Caledon (Town) v. Eagle Demolition & Excavation Inc., 2022 ONCJ 241
CITATION: Caledon (Town) v. Eagle Demolition & Excavation Inc., 2022 ONCJ 241
DATE: May 20, 2022
Court File #: 0661-999-20-3574
IN THE MATTER OF
Town of Caledon Zoning Bylaw #2006-50
and
the Planning Act, R.S.O. 1990, c. P.13,
and
an application for a stay of proceedings
and an order for costs under s. 24(1)
for an infringement of s. 7 and s. 11(a) of the Charter
Between
The Town of Caledon
Prosecutor (respondent)
and
Eagle Demolition & Excavation Inc.,
Gurdev SIDHU,
and
Jaskaran SIDHU
Defendants (applicants)
Ontario Court of Justice
Caledon, Ontario
Quon J P.
Reasons for the rulings on the Charter application
and other “in-trial” motions
Applications argued: March 22, 2022
Rulings released: May 20, 2022
Counsel:
N. Klein, prosecutor for the Town of Caledon (respondent).
D. Allen, legal representative for the defendants (applicants), Eagle Demolition & Excavation Inc., Gurdev SIDHU and Jaskaran SIDHU
TABLE OF CONTENTS
Page Number
Table of Contents ii
Cases Considered Or Referred To vi
Statutes, Regulations, Bylaws and Rules Cited viii
Order Cited viii
- INTRODUCTION 1
Motion #1 2
Motion for an Order for Particulars and an adjournment in the alternative 4
Motion #2 5
Motion #3 6
(1) McNeil Disclosure 6
(2) curriculum vitae of the Investigating Provincial Offences Officer 7
(3) name of the Complainant 7
(4) notes or transcribed recording of the Complainant’s complaint 7
Adjournment of defendants’ trial to June 15, 2022 8
- BACKGROUND AND CHRONOLOGY OF THE DEFENDANTS’
COURT APPEARANCES 8
(a) THE CHARGES 10
(b) COURT APPEARANCES PRIOR TO COMMENCEMENT OF THE TRIAL 11
(1) Court Appearance on November 2, 2020 at 9:00 a.m. 11
(2) Court Appearance on April 12, 2021 at 3:00 p.m. 11
(3) Court Appearance on June 24, 2021 at 11:00 a.m. 12
(4) Court Appearance on August 16, 2021 at 9:00 a.m. 12
(5) Court Appearance on October 28, 2021 at 9:00 a.m. 12
(6) Court Appearance on January 13, 2022 at 9:00 a.m. 12
(c) Disclosure has been provided to the defendants and to the defendants’ legal
representative 13
(d) Particulars have been provided to the defendants and to the defendants’
legal representative 13
(e) Defence Motion for a Mistrial 14
(f) Rulings of the presiding justice at the Judicial Pre-Trial Conference are
permitted to be considered by the trial justice 14
(g) Defendants’ legal representative appears to have knowledge of the alleged
“wrongful use” which contravenes s. 11.1 of the Zoning Bylaw 15
APPLICABLE LAW 15
ANALYSIS 22
(A) FIRST MOTION: S. 11(a) CHARTER MOTION 23
(1) WHAT ARE THE PROCEDURAL STEPS OR PATHS THAT ARE AVAILABLE
FOR DEALING WITH DEFECTIVE COUNTS OR INFORMATIONS WHICH ARE
MISSING AN AVERMENT OF AN ESSENTIAL ELEMENT OF THE OFFENCE? 25
(a) THE MOTION TO QUASH THE COUNT OR INFORMATION ROUTE 26
(i) The Traditional Approach For Dealing With Informations or Counts
That Were Missing An Averment Of An Essential Element Of
The Offence 26
(ii) The Days of Extreme Technicality and Formalism Have Been
Replaced With Flexibility and Substance 29
(iii) The Modern Approach For Dealing With Informations Or Counts
That Are Missing An Averment Of An Essential
Element Of The Offence 32
(iv) What is required to make a count sufficient? 36
(A) the test for sufficiency of a count to disclose a specific
offence is to be applied less stringently 36
(B) the test for sufficiency of an information or count under
the modern approach 37
(C) the difference between legal sufficiency and factual
sufficiency of a count 38
(D) if a count is legally sufficient it is not a nullity 42
(E) counts containing an imperfect averment instead of
counts that omit an essential averment 47
(F) factual sufficiency of a count 50
(G) sufficiency count requirements under the Provincial
Offences Act 55
(H) Under the Provincial Offences Act, is a count invalid for
Omitting to state an essential averment? 59
(v) Motion to Quash under the Provincial Offences Act 61
(b) THE REQUEST OR MOTION FOR PARTICULARS ROUTE 61
(i) Motion for an Order for Particulars under the Provincial Offences Act 62
(ii) Particulars should not be ordered if it would fetter the
prosecution’s conduct of their trial 67
(iii) Courts have relied on the Crown providing fulsome disclosure
as reasons why particulars are not required 69
(c) MOTION TO AMEND THE DEFECTIVE INFORMATION OR COUNT
MISSING AN ESSENTIAL AVERMENT BROUGHT BY THE
PROSECUTION ROUTE 70
(d) MOTION FOR COSTS IF THE INFORMATION IS AMENDED OR IF
PARTICULARS ARE ORDERED 74
(e) THE RULES GOVERNING THE SUFFICIENCY OF COUNTS
UNDER ONTARIO’S PROVINCIAL OFFENCES REGIME GOVERN
THE DEFENDANTS’ CHARGES 74
(f) THE APPROACH FOR DEALING WITH COUNTS OR
INFORMATIONS FOR REGULATORY OFFENCES IN ONTARIO
THAT ARE MISSING AN AVERMENT OF AN ESSENTIAL ELEMENT
OF AN OFFENCE 74
(i) The Criminal Code And The Provincial Offences Act Provide
Broad Amendment And Curative Powers For A Court To Deal
With Defective Counts Or Informations 75
(g) THE S. 11(a) CHARTER MOTION ROUTE 77
(i) Burden of proof to establish an infringement of s. 11(a) of
the Charter 78
(ii) Purpose Of The Protection Under S. 11(a) 78
(iii) Infringement Of S. 11(a) Where There Is Economic Prejudice
To An Accused Person 87
(iv) How Should Notice Of The Specific Offence Be Provided To An
Accused Person To Satisfy S. 11(a) Of The Charter? 88
(A) Notice of the specific offence may be provided through
many informal methods for the purposes of s. 11(a) 88
(v) Has There Been Unreasonable Delay In The Defendants Being
Informed Of The Specific Offence For Which They Have
Been Charged? 89
(A) When does the information in respect to the specific
offence have to be provided by the Crown or prosecution to
an accused person for the purposes of s. 11(a) of the Charter? 89
(vi) Is A Stay Of Proceedings An Appropriate Remedy For A Breach
Of S. 11(a)? 92
(A) a stay should only be granted as a last resort 92
(h) HAVE THE DEFENDANTS BEEN MADE AWARE OF THE
CIRCUMSTANCES AND DETAILS OF THE UNDERLYING
TRANSACTION OF THE SPECIFIC OFFENCE? 93
(i) For The Purposes Of S. 11(a) Of The Charter Is There A
Formal Way For An Accused Person To Be Informed Of
The Specific Offence For Which They Are Accused Of Committing? 93
(ii) What Information In Respect To The Specific Offence Has To Be
Provided By The Crown Or Prosecution To An Accused Person? 95
(iii) Can Providing The Defendants Information About The Substance
Of The Charge Be Met Without The Prosecution Specifically
Particularizing A Count Formally In Writing In An Information
So As Not To Infringe S. 11(a) Of The Charter? 97
(iv) Does Providing Disclosure Satisfy The Problem Of The Factual
Insufficiency Of A Generally-Worded Count? 98
(v) If The Count Is Drafted Precisely In The Wording Of The Section
Of The Act Or Regulation Under Which It Was Laid The Count
Is Presumed To Be Valid? 99
(vi) The Defendants’ Legal Representative Has Commented About
The Substance Of The Act Or Omission That The Prosecution
Alleges Would Contravene S. 11.1 Of The Town Of Caledon
Bylaw #2006-50 100
(vii) Amendment Of The 4 Counts Under S. 34 Of The Provincial
Offences Act 100
(viii) Have The Defendants Proven On A Balance Of Probabilities
Any Prejudice To Their Ability To Make Full Answer And
Defence Or To Have A Fair Trial? 101
(i) CONCLUSION ON THE S. 11(a) CHARTER MOTION 102
(B) DEFENDANTS’ MOTION FOR AN ORDER FOR PARTICULARS IN
THE ALTERNATIVE 104
(C) SECOND MOTION: MOTION TO QUASH COUNT #1 FOR BEING LAID
OUTSIDE THE 6-MONTH LIMITATION PERIOD 106
(1) During 2020 The Chief Justice Of The Ontario Court Of Justice Under
S. 85 Of The Provincial Offences Act Extends Certain Limit Limits To
Do Anything That Is Required For Someone To Do Under The
Provincial Offences Act 108
(2) Conclusion On Motion To Quash Count #1 110
(D) THIRD MOTION: MOTION FOR AN ORDER FOR THE PROSECUTION
TO PROVIDE MCNEIL DISCLOSURE IN RESPECT TO THE INVESTIGATING
PROVINCIAL OFFENCES OFFICER, THE CURRICULUM VITAE OF THE
INVESTIGATING PROVINCIAL OFFENCES OFFICER, THE NAME OF THE
COMPLAINANT THAT CALLED IN THE COMPLAINT ABOUT THE
PROPERTY IN QUESTION TO THE TOWN OF CALEDON, AND NOTES OR
TRANSCRIBED RECORDING OF THE COMPLAINANT’S COMPLAINT BY
TELEPHONE TO THE TOWN OF CALEDON 112
(1) Defendants’ Request for McNeil Disclosure 112
(a) The Ferguson Five 118
(2) Request For Curriculum Vitae Of The Investigating Provincial
Offences Officer 118
(3) Request for the name of the complainant who telephoned the Town
of Caledon about the property in question 119
(4) Request for the notes and transcribed recording of the complainant’s
complaint by telephone to the Town of Caledon about the land
in question 122
- DISPOSITION OF THE DEFENDANTS’ APPLICATIONS 122
(A) the defendants’ s. 11(a) Charter application 122
(B) the defendants’ application to quash the charge in count #1 for being laid
outside the 6-month limitation period. 123
(C) the defendants’ application for McNeil Disclosure, the curriculum vitae of
the Investigating Provincial Offences Officer, the name of the complainant,
and the notes or transcribed recording of the complainant’s compliant made
to the Town of Caledon 123
(i) McNeil Disclosure 123
(ii) the curriculum vitae of the Investigating Provincial Offences Officer 124
(iii) the name of the complaint who complained to the Town of Caledon about
the property in question 124
(iv) the notes or transcribed recording of the complainant’s complaint made
to the Town of Caledon about the property in question 124
Cases Considered Or Referred To:
Bisaillon v. Keable, 1983 26 (SCC), [1983] S.C.J. No. 65 (S.C.C.).
Brodie v. The King, 1936 1 (SCC), [1936] S.C.J. No. 15, 65 C.C.C. 289, 3 D.L.R. 81, 133 C.C.C. 69, 38 C.R. 411 (S.C.C.).
Guindon v. Canada, 2015 SCC 41, [2015] S.C.J. No. 41 (S.C.C.).
North Perth (Town) v. Scott, [2006] O.J. No. 2723 (Ont. C.J.), McKerlie J.
Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] S.C.J. No. 62 (S.C.C.).
Ontario (Ministry of Labour) v. Black & McDonald Ltd. and Thomas G. Fuller & Sons Ltd., [2011] O.J. No. 2615, 2011 ONCA 440 (Ont. C.A.), Laskin, Rosenberg and Epstein JJ.A.
Ontario v. Ontario Public Service Employees Union, [2012] O.J. No. 2336 (Ont. Sup. Ct. (Div. Ct.)), Aston, Harvison Young, and Edwards JJ.
R. v. Precision Diversified Oilfield Services Corp., 2018 ABCA 273, [2018] A.J. No. 1005 (Alta. C.C.).
R. v. 7506406 Canada Inc. (Ornge), [2017] O.J. No. 5750 (Ont. C.J.), Duncan J.
R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30 (S.C.C.).
R. v. Barros, 2011 SCC 5, [2011] S.C.J. No. 5 (S.C.C.).
R. v. Bekri, [2020] O.J. No. 6044 (Ont. C.J.), Bourgeois J.
R. v. Canadian General Electric Co. [1974] O.J. No. 13, 17 C.C.C. (3d) 433 (Ont. Supreme Ct. (H.C.J.)), Pennell J.
R. v. Cancor Software Corp. (1990), 1990 6817 (ON CA), 74 O.R. (2d) 65 (Ont. C.A.), Blair and McKinlay JJ.A. and Craig J. (ad hoc), leave to appeal to S.C.C. refused, 61 C.C.C. (3d) vi).
R. v. Carosella, 1997 402 (SCC), [1997] S.C.J. No. 12 (S.C.C.).
R. v. Cisar, [2014] O.J. No. 952 (Ont. C.A.), Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.
R. v. Cooper's Crane Rental (1987) Ltd., [1990] O.J. No. 1868 (Ont. S.C.), Mandel J.
R. v. Côté, 1977 1 (SCC), [1978] 1 S.C.R. 8 (S.C.C.).
R. v. Curragh Inc., [1993] N.S.J. No. 279 (N.S. Prov. Ct.), Curran J.
R. v. Delaronde, 1996 6332 (QC CA), [1996] Q.J. No. 535 (Que. C.A.), aff’d 1997 404 (SCC), [1997] 1 S.C.R. 213 (S.C.C.).
R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244 (S.C.C.).
R. v. Douglas, 1991 81 (SCC), [1991] 1 S.C.R. 301 (S.C.C.).
R. v. Elite Farm Services Ltd., [2021] B.C.J. No. 735 (B.C. Supreme Ct.), Crabtree J.
R. v. F.J.H., [1993] A.J. No. 7 (Alta. C.A.).
R. v. Fabrizi, [2007] O.J. No. 5403 (Ont. C.J.), Lampkin J.
R. v. Gardex Chemicals Ltd., 2007 ONCJ 501 (Ont. C.J.), Kowarsky J.P.
R. v. Heit, 1984 2281 (SK CA), [1984] S.J. No. 209, 31 Sask. R. 126, 11 C.C.C. (3d) 97 (Sask. C.A.).
R. v. Johnson, [2007] O.J. No. 2228 (Ont. C.A.), McMurtry C.J.O., O'Connor A.C.J.O. and Doherty J.A.
R. v. Krymowski, 2005 SCC 7, [2005] S.C.J. No. 8, 193 C.C.C. (3d) 129 (S.C.C).
R. v. Leclaire, [1956] O.J. No. 162 (Ont. Supreme Ct. (Ct. of Appeal)), Pickup C.J.O., Roach and Mackay JJ.A.
R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281 (S.C.C.).
R. v. Lucas (1983), 1983 3578 (NS CA), 57 N.S.R. (2d) 159, 6 C.C.C. (3d) 147 (N.S.C.A.).
R. v. Major, [1975] N.S.J. No. 317 (N.S. Supreme Ct. (Appeal Div.)), MacKeigan C.J.N.S., Cooper and Macdonald, JJ.A.
R. v. McNeil, [2009] S.C.J. No. 3, 2009 SCC 3 (S.C.C.).
R. v. Moore, 1988 43 (SCC), [1988] S.C.J. No. 58 (S.C.C.).
R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 (S.C.C.).
R. v. Nijhar, [1982] B.C.J. No. 823 (B.C. Co. Ct.), Perry J.
R. v. R. (G.), 2005 SCC 45, [2005] S.C.J. No. 45, [2005] 2 S.C.R. 371 (S.C.C.).
R. v. Rapicon Inc., [2019] A.J. No. 541 (Alta. Prov. Ct.), Rosborough J.
R. v. Robinson, 2001 24059 (ON CA), [2001] O.J. No. 1072 (Ont. C.A.), Rosenberg, Moldaver and Goudge JJ.A.
R. v. Sadeghi-Jebelli, [2013] O.J. No. 5728, 2013 ONCA 747 (Ont. C.A.), Laskin, Gillese and Strathy JJ.A.
R. v. Saunders, 1990 1131 (SCC), [1990] S.C.J. No. 22 (S.C.C.).
R. v. City of Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299 (S.C.C.).
R. v. Stinchombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.).
R. v. Tohl, [2009] O.J. No. 2370, 2009 ONCA 468 (Ont. C.A.), O'Connor A.C.J.O, Sharpe and Rouleau JJ.A.
R. v. TransCanada Pipelines Ltd., [1994] O.J. No. 4198 (Ont. C.J. (Prov. Div.)), Lebel J.
R. v. Violette, [2008] B.C.J. No. 2776 (B.C. Supreme Ct.), Romilly J.
R. v. Wigglesworth, 1987 41 (SCC), [1987] S.C.J. No. 71 (S.C.C.).
Re Warren (1983), 1983 5320 (ON SC), 6 C.R.R. 82, 35 C.R. (3d) 173 (Ont. H.C.J.), Linden J.
R. v. Webster (1993), 1993 9437 (SCC), 78 C.C.C. (3d) 302 (S.C.C.).
Rex v. Adduono et al., 1940 109 (ON CA), [1940] O.R. 184 (Ont. C.A.), Robertson C.J.O., Masten and Gillanders JJ.A.
Statutes, Regulations, Bylaws and Rules Cited:
Canadian Charter of Rights and Freedoms, Part 2 of the Constitution Act, 1982, Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, R.S.C. 1985, App. II, ss. 7, 10(b), 11(a), and 24(1).
Criminal Code, R.S.C. 1985, c. C-46, ss. 330(1), 505 to 514, 581, 581(1), 581(2)(c), 581(3), 581(5), 587(1)(b), 601 and 601(4).
Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, s. 7.1(2).
Planning Act, R.S.O. 1990, c. P.13, s. 67, 67(1), 67(2), and 67(3).
Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 11(1), 23(1.2), 24(6), 25, 25(1), 25(2), 25(3), 25(4)(a), 25(4)(b), 25(4)(c), 25(6), 25(7), 25(7)(f), 34, 35, 36(2), 37, 76, 76(1), 76(2), and s. 85.
Town of Caledon (Zoning) Bylaw #2006-50, ss. 1.3, 1.4, 3.2, 11.1, 11.2, and Table 11.1.
Limitation Periods Regulation (Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 S.O. 2020, c. 17) [formerly under Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9], O. Reg. 73/20, ss. 1 and 2. (revoked on Sept. 14, 2020 by O. Reg. 457/20, s. 1).
Orders Cited:
Chief Judge’s Order pursuant to s. 85 of Provincial Offences Act, R.S.O. 1995, c. P.33, Extending Certain Time Periods Under The Provincial Offences Act For Proceedings In The Ontario Court Of Justice, dated November 25, 2020.
1. INTRODUCTION
[1] After arraignment and after entering not guilty pleas on their respective Town of Caledon Zoning Bylaw charges, Eagle Demolition & Excavation Inc., Gurdev SIDHU and Jaskaran SIDHU (“the defendants”) have brought “in-trial" motions consisting of 3 primary motions and one motion in the alternative, which will have to be decided before their trial can continue. For their first motion, the defendants contend that their s. 11(a) Charter rights to be informed of the specific offence without delay for all 4 counts that are set out in the information have been infringed, and as such, seek a remedy of a stay of proceedings and an order for costs in favor of the defendants and against the prosecution under ss. 7 and 24(1) of the Charter. The defendants also made in the alternative a Motion for an Order for Particulars and an adjournment if their s. 11(a) Charter motion is dismissed. For their second motion, the defendants submit that despite the suspension of limitation periods in 2020 by the Ontario government due to the COVID-19 pandemic and closure of courtrooms for in-person appearances, count #1 in the information which was laid against the defendants, should nevertheless be quashed as that specific charge had been sworn or commenced outside the 6-month limitation period. And, for their third motion, the defendants seek an adjournment of the trial and an order compelling the prosecution to provide them with McNeil Disclosure regarding any misconduct or complaints of misconduct brought against the Investigating Provincial Offences Officer, who had investigated and charged the defendants with the Zoning Bylaw offences; the curriculum vitae of the Investigating Provincial Offences Officer; the name of the complainant who made a complaint to the Town of Caledon about the property in question; and the notes or transcribed recording of the complainant’s complaint to the Town of Caledon.
[2] The information (#0661-999-20-3574) charges the defendants with committing municipal bylaw offences in 4 separate counts. The 4 counts allege that the defendants committed offences under s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50 (“Zoning Bylaw”), thereby committing an offence under s. 67 of the Planning Act, R.S.O. 1990, c. P.13. Count #1 of that information refers to an offence that had allegedly occurred on February 25, 2020. These proceedings against the defendants had been commenced on September 3, 2020, when a provincial offences officer laid an information using the alternative procedure set out in s. 23(1.2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, which the defendants contend would be 8 days outside the 6-month limitation period. Reception of that information was also acknowledged by the court on September 3, 2020. The court then issued summonses in respect to that information directing the 3 defendants to remotely appear by telephone conference at the Caledon Provincial Offences Court on November 2, 2020, to answer to their respective charges.
[3] The 4 counts at issue in the s. 11(a) Charter Motion have charged Eagle Demolition & Excavation Inc., Gurdev SIDHU and Jaskaran SIDHU with committing the same municipal bylaw offence under s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50 on 4 different dates: February 25, 2020, May 1, 2020, May 13, 2020, and August 20, 2020. Specifically, a Provincial Offences Officer from the Town of Caledon had charged the defendants for doing something or engaging in some activity on the land or property, or for using the land or property located at 15961 The Gore Road, Caledon, Ontario, in a way which is not a permitted use for that particularly zoned property. Under Table 11.1 of s. 11.2 of the Zoning Bylaw, there are only 8 legally permitted uses for that specific property. However, the 4 counts do not specify or detail what that “wrongful use” of the property or land had been on those 4 offence dates that would contravene s. 11.1. And, because of this missing averment, the defendants contend their s. 11(a) Charter rights to be informed without delay of the specific offence that they have been charged with has been infringed. Moreover, the defendants also contend that the prosecution has refused to provide them with “particulars” in respect to the 4 charges, so as a result, the defendants claim they would be unable to make full answer and defence or to have a fair trial, since they do not know what that “wrongful use” in respect to the property had been on the 4 alleged offence dates that allegedly contravened s. 11.1 of the Zoning Bylaw. However, the prosecution submits that they have provided particulars about the alleged “wrongful use” of the property to the defendants by several means. Specifically, the prosecution submits that such particulars were provided through information that had been provided to the defendants by the Investigating Provincial Offences Officer who charged the defendants, through a Certified Letter provided to the defendants, through information contained in the disclosure provided on 3 occasions to the defendants and the defendants’ legal representative, and by particulars given and communicated orally to the defendants’ legal representative at the Judicial Pre-Trial Conference.
