DATE: 20060918
DOCKET: C44831
COURT OF APPEAL FOR ONTARIO
GOUDGE, SHARPE and BLAIR JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Croft Michaelson for the respondent
Respondent
- and -
REVEREND BROTHER WALTER TUCKER and REVEREND BROTHER MICHAEL BALDASARO
Peter Boushy for the appellant Reverend Brother Baldasaro Reverend Brother Walter Tucker in person
Appellants
Heard: August 24, 2006
On appeal from the judgment of Justice Robert E. Zelinski of the Superior Court of Justice, dated January 11, 2006, dismissing an application for certiorari.
BY THE COURT:
[1] This is an appeal from an order dismissing the appellants’ application for certiorari to quash the order of a provincial court judge converting a proceeding commenced as a trial into a preliminary inquiry pursuant to s. 555(1) of the Criminal Code. Following the impugned order, the appellants were committed for trial and, the appellants submit, if the s. 555(1) order falls, so too must the committal for trial.
[2] The procedural background to this appeal is unusual. The information contains seven counts, all drug offences. The charges arise from allegations that the appellants sold marijuana to an undercover officer. With respect to the five counts at issue on this appeal, the information refers only to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 and makes no reference either to the quantity of drugs at issue or to whether the charges relate to s. 5(3) or s. 5(4). Those provisions provide as follows:
- (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.
(3) Every person who contravenes subsection (1) or (2)
(a) subject to subsection (4), where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;
(b) where the subject-matter of the offence is a substance included in Schedule III,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
(4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day.
An offence for small quantities of marijuana (specified in Schedule VII to be less that three kilograms) under s. 5(4) falls within the “absolute” jurisdiction of a provincial court judge pursuant to s. 553(c)(xi) of the Criminal Code. The s. 5(3) offence gives rise to an election by the accused as to the mode of trial.
[3] When the matter was called for trial in the Ontario Court of Justice, the trial judge asked Crown counsel to clarify the issue of jurisdiction. Crown counsel withdrew one count that would have given the appellants an election as to how they should be tried and proceeded only on the five counts that were said to involve less than three kilograms of marijuana. Crown counsel stated that as he would only attempt to prove less than three kilograms of marijuana on each of the counts, the matter fell within the absolute jurisdiction of the provincial court. The appellants took the position that they were not prepared for trial and that the matter should proceed as a preliminary hearing. The trial judge rejected the appellants’ contention and, on the basis of Crown counsel’s statement as to the quantity of drugs at issue, ruled that the charges fell within his absolute jurisdiction pursuant to s. 553(c)(xi). He ordered that the matter should proceed as a trial within the absolute jurisdiction of the provincial court.
[4] After several days of trial but before the Crown closed its case and before the appellants were put to their defence, the appellants applied for mandamus and prohibition in the Superior Court of Justice alleging that as the information failed to specify the quantity of marijuana trafficked, a provincial court judge had no jurisdiction to proceed with the trial. That application was dismissed by Borkovich J. who held that the Ontario Court of Justice did have jurisdiction to try the charges. The appellants filed a notice of appeal from that order. Before the appeal was heard, the trial judge, acting on his own motion, reopened the question of jurisdiction. Citing R. v. Sewell (2003), 2003 SKCA 52, 175 C.C.C. (3d) 242 (Sask. C.A.), the trial judge held that as the information failed to specify that the quantity of drugs was less than three kilograms, the appellants should have been put to their election and that the court had “exceeded its jurisdiction by proceeding to trial”. Crown counsel offered to amend the information to specify the quantity of drugs at issue but the provincial court judge refused to entertain that request and instead made an order that the trial proceed as a preliminary inquiry pursuant to s. 555(1). The trial judge further ruled that by operation of s. 565(1)(a), the accused were deemed to have elected trial by a court composed of a judge and jury. At the conclusion of the evidence, the appellants were committed for trial.
[5] The appellants submit that as the trial judge ruled that the court had “exceeded its jurisdiction by proceeding to trial”, the proceedings before him were a complete nullity and consequently, that he lacked jurisdiction to make an order converting the trial into a preliminary inquiry. The appellants submit, accordingly, that the application judge erred by refusing to grant certiorari to quash the s. 555(1) order and the committal for trial.
