R. v. Wis Development Corporation Ltd. et al., [1984] 1 SCR 485

Supreme Court of Canada

R. v. Wis Development Corporation Ltd. et al., [1984] 1 S.C.R. 485

Date: 1984-06-07

Her Majesty The Queen Appellant;

and

Wis Development Corporation Ltd., Walter R. Shatto, Douglas G. Riley, Meredith J. Shatto Respondents.

File No.: 16947.

1983: December 13; 1984: June 7.

Present: Laskin C.J.[1] and Ritchie, Dickson, Mclntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Criminal law—Information—Failure to give sufficient details to identify transactions—Information quashed—Mandamus—Whether defect can be cured by the supplying of particulars—Whether information can be amended—Criminal Code, R.S.C. 1970, c. C-34, ss. 510, 729, 732—Aeronautics Act, R.S.C 1970, c. A-3 as amended, ss. 16, 17—Air Regulations, C.R.C. 1978, c. 2, s. 700.

The respondents were charged with 32 summary conviction offences relating to the breaches of the Aeronautics Act and the regulations issued thereunder. Following appellant’s refusal to provide particulars, respondents, prior to plea, made an application to quash the information containing those counts. A Provincial Court judge allowed the motion ruling that it did not satisfy the requirements of s. 510(3) of the Criminal Code. He also ruled that this was not a case where particulars should be ordered. The Court of Queen’s Bench and the Court of Appeal upheld the quashing and dismissed appellant’s application for writs of mandamus and certiorari. Appellant at no time during the proceedings sought an order for particulars or made a motion to amend the information.

Held: The appeal should be dismissed.

The information was ab initio vitiated for want of sufficient details as required by s. 510(3) of the Code and was not remediable in the present circumstances. Under Part XXIV of the Criminal Code—summary convictions—an information that fails to comply with

[Page 486]

either s. 510(1) or (3), if objected to prior to plea, must be quashed and cannot be salvaged by particulars or by amendment.

Brodie v. The King, [1936] S.C.R. 188; Smith v. Moody, [1903] 1 K.B. 56; R. v. Otterbein (1967), 50 C.R. 285; R. v. Miron (1974), 28 C.R.N.S. 261; R. v. Bengert (No. 5) (1980), 53 C.C.C. (2d) 481, considered; Sisko v. Attorney General of British Columbia (1977), 8 C.R. (3d) 372; Re Lakeview Motors Ltd. v. The Queen (1982), 66 C.C.C. (2d) 475, disapproved; R. v. King (1893), 25 N.S.R. 488; R. v. France (1898), 1 C.C.C. 321; Riopelle v. Desrosiers (1900), 3 Q.P.R. 195; Re Fisher (1905), 9 C.C.C. 451; R. v. Limerick, Ex parte Staples (1922), 39 C.C.C. 351; R. v. Jordan (1925), 44 C.C.C. 23; R. v. Henderson, Ex parte Brindle (1926), 45 C.C.C. 310; Re Effie Brady (1913), 21 C.C.C. 123; R. v. Armstrong (1916), 26 C.C.C. 151; R. v. Trainor (1916), 27 C.C.C. 232; Hatem v. The King (1927), 49 C.C.C. 164; R. v. Beckwith (1903), 7 C.C.C. 450; R. v. Goodfellow (1906), 10 C.C.C. 424; R. v. Bainbridge (1917), 30 C.C.C. 214; R. v. Desjardins (1919), 45 C.C.C. 100; R. v. Cameron (1898), 2 C.C.C. 173; R. v. Weir (No. 2) (1899), 3 C.C.C. 155; R. v. Weir (No. 5) (1900), 3 C.C.C. 499; R. v. Hazen (1893), 20 O.A.R. 633; Ead v. The King (1908), 40 S.C.R. 272; R. v. Kerr (1922), 53 O.L.R. 228; R. v. Griss, [1936] O.R. 604; R. v. Safeway Stores Ltd. (No. 1), [1938] 2 W.W.R. 479; R. v. Container Materials Ltd., [1939] 4 D.L.R. 387; R. v. Imperial Tobacco Co. (1939), 72 C.C.C. 388; R. v. Adduono, [1940] O.R. 184; R. v. Madill (No. 2), [1943] 1 W.W.R. 371; R. v. Langlois (1944), 83 C.C.C. 124; R. v. McNab (1945), 61 B.C.R. 74; R. v. Rycer (1946), 2 C.R. 388; R. v. Hing Lee Yen (1947), 3 C.R. 352; R. v. Annunziello (1948), 6 C.R. 330; R. v. Brooks, [1951] O.W.N. 513; MacDonald v. The Queen (1952), 14 C.R. 387; R. v. Steele (1952), 14 C.R. 285; Re Kipling’s Prohibition Application; Re Juvenile Delinquents Act (1961), 36 W.W.R. 273; Shumiatcher v. Attorney General of Saskatchewan (1962), 38 C.R. 411; R. v. Wixalbrown (1963), 41 C.R. 113; R. v. Harrison (1964), 45 C.R. 54; Taylor v. Gotfried (1964), 43 C.R. 307; R. v. Hipke (1967), 59 W.W.R. 653; Re Regina and Marcoux (1973), 13 C.C.C. (2d) 222; R. v. Tremblay, [1974] R.L. 373; R. v. McAuslane (No. 2) (1972), 18 C.R.N.S. 9; R. v. Cruz (1978), 45 C.C.C. (2d) 255; R. v. Sinclair (1906), 12 C.C.C. 20; R. v. Buck (1932), 57 C.C.C. 290; R. v. Klein, [1968] 4 C.C.C. 209; R. v. Aulik (1968), 64 W.W.R. 65; R. v. Stiopu (1982), 70 C.C.C. (2d) 464; R. v. McNicoll (1967), 50 C.R. 305; R. v. Toronto Magistrates, ex parte Bassett, [1967] 1 C.C.C. 251; R. v. Ostrove

