Her Majesty the Queen v. Cancor Software Corp., [1990] 2 CTC 479, 90 DTC 6457

McKinlay, J.A.:—This is an appeal from the dismissal by the Honourable Mr. Justice Austin, dated September 15, 1989, of an application by the appellants to quash their committal for trial on four charges of uttering forged documents and two charges of fraud pursuant to paragraphs 326(1)(a) and 328(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, as amended (now paragraphs 368(1)(a) and 370(1)(a)).

Facts

In June 1986, Callaghan, A.C.J.H.C. issued search warrants pursuant to the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "I.T.A."), as a result of which a large number of documents were seized from the corporate and individual appellants, and from their accountants and solicitors, evidencing claims made by the appellants for scientific research tax credits under the I.T.A. Substantial litigation ensued, initiated by the appellants, attacking the validity of the Crown's search warrants. On May 14, 1987, the appellants were charged with six offences under paragraphs 239(1)(a), (c) and (d) of the I.T.A. There followed numerous disputes involving allegations of inadequacy of disclosure by the Crown, many of which appear to have been valid. Primarily as a result of these disputes, the preliminary hearing on the I.T.A. charges did not proceed until more than a year later—September 1988.

Counsel for the appellants concedes that on August 31, 1988, Crown counsel indicated to him an intention to charge the appellants with offences of fraud and forgery under the Criminal Code in relation to the same activities which gave rise to the charges under the I.T.A. Counsel for the appellants was provided with an unsworn copy of an information detailing six such charges. It is interesting to note from the appellants' factum that Crown counsel indicated then that "he had not . . . decided whether to proceed with those additional charges at the preliminary hearing or whether instead to ask the presiding judge to commit the accused for trial on those additional charges at the conclusion of the preliminary hearing”.

The preliminary inquiry commenced on September 16, 1988. In Crown counsel's opening remarks, he stated that in addition to the I.T.A. charges, the case before the presiding justice would also involve fraud and forgery allegations with respect to the same transactions which would result in the Crown requesting that the accused be committed on charges pursuant to subsection 548(1) of the Criminal Code at the end of the inquiry. A written statement was filed by the Crown at that time referring to the Criminal Code charges and containing a draft set of charges.

On December 10, 1988, following argument by counsel, the preliminary inquiry judge committed the appellants to trial both on the I.T.A. charges, and on the Criminal Code charges. The appellants concede that they were properly committed to trial on the I.T.A. charges, but appeal their committal to trial on the Criminal Code charges on the bases outlined below.

Issues

1. Did the learned preliminary inquiry judge exceed his jurisdiction under sections 548 and 549 of the Criminal Code in ordering the accused to stand trial on Criminal Code offences disclosed by the evidence at the preliminary hearing?

2. To the extent that sections 548 and 549 of the Criminal Code permit a judge at a preliminary hearing to commit an accused for trial in relation to offences other than the offences charged, should those sections be declared unconstitutional pursuant to section 52 of the Constitution Act, 1982?

3. On the facts of this particular case, does the committal for trial on the Criminal Code charges offend subsection 11(a) of the Canadian Charter of Rights and Freedoms (Constitution Act, 1982 Part 1) and, if so, what is the appropriate remedy pursuant to section 24 of the Charter?

1. Application of sections 548 and 549 of the Criminal Code

The appellants' argument on this issue is based on the interpretation of the following provisions of the Criminal Code:

535. Where an accused who is charged with an indictable offence is before a justice, the justice shall, in accordance with this Part, inquire into that charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

548. (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

(2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, the justice shall endorse on the information the charges on which he orders the accused to stand trial.

549. (1) Notwithstanding any other provision of this Act, the justice may, at any stage of the preliminary inquiry, with the consent of the accused and the prosecutor, order the accused to stand trial in the court having criminal jurisdiction, without taking or recording any evidence or further evidence.