[6] We are unable to accept the appellant’s submission. In our view, s. 555(1) provides a complete answer to the appellants’ contention. Section 555(1) provides as follows:
Where in any proceedings under this Part an accused is before a provincial court judge and it appears to the provincial court judge that for any reason the charge should be prosecuted by indictment, he may, at any time before the accused has entered upon his defence, decide not to adjudicate and shall thereupon inform the accused of his decision and continue the proceedings as a preliminary inquiry.
[7] All the requirements of that section were met: the proceedings were under Part XIX, it appeared to the trial judge that the charge should be prosecuted by indictment to remove any question as to jurisdiction, and the accused had not entered their defence. The fact that the offence was within the “absolute” jurisdiction of the provincial court does not oust the jurisdiction of the Superior Court to try the appellants and did not preclude the trial judge from converting the trial into a preliminary inquiry. The jurisdiction of the provincial court to try an indictable offence under s. 553 is absolute, but it is not exclusive. It is absolute in the sense that it does not depend upon the election of the accused. However, it is not exclusive as, pursuant to s. 468, the Superior Court “has jurisdiction to try any indictable offence”, even those included in s. 553: see R. v. Scherbank, 1966 278 (ON CA), [1967] 2 C.C.C. 279 (Ont. C.A.), aff’g 1966 181 (ON SC), [1966] 4 C.C.C. 338 (Ont. H.C.); R. v. Holliday (1973), 1973 ALTASCAD 43, 12 C.C.C. (2d) 56 (Alta. C.A.); R. v. Coupland (1978), 1978 ALTASCAD 407, 45 C.C.C. (2d) 437 (Alta. C.A.).
[8] A s. 555(1) order may be made after the commencement of trial for an absolute jurisdiction offence: see R. v. Cooper (1955), 1955 826 (ON CA), 21 C.R. 263 (Ont. C.A.); R. v. Christie (2003), 57 W.C.B. (2d) 265 at paras. 21-22 (Ont. S.C.J.); Edward L. Greenspan & Marc Rosenberg, eds., Martin’s Annual Criminal Code 2007, (Aurora, Ont.: Canada Law Book, 2006), at p. 1062: “This section deals with situations where a trial in the provincial court may be transformed into a preliminary inquiry, even where the accused has elected to be tried in that forum or, by virtue of s. 553, the offence is within the absolute jurisdiction of the provincial court judge” [Emphasis added.]; R.E. Salhany, Canadian Criminal Procedure, 6th ed., looseleaf (Aurora, Ont.: Canada Law Book); Eugene G. Ewaschuck, Criminal Pleadings and Practice in Canada, 2d ed., looseleaf (Aurora, Ont.: Canada Law Book) vol. 1 at para. 7:4050.
[9] We do not agree with the submission that the proceedings were a nullity on the ground that the information failed to specify either the quantity of drugs at issue or the section of the Controlled Drugs and Substances Act under which the charges were brought. That deficiency may constitute a valid ground for appeal after trial on such an information or indictment as in R. v. Sewell, supra at para. 55, as the deficiency could have deprived the accused of an election. However, we do not agree that the defect in the information in the present case rendered the proceedings a complete nullity and void ab initio. The information could have been amended to repair the deficiency: see s. 601(2)(b). In R. v. Sewell, supra, at para. 52, the case relied upon as authority for the proposition that a defect of this nature results in a loss of jurisdiction, one count was amended and the conviction on that count survived on appeal. Moreover, the appellants sought a preliminary hearing and that is what they have been given. We see no procedural denial comparable to what occurred in R. v. Sewell, supra.
[10] While it would have been preferable to have permitted the Crown to amend the information, it was open to the trial judge in the circumstances of this case to exercise his discretion under s. 555(1) to convert the trial into a preliminary inquiry.
[11] We do not agree that the s. 555(1) order prejudiced the appellants, particularly, as they had taken the position all along, that the matter should proceed by way of a preliminary inquiry.
[12] Accordingly, we see no error on the part of the application judge in refusing certiorari and the appeal is dismissed.
RELEASED: September 18, 2006 “STG”
“S.T. Goudge J.A.”
“Robert Sharpe J.A.”
“R. A. Blair J.A.”