard (1980), 55 C.C.C. (2d) 306 (N.S.C.A.); R. v. O'Connor, [1963] 1 C.C.C. 229 (P.E.I.C.A.)

In summary, the early Canadian cases on the "surplusage rule", e.g. R. v. Coote (1903), 8 C.C.C. 199 (B.C.S.C.), do not specifically mention the issue of prejudice, but many of the more recent cases, specifically those noted above, expressly and repeatedly underline the issue of prejudice. Prejudice to the accused is in my view, a clear limitation to the invocation of the "surplusage rule".

In the case at bar, Lamb J. denied the Crown's motion to amend because he was of the view that at that stage of the trial it would prejudice the accused.

Malouf J.A. said, and on this point I am in full agreement with him, that the accused knew what transaction was being complained of, which bonds were involved, who the owner was and who the possible victims could be. But, with respect, this is only one of the ways the specification of the Bank of Montreal, as being the victim, could have prejudicially affected the accused in the conduct of their trial. They knew what conduct on their part had triggered the indictment, and I fully agree with Malouf J.A. that they were not misled in that regard. However, they were misled as to whom the Crown, albeit unnecessarily, undertook to prove as being the victim.

[Page 29]

Counsel for the accused might have conducted their case on that undertaking. The decisions whether or not to object to evidence, whether or not to cross-examine and how and to what extent to cross-examine, might have been made in the light of that undertaking by the Crown. In the case at bar, the trial judge felt that, after an eight-month trial, prejudice to the accused was irreparable. While the decision to refuse an amendment is under s. 529(6)  of the Criminal Code  a question of law and reviewable by the Court of Appeal on a Crown appeal, the decision of the trial judge, when based upon a finding of irreparable prejudice should not be interfered with lightly and should be made keeping in mind the trial judge's privileged position as regards the effect on the fairness of a trial of events taking place in the courtroom. One of the matters to be considered by the trial judge, under s. 529(4) (e) is "whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done". In his report to the Court of Appeal the trial judge made it clear that in his view all of the facts surrounding the transactions were amply canvassed in chief and in cross-examination. He gave no reasons at the time of his decision nor in his report for his finding of irreparable prejudice to the accused. From a perusal of the evidence there is no indication that the accused could have been misled in their cross-examination of witnesses or more generally in their handling of the case. Furthermore, Lamb J. could have, upon granting the amendment afforded them an opportunity to further cross-examine the witnesses, if requested by the accused. In fact, this was not considered because, as is clearly apparent from the record, and emphasized by the trial judge in his report to the Court of Appeal, as regards the facts, the case for the accused rested upon the success of an attack on Feller's credibility. This the accused attempted and were afforded an opportunity to that effect by actually cross-examining Feller, four days a week, over a period of two months.

[Page 30]

Lamb J. was of the view that there were, in law, no target victims of their deceit. That is the reason why he granted the motion for a directed verdict, and that is the real reason (and one that preempted considering prejudice), why he refused the amendment.

This explains the lengthy reasons he gave in support of his finding no victims. The amendment had, for that reason, in his view, no useful purpose, and this further explains why he gave no indication in his reasons of his grounds for finding prejudice, let alone irreparable prejudice. Under these circumstances and for these reasons Malouf J.A. was, in my respectful view, justified in exercising his jurisdiction to review the finding and also right in then finding no prejudice.

I would therefore dismiss the appeals. The Court of Appeal simply ordered a new trial. In upholding that decision, I would allow the amendment to the indictment which Lamb J. had denied, i.e. deletion of the Bank of Montreal as the victim, and order that a new trial be held on the indictment as amended.

I would accordingly dismiss the Crown's appeal. As a result, the Court of Appeal's judgment quashing the convictions and ordering a new trial on the count of possession should stand. I would dismiss the appeals by the accused and order a new trial on the amended counts.

Appeals dismissed.

Solicitors for Côté: Léo-René Maranda and Michel Proulx, Montréal.

Solicitor for Vézina: Robert Doré, Montréal.

Solicitor for Her Majesty The Queen: Yves Berthiaume, Montréal.