[4] The prosecution also submits that the disclosure that they had provided to the defendants and the defendants’ legal representative is complete. However, the defendants disagree and submit that they need additional disclosure in order to make full answer and defence and to have a fair trial, which includes the prosecution providing them with McNeil Disclosure in respect to the Investigating Provincial Offences Officer, the curriculum vitae of the Investigating Provincial Offences Officer, the name of the complainant who complained to the Town of Caledon about the property in question, and the notes or a transcribed recording of the complainant’s complaint made to the Town of Caledon.
Motion #1
[5] The defendants’ first motion is not a motion to quash a defective count for a missing averment of an essential element of the offence or for an insufficiently worded charge, but rather an application for a stay of proceedings and an order for costs for an infringement of s. 11(a) of the Charter in which the defendants claim that they have not been promptly informed of the circumstances or details of the underlying transaction of the specific offence for all 4 counts in order for them to be able to make full answer and defence and to have a fair trial, which is based on a missing averment and the refusal of the prosecution to provide “formal” particulars in writing for all 4 counts to the defendants. Moreover, all 4 counts have charged the defendants in respect to the property at 15961 The Gore Road, Caledon, Ontario, with “use the land, being zoned Environment Policy Area 2 - Oak Ridges Morraine (EPA2-ORM), for a use other than as permitted in Table 11.1 of Subsection 11.2 of Town of Caledon Zoning By-law 2006-50”, contrary to Subsection 11.1 (General Prohibition) of Town of Caledon Zoning By-law 2006-50. However, the 4 counts did not expressly state what that alleged “wrongful use” had been that would infringe s. 11.1. On the other hand, even though the 4 counts were factually insufficient, they were indeed legally sufficient as the 4 counts had expressly used wording for the offence that is the same wording that is set out in the section or statutory provision creating the offence, as well the section number of the statutory provision creating the offence was also expressly referred to in all 4 counts, and that all 4 counts stated an offence known to law, namely “use the land … for a use other than as permitted in Table 11.1 of s. 1.2”, which contravenes s. 11.1 of the Town of Caledon Zoning Bylaw. Therefore, because the 4 counts were legally sufficient for complying with the sufficiency of count requirements under s. 25 of the Provincial Offences Act, they were not nullities or void ab initio, but voidable counts for being factually insufficient. And, as a consequence of being voidable counts, then all 4 counts, if need be, could be cured with amendments if there would be no prejudice to the defendants and the proposed amendments can be made without injustice being done; or alternatively, to ensure a fair trial the 4 counts could be cured with an order for particulars unless it would fail to satisfy the ends of justice.
[6] But more significantly, the extreme technical and rigid formalism approach of yesteryear for dealing with counts with a missing averment of an essential element of the offence that led to the counts being automatically quashed because the counts did not disclose an offence known in law, has been replaced with the modern approach which looks at substance over form and emphasizes flexibility over rigidity. This modern approach is now utilized to deal justly with defective counts, so that quashing a defective count or information for lacking an essential averment or for having an insufficiently worded charge is now rare, since courts dealing with regulatory or provincial offences in Ontario have been provided with broad amendment and curative powers under the Provincial Offences Act.
[7] Ergo, the determination of whether the defendants’ s. 11(a) Charter rights have been infringed in the present case is not simply based on a missing averment of an essential element of the offence or the refusal of the prosecution to provide formal particulars in writing as the basis of whether the defendants have been informed without delay of the specific offences for which they are respectively charged with committing. The question instead is whether in all the circumstances the defendants have been promptly informed of the factual circumstances or the details of the underlying transaction of the specific offence so as to make full answer and defence and to have a fair trial. This information may be provided to the defendants through many means and does not necessarily require the 4 counts to be formally particularized in writing by the prosecution.
[8] Hence, in respect to whether there has been an infringement of s. 11(a) of the Charter, the defendants have not proven on a balance of probabilities that their ability to make full answer or defence or to have a fair trial has been prejudiced, as the defendants and the defendants’ legal representative are seemingly aware of the alleged “wrongful use” which contravenes s. 11.1 of the Zoning Bylaw and were informed of such without delay through the following paths: (1) the defendants had been informed personally by the Provincial Offences Officer who charged the defendants; (2) the defendants were informed by a Certificate Letter provided to them; (3) the defendants were informed through the information contained in the disclosure packages provided to the defendants on at least 2 occasions; (4) the defendants’ legal representative had been informed through the information contained in the disclosure package provided to the defendants’ legal representative on one occasion; (5) the prosecution provided particulars of the alleged offences orally to the defendants’ legal representative at the Judicial Pre-Trial Conference; (6) the alleged “wrongful use” had been expressly provided and stated in the prosecution’s reply factum to the defendants’ s. 11(a) Charter motion in which the prosecution refers to the “wrongful use” as a “contractor’s facility”; and (7) by comments made by the defendants’ legal representative, which infers that he is aware of the alleged “wrongful use” when he made such a reference during the hearing of the s. 11(a) Charter motion, about the alleged “wrongful use” being related to the storage or parking of construction motor vehicles on the property in question that would possibly contravene s. 11.1 of the Zoning Bylaw, but that the defendants’ also had a potential defence to that alleged “wrongful use”, in that the construction motor vehicles had been on the property for the purpose of constructing a driveway on the property.
[9] Furthermore, s. 11(a) of the Charter does not set out a particular method or legal requirement for informing an accused of the factual circumstances or the details of the underlying transaction of the specific offence. And, providing formal particulars in writing is only one of the ways that could be used to satisfy the informational component of s. 11(a).
[10] As a result, the defendants have not met their burden in proving on a balance of probabilities that they were not informed without delay of the specific offence for each of the 4 counts so as to infringe s. 11(a) of the Charter. Ergo, the defendants’ s. 11(a) Charter motion is dismissed, as well as their motion for costs.
Motion for an Order for Particulars and an adjournment in the alternative:
[11] A court will order particulars to be provided by the prosecution when it is required for a fair trial. However, for the defendants motion in the alternative for an order for particulars, there is an indication that the defendants have been informed early on in these proceedings of the circumstances and the details of the underlying transaction that comprise the specific offences for which they are charged. Therefore, an order for the prosecution to provide formal particulars in writing is not required as the defendants have been provided sufficient information by other means about the circumstances and details of the underlying transaction of the specific offences, so as to be able to make full answer and defence and to have a fair trial. Moreover, for the circumstances of the present case, the prosecution’s ability and discretion on how they wish to prosecute and prove the 4 charges against the defendants should not be fettered by an order for formal particulars in writing, as that may cause an injustice. Accordingly, the defendants’ motion in the alternative for an order for particulars and an adjournment is also dismissed.
Motion #2
[12] Count #1 in the information refers to an offence date of February 25, 2020 where the information containing the 4 counts had been sworn or commenced on September 3, 2020, which would be a period of 6 months and 8 days. The limitation period for laying an information to commence a proceeding under the Town of Caledon Zoning Bylaw #2006-50 is governed by the general limitation period set out under s. 76(1) of the Provincial Offences Act, R.S.O. 1990, C. P.33, which sets out a limitation period of 6 months. However, limitation periods for commencing proceedings were suspended from March 16, 2020 to September 13, 2020 by s. 1 of the Limitation Periods Regulation (Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 S.O. 2020, c. 17) [formerly under Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9], O. Reg. 73/20. No discretion has been given to the courts on whether to apply or not to apply limitation periods for commencing proceedings under s. 1 of the Limitation Periods Regulation. On the other hand, s. 2 of the Limitation Periods Regulation does provide discretion to the court, tribunal, or decision-maker to determined whether the suspension of “any period of time within which any step must be taken in any proceeding” should be applicable for a proceeding. However, in reviewing the wording contained in both s. 1 and s. 2 of the Limitation Periods Regulation together, the Ontario Legislature did not intend to have s. 2 apply to limitation periods to commence proceedings, since s. 1 expressly and specifically governs “limitation periods” while s. 2 does not specifically or expressly state that “limitation periods” are included in s. 2. Ergo, there is no discretion for the courts to disregard the suspension of limitation periods for commencing proceedings from March 16, 2020 to September 13, 2020, as all limitation periods in Ontario during that period were suspended by law. Moreover, on account of the suspension of limitation periods from March 16, 2020 to September 13, 2020, the 6-month limitation period for commencing the proceeding in respect to Count #1 would have expired on or about February 22, 2021. Also, at the time the information was sworn or commenced on September 3, 2020, only 19 days of the 6-month limitation period had elapsed due to the suspension of limitation periods in Ontario. As such, count #1 in the information that had been sworn or commenced on September 3, 2020, had not been sworn or commenced outside the 6-month limitation period. Accordingly, the charge in count #1 is not void or a nullity for being laid outside the 6-month limitation period and the defendants’ application to quash count #1 is therefore dismissed.
Motion #3
(1) McNeil Disclosure
[13] As for the request for “McNeil” disclosure, the prosecution has the legal obligation to provide such disclosure to the defendants as first party disclosure, but the prosecution also has discretion as the “gatekeeper” to obtain the disciplinary or employment records of investigators or enforcement officers, if any, and to review such records to determine if it could reasonably assist the defendants in making full answer and defence on the issues of credibility of the enforcement or investigating officers as a witness. And, if it could reasonably assist the defendants in making full answer and defence, then the disciplinary or employment records of the Investigating Provincial Offences Officer has to be provided to the defendants by the Town of Caledon prosecutors as first party disclosure. But, if these disciplinary or employment records would not reasonably assist the defendants in making full answer and defence, then those records would not have to be disclosed to the defendants.
[14] Procedurally then, if there are no records that would fall under McNeil Disclosure, then the prosecution has to provide a letter to the accused person or to the accused person’s legal representative stating, ”In reply to your request for disclosure in accordance with requirements established in R. v. McNeil, 2009 SCC 3, I can tell you that no records exist concerning [name of Provincial Offences Officer].
[15] And, in the situation where there are disciplinary or employment records of the investigator or enforcement officer, but these records have been reviewed by the prosecution as the “gatekeeper” and found not to be relevant, then the prosecution has to provide a letter to the accused person or to the accused person’s legal representative stating, ”In reply to your request for disclosure in accordance with requirements established in R. v. McNeil, 2009 SCC 3, the [name of the municipality or agency] records relating to the employment of [name of Provincial Offences Officer] have been independently reviewed and it has been determined that they do not fall within the scope of required disclosure.”
[16] However, if there are disciplinary or employment records of the investigator or enforcement officer that have been determined to be relevant by the prosecution as the “gatekeeper”, those records have to be disclosed as first party disclosure to the accused person or to the accused person’s legal representative, along with a letter advising: “We write to fulfill the ‘prosecution disclosure’ requirements to you. A matter documented in the employment record of [name of Provincial Offences Officer] may be relevant to your proceedings.”
[17] Therefore, if not already done so previously, then the prosecution will have to obtain the disciplinary or employment records of the Investigating Provincial Offences Officer involved in the investigation and charging of the defendants in the present case, if they exist, and review them as the “gatekeeper” to see if they could reasonably assist the defendants in making full answer and defence on the issues of credibility of the enforcement or investigating officer as a witness. And, if these records could reasonably assist the defendants in making full answer and defence, then they have to be disclosed to the defendants or the defendants’ legal representative as first party disclosure.