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(1967), 60 W.W.R. 267; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Canadian Pacific Ltd. (1976), 32 C.C.C. (2d) 14; R. v. B & B Stone Ltd. (No. 2) (1977), 34 C.C.C. (2d) 464; R. v. Schille (1975), 28 C.C.C. (2d) 230, referred to.

APPEAL from a judgment of the Alberta Court of Appeal[2], dismissing a Crown’s appeal from the decision of Lomas J., dismissing an application for mandamus. Appeal dismissed.

I.G. Whitehall, Q.C., and D.J. Rennie, for the appellant.

Aleck H. Trawick, for the respondents.

The judgment of the Court was delivered by

LAMER J.—Can particulars or an amendment salvage an information in a summary conviction matter which is found, upon motion to quash taken before plea, to be vitiated for want of sufficient details as required by s. 510(3) of the Criminal Code? That is the issue before this Court.

The Facts

In January 1981, an information was laid against the respondents containing 32 counts, 16 alleging breaches of the Aeronautics Act, R.S.C. 1970, c. A-3, and 16 others, breaches of the regulations issued thereunder.

The counts alleging breaches of the Aeronautics Act were all in this form, save variations as regards the dates:

AND FURTHER THAT on or between the 27th day of March, A.D. 1980 and the 29th day of March, A.D. 1980, at or near the City of Calgary, in the Province of Alberta, did unlawfully operate a commercial air service without holding a valid and subsisting licence issued under Section 16 of the Aeronautics Act, Revised Statutes of Canada 1970, C. A-3, contrary to Section 17(1) of the said Act, and did thereby commit an offence under the said Section 17;

[Page 488]

The 16 counts alleging breaches of the regulations were in this form, dates also varying:

AND FURTHER THAT on or between the 27th day of March, A.D. 1980 and the 29th day of March, A.D. 1980, at or near the City of Calgary, in the Province of Alberta, did unlawfully operate a commercial air service in Canada, while not holding a valid and subsisting certificate issued by the Minister certifying that the holder thereof is adequately equipped and able to conduct a safe operation as an air carrier, contrary to Section 700 of the Consolidated Regulations of Canada 1978, C. 2 (formerly the Air Regulations) as amended;

Counsel for the respondents was given access to and reviewed documentation in the possession of the R.C.M.P. with respect to the charges. He made an informal request for particulars of the commercial air services and customers to which the information referred. Counsel for the appellant ultimately decided not to furnish particulars voluntarily and indicated that he would oppose an application for particulars. Rather than making such an application, the respondents, relying on ss. 732(1) and 510(3) of the Criminal Code, R.S.C. 1970, c. C-34, brought a motion to quash the information. Appellant did not suggest the ordering of particulars, and did not move to amend the information.

Statutory Provisions

Criminal Code

Section 729:

729. (1) Sections 510 and 512 apply, mutatis mutandis, to informations in respect of proceedings as defined in this Part.

(2) The summary conviction court may, if it is satisfied that it is necessary for a fair trial, order that a particular, further describing any matter relevant to the proceedings, be furnished to the defendant.

Section 510(1), (2), (3):

510. (1) Each count in 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.

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

(a) in popular language without technical averments or allegations 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, or

(c) in words that are sufficient to give to the accused notice of the offence with which he is charged.

(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.

Section 732:

732. (1) An objection to an information for a defect apparent on its face shall be taken by motion to quash the information before the defendant has pleaded, and thereafter only by leave of the summary conviction court before which the trial takes place.

(2) A summary conviction court may, upon the trial of an information, amend the information or a particular that is furnished under section 729, to make the information or particular conform to the evidence if there appears to be a variance between the evidence and

(a) the charge in the information, or

(b) the charge in the information

(i) as amended, or

(ii) as it would have been if amended in conformity with any particular that has been furnished pursuant to section 729.

(3) A summary conviction court may, at any stage of the trial, amend the information as may be necessary if it appears

(a) that the information has been laid

(i) under another Act of the Parliament of Canada instead of this Act, or

(ii) under this Act instead of another Act of the Parliament of Canada; or

(b) that the information

(i) fails to state or states defectively anything that is requisite to constitute the offence,

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(ii) does not negative an exception that should be negatived, or

(iii) is in any way defective in substance,

and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the trial; or

(c) that the information is in any way defective in form.

(4) A variance between the information and the evidence taken on the trial is not material with respect to

(a) the time when the offence is alleged to have been committed, if it is proved that the information was laid within the prescribed period of limitation, or

(b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the summary conviction court that holds the trial.

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

(a) the evidence taken on the trial, if any,

(b) the circumstances of the case,

(c) whether the defendant has been misled or prejudiced in his defence by a variance, error or omission mentioned in subsection (2) or (3), and

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

(6) Where in the opinion of the summary conviction court the defendant has been misled or prejudiced in his defence by an error or omission in the information, the summary conviction court may adjourn the trial and may make such an order with respect to the payment of costs resulting from the necessity of amendment as it considers desirable.

The Judgments

Provincial Court of Alberta: Murray Prov. Ct. J.

The Court held that the counts in the information did not contain details of the circumstances of the alleged offences sufficient to give the respondents reasonable information with respect to the acts or omissions to be proved against them and to

[Page 491]

identify the transactions to which the counts of the information referred and that, accordingly, the minimal requirements of s. 510(3) had not been met.

The Court found that there was nothing in the circumstances surrounding the information which would enlighten the respondents as to the nature of the case to be met and that the respondents had not been tardy in putting forward the defence that the information was inadequate. Murray Prov. Ct. J. was of the view that it would be improper to compel the respondents to plead to an illegal information and that this was not a case where particulars should be ordered. Accordingly, the information was quashed.

Court of Queens Bench of Alberta

The Crown thereupon applied to Lomas J. for remedy by way of mandamus and certiorari. Both writs were denied, for reasons which were not made known to this Court.

Court of Appeal of Alberta

The Court relied on the judgment of Rinfret J. in Brodie v. The King, [1936] S.C.R. 188, to the effect that an indictment must provide concrete facts which would identify the particular act which is charged and thereby give the accused notice of it. The Court of Appeal agreed with the courts below that these requirements had not been met, and that the information was “bad in law and not merely defective”. Accordingly this was not, said the Court, a case where the information could be cured by the supplying of particulars and it was proper to quash the information.

First I would like to deal very briefly with the question of whether the counts in the information meet the requirements of s. 510(3).

Respondents in their factum, arguing that the information did not meet those requirements, expressed their views as follows:

[Page 492]

The information at bar is in the express words of the language contained in S. 17 of the Aeronautics Act, R.C.S. (1970) c. A-3 and s. 700 of the Regulations thereunder. In each instance, the gravamen of the offence is the operation of a “commercial air service” without the requisite licence or certificate. Regard must be had to s. 9(1) of the Aeronautics Act, which defines “commercial air service” as “any use of aircraft in or over Canada for hire or reward”. “Hire or reward” is defined as “any payment, consideration, gratuity or benefit directly or indirectly charged, demanded, received or collected by any person for the use of an aircraft”.

The operation of a “commercial air service” within the meaning of s. 9(1) of the Aeronautics Act could therefore relate to a multitude of activities or usages of aircraft in Canada, for example the use of an aircraft to haul passengers or freight, the use of an aircraft as a demonstrator by a dealer or manufacturer, or indeed even the use of the aircraft in a photo session for the purposes of advertisement of another product such as liquor or cigarettes. The statute under which the Information at bar has been laid casts a broad net and the prohibition is directed at many diverse and unrelated uses of aircraft in Canada which by the language of s. 9(1) are deemed to be the operation of a “commercial air service.”

I find this to be an accurate description of the situation faced by the respondents. In agreement with what has been specifically found by at least two of the three courts below (one expressed no views), I am of the view that the information is ab initio vitiated for want of sufficient details as required under s. 510(3).

The remaining and real issue in this case is as follows: does a judge who has, upon a motion to quash made before plea, made a finding that a count in an information is vitiated for want of sufficient details as required under s. 510(3) of the Code, have a discretion to order particulars, or to amend the count, or must the count be quashed? One should recall that in this case no particulars were asked for nor were particulars volunteered in court by the parties; neither did the Crown move to amend. I should nevertheless not want to narrow the issues to the point of leaving unanswered the question as to what could or should the judge have

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done had he been asked. In fact, I would find it difficult to deal with the matter without answering those questions and have therefore, framed the issue so as to encompass those aspects. I should however make two observations: first, we are dealing with a summary conviction offence, and what I say should be read in the light of the differences between ss. 516 and 529 governing amendments and particulars for indictable offences, and ss. 729 and 732 governing summary convictions; secondly, the motion to quash is one taken before plea.

With great hesitation I have come to the conclusion that Parliament has not given the trial judge any other alternative but to quash the information, irrespective of whether or not particulars are offered and of whether or not the prosecution moves to amend under s. 732.

My hesitation in reading the law as such is due to the fact that it appears to me that Parliament needed not go so far in ensuring the furtherance of the policy considerations which are recognized as having inspired our various laws governing the charging process in criminal law. A judge’s jurisdiction to interfere with the liberty of a citizen is dependent upon the citizen becoming an accused. That will happen only if and when he is charged with an offence known to the law. This is enacted by s. 510(1). When accused, the citizen shall then be treated fairly. This requires that he must be able clearly to identify what he is alleged to have done wrong so that he may prepare his case adequately, and that at the outset of his trial or thereafter once the trial is over and at some other court, he must be able to argue that he has already been acquitted or convicted of the offence or that he comes within the protective principles set out in Kienapple v. The Queen, [1975] 1 S.C.R. 729.

It therefore appeared to me, and still does, that a judge when faced with a motion to quash for a

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count vitiated by virtue of s. 510(3), as in this case, should be empowered (and normally should exercise such a power) to order particulars. This course of action would meet all of the policy considerations I have set out and would have the added advantage of getting on with matters instead of seeing the information being laid anew (when possible) and having further delays imported into the process. Be that as it may, that is not the law and I can find no way of interpreting the law as such, short of usurping Parliament’s prerogatives. I come to this conclusion for three reasons: Parliament’s changes to the Code following this Court’s decision in Brodie v. The King, supra; the fact that particulars have never been considered as a proper means to cure vitiated informations for defects of substance; and the wording of s. 729.

Section 510 is substantially the same as its predecessor sections (ss. 852 and 853 of R.S.C. 1927, c. 36; R.S.C. 1906, c. 146; and s. 611 of 1892 (Can.), c. 29) in force at the time of the Brodie decision, except for s. 510(3) which then read as follows:

853. Every count of an indictment shall contain so much detail of the circumstances of the alleged offence as is sufficient to give the accused reasonable information as to the act or omission to be proved against him, and to identify the transaction referred to: Provided that the absence or insufficiency of such details shall not vitiate the count.

(Emphasis added.)

The difference it will be noted is quite substantial and is found in the last lines of the subsection: “Provided that the absence or insufficiency of such details shall not vitiate the count” whereas, s. 510(3) introduced in the new Code of 1953-54 (Can.), c. 51, (as s. 492(3)) states “but otherwise the absence or insufficiency of details does not vitiate the count”. (Emphasis added). As of 1953-54, defects under s. 510(3) vitiated counts.

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Before commenting on the Brodie decision and the effect of the changes to the Code in 1953-54, a review of the law and of the cases prior to Brodie is in order as it will assist in understanding the limitations to reconsider Brodie put upon this Court by the 1953-54 amendments; also, when considering whether s. 729(2) (the ordering of particulars) can be used to salvage a vitiated information.

The Code of 1892 enacted, as regards charges, their contents and their quashing for want thereof, substantially the same sections as those in force at the time of Brodie in 1936. Though the sections appear to be different for informations, the courts at the time dealt with defects in informations in the same way they had when considering defects in indictments; apart from the inherent differences resulting from the absence of any preliminary proceedings or evidence adduced prior to arraignment in the case of summary convictions, the courts had as many exigencies as to their content. (See, for example, R. v. King (1893), 25 N.S.R. 488; R. v. France (1898), 1 C.C.C. 321; Riopelle v. Desrosiers (1900), 3 Q.P.R. 195; Re Fisher (1905), 9 C.C.C. 451; R. v. Limerick, Ex parte Staples (1922), 39 C.C.C. 351; R. v. Jordan (1925), 44 C.C.C. 23; R. v. Henderson, Ex parte Brindle (1926), 45 C.C.C. 310). That had also been the case in England, as appears from what is said in Saunders’ Practice of Magistrates’ Courts, 6th ed., 1902, at p. 41:

The information should give an exact and a legal description of the offence, and it should contain the same certainty as an indictment: (Ex parte Pain, 5 B. & C. 251; Re Elmy and Sawyer, 1 Ad. & Ell. 843; R. v. Marsh, 4 D. & R. 267; Cotterill v. Lemprière, 24 Q.B. Div. 634; 62 L.T. Rep. 695.) Facts must be stated in a direct and positive manner: (Rex v. Bradley, 19 Mod. 155; Rex v. Fuller, 1 Ld. Raym. 509; Rex v. Pereira, 2 Ad. & Ell. 375); and not be in the alternative: Rex v. Middlehurst, 1 Burr. 399; R. v. Morley, 1 You. & Jer. 22; R. v. Marshall, 1 Mod. c. 158).

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The wording of the relevant sections in the Code was similar to the equivalent sections in England in the Summary Jurisdiction Act, 1879 (U.K.), 42-43 Vict., c. 49, s. 39. Section 39(1) of that Act, the forerunner of our s. 510(2), read as follows:

39. …

1. The description of any offence in the words of the Act, or any order, byelaw, regulation, or other document creating the offence, or in similar words, shall be sufficient in law; and

. . .

That section had been perceived by some (see Saunders, supra, at p. 42) as a relaxation of the common law requirements for a valid information, which requirements had survived through the courts notwithstanding statute law, which provided that (Summary Jurisdiction Act, 1848 (U.K.), 11-12 Vict., c. 43, s. 1):

… no objection shall be taken or allowed to any information, complaint, or summons, for any alleged defect therein in substance or in form, or for any variance between such information, complaint, or summons and the evidence adduced on the part of the informant or complainant at the hearing of such information or complaint as hereinafter mentioned; but if any such variance shall appear to the justice or justices present and acting at such hearing to be such that the party so summoned and appearing has been thereby deceived or misled, it shall be lawful for such justice or justices, upon such terms as he or they shall think fit, to adjourn the hearing of the case to some future day.

The clearest authority illustrating the English judges’ resistance to statutory changes to the common law, relatively contemporary to the introduction into Canada of the Code, is found in Smith v. Moody, [1903] 1 K.B. 56, where Lord Alverstone C.J., dealing with a defect in a charge governed by the Summary Jurisdiction Act, 1879, supra, said (at p. 60):

I was at first inclined to think that the defect was cured by s. 39 of the Summary Jurisdiction Act, 1879, which provides that “the description of any offence in the words of the Act … creating the offence, or in similar

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words, shall be sufficient in law”; but on further considering the question, which is undoubtedly one of importance, it seems to me that it could not have been intended by that section to do away with the old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given in indictments and convictions. All that is meant by s. 39 is that the offence itself need only be described in the words of the statute creating it.

In Canada, the courts split. One group of cases (to mention but a few: R. v. France, supra; Re Effie Brady (1913), 21 C.C.C. 123; R. v. Armstrong (1916), 26 C.C.C. 151; R. v. Trainor (1916), 27 C.C.C. 232; Hatem v. The King (1927), 49 C.C.C. 164), appears to have recognized codification for what it meant; the others (see amongst others: R. v. Beckwith (1903), 7 C.C.C. 450; R. v. Goodfellow (1906), 10 C.C.C. 424; R. v. Bainbridge (1917), 30 C.C.C. 214; R. v. Desjardins (1919), 45 C.C.C. 100; R. v. Limerick, Ex parte Staples, supra; R. v. Jordan, supra) treated the Code as Lord Alverstone had the 1879 Statute. This latter group, in my view, overlooked an important difference between Canadian and English law: the proviso in s. 611(4) of our 1892 Code (at the time of Brodie, s. 853):

… Provided that the absence or insufficiency of such details shall not vitiate the count.

The first group was of the view that the lack of such “details of the circumstances” did not go to substance and therefore could be cured by particulars or through amendment. The others, because they considered such “details” as part of the substance of the information, found that their lack in an information was fatal thereto.

Of particular importance, however, is the fact that all agreed that defects of substance raised before plea by motion to quash could not be cured, through particulars nor through amendment, notwithstanding, as regards indictments, the text of s. 629 of the 1892 Code which conferred wide powers to amend at that stage “any defect apparent on the face” of an indictment. These words were inter-

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preted as referring to defects other than of substance. (See R. v. Cameron (1898), 2 C.C.C. 173; R. v. Weir (No. 2) (1899), 3 C.C.C. 155; R. v. Weir (No. 5) (1900), 3 C.C.C. 499; R. v. Desjardins, supra, and Taschereau’s Criminal Code, Carswell Co., 1893, pp. 704 et seq.; contra: R. v. Hazen (1893), 20 O.A.R. 633; Ead v. The King (1908), 40 S.C.R. 272 and R. v. Kerr (1922), 53 O.L.R. 228).

The courts agreed generally as to the effects and as to the limitations to possible cures for a defect of substance; but they really parted ways in determining when a defect was one of substance.

This Court in the Brodie decision came down on the side of those who followed Lord Alverstone C.J., in Smith.

The charge preferred in Brodie was as follows:

The Attorney-General of the province of Quebec charges that: during the months of September and October in the year of our Lord one thousand nine hundred and thirty‑three, at the city of Quebec, in the district of Quebec, and elsewhere in the province of Quebec, George H. Brodie, of Toronto, and G.C. Barrett, of Belleville, Ontario, were party to a seditious conspiracy, in conspiring together and with one W.F. Greenwood, W.G. Brown, Mrs. Charles Alton and Mrs. A.M. Rose and also with other persons unknown, thereby committing the crime of seditious conspiracy.

This charge had been unsuccessfully challenged by motion to quash. The accused were found guilty and the Court of Appeal for Quebec upheld the conviction. That decision was then appealed to this Court. Rinfret J. (as he then was) speaking for the Court, referred to s. 852 (now s. 510(1) and (2)) in the following terms, at pp. 193-94:

If section 852 be analysed, it will be noticed the imperative requirement (“shall contain”) is that there must be a statement that the accused has committed an indictable offence; and such offence must be “specified.” It will be sufficient if the substance of the offence is stated; but every count must contain such statement “in

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substance.” In our view, this does not mean merely classifying or characterizing the offence; it calls for the necessity of specifying time, place and matter (Compare dictum of Channel, J., in Smith v. Moody, [1903] 1 K.B. 56, at 63), of stating the facts alleged to constitute the indictable offence.

The manner of stating the matter is of no absolute importance, in view of subsections 2 and 3. The statement may be made in popular language, without any technical averments or allegations; or it may be in the words of the enactment describing the offence or declaring the matter charged to be an indictable offence; but we think the latter parts of subsections 2 and 3 are indicative of the intention of Parliament: the statement must contain the allegations of matter “essential to be proved,” and must be in “words sufficient to give the accused notice of the offence with which he is charged.” Those are the very words of the section; and they were put there to embody the spirit of the legislation, one of its main objects being 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.

What Parliament intended by using the words “a statement *** (of) some indictable offence therein specified,” in subsection 1 of section 852 is, to our mind, clearly illustrated by the “examples of the manner of stating offences” given in Form 64, referred to in subsection 4 of section 852.

Under the Interpretation Act (Ch. 1 of R.S.C., 1927), by force of sec. 31 (d):

wherever forms are prescribed, slight deviations therefrom, not affecting the substance or calculated to mislead, shall not invalidate them;

which obviously means that any substantial deviation might be sufficient to invalidate the form used. Now, a perusal of the examples given in Form 64 will be sufficient to indicate that in no case is the manner of stating offences limited to the mere naming of them, but in each case the act charged against the accused, though described in the words of the enactment, is identified by specifying the time, the place and the matter. We think the examples in Form 64 are referred to for the purpose of indicating that they ought to be followed in substance. It is not sufficient in a count to charge an indictable offence in the abstract. Concrete facts of a

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nature to identify the particular act which is charged and to give the accused notice of it are necessary ingredients of the indictment.

(Emphasis added.)

I pause here to mention the striking resemblance between the underlined portions of his remarks and the wording of s. 853 (now s. 510(3)).

He then said, at p. 195:

As a matter of fact, this requirement of an indictment is further embodied in sec. 853 of the Criminal Code, which enacts that

Every count *** shall contain so much detail of the circumstances of the alleged offence as is sufficient to give to the accused reasonable information as to the act or omission to be proved against him and to identify the transaction referred to.

Such is the rule of the Criminal Code.

Of course, it is qualified by the proviso

that the absence or insufficiency of such details shall not vitiate the count,

and it must be granted that these words are very strong. It should be noticed, however, that the proviso, as well as the section itself, relates only to the “absence or insufficiency of details.” It does not detract from the obligation resulting from sec. 852 that the substance of the offence should be stated in the indictment.

He dealt with the charge, at p. 198:

Applying the above principles to the present appeal, it follows that the indictment must be found insufficient. It is not the case where an offence is imperfectly stated; it is a case where essential averments were wholly omitted. The so-called indictment contains defects in matters of substance. To use the apt words of counsel for the appellants: “it does not describe the offence in such a way as to lift it from the general to the particular.”

Finally he concluded the matter as follows, at p. 199:

These averments were omitted and these necessary ingredients were lacking in the indictment preferred against the appellants. Their absence constitutes defects in matters of substance; and we are of opinion that these defects were not cured by the so-called incomplete par-

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ticulars verbally given by the Crown when, at the outset of the trial, objection was taken to the indictment by counsel for the accused. The Crown, it may be added, in the argument before us did not rely on these particulars, and took the stand that the indictment was sufficient as it stood. Nor can we accede to the argument that, in the circumstances, no substantial wrong or miscarriage of justice has actually occurred and that we should exercise the powers given to us by sec. 1014 of the Criminal Code. In our view, it was a substantial wrong towards the appellants to have compelled them to plead to an illegal indictment.

The motion to quash the indictment made by the accused at the beginning of the trial, and before pleading, ought to have been granted. The appeal will, therefore, be allowed. The indictment and the conviction must be quashed, the Crown being at liberty to prefer a fresh indictment, if so advised.

Of significance in Brodie is the import to s. 852(1) of the “details” described in s. 853, and, the resulting extension by the Court of the vitiating effect given to their absence in a charge.

Brodie did not settle much if one considers the thirty odd cases reported on point between 1936 and 1953. Evidently that decision’s disregard for the proviso set out in s. 853 left it open to some courts to distinguish Brodie. As a result, the two groups I referred to earlier carried on much the same, the only difference being the opportunity for some to refer to Brodie for added support, and the need for others to distinguish that decision. (See amongst others: R. v. Griss, [1936] O.R. 604; R. v. Safeway Stores Ltd. (No. 1), [1938] 2 W.W.R. 479; R. v. Container Materials Ltd., [1939] 4 D.L.R. 387; R. v. Imperial Tobacco Co. (1939), 72 C.C.C. 388; R. v. Adduono, [1940] O.R. 184; R. v. Madill (No. 2), [1943] 1 W.W.R. 371; R. v. Langlois (1944), 83 C.C.C. 124; R. v. McNab (1945), 61 B.C.R. 74; R. v. Rycer (1946), 2 C.R. 388; R. v. Hing Lee Yen (1947), 3 C.R. 352; R. v. Annunziello (1948), 6 C.R. 330; R. v. Brooks, [1951] O.W.N. 513; MacDonald v. The Queen (1952), 14 C.R. 387; R. v. Steele (1952), 14 C.R. 285).

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This is probably what brought about action by Parliament. Parliament made two changes to the law in this area in the Code of 1953-54.

First Change: The Proviso

Consolidating ss. 852 and 853, Parliament changed the proviso of s. 853 as aforementioned by deleting the wording to which the Court in Brodie, in my respectful view, did not give sufficient heed, and substituting the wording we find today, wording which in my view supports (ex post facto) the Brodie judgment. As a result insufficiencies under s. 510(3) were as of then and are still today of the same effect as those under s. 510(1). They vitiate, and the charge is no less vitiated under s. 510(3) than under s. 510(1). That put an end to the controversy on that point, as witness the decisions that followed the new Code (see amongst others: Re Kipling’s Prohibition Application; Re Juvenile Delinquents Act (1961), 36 W.W.R. 273; Shumiatcher v. Attorney General of Saskatchewan (1962), 38 C.R. 411; R. v. Wixalbrown (1963), 41 C.R. 113; R. v. Harrison (1964), 45 C.R. 54; Taylor v. Gotfried (1964), 43 C.R. 307; R. v. Otterbein (1967), 50 C.R. 285; R. v. Hipke (1967), 59 W.W.R. 653; R. v. McAuslane (No. 2) (1972), 18 C.R.N.S. 9; Re Regina and Marcoux (1973), 13 C.C.C. (2d) 222; R. v. Tremblay, [1974] R.L. 373; R. v. Cruz (1978), 45 C.C.C. (2d) 255).

Second Change: The Power to Amend

The Brodie decision, no amendment having been sought in that case, did not deal with the power to amend defects of substance. Added to that is the fact that the courts had read down, in varying degrees, the existing power to amend to cure a count defective because of “an omission to state or a defective statement of anything requisite to constitute the offence …” (s. 889(2) Code of 1927). Furthermore, as mentioned earlier, defects of substance were not curable. Parliament made them curable, but only if, and only to the extent that the amendment could find support in the evidence adduced at trial. Such is still the case today, and I cannot find any support when reading s. 732, for the proposition that prior to there being any evidence there can be an amendment for anything but

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a defect of form (s. 732(3)(c)) or one to correct an erroneous reference to the relevant act allegedly breached (s. 732(3)(a)).

As regards particulars, the only change made to the relevant sections was to extend to all matters the giving of particulars. Very eloquent is the fact that the precise words (the words “further describing”), upon which Brodie rested its finding that particulars could not cure defects of substance, were not deleted or modified. (See also, on the use of particulars: R. v. Sinclair (1906), 12 C.C.C. 20; R. v. Desjardins, supra; R. v. Buck (1932), 57 C.C.C. 290; R. v. McNab, supra; R. v. Rycer, supra, dissent of O’Halloran J.A.; R. v. Gotfried, sub nom. Taylor v. Gotfried, supra, reasons of Freedman J.A.; R. v. Otterbein, supra; R. v. Klein, [1968] 4 C.C.C. (2d) 209; R. v. Aulik (1968), 64 W.W.R. 65; R. v. Stiopu (1982), 70 C.C.C. (2d) 464; contra: R. v. McNicoll (1967), 50 C.R. 305 (obiter) and, to some extent R. v. Toronto Magistrates, ex parte Bassett, [1967] 1 C.C.C. 251, and R. v. Ostrove (1967), 60 W.W.R. 267.)

Brodie had commented on those limitations to the availability of particulars and denied them any curative effect when substance was involved, even when given formally. Indeed, the judgment referred to a passage from the remarks of Mulock C.J.O. in R. v. Buck, supra, one might assume with approval given what was said afterwards, (though such approval is not mentioned), where he said, at p. 293:

The true function of particulars is to give further information to the accused of that which it is intended to prove against him, so that he may have a fair trial. It is not intended to be in effect the supplementing of a

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defective indictment by supplying that which ought to have appeared in the indictment itself. This is very plain from the reading of s. 859 of the Code.

Rinfret J. then went on to say, at p. 197:

That this is the correct interpretation of sec. 855 is strengthened, in our view, by comparison with sec. 859 enumerating the cases in which particulars may be ordered.

Subsection (d) of sec. 859 deals with the charge of selling, or exhibiting, an obscene book, pamphlet, newspaper, printing or writing. If the court is satisfied that it is necessary for a fair trial, it may order the prosecutor to furnish particulars stating what passages in the book, pamphlet, newspaper or other printing or writing are relied on in support of the charge. Which presupposes that the book, pamphlet, newspaper, printing or writing has already been referred to in the charge.

This is made still clearer in subsections (e), (f) and (g) relating to “any document or words the subject of a charge”; to “means by which any offence was committed”; or to “any person, place or thing referred to in any indictment.” Each of these subsections begins by the words: “further describing,” which obviously contemplates indictments already describing the document or words the subject of a charge, the means by which any offence was committed, but requiring a “further” description which, in the view of the Court, “is necessary for a fair trial.”

As for the “person, place or thing” dealt with in subsection (g), the point is made doubly clear, since the subsection speaks of a “person, place or thing (already) referred to in any indictment”; and it is stated that a particular may be ordered “further describing” them.

The evident relation between the matters dealt with in subsections (d), (e), (f) and (g) of sec. 855 and the corresponding subsections of sec. 859 is, we think, illuminating on the subject-matter of the present discussion. Clearly the result flowing from the two sections read together is: that some statement of the particular circumstances of the offence charged is assumed to be already contained in the count; that there may be omissions which, on account of sec. 855, are not sufficient to make the count objectionable; that the count will not be deemed insufficient by reason only of those omissions; and that if the court is satisfied that it is necessary for a

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fair trial, it may order particulars to describe further, or with more precision the matters in question.

The limited change, in the light of this context, to the section dealing with particulars is striking. Defects of substance were and remain not curable through particulars, and I am unable to distinguish between informations vitiated in their substance under s. 510(1) and those under s. 510(3) in order to find cure through particulars for the latter.

Appellant seeks support in three decisions. The first is R. v. Otterbein, supra. As in the present case, a motion to quash before plea was made for a failure to comply with s. 492(3) (now s. 510(3)). Fraser J. having found such a defect said, at p. 292:

Having regard to the wording of s. 492(3) and to the cases referred to it seems clear that the proviso at the end of subs. (3) does not excuse failure to comply with the earlier part of that subsection. Having regard to the same cases and to the wording of s. 492(6) it seems equally clear that it is no answer to a motion to quash brought at this stage to say that the defendant could demand or move for particulars under s. 701(2).

(Emphasis added.)

Then, in obiter, he said of amendments:

While the question does not arise on this application it would seem to me that, when objection was taken to the sufficiency of the information, there was nothing to prevent it being amended under the provisions of s. 704, had counsel for the Crown made an application for that purpose. In this connection I refer to the judgment of Schroeder J. (now J.A.), in Regina v. Peacock, [1954] O.W.N. 169, 18 C.R. 95, 108 C.C.C. 129. I do not in any way rest my judgment herein on the opinion expressed in this paragraph.

It goes without saying that Fraser J. is clearly against appellant’s position as regards particulars. As for his obiter remarks concerning amendments, the text of s. 704 (now s. 732) makes it clear that,

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except for defects of form or under s. 732(3)(a), amendments can only be made if, and to the extent that the matters to be alleged in the amendment “are disclosed by the evidence taken on the trial”.

The second case referred to by appellant is R. v. Miron (1974), 28 C.R.N.S. 261, a decision of the Ontario Court of Appeal. That is a case where an amendment was made in the course of the trial. With regard to such an amendment the Court of Appeal said, at p. 262:

We are of the opinion that as originally drawn this indictment did not comply with s. 510(3) of the Criminal Code, R.S.C 1970, c. C-34. The Crown’s case was not that the appellants had agreed to rob someone not yet selected; it was that an agreement had been reached to rob a specific person. However, under the authority of Regina v. Denis, [1969] 2 O.R. 205, [1970] 1 C.C.C. 86, and under the terms of s. 529(3) of the Code, we think that the trial Judge had authority to amend the indictment, and he did amend it so as to cure the defect.

The reference to the Denis decision makes it clear that the amendment was made after plea and was supported by the evidence adduced. Indeed, in Denis the amendment was made at the end of the Crown’s case. Again I fail to see any support here for the appellant.

The appellant refers us also to R. v. Bengert (No. 5) (1980), 53 C.C.C. (2d) 481. That is a case where the motion to quash was presented some five months into the evidence. The Court said, at p. 506:

We think that the power of the Court to make an amendment under the provision of s. 529(3) is greater than the power of amendment which the Court had under the pre‑1955 Code. A “defect in substance” must relate to a matter “essential to be proved”. That being so, the Court has the power to amend an indictment which is defective in substance, that is, an indictment which would be void if the Brodie case was applicable. Moreover, we think that this approach is the “modern

[Page 507]

approach” to indictments as set out in such decisions of the Supreme Court of Canada as R. v. Major (1976), 27 C.C.C. (2d) 239n, [1977] 1 S.C.R. 826, 40 C.R.N.S. 298; R. v. Côté (1977), 33 C.C.C. (2d) 353, 73 D.L.R. (3d) 752, [1978] 1 S.C.R. 8, and R. v. City of Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, 3 C.R. (3d) 30, [[1978] 2 S.C.R. 1299].

Then went on to say, at p. 507:

In view of the fact, however, that we have concluded that the indictment in this case does conform to the requirements of s. 510 we do not find it necessary to determine the extent of the Court’s powers under s. 529(3)(b)(iii) or (c).

Added to the fact that the Court’s comments on s. 529(3) were obiter, I find nothing there to support what appellant advances in this case.

Finally, appellant invites us to take a “remedial approach” when interpreting s. 732(3) and find that the words “a summary conviction court may, at any stage of the trial, amend the information …” include “before plea”. “The remedial approach”, says appellant, relying on Sisko v. Attorney General of British Columbia (1977), 8 C.R. (3d) 372, and Re Lakeview Motors Ltd. v. The Queen (1982), 66 C.C.C. (2d) 475, “holds that a trial commences at different times for different purposes” and that for purposes of amendment of defects in a charge, a trial commences before plea.

With respect for the British Columbia Court of Appeal, I cannot agree. I readily would adopt a flexible approach to the definition of the word “trial” were it not for the fact that amendments under s. 732(3)(b) are conditional to their subject matter having been “disclosed by the evidence taken on the trial”. Whatever be the scope we give under the section to the word “trial”, the amendment cannot be made before that evidence is adduced.

To sum up, I am of the view that under Part XXIV of the Code, an information that fails to comply with either s. 510(1) or (3), if objected to

[Page 508]

prior to plea, must be quashed and cannot be salvaged by particulars or by amendment.

Before dismissing, as a result, this appeal, I should like to make a few comments on the vehicle the Crown chose for redress. The Crown sought mandamus. Neither in the Court of Queen’s Bench nor in the Court of Appeal of Alberta was an objection taken to that vehicle on the grounds that the proper remedy was that of a stated case. Nor was the matter in any way raised by the courts or counsel below or by counsel in this Court. This is understandable having regard to the law as it now stands in Alberta (see R. v. Canadian Pacific Ltd. (1976), 32 C.C.C. (2d) 14).

Given the wording of s. 762 and the decision of R. v. B & B Stone Ltd. (No. 2) (1977), 34 C.C.C. (2d) 464, a decision of the Ontario Court of Appeal, and to a certain extent that of R. v. Schille (1975), 28 C.C.C. (2d) 230, a decision of the British Columbia Court of Appeal, some might contend that this appeal could not, in any event, have succeeded. Not having had the benefit of argument on that point I would leave the matter open to be decided by this Court in a more appropriate setting.

This appeal should be dismissed.

Appeal dismissed.

Solicitor for the appellant: R. Tassé, Ottawa.

Solicitor for the respondents: Aleck H. Trawick, Calgary.