(2) Where an accused is ordered to stand trial under subsection (1), the justice shall endorse on the information a statement of the consent of the accused and the prosecutor, and the accused shall thereafter be dealt with in all respects as if ordered to stand trial under section 548.

On this issue, the appellant argues that section 549 cannot apply on the facts of this case. He concedes that there was consent within the terms of subsection 549(1) to the accused being ordered to stand trial, but takes the position that the accused's consent was to committal to trial on the I.T.A. charges only, and not on the Criminal Code charges. In addition, he argues that even if the consent in this case were by its terms sufficiently broad to include the Criminal Code charges, there is no provision in subsection 549(1) for committal of an accused on offences other than those on which he has been arraigned.

I am satisfied on a perusal of the transcript of the preliminary hearing that the consent to committal given by the accused included consent to committal for alleged offences under the Criminal Code.

Also, I am of the view that where the precise nature of additional charges against the accused is known to him, and he and the prosecutor consent to committal to trial on those charges, the justice presiding at the preliminary inquiry is required to endorse the information as provided in subsection 549(2). To hold otherwise would be to deprive the accused of the right to consent to committal to trial without incurring the necessary expense in time and money of a second preliminary hearing.

However, even without consent pursuant to section 549, I am satisfied that the justice was correct in this case in committing the accused to trial pursuant to section 548.

The cases cited by the appellants with respect to the application of section 548 were all decided prior to the amendments to the Code enacted by R.S.C. 1985, c. 27 (1st Supp.), subsection 101(1) which came into force on December 4, 1985, and which added to paragraph 548(1)(a) the words "or any other indictable offence in respect of the same transaction”. The meaning of these words was dealt with in some detail by Houlden, J.A. in a decision of this court in R. v. Goldstein; R. v. Caicedo (1988), 42 C.C.C. (3d) 548. He stated in his reasons, at page 557:

The words “the same transaction", in my opinion, mean the series of connected acts extending over a period of time which, the Crown alleges, prove the commission of the offence charged in the information. The participation of the accused in this series of connected acts or activity may be sufficient to permit the justice to put the accused on trial for the offence charged, or it may not. In addition, it may be sufficient to permit the justice to put the accused on trial for some other indictable offence. If it is, the other offence will, of necessity, be closely interwoven with or related to the offence charged in the information.

In that case, the two accused were charged along with a number of other individuals with a large overall conspiracy to traffic in cocaine. The provincial court judge—at the conclusion of the preliminary inquiry—was of the opinion that the evidence was not sufficient to establish the participation of the accused in the overall conspiracy, but he was satisfied that there was evidence that each had conspired with one Fenn-Cruz to traffic in cocaine. He discharged both of the accused on the overall conspiracy but committed them to trial on the lesser conspiracy involving only Fenn-Cruz. It is clear that the charge on which the accused were ordered to stand trial was one alleging the same offence with which they were originally charged, except that the conspiracy was a more limited one. That is not the situation in this case, where the Criminal Code charges are clearly different charges from those laid under the 1. T.A. However, a careful reading of section 548 draws one to the conclusion that the words "for the offence charged or any other indictable offence in respect of the same transaction", [emphasis added] mean that the accused may be put on trial for the offence charged, for any other indictable offence, or for both the offence charged and for any other indictable offence, provided those charges all arise out of a “series of connected acts or activities". This is made clear by the wording of subsection 548(2) which states "where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, . . .". [Emphasis added].

It is clear from a perusal of the transcripts of cross-examinations on affidavits in this case that the facts which would tend to prove the I.T.A. offences and those which would tend to prove the Criminal Code charges are inextricably woven together and arise out of the same series of events.

However, the appellant argues that section 548 cannot apply in this case because not “all the evidence” had been taken by the justice before ordering the accused to stand trial. Those words are not new. They were included in former subsection 475(1), the predecessor to subsection 548(1), before its amendment in 1985. The cases make it clear that the words “all the evidence" do not mean all evidence that it might be possible to adduce, but merely all evidence which it is intended will be adduced at the preliminary hearing. In this case, the Crown, the trial judge, and counsel for the appellant were all obviously of the view that sufficient evidence had been adduced to warrant committal on charges both under the I.T.A. and the Criminal Code. All that is required is that the justice be satisfied that the evidence, if believed, could result in a conviction: see U.S.A. v. Sheppard, [1977] 2 S.C.R. 1067; 30 C.C.C.

(2d) 424 (S.C.C.).

I therefore conclude that, pursuant to sections 548 and 549, the justice at the preliminary hearing had jurisdiction to and was correct in ordering that the defendant stand trial on the Criminal Code charges in addition to the charges under the I.T.A.

2. The Constitutionality of Sections 548 and 549

The appellants argue in their factum that sections 548 and 549 of the Criminal Code, to the extent that they purport to permit a judge at a preliminary hearing to commit an accused to trial for offences which are separate and distinct from those which are included in the original indictment, violate section 7 and subsection 11(a) of the Charter, and are of no force and effect. The section 7 argument was not pursued on appeal.

Crown counsel takes the position that the subsection 11(a) argument was before the Court in the Goldstein case and both Dubin, A.C.J.O. and Houlden, J.A. dismissed it as having no merit. I cannot accept that position. What the court dealt with in the Goldstein case was the possibility of a specific infringement of the appellants’ subsection 11(a) rights on the facts of that case, and not with the possibility of an inconsistency between provisions of sections 548 and 549 of the Criminal Code and the provisions of the Constitution Act, 1982. The court found no infringement of subsection 11(a) rights in that case.

I find no merit in the general constitutional argument in this case.

3. Violation of Appellants’ Subsection 11(a) Charter rights

While I consider the attack on the constitutional validity of sections 548 and 549 to be without merit, the possibility of a specific violation of the appellants' rights under subsection 11(a) of the Charter warrants careful consideration on the facts of this particular case.

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

Counsel for the appellants submits that subsection 11(a), by its terms, "demands both temporal and procedural fairness to the accused once he has been charged with a criminal offence” and "requires the prosecutor to draft the information and indictment in such a way to convey to the accused both the substantive offence with which he is charged and the actual conduct which is complained of”. In support of this contention he cites Re Warren, Klagsbrun, Boyle and Costigan (1983), 35 C.R. (3d) 173 at 176-77 (H.C.).

In that case, Linden, J. quotes from an article by E. Ratushny, “The Role of the Accused in the Criminal Process", in The Canadian Charter of Rights and Freedoms: A Commentary (Toronto: Carswell, 1982), edited by W.S. Tar- nopolsky and G.A. Beaudoin, and he also quotes the United Nations International Covenant on Civil and Political Rights, Art. 14-3. Those quotations bear repetition. Professor Ratushny states at page 352:

It is easy to see why the requirement of a proper accusation is an important protection to an accused. A specific accusation presupposes a specific offence in law. It, therefore, provides an opportunity at the outset for the accused to challenge the authority of the officials of the state to subject him to the criminal process. If no offence exists in law, the accusation can be attacked and quashed, thereby terminating the proceeding.

It is also important in specifying the exact conduct which is said to constitute the offence. The accused must be aware of such details as the specific time and place, when and where the offence occurred, the manner in which it is alleged to have been committed and the identity of the victim, if any, so that he may prepare his defence. It could be argued that subsection 11(a) requires only that the "offence" be specified (for example, rape, robbery, etc.) since it makes no reference to identifying the details of the act or transaction. However, once again, to take such a narrow interpretation would render the protection a sham.

The accused should also know his accuser so that he might be aware of any improper motives and bring legal action against the accuser if the prosecution is malicious.

The accusation provides another important protection to the accused. It defines the scope of the proceedings against him. The evidence and argument must relate to the specific charge. It is generally not permissible, for example, to bring in evidence of other unlawful or immoral conduct on the part of the accused which does not relate to the accusation which he is facing. The accused is to be tried with respect to specific alleged misconduct and not for the kind of person he is.

Article 14-3 of the United Nations International Covenant on Civil and Political Rights reads in part:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.

Justice Linden states, at page 177:

Surely the words “nature and cause of the charge” do not include the mode of procedure to be employed in prosecuting the offence. Since the Parliament of Canada is presumed not to act in violation of its international obligations, s. 11(a) of the Charter should be construed in a manner consistent with art. 14 of the Covenant. As a result, I must conclude that the right to be informed of the “specific offence" means the right to be informed of the substantive offence and the acts or conduct which allegedly form the basis of that charge. It does not give an accused the right to be informed of how the Crown will exercise its discretion with respect to the manner of prosecution.

I agree with the words quoted above from submissions of counsel for the appellants and from the words of Linden, J. in the Warren case. However, that takes us no further than finding that subsection 11(a) of the Charter requires what is also required by section 581 of the Criminal Code and its predecessor sections which were in place prior to the coming into force of the Charter. Many provisions in the Charter are merely confirmatory of rights which already existed in the laws of this country. Whether subsection 11(a) of the Charter goes further in requiring additional information such as the name of the accuser, as suggested by Professor Ratushny in his article, it is not necessary to decide in this case as it is obvious, given the nature of the charges under both the I.T.A. and the Criminal Code that the Crown is the accuser in this case.

It is clear on the facts of this case that sufficient details were included both in the indictments under the I.T.A. and in the draft indictments under the Criminal Code to satisfy the provisions of subsection 11(a) of the Charter. The real question in this case is whether or not once charges are laid with respect to a series of transactions, additional charges can be laid at a substantially later time, based on the same series of transactions, without offending the "unreasonable delay" provision in subsection 11(a) of the Charter.

It is my opinion that the simple answer to that question is that subsection 11(a) does not require that an individual be charged with an offence within a reasonable time of the Crown's having knowledge of the offence. It merely requires that once a charge is laid, the accused must be provided without unreasonable delay with the information necessary to enable him to proceed appropriately with his defence. In this case, there is no suggestion that such knowledge was not provided to the accused at the time they were made aware that Criminal Code charges were to be pursued against them.

Even if subsection 11(a) could be interpreted to mean that once a person is charged with an offence he has the right to be informed without unreasonable delay of all specific offences which the Crown intends to allege against him, any delay must be assessed on the facts of the individual case. Here the alleged criminal activities of fraud and forgery were vital ingredients of the offences charged under the I.T.A. The accused were aware at an early stage following the I.T.A. charges of the activities alleged against them. Indeed, counsel for the appellants concedes that the timing of the Criminal Code charges does not prejudice the appellants in the preparation of their defence.

The major complaints of the appellants are the more severe penalties possible on conviction on the Criminal Code charges, and their contention that the Crown pursued the Criminal Code charges for an improper purpose, i.e., to make an example of the accused. If it was otherwise proper to commit the accused on the Criminal Code charges, the nature of the penalty is surely not a complaint available to them—although the laying only of charges with possibly inadequate penalties, given the nature of the Crown's allegations against the accused, might raise public criticism against the Crown. With respect to the alleged improper motives of the Crown, the fact that an employee of the Crown may have carelessly characterized the Crown's motives in this case cannot be of assistance to the accused (if it could be in any case). The usual motive for making an example of an individual or group of individuals is deterrence. Deterrence was of no value in this case, since the research and development provisions of the I.T.A. which led to a scandalous rash of income tax frauds in this country had been repealed before the accused were committed to trial, and the intent to repeal those provisions was well known many months before the Crown's decision to pursue the Criminal Code charges.

I am of the view that the laying of the Criminal Code charges was not only legal but appropriate in this case. I would dismiss the appeal.

Blair, J.A.: —I agree.

Craig, J.: —I agree.

Appeal dismissed.