(2) curriculum vitae of the Investigating Provincial Offences Officer
[18] As for the request for the curriculum vitae of the Investigating Provincial Offences Officer, in the circumstances it would not be relevant to these proceedings, since there is no suggestion or indication that the Officer is being called by the prosecution to testify as an “expert witness” on a particular and specialized field of endeavour, and who would be offering scientific, technical, or other specialized knowledge that could assist the trier of fact. Moreover, a witness who is being offered as an expert must first establish their qualifications and competence in the relevant field of endeavour through examination of the witness’s credentials, which would also require the witness’s curriculum vitae being provided to both the prosecution and the defence. However, in the present case and also in respect to provincial offences officers, bylaw officers, and police officers in general, who are not being proffered as expert witnesses, they are usually called to testify at trials as “fact witnesses”. Furthermore, fact witnesses would normally testify about their personal observations, on what they experienced, and about their personal knowledge of the events in question pertaining to the accused person. In addition, the curriculum vitae of Provincial Offences Officers, bylaw officers, and police officers who are not being called to testify as an expert witness are not normally in the possession of the prosecution nor are they normally included in the disclosure package provided to an accused person as first party disclosure.
[19] In addition, the defendants have not established the relevance of this requested item.
[20] Accordingly, the prosecution does not have to request, obtain and disclose to the defendants the curriculum vitae of the Investigating Provincial Offences Officer who has charged the defendants in the present trial.
(3) name of the Complainant
[21] As for the request for the name of the Complainant who called the Town of Caledon about the property in question and which consequently caused the Town of Caledon to investigate the property in question, it does not have to be disclosed to the defendants, as the name of the complainant is privileged information falling under the informer privilege rule.
(4) notes or transcribed recording of the Complainant’s complaint
[22] As for the request for the notes or transcribed recording of the Complainant’s complaint or complaints made to the Town of Caledon, if any, it was ordered by this court at the March 22, 2022 hearing of the 3 motions to be disclosed by the prosecution to the defendants with redactions to protect the identity or name of the Complainant from being revealed or disclosed to the defendants. The prosecution stated to the court shorty after it was ordered to disclose this information about the notes made of the Complainant’s complaint which had been made to the Town of Caledon, had been indeed forwarded to the defendants’ legal representative with appropriate redactions to protect the name and identity of the Complainant.
Adjournment of defendants’ trial to June 15, 2022
[23] After hearing the defendants’ Charter application and other “in-trial” motions on March 22, 2022, the rulings on the 3 primary motions and the motion in the alternative were reserved and the continuation of the defendants’ trial was adjourned until June 15, 2022 for the rulings to be rendered. The rulings on the Charter motion and on the other “in-trial” motions will be released to both the defence and the prosecution prior to the continuation of the trial on June 15, 2022. These, therefore, are the written reasons for the rulings on the defendants’ Charter and other trial motions:
2. BACKGROUND AND CHRONOLOGY OF THE DEFENDANTS’ COURT APPEARANCES
[24] There are 3 defendants in this proceeding, namely, Eagle Demolition & Excavation Inc., Gurdev SIDHU and Jaskaran SIDHU. Jaskaran SIDHU informed the court on the March 22, 2022 appearance that he is a director of the corporation, Eagle Demolition & Excavation Inc. The defendants have been each charged with committing 4 Town of Caledon Zoning Bylaw offences on 4 separate dates for allegedly engaging in a use in respect to the land known municipally as 15961 The Gore Road, Caledon, Ontario, when that use was not legally permitted under s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50.
[25] A contravention of s. 11.1 of the of the Town of Caledon Zoning Bylaw #2006-50, would be an offence under s. 67 of the Planning Act, R.S.O. 1990, C. P.13, for the purposes of the penalty that can be imposed against the defendants. Furthermore, the Planning Act is the legislation which gives the power to and authority for municipalities in Ontario to enact and pass municipal bylaws related to the zoning and permitted uses of land in these municipalities and it also sets out the penalties that can be imposed against offenders for the contravention of municipal zoning bylaws.
[26] The 4 counts contain charges with the following offence dates:
Count #1: February 25, 2020
Count #2: May 1, 2020
Count #3: May 13, 2020
Count #4: August 20, 2022.
[27] The information (#0661-999-20-3574) containing the 4 counts was commenced as a proceeding on September 3, 2020 after the information and a statement of Rebecca Gunness, a Provincial Offences Officer, under s. 23(1.2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, was received by the court on September 3, 2020, at 12:10 p.m. Summonses for the 3 defendants were also issued by the court on September 3, 2020, commanding the 3 defendants to appear remotely by telephone conference on November 2, 2020, at 9:00 a.m. The summonses had also set out the statements of the 4 offences that the defendants were alleged to have committed respectively.
[28] The defendants were subsequently served the summonses after the summonses were issued to appear before this court on November 2nd, 2020, by telephone appearance.
[29] However, because of the COVID-19 pandemic and the closure of courtrooms to the public during 2020 and 2021, if an accused person failed to call in for or make a telephone appearance, then their matters were simply adjourned to another date as a matter of practice and accused persons were also, as a courtesy, sent letters by court administration with that adjournment date and the telephone conference numbers and meeting codes for calling in. Or, the court would order court administration to send a letter to the accused persons who did not appear by telephone conference with the adjournment date along with the telephone conference numbers and meeting codes.
[30] The defendants were respectively sent these courtesy letters from Court Administration on October 7, 2020, March 8, 2021, and May 14, 2021, informing them that their appearance had been changed to a Telephone Conference Meeting and they were also provided with the telephone number and a meeting code to call in with, for their first appearance and for the subsequent appearances and adjournment dates, which were for November 2, 2020, April 12, 2021, and June 24, 2021.
[31] These courtesy letters sent to the defendants from Court Administration, which advised them of the dates to make an appearance by telephone conference were sent to Eagle Demolition & Excavation Inc. at 3 Garny Court, Brampton, Ontario; to Gurdev SIDHU at 15961 The Gore Road, Caledon, Ontario; and to Jaskaran SIDHU at 15961 The Gore Road, Caledon, Ontario.
[32] The defendants did not appear on November 2, 2020, but Jaskaran Sidhu did appear for the first time on April 12, 2021 by telephone for himself and for the other 2 defendants. On June 24, 2021, Jaskaran Sidhu appeared again by telephone for himself and for the other 2 defendants
[33] Douglas Allen, the defendants’ legal representative, appeared on behalf of the defendants on August 16, 2021.
[34] In addition, Judicial Pre-Trial Conferences in respect to the defendants’ matters were scheduled and conducted on October 28, 2021 and January 13, 2022, between the defendants’ legal representative and the prosecutor for the Town of Caledon.
[35] A one-day trial with preliminary motions was set and confirmed for March 22, 2022 at the Judicial Pre-Trial Conference held on January 13, 2022.
(a) THE CHARGES
[36] The actual wording of the four counts which comprise the 12 charges laid against the 3 defendants that are contained in the Part III information sworn or commenced on September 3, 2020 (#0661-999-20-3574) are the following:
Information #0661-999-20-3574:
Gurdev Sidhu of 15961 The Gore Road, Caledon, ON L7E 0X3
and
Jaskaran Sidhu of 15961 The Gore Road, Caledon, ON L7E 0X3
and
Eagle Demolition & Excavation Inc. of 3 Garny Court, Brampton, ON L6Y 4M7
on or about the 25th day of February, 2020,
At 15961 The Gore Road, legally described as Part of Lot 20, Concession 4 (Albion) designated as Part 1 on 43R-11663; Town of Caledon; Regional Municipality of Peel
did commit the offence of
contrary to Subsection 11.1 (General Prohibition) of Town of Caledon Zoning By-law 2006-50, as amended, use the land, being zoned Environment Policy Area 2 - Oak Ridges Morraine (EPA2-ORM), for a use other than as permitted in Table 11.1 of Subsection 11.2 of Town of Caledon Zoning By-law 2006-50, as amended, contrary to Section 67 of the Planning Act
and further, on or about the 1st day of May, 2020, Gurdev Sidhu, Jaskaran Sidhu and Eagle Demolition & Excavation Inc., at 15961 The Gore Road, legally described as Part of Lot 20, Concession 4 (Albion) designated as Part 1 on 43R-11663; Town of Caledon; Regional Municipality of Peel, did commit the offence of, contrary to Subsection 11.1 (General Prohibition) of Town of Caledon Zoning By-law 2006-50, as amended, use the land, being zoned Environment Policy Area 2 - Oak Ridges Morraine (EPA2-ORM), for a use other than as permitted in Table 11.1 of Subsection 11.2 of Town of Caledon Zoning By-law 2006-50, as amended, contrary to Section 67 of the Planning Act
and further, on or about the 13th day of May, 2020, Gurdev Sidhu, Jaskaran Sidhu and Eagle Demolition & Excavation Inc., at 15961 The Gore Road, legally described as Part of Lot 20, Concession 4 (Albion) designated as Part 1 on 43R-11663; Town of Caledon; Regional Municipality of Peel, did commit the offence of, contrary to Subsection 11.1 (General Prohibition) of Town of Caledon Zoning By-law 2006-50, as amended, use the land, being zoned Environment Policy Area 2 - Oak Ridges Morraine (EPA2-ORM), for a use other than as permitted in Table 11.1 of Subsection 11.2 of Town of Caledon Zoning By-law 2006-50, as amended, contrary to Section 67 of the Planning Act
and further, on or about the 20th day of August, 2020, Gurdev Sidhu, Jaskaran Sidhu and Eagle Demolition & Excavation Inc., at 15961 The Gore Road, legally described as Part of Lot 20, Concession 4 (Albion) designated as Part 1 on 43R-11663; Town of Caledon; Regional Municipality of Peel, did commit the offence of, contrary to Subsection 11.1 (General Prohibition) of Town of Caledon Zoning By-law 2006-50, as amended, use the land, being zoned Environment Policy Area 2 - Oak Ridges Morraine (EPA2-ORM), for a use other than as permitted in Table 11.1 of Subsection 11.2 of Town of Caledon Zoning By-law 2006-50, as amended, contrary to Section 67 of the Planning Act
(b) COURT APPEARANCES PRIOR TO THE COMMENCEMENT OF THE TRIAL
[37] The following is a chronological summary of the dates in which the defendants were required to appear virtually or to call in by telephone and whether the defendants had appeared virtually or by telephone. And, although no transcripts were provided in respect to the defendants’ appearances, the reasons for adjournments were provided by the prosecution and the defendants:
(1) Court Appearance on November 2, 2020 at 9:00 a.m.:
[38] None of the 3 defendants appeared or called in on November 2, 2021 for their first appearance by telephone conference. The court then adjourned the defendants’ matters until April 12, 2021 at 3:00 p.m. to be spoken to. For the November 2, 2020 date, the defendants were sent individual letters by Court Administration on October 7, 2020 informing them that their November 2, 2020 appearance date was no longer in person but to appear by telephone conference and to telephone a specific telephone number at a certain time and to use a specific meeting number that had been provided in the letter in order to make their appearance.
(2) Court Appearance on April 12, 2021 at 3:00 p.m.:
[39] On April 12, 2021, one of the defendants, Jaskaran SIDHU, appeared for himself and the other 2 defendants by telephone conference. This was the first time any of the 3 defendants had appeared. The court then adjourned the defendants’ matters until June 24, 2021 at 11:00 a.m. to be spoken to. The defendants were sent individual letters by Court Administration on March 8, 2021 informing them of April 12, 2021, as a date to appear by telephone conference and to telephone a specific telephone number at a certain time and to use a specific meeting number that had been provided in the letter in order to make their appearance
(3) Court Appearance on June 24, 2021 at 11:00 a.m.:
[40] On June 24, 2021, Jaskaran SIDHU, appeared again for himself and the other 2 defendants by telephone conference. The defendants’ matters were then adjourned until August 16, 2021 at 9:00 a.m. to be spoken to. The defendants were sent individual letters by Court Administration on May 14, 2021 informing them of June 24, 2021, as a date to appear by telephone conference and to telephone a specific telephone number at a certain time and to use a specific meeting number that had been provided in the letter in order to make their appearance
(4) Court Appearance on August 16, 2021 at 9:00 a.m.:
[41] On August 16, 2021, Douglas Allen, the defendants’ legal representative, appeared for the defendants. The defendants’ matters were then adjourned for a Judicial Pre-Trial Conference to be conducted on October 28, 2021 at 9:00 a.m.
(5) Court Appearance on October 28, 2021 at 9:00 a.m.:
[42] On October 28, 2021, the Judicial Pre-Trial Conference was commenced with Douglas Allen, the defendants’ legal representative and with Naomi Klein, the prosecutor for the Town of Caledon. An “all day” trial date was selected and set for March 22, 2022. In addition, the continuation of the Judicial Pre-Trial Conference was also scheduled for January 13, 2022. The prosecution submits that various issues were discussed at the judicial pre-trial, with one of the those being the requirement for the prosecutor to provide the defendants with details of the alleged offence, known as "particulars". The judicial pre-trial was then adjourned to January 13, 2022.
(6) Court Appearance on January 13, 2022 at 9:00 a.m.:
[43] On January 13, 2022, the Judicial Pre-Trial Conference was continued with Douglas Allen, the defendants’ legal representative, and with Naomi Klein, the prosecutor for the Town of Caledon. The trial date of March 22, 2022 for preliminary motions and a one-day trial was also confirmed by both parties. The prosecution also submits that particulars were provided orally to the defendants’ legal representative during the Judicial Pre-Trial Conference. However, the defendants’ legal representative contends that the prosecution had refused to provide the “particulars” that had been requested by the defendants at the Judicial Pre-Trial Conference and that the defendants’ matters had been scheduled for trial despite the defendants’ objections.
(c) Disclosure has been provided to the defendants and to the defendants’ legal representative
[44] The prosecution submits that on or about December 9, 2020, the prosecution had provided the defendants with a disclosure package that contains the evidence the prosecutor would rely on in to prove the charges against the defendants.
[45] Moreover, the prosecution submits that they have provided disclosure of the prosecution’s evidence on 3 separate occasions – on two occasions to the defendants and one occasion to the defendant’s legal representative. The prosecution also submits that the defendants’ legal representative, Douglas Allen, also confirmed receipt of his copy of the disclosure that had been resent by the prosecution in January of 2022.
(d) Particulars have been provided to the defendants and to the defendants’ legal representative
[46] The defendants contend that the prosecution did not respond to their request for particulars nor has the prosecution provided any particularization of the circumstances of the alleged offences, as required by the Provincial Offences Act and the Charter. In reply, the prosecution acknowledge that on January 10, 2022, the defendants’ legal representative had written to the prosecution requesting the particulars that had been discussed at the Judicial Pre-Trial Conference held on October 28, 2021. However, the prosecution submits that they had provided particulars of the offences to the defendants’ legal representative at the Judicial Pre-Trial Conference, namely, particulars about the circumstances which would comprise the offence for all 4 counts set out in the charging document. Moreover, the prosecution submits that it was on January 13, 2022, at the continuation of the Judicial Pre-Trial Conference that they had “verbally” provided particulars to the defendants’ legal representative.
[47] In addition, during the hearing of the defendants’ s. 11(a) Charter motion on March 22, 2022, the prosecution also submitted that the justice of the peace presiding at the Judicial Pre-Trial Conference did not order that the information be formally particularized.
[48] Furthermore, prior to the arraignment of the defendants on March 22, 2022, the prosecution did not request that the 4 counts or the information be amended by formally adding written “particulars” to the 4 counts in respect to the request made by the defendants’ legal representative for formal particulars.
[49] Moreover, in their “Reply to the Defendants’ Factum”, the prosecution had stated that the charge as indicated on the face of the Information alleges that the defendant had used the land that was zoned EPA2-ORM for a use other than as permitted in the Zoning Bylaw, and that the specific “wrongful use” being alleged in the defendants’ case was set out in the disclosure and that the defendants were using the land in question as a “contractor's facility”, which the prosecution submits is not a permitted use under the relevant tables of the Zoning Bylaw.
[50] Furthermore, the prosecution also submits that the Town of Caledon Zoning Bylaw #2006-50 and all its appendixes are readily available to all individuals both online and in hard copy upon request of the Town of Caledon.
(e) Defence Motion for a Mistrial
[51] When the prosecution had informed this court during the hearing of the defendants’ s. 11(a) Charter motion on March 22, 2022, about rulings that the justice of the peace presiding at the Judicial Pre-Trial Conference had made, the defendants’ legal representative immediately objected to this court being told by the prosecution about those rulings made by the justice of the peace at the Judicial Pre-Trial Conference, and then immediately moved for a mistrial, arguing that such rulings made within the Judicial Pre-Trial Conference were supposed to be confidential and not disclosed to the trial court and that nothing said in the Judicial Pre-Trial Conference can be revealed to the trial justice.
[52] After hearing submissions, this court dismissed the defendants’ motion for a mistrial, as this court is required to consider prior judicial rulings in determining various applications or motions and for resolving any issues between the parties. Furthermore, the trial court needs to be informed of those prior judicial rulings in order to hold parties accountable to decisions made and agreed to during the Judicial Pre-Trial Conference. In addition, hearing information about prior judicial rulings or orders does not have the same potential prejudicial effect as hearing information or evidence that potentially reveals proof of the guilt of an accused person. Moreover, evidence which only goes to the determination of procedural questions or issues, which is not evidence that reveals proof of the guilt of an accused person, may generally be divulged to the trial court for challenging a misrepresentation made by one of the parties at an earlier court appearance or at the Judicial Pre-Trial Conference. But more important, this is not a trial before a jury and this court can disabuse its mind of information which had been revealed during the Judicial Pre-Trial Conference that has been subsequently disclosed during argument or submissions made in the present Charter and other “in-trial” motions, which may or may not be relevant to any legal or factual issues that have to be decided in the trial proper.
(f) Rulings of the presiding justice at the Judicial Pre-trial Conference are permitted to be considered by the trial justice
[53] The defendants had brought a motion for a mistrial which had been subsequently dismissed by this court that had been based on the notion that communications, discussions, or statements made by the parties in the Judicial Pre-trial Conference prosecution are privileged and confidential and cannot be disclosed or used during the trial. The motion for a mistrial was brought after the prosecution had provided information on what the presiding justice of the peace at the Judicial Pre-trial Conference had ruled or decided in respect to the defendants’ request for particulars. The Judicial Pre-trial Conference justice of the peace had also ruled that an Order for Particulars would not be granted and that the issue of a defence request for the prosecution to disclose McNeil disclosure, the curriculum vitae of the Investigating Provincial Offences Officer, the name of the complainant who telephoned the Town of Caledon complaining about the land in question, and the notes or transcribed recording of the complainants’ telephone call or calls to the Town of Caledon could be raised at trial.
[54] Rulings made by the presiding justice of the peace at the Judicial Pre-trial Conference are not privileged or confidential and may be used and considered at trial, as those rulings are about ensuring proper use of available time in the trial courts, to keep proceedings moving forward efficiently, for enforcing deadlines to provide documents, and for keeping the parties accountable for any agreements that are made by the parties at the Judicial Pre-trial Conference. However, any information provided by the parties in discussions for resolving charges would be privileged and can not be used subsequently at trial to prove the charges against the defendants.
(g) Defendants’ legal representative appears to have knowledge of the alleged “wrongful use” which contravenes s. 11.1 of the Zoning Bylaw
[55] In respect to the defendants’ contention that they are not able to make full answer and defence, as they do not know the circumstances of the specific offence because of the lack of particulars from the prosecution and that the 4 counts do not state what the alleged wrongful use is that contravenes s. 11.1 of the Zoning Bylaw, the defendants’ legal representative nevertheless had commented during the hearing of the s. 11(a) Charter motion on March 22, 2022, that the alleged “wrongful use” which contravenes s. 11.1 had been for storing or parking construction vehicles on the land in question and that the defendants would, in any event, raise the defence that the construction vehicles were not being stored or parked on the land, but were present on the land, as they were being used for constructing a driveway on the property.
3. APPLICABLE LAW
[56] In all 4 counts, the defendants have been charged with contravening s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50, which provides that “No personal shall, within any Environmental Policy Area Zone, use any land, or erect, alter, enlarge, use or maintain any building or structure for any use other than as permitted in Table 11.1 of Subsection 11.2”. In particular, Table 11.1 in s. 11.2 sets out 8 uses that are legally permitted uses for land that is zoned “Environment Policy Area 2 - Oak Ridges Morraine (EPA2-ORM), which is the zoning classification for the land in question as stated in the 4 counts. The 8 permitted uses for this particular zoned area (EPA2-ORM) are [emphasis is mine below]:
(1) Agricultural Uses, Existing (ORM);
(2) Dwelling, Detached;
(3) Environmental Management;
(4) Forest Management;
(5) Home Business (ORM);
(6) Low-Intensity Recreational Uses (ORM); and
(7) Transportation, Infrastructure and Utilities with the exception of stormwater management ponds
SECTION 11 ENVIRONMENTAL POLICY AREA ZONES
11.1 GENERAL PROHIBITION
No personal shall, within any Environmental Policy Area Zone, use any land, or erect, alter, enlarge, use or maintain any building or structure for any use other than as permitted in Table 11.1 of Subsection 11.2 and in accordance with the standards contained in Table 11.2 of Subsection 11.3, the General Provisions contained in Section 4 and the Parking, Loading & Delivery Standards contained in Section 5.
11.2 PERMITTED USES
Uses permitted in an Environmental Policy Area Zone are noted by the symbol ‘✔’ in the column applicable to that Zone and corresponding with the row for a specific permitted use in Table 11.1. A number(s) following the symbol ‘✔’, zone heading or identified permitted use, indicates that one or more conditions apply to the use noted or, in some cases, to the entire Zone. Conditions are listed below the Permitted Use Table, Table 11.1.
The Environmental Policy Area Zones established by this By-law are as follows:
. EPA1 Environmental Policy Area 1
. EPA2 Environmental Policy Area 2
EPA1-ORM Environmental Policy Area 1 – Oak Ridges Moraine
EPA2-ORM Environmental Policy Area 2 – Oak Ridges Moraine
The Environmental Policy Area Zone – Oak Ridges Moraine represents lands within the Oak Ridges Moraine Conservation Plan Area that are located in a Key Natural Heritage Feature, or a Hydrologically Sensitive Feature and/or the feature’s associated minimum vegetation protection zone.
TABLE 11.1
USE
ZONES
EPA1
EPA2
EPA1-ORM
EPA2-ORM
Agricultural Uses, Existing (ORM)
Apartment, Accessory
Dwelling, Detached
✔(3)
Environmental Management
Farm, Existing
Forest Management
Home Business (ORM)
✔(4)
Home Occupation
✔(1) (2)
Low-Intensity Recreational Uses (ORM)
Recreation, Non-Intensive
Transportation, Infrastructure and Utilities with the exception of stormwater management ponds
Footnotes for Table 11.1
(1) No more than 6 students are permitted in any one lesson for a home occupation involving the instruction of a craft or skill.
(2) Permitted in a detached or semi-detached dwelling only.
(3) Permitted only on a vacant lot of record where a single detached dwelling would have been permitted as of November 15, 2001 and accessory uses thereto.
(4) Permitted in a detached dwelling only.
[57] Furthermore, s. 1.3 of Zoning Bylaw #2006-50, states that “No land, building or structure may be used, erected or altered except in accordance with the provisions of this By-law”. In addition, for the purpose of Zoning Bylaw #2006-50, “provisions shall include both Permitted Uses as well as Zone Standards” [emphasis is mine below]:
1.3 CONFORMITY AND COMPLIANCE WITH BY-LAW
No land, building or structure may be used, erected or altered except in accordance with the provisions of this By-law. For the purpose of this By-law, provisions shall include both Permitted Uses as well as Zone Standards
No land, building or structure may be located or used such that the uses, buildings or structures on other lands would no longer comply with the provisions of this By-law.
[58] In addition, s. 1.4 of Zoning Bylaw #2006-50, states that “Where a (✔) symbol appears in a table it shall mean, when used in a Use Table, that the use is permitted in that Zone” [emphasis is mine below]:
1.4 INTERPRETATION
The zone standards of this By-law are the minimum requirements except where a maximum requirement applies.
Where a (✔) symbol appears in a table it shall mean, when used in a Use Table, that the use is permitted in that Zone. When used in a Zone Standards Table, it shall mean that the regulation applies to the specific Zone.
Nothing in this By-law shall serve to relieve any person from any obligation to comply with the requirements of any other By-law of the Town of Caledon or any requirement of the Region of Peel, the Province of Ontario, an agency established by the Province of Ontario, or the Government of Canada that may affect the use of lands, buildings or structures in the Municipality.
[59] Moreover, s. 3.2 of Zoning Bylaw #2006-50, contains definitions of words and terms that apply to the Zoning Bylaw, which may be relevant to the determination of the Charter application and other “in-trial” motions:
3.2 DEFINITIONS
The following definitions apply to all the lands within the limits of the Town of Caledon, excepting those lands and areas listed in Section 1.1 of this By-law.
Existing means lawfully existing as of the effective date of this By-law, unless as otherwise specified in this By-law. In the case of the Oak Ridges Moraine Conservation Plan Area as shown on Schedule A to this By-law, existing shall mean lawfully existing on or before November 15,2001, and for greater certainty does not include a use, building or structure that is in existence on that date without being lawful.
Home Business (ORM) applies only to lands within the Oak Ridges Moraine Conservation Plan Area and means an occupation that:
a) involves providing personal or professional services or producing custom or artisanal products,
b) is carried on as a small-scale accessory use within a single detached dwelling by one or more of its residents, and
c) does not include uses such as an auto repair or paint shop or furniture stripping.
Home Industry (ORM) applies only to lands within the Oak Ridges Moraine Conservation Plan Area and means a business that:
a) is carried on as a small-scale use that is accessory to an agricultural operation,
b) provides a service such as carpentry, metalworking, welding, electrical work or blacksmithing, primarily to the farming community,
c) may be carried on in whole or in part in an accessory building, and
d) does not include uses such as an auto repair or paint shop or any use that involves furniture stripping.
Home Occupation means an occupation or business which is conducted entirely within a dwelling unit and which is clearly subordinate or incidental to the principal use of the dwelling unit for residential purposes.
Loading/Delivery Space means an unobstructed area of land which is used for the temporary parking of one or more commercial motor vehicles while merchandise or materials are being loaded or unloaded from such vehicle.
Motor Vehicle means an automobile, truck, motorcycle, and any other vehicle propelled or driven otherwise than by muscular power, but does not include the cars of electric or steam railways, or other motor vehicles running only upon rails, or a trailer, tourist vehicle, bus, all-terrain vehicle, motorized snow vehicle, traction engine, farm tractor, self-propelled implement of husbandry or road building machine within the meaning of The Highway Traffic Act.
Motor Vehicle Compound means a lot containing a building or portion of a lot containing a building, which premises are used for the temporary storage and impounding of motor vehicles taken from a collision scene or otherwise towed or conveyed and awaiting repair or demolition, retrieval, or disposal.
Non-Complying means a lot, building or structure which is permitted by this By-law and lawfully existed as of the effective date of this By-law, but which does not comply with the standards of the zone in which it is located.
Non-Conforming means a use which lawfully existed as of the effective date of this By-law, but is not a permitted use for the zone in which it is located.
Oak Ridges Moraine Conservation Plan Area means the area as shown on the Schedules to this By-law and as described in Section 2 of the Oak Ridges Moraine Conservation Plan.
Open Storage Area, Accessory means land used for the outside storage of equipment, goods or materials accessory to a permitted non-residential use. This definition shall not include a parking area, a delivery space or a loading space or any use otherwise defined in this By-law.
Park means an open space area, owned, operated or maintained in whole or in part, by a public authority as a recreational area for public use, including intensive recreation and non-intensive recreation.
Park, Private means an open space area not under public jurisdiction used for intensive recreation and non-intensive recreation.
Parking Area means an open area of land, accessory to a permitted use, not located on a public street, private street or lane which is used for the parking of motor vehicles, but shall not include any area where motor vehicles for sale or repair are kept or stored.
Parking Area Setback means the least horizontal distance permitted between a parking area and an adjacent lot line.
Parking Garage means a building or part thereof, used for the storage or parking of motor vehicles.
Parking Lot, Commercial means an area of land used for the parking of motor vehicles, other than commercial motor vehicles with a gross registered vehicle weight of more than 2000 kilograms, for a fee, with such use forming the principal land use of a lot.
Parking Lot, Municipal means an area of land used for the parking of motor vehicles that is owned and/or controlled by a public authority.
Parking Space means an unobstructed space for the parking of a motor vehicle.
Person means any human being, association, firm, partnership, incorporated company, corporation, agent or trustee, and the heirs, executor or other legal representatives of a person to whom the context can apply.
Recreational Uses, Low-Intensity (ORM) applies only to lands within the Oak Ridges Moraine Conservation Plan Area and means recreational uses that have minimal impact on the natural environment, and require very little terrain or vegetation modification, and few, if any, buildings or structures, including but not limited to the following:
non-motorized trail uses,
natural heritage appreciation,
accessory uses.
Region means The Regional Municipality of Peel.
Transportation Depot means a lot used principally for the storage, servicing, hiring, loading or unloading of trucks, buses or other fleet vehicles and must include a building containing a use directly related to the parking, storing, servicing, hiring, loading or unloading of such fleet vehicles. This may include the temporary storage of goods or wares prior to shipment.
Use means the purpose for which any portion of a lot, building or structure is designed, arranged, intended, occupied or maintained. Unless otherwise specified, this definition shall not include private septic sewage disposal systems.
Use, Accessory means a use which is clearly incidental, subordinate in size and exclusively devoted to a main building or main use and located on the same lot therewith.
[60] For the purposes of penalty, a contravention of s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50 is governed by the penalties contained in s. 67 of the Planning Act, R.S.O. 1990, c. P.13. Under s. 67(1)(a), the maximum fine that a court can impose on a person or a director of a corporation convicted of contravening s. 11.1 is the maximum fine of $25,000 on a first conviction. For a corporation convicted of contravening s. 11.1 the maximum fine that could be imposed according to s. 67(2) would be a fine of $50,000 on a first conviction. In addition, under s. 67(3) the sentencing justice on conviction of the defendants may also make an order prohibiting the continuation or repetition of the offence by the person convicted [emphasis is mine below]:
Penalty
67(1) Every person who contravenes section 41, section 46, subsection 49 (4) or section 52 or who contravenes a by-law passed under section 34 or 38 or an order made under section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable,
(a) on a first conviction to a fine of not more than $25,000; and
(b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted.
Corporation
(2) Where a corporation is convicted under subsection (1), the maximum penalty that may be imposed is,
(a) on a first conviction a fine of not more than $50,000; and
(b) on a subsequent conviction a fine of not more than $25,000 for each day or part thereof upon which the contravention has continued after the day on which the corporation was first convicted, and not as provided in subsection (1).
Order of prohibition
(3) Where a conviction is entered under subsection (1), in addition to any other remedy or any penalty provided by law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.
4. ANALYSIS
[61] The defendants’ have brought 3 distinct primary motions and one motion in the alternative in these “in-trial” applications. For their first motion, they contend that their s. 11(a) Charter right to be promptly informed of the specific offence without delay has been infringed since the 4 counts set out in the charging document are lacking an essential averment and the prosecution refuses to provide formal particulars in respect to the 4 counts, and therefore the defendants seek a remedy of a stay of proceedings and costs under s. 7 and s. 24(1) of the Charter, since the defendants will be unable to make full answer and defence or to have a fair trial. The defendants also brought in the alternative a motion for an order for particulars and an adjournment if their s. 11(a) Charter motion is dismissed. In their second motion, they contend that the charge in count #1 has been laid outside the limitation period of 6 months, and as such, they seek an order quashing count #1 for being an invalid charge ab initio. For their third motion, they seek an adjournment and an order compelling the prosecution to disclose to them the following items: (1) McNeil disclosure pertaining to the Investigating Provincial Offences Officer, (2) the curriculum vitae of the Investigating Provincial Offences Officer, (3) the name of the complainant who called the Town of Caledon and made a complaint about the property in question, and (4) the notes or the transcribed recording of the complainant’s telephone call or calls of complaint to the Town of Caledon about the property in question.
[62] For the three primary motions and the motion in the alternative, the s. 11(a) Charter motion will be decided first in these written reasons. If the defendants’ rights under s. 11(a) have been infringed, then it will have to be determined what the appropriate remedy should be under s. 24(1) of the Charter, including whether an order for costs should be made against the prosecution. If it is decided that the defendants’ s. 11(a) rights have not been infringed then the defendants’ motion will be dismissed, as well as the motion for costs. Next, the motion in the alternative for an order for particulars and an adjournment will be considered and may be granted if it is necessary to ensure a fair trial, unless it would fail to satisfy the ends of justice.
[63] Following consideration of the defendants’ motion in the alternative, the second motion will then have to be determined on whether count #1 should be quashed for being void on account of being laid outside the limitation period of 6 months.
[64] Finally, the third motion will then be decided on whether an adjournment should be granted and the prosecution ordered to produce or provide the defendants with McNeil Disclosure pertaining to the Investigating Provincial Offences Officer, the curriculum vitae of the Investigating Provincial Offences Officer, the name of the complainant who made a complaint to the Town of Caledon about the property in question, and the notes or transcribed recording of the complainant’s call or calls made to the Town of Caledon about the property in question.
(a) FIRST MOTION: S. 11(a) CHARTER MOTION
[65] In the s. 11(a) Charter application, the defendants contend that they have not been informed of the substance of their 4 charges without delay as the 4 counts in the charging document do not describe in sufficient detail what the defendants have allegedly done wrong to contravene s. 11.1 of Zoning Bylaw #2006-50. In addition, the defendants submit that they had requested particulars from the prosecution in respect to the 4 counts, but that the prosecution had refused to provide particulars for the offences set out in the 4 counts, so as a consequence the defendants contend that they would not be able to properly make full answer and defence or to have a fair trial.. Furthermore, the defendants submit that the 4 counts in the information only state that they have contravened s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50 on 4 separate dates by engaging in a use in respect to the property located at 15961 The Gore Road, in the Town of Caledon, which is not permitted as a use for that specifically zoned land, but that the statement of offence in the 4 counts do not expressly state what that “wrongful use” had been.
[66] In addition, the defendants’ legal representative submits that he had made a request to the prosecution to provide him with specific details about the charges laid against the defendants. However, the defendants’ legal representative contends that the prosecution did not respond to his request for specific details, nor has the prosecution provided any details of the circumstances of the alleged offences as required or provide any particularization of the circumstances of the alleged offences as required by the Provincial Offences Act and the Charter.
[67] And, because the prosecution will not formally particularize the counts contained in the charging document, the defendants contend that their s. 11(a) Charter rights of being informed of the specific offence without unreasonable delay have been infringed. Specifically, the defendants argue that their s. 11(a) rights have been violated because the counts on the charging document are silent as to what event or set of circumstances would supposedly be in violation of s. 11.1. And, because the 4 counts have not been formally particularized, the defendants contend that they cannot properly prepare for trial nor be able to make full answer and defence, and as such, submit that their fair trial interests have been violated.
[68] And, as a consequence of this alleged s. 11(a) Charter violation, the defendants seek a remedy under s. 7 and s. 24(1) of the Charter for a stay of proceedings, or alternatively, an Order for particulars and an adjournment. The defendants also seek an Order for costs in favor of the defendant and against the prosecution as a remedy under s. 24(1).
[69] In response to the defendants’ claim that their s. 11(a) Charter rights have been violated, the prosecution submits that they have properly informed the defendants of the substance and nature of the wrongful event in respect to the defendants’ charges, and this information about the nature and circumstances of the wrongful event had also been provided by the Provincial Offences Officer to the defendants, and that the particulars of the s. 11.1 Zoning Bylaw offences had also been communicated and provided orally to the defendants’ legal representative during the Judicial Pretrial Conference. Furthermore, the prosecution submits this information had been also contained in the disclosure package that had been provided both to the defendants and to the defendants’ legal representative. Accordingly, the prosecution submits that the 4 counts set out in the information do not have to be formally particularized.
[70] Furthermore, the prosecution submits that the defendants' Charter rights have been respected at all times and that the extreme remedy of a stay of proceedings is not warranted. In addition, the prosecution maintains that the defendants have not demonstrated prejudice to their ability to make full answer and defence. However, relying on R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, at paras. 31-33, the prosecution submits that if the defendants do demonstrate that their disclosure rights have been violated, then the appropriate remedy would be an order for production or an adjournment of the trial. Moreover, the prosecution also purports that the defendants have been provided with complete particulars of the charges against them. Specifically, the prosecution submits that each count on the information provides clear and sufficient detail of the circumstances of the alleged offences by the defendants, as well as providing reasonable information with respect to the act or omission to be proven by the prosecution, and in identifying the actions referred to. In addition, the prosecution intimates that the Town of Caledon Zoning Bylaw #2006-50 and all its appendixes are public documents that are available to all individuals to review for clarification and that it is not the role of the prosecution to explain the bylaw or its definitions and schedules to the defendants’ legal counsel or representative.
[71] In addition, based on R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80 at para. 130, R. v. Tohl, 2009 ONCA 468 at para. 2, and R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R 244 at para. 35, the prosecution submits that the disclosure that has been provided to both the defendants and to their legal representative has been provided to them on three different occasions and is complete, and that this disclosure provides a fulsome outline of the charges, chronology, and evidence to be used by the prosecution to prove the charges. In addition, the prosecution argues that a stay of proceedings under s. 24(1) is a remedy of last resort and that stays should only be granted in the "clearest of cases" where the prejudice suffered is irreparable and where no other remedy will suffice. Moreover, the prosecution submits that this principle also applies when a stay is being sought for an alleged breach of s. 7 disclosure rights. To support their argument, the prosecution relies on Justice Cory’s holding that he wrote on behalf of a unanimous court in R. v. Dixon:
[A]n accused who seeks the extraordinary remedy of a stay of proceedings must not only establish, on a balance of probabilities, that the right to make a full answer and defence was impaired, but must also demonstrate irreparable prejudice to that right. [Emphasis Added]
[72] Moreover, the prosecution argues that even if this court were to conclude that there has been a breach of the defendants’ disclosure rights under s. 7 and their rights to be promptly informed of the specific offence under s. 11(a) of the Charter, the present case is not one of the "clearest cases" for a stay of proceedings, since any prejudice to the defendant that arises would not be irreparable. In addition, the prosecution further submits that the present case is not one where no remedy other than a stay will suffice, as the requested documents sought by the defendants to be disclosed are not relevant to the proceeding herein. In addition, adjournments as a remedy, submit the prosecution, have been found to be adequate in remedying any perceived prejudice to the defendants’ ability to make full answer and defence and to have a fair trial. Hence, the prosecution in relying on R. v. Johnson, [2007] O.J. 2228 (Ont. C.A.), submits that the drastic remedy of a stay is not appropriate in this case.
[73] But more importantly, the prosecution submits that neither the defendants nor their legal representative has presented any evidence to establish a breach of any Charter rights.
[74] Therefore, based on the wording of the 4 charges and the amount and nature of the information provided to the defendants and to the defendants’ legal representative about the circumstances and details of the transaction underlying the specific offences that the defendants have been charged with, have the defendants’ ability to make full answer and defence and to have a fair trial been irreparably prejudiced?
(1) WHAT ARE THE PROCEDURAL STEPS OR PATHS THAT ARE AVAILABLE FOR DEALING WITH DEFECTIVE COUNTS OR INFORMATIONS WHICH ARE MISSING AN AVERMENT OF AN ESSENTIAL ELEMENT OF THE OFFENCE?
[75] Before actually considering the s. 11(a) Charter motion, a review should be undertaken of the different procedural steps or routes that could be used for dealing with a defective count or information that is lacking an averment of an essential element of the offence.
[76] In general, there are several procedural steps or routes that may be utilized to deal with counts that contain an insufficiently worded charge or a defective count in an information. These routes include: (1) a Motion to Quash the information or count that is brought by the accused person; (2) a Motion to Amend the count or information that is brought by the prosecution; or (3) a Motion for an Order for Particulars that is brought by the accused person.
(a) THE MOTION TO QUASH THE COUNT OR INFORMATION ROUTE
[77] Although motions to quash a count or information for a missing averment of an essential element of the offence, or for lack of specificity in the wording of a charge, are rarely brought today by accused persons since there are broad powers of amendment or curative powers contained in both the Criminal Code and the Provincial Offences Act to deal with defective counts or informations. Nevertheless, a motion to quash may be still brought by an accused person and granted by the trial justice if the proposed amendment would not remedy any prejudice or that it cannot be made without injustice being done, or that an order for particulars for ensuring a fair trial would fail to satisfy the ends of justice.
(i) The Traditional Approach For Dealing With Informations Or Counts That Were Missing An Averment Of An Essential Element Of The Offence
[78] The traditional approach by courts of yesteryear in dealing with informations or counts that were missing an averment of an essential element of the offence was based on extreme technicality and rigid formalism. Normally, when there was an objection to an insufficiently worded charge or to a count lacking an averment of an essential element of the offence, the courts would simply quash that defective count or information for the reason it did not state an offence known to law.
[79] In R. v. R. (G.), 2005 SCC 45, [2005] S.C.J. No. 45 (S.C.C.), at paras. 58 to 61, Abella J., in writing the dissent on whether sexual assault was an included offence of the principal offence of incest, also reviewed the traditional approach for determining the sufficiency of a charge to properly inform an accused of the specific offence they had been charged with. For the traditional approach, Abella J. explained that at common law, and particularly by the beginning of the 19th century, the indictment had become in that era a highly technical document where proper language had been required strictly when framing the charges against an accused, and that all the facts and circumstances of the offence, including the intent, were required to be set out in great detail in the indictment and with meticulous certainty; otherwise, the information would be quashed. However, Abella J. confirmed that since Brodie v. The King, 1936 1 (SCC), [1936] S.C.R. 188 (S.C.C.), there has been an increased tendency for Canadian courts to reject such arguments on the basis that, in the words of Wilson J. in R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, "they are overly technical and an unnecessary holdover from earlier times". But more significantly, Abella J. noted that the Supreme Court has distanced itself from this type of approach where even the slightest defect made an indictment a nullity. She also reiterated Dickson J.’s comment in R. v. City of Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299, that Parliament has since made it abundantly clear in those sections of the Criminal Code dealing with the form of indictments and informations, that the punctilio of an earlier age is no longer to bind us and that the courts must look for substance and not petty formalities [emphasis is mine below]:
As with included offences, the fundamental principle which governs the interpretation of the information or indictment is that the accused must be provided with enough information to make full answer and defence. At common law, and particularly by the beginning of the 19th century, the indictment had become a highly technical document. Strictly proper language was required when framing the charges against an accused and all the facts and circumstances of the offence, including the intent, were required to be set out in the indictment in great detail and with meticulous certainty (see E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. (loose-leaf)), vol. 1, at p. 9-5; R. E. Salhany, Canadian Criminal Procedure (6th ed. (loose-leaf)), at paras. 6.800 to 6.840). There are examples of cases from this period where the failure to include the age of the complainant, or even of the accused, was considered fatal (see, e.g., R. v. Connolly (1867), 26 U.C.R. 317; R. v. Loftus (1926), 1926 468 (ON CA), 45 C.C.C. 390 (Ont. S.C., App. Div.); R. v. MacDonald (1952), 1952 343 (NS SC), 102 C.C.C. 337 (N.S.S.C.)).
The classic statement of the standard against which the sufficiency of the indictment was to be measured was articulated by this Court in Brodie v. The King, 1936 1 (SCC), [1936] S.C.R. 188. Rinfret J., writing for the Court, discussed the requirements of then s. 852 of the Code as follows:
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 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 ... of stating the facts alleged to constitute the indictable offence. [p. 193]
He outlined the justification for this degree of required particularity as follows:
... 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. [p. 194]
Since Brodie, however, there has been an increased tendency for Canadian courts to reject such arguments on the basis that, in the words of Wilson J. in R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, "they are overly technical and an unnecessary holdover from earlier times" (p. 42). In R. v. City of Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299, this Court distanced itself from an approach whereby even the slightest defect made an indictment a nullity. Writing for the Court, Dickson J. stated that "Parliament has made it abundantly clear in those sections of the Criminal Code having to do with the form of indictments and informations that the punctilio of an earlier age is no longer to bind us. We must look for substance and not petty formalities" (p. 1307).
[80] Furthermore, in R. v. Violette, [2008] B.C.J. No. 2776 (B.C. Supreme Ct.), Romilly J., at paras. 24 and 29, summarized the difference between the traditional approach and the modern approach in dealing with insufficiently worded charges or charges missing an essential averment. For the traditional approach, Romilly J. noted that informations were more often struck down by Canadian courts for failing to provide the accused with reasonable information to identify the transaction alleged to constitute the criminal offence. As for the modern approach in dealing with defective indictments, Romilly J. reiterated that putting or giving too much weight to technical matters is to be avoided, and instead, courts should allow an amendment whenever substantial compliance is present. This approach, Romilly J. concluded, is supported by the broad powers of amendment at either the trial or the appeal stage provided for in s. 601 of the Criminal Code. However, Romilly J. did note that a material defect in an information or indictment could still result in an incurable nullity [emphasis is mine below]:
The sufficiency argument in relation to the wording of criminal charges has considerable jurisprudential history. Prior to the 1985 Criminal Code amendments, which included the present day s. 581, informations were more often struck down by Canadian courts for failing to provide the accused with reasonable information to identify the transaction alleged to constitute the criminal offence. The classic statement of law was set out by the Supreme Court of Canada in 1936 in Brodie v. The King, 1936 1 (SCC), [1936] S.C.R. 188 at 196-198, where Rinfret J., delivering the reasons for the court, said:
It must contain, in substance, a statement of the specific act which is charged, although it is not necessary that it should "specify the means" by which the act was committed, or that it should name, or describe, "with precision" any person, place or thing.
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".
[Emphasis added]
In interpreting s. 581 of the Criminal Code it is sufficient to refer to the decision of the Supreme Court of Canada in R. v. Douglas, 1991 81 (SCC), [1991] 1 S.C.R. 301, for a summary of the current approach. In Douglas, Cory J., delivering the judgment of the Court, stated at p. 312:
Thus, the Code provides that the indictment must contain sufficient details of the circumstances of the alleged offence to give the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to. In cases where confusion exists as to the indictment, a provision is made for the accused person to obtain particulars. The indictment can and should be expressed in clear and simple language.
After reviewing a number of cases Cory J. continued at p. 314:
From these cases it can be seen that an indictment is adequate if it contains sufficient details to give the accused reasonable information with respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of the defence. Whether an indictment is sufficient will depend on the offence charged and the facts of the case.
The legal requirements for proper criminal pleadings are set out in s. 581 of the Criminal Code. Each count in an indictment must meet the requirements of s. 581 to be legally sufficient: See, David Watt & Michelle Fuerst, The 2004 Annotated Tremeear's Criminal Code (Toronto: Carswell, 2003) at 1014, and E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, looseleaf, 2nd ed., Vol. 1 (Aurora, Ont.: Canada Law Book Inc., 2004) at para. 9:1220. The modern approach to defective indictments is to avoid giving too much weight to technical matters and to allow an amendment whenever substantial compliance is present. See R. v. Clunas, 1992 127 (SCC), [1992] 1 S.C.R. 595.
The broad powers of amendment at either the trial or the appeal stage provided for in s. 601 of the Criminal Code support this approach (see R. v. Callocchia (2000), 2000 29873 (QC CA), 149 C.C.C. (3d) 215, 39 C.R. (5th) 374, (Que. C.A.)). However, this approach does not foreclose a finding of nullity in appropriate cases. A material defect in an information or indictment may still result in an incurable nullity. See, Ewaschuk at para. 9:1235.
The Golden Rule
The information must give the accused fair notice of the offence. In R. v. Coté, 1977 1 (SCC), [1978] 1 S.C.R. 8 at 13, de Grandpré J. said:
I agree with that submission; the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial. When as in the present case, the information recites all the facts and relates to a definite offence identified by the relevant section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to the extreme technicality of the old procedure.
In R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371, Binnie J., for the majority, wrote at paras. 11-12:
An important function of an indictment is to put the accused on formal notice of his or her potential legal jeopardy. It is equally important, of course, that if the Crown can establish some but not all of the facts described in the indictment or set out in the statutory definition of the offence, and such partial proof satisfies the constituent elements of a lesser and included offence, that the result be not an acquittal but a conviction on the included offence. As Professor Glanville Williams wrote, "an included offence is one that is made out of bits of the offence charged" ("Included Offences" (1991), 55 J. Crim. L. 234, at p. 234). Any other outcome would result in a waste of the resources expended on the trial.
The Crown's argument in this appeal triggers the notice issue. An accused is entitled to be properly apprised of the charge or charges he or she is required to meet: R. v. Guérin, [1996] Q.J. No. 3746 (QL) (C.A.), at para. 36 ....
(ii) The Days Of Extreme Technicality And Formalism Have Been Replaced With Flexibility And Substance
[81] In Rex v. Adduono et al., 1940 109 (ON CA), [1940] O.R. 184, Masten J.A., for the Court of Appeal for Ontario, had recognized a change in the Criminal Code and move away from the old procedure of extreme technicality and formalism in dealing with defective counts or informations to a more flexible approach based on substance and which facilitates the administration of justice in accordance with the very right of the case. Furthermore, Masten J.A. noted that the Criminal Code requires first, that the indictment shall contain as 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 second, that the Crown shall reasonably identify the transaction referred to. Specifically, Masten J.A. emphasized that the substance of the offence should be stated in the indictment. On the other hand, Masten J.A. emphasized that a count should not be vitiated if the count is absent or insufficient in detail of the offence to be proven. Then, in reviewing the deficient count at issue, Masten J.A. held that count 3 did state the substance of the offence, namely, a conspiracy to defraud the Crown of certain moneys. However, Masten J.A. reasoned that, even though the means by which the conspiracy was to be put in execution had not been stated in the indictment, it was a detail that was not essential to the validity of the indictment. Moreover, Masten J.A. also emphasized that the Criminal Code specifies that, “No count shall be deemed objectionable or insufficient for the reason only … that it does not specify the means by which the offence was committed”. On the other hand, Masten J.A. noted that if the Court on application had deemed it desirable to ensure a fair trial, then such detail should be supplied, and that could be done by the court ordering particulars to be provided to an accused [emphasis is mine below]:
My study of the existing provisions of the Code (secs. 853 and following, and including sec. 908) 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 technically and facilitating the administration of justice in accordance with the very right of the case. In that aspect they ought to receive "such fair, large and liberal construction and interpretation as will best secure the attainment of both of the two purposes above noted."
Sec. 853 of the Code requires two things: first, that the 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; second, that the Crown shall reasonably identify the transaction referred to.
Then follows this rider: "that the absence or insufficiency of such details shall not vitiate the count." This is discussed and explained in the Brodie case at p. 195, where it is said: "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."
I think that in count 3 there is stated the substance of the offence, namely, a conspiracy to defraud the Crown of certain moneys. The means by which the conspiracy was to be put in execution is a detail not essential to the validity of the indictment. If the Court on application deemed it desirable, in order to insure a fair trial, that such detail should be supplied, particulars can be ordered, but none appears to have been asked for.
Supplementing the provision that "the absence or insufficiency of such details shall not vitiate the count" we find two provisions of the Code which I think apply specifically to this count. Sec. 855(f) provides: "No count shall be deemed objectionable or insufficient for the reason only (f) that it does not specify the means by which the offence was committed."
In the present case the means by which the Crown was to be defrauded was the manufacture and sale of alcohol without paying a license fee and without paying the excise duty, and the statute provides that the omission to specify the "means" does not vitiate the count.
We find, however, a further provision under the Code which in terms applies to this count. Sec. 863 provides that "no count which charges ... any fraud or any attempt or conspiracy by fraudulent means shall be deemed insufficient because it does not set out in detail in what ... the fraud or fraudulent means consisted." This provision was not applicable in the Brodie case.
This leads me to the conclusion that the material allegation of the count, namely, "a conspiracy to defraud the Crown of certain moneys", contains all the material averments of matter as well as of time, place and person, constituting the fundamental ingredients of the particular crime which is charged in such a way as to specify the transaction intended to be brought against the accused, and that any further statement of details or means is unnecessary under the provisions of the Code.
In considering the position of the trial Judge when ruling as to whether this count does provide the accused with reasonable information as to the act or omission to be proved against them, and as to "whether the alleged defect in the indictment is material to the substantial justice of the case," the Court may under sec. 860, subsec. 2, have regard to the surrounding circumstances disclosed by the depositions on the preliminary hearing before the Magistrate. These depositions are not in the papers before this Court, and it is not clear whether the trial Judge relied upon them in reaching his conclusion. The only reference to them which I have found appears at the top of p. 18 of the evidence, where counsel for the Crown arguendo, says: "There was a very full and complete inquiry at which my learned friend, Mr. Slaght, was also present, and there were sixty pages of depositions taken at that time, and therefore I feel that the particulars were all in the hands of the accused."
There can be no doubt that under the circumstances of the arrest the indictment as drawn conveyed to the accused not only information that they were charged under sec. 444 of the Code, but also that the charge related to their manufacture and sale of alcohol without paying to the Government of Canada a license fee and without paying the excise duty due by law to the Crown, and thus they had reasonable information as to the act or omission to be proved against them.
The second requirement of sec. 853 of the Code is that the count shall "identify the transaction referred to." So far as this requirement relates to the adequacy of the notice afforded to the accused by count 3, it is met by what I have said above, but there still remains the question whether the indictment affords sufficient identification of the transaction referred to in case of a plea of autrefois acquit or autrefois convict is raised in answer to a subsequent prosecution.
(iii) The Modern Approach For Dealing With Informations Or Counts That Are Missing An Averment Of An Essential Element Of The Offence
[82] Similar to our system of justice which had transitioned from form to substance and from rigidity to flexibility, so has the court’s treatment of objections to the sufficiency of a count to inform an accused person of the specific offence for which they are charged. The traditional approach in respect to dealing with informations lacking an averment of an essential element of an offence had been to simply quash the information for the reason that there was no offence known in law. Furthermore, a trial judge at common law had no power to amend even a trifling error in the indictment. However, the technical requirements of yesteryear that led to the automatic quashing of informations have now been replaced with a more flexible approach that requires a court to first look to amending or curing the defective count, and only quashing the count or information if the count or information cannot be amended without causing prejudice or injustice, or that an order for particulars for ensuring a fair trial would not satisfy the ends of justice.
[83] Ergo, in the modern approach of dealing with informations lacking an averment of an essential element of an offence, the Supreme Court of Canada has emphasized that quashing a Criminal Code information for a defect was now less prevalent because of the broad amendment and curative powers provided for in the Criminal Code. This modern approach was recognized by the Supreme Court in R. v. Moore, 1988 43 (SCC), [1988] S.C.J. No. 58, where there had been an issue about a Criminal Code information that had had lacked the averment of an essential element of the offence, namely that Moore knew that the property had been obtained from the commission in Canada of an indictable offence. At Moore’s trial, the trial judge had pointed out the defect of the missing averment and had asked defence counsel if he had a motion to quash under s. 529 [now s. 601] of the Criminal Code. Defence counsel then brought a motion to quash the defective counts and argued that those counts had disclosed no offence known to law, which both the trial judge and Crown counsel had agreed with the defence submission. However, in reply to the defence motion to quash, Crown counsel then moved that the pleas be struck in order to permit the Crown to amend the information pursuant to s. 529 [now s. 601] of the Criminal Code. The trial judge then asked if it was indeed possible to strike the pleas and Crown counsel agreed that the court could not. Defence counsel then argued that it was not possible at all to amend the defective counts where the defective counts had simply failed to allege an offence, rather than alleging one improperly. The trial judge and Crown counsel had also agreed with the defence’s argument that counts which had failed to allege an offence could not be amended, so the trial judge then quashed the defective counts.
[84] Subsequently, a new information containing the necessary words that had been omitted from the defective counts in the earlier information was then sworn. At the trial of that second information, Moore had entered pleas of autrefois acquit on those counts that had been found to be defective in the first information. However, the second trial judge refused the special pleas of autrefois acquit because he had accepted the Crown's submission that the counts in the first information had been "hopelessly bad". The second trial judge also ruled that because there had never been any allegation of criminal misconduct, Moore had never been in peril of conviction, since the first requirement for a special plea of autrefois acquit had not been present, so the special plea would therefore not be available. As a result, Moore then entered pleas of not guilty to those two charges and was subsequently convicted on one of the counts in which he had originally pled autrefois acquit. Moore then appealed to the British Columbia Court of Appeal, where the Court of Appeal disagreed with the first trial judge and held that the first trial judge had erred in law in quashing the defective counts, since the first trial judge could have simply amended them. The Court of Appeal also held that unamended counts were not nullities. Moore then appealed to the Supreme Court of Canada.
[85] At Moore’s appeal at the Supreme Court, Dickson C.J. in writing the dissent on the issue of jeopardy in R. v. Moore, 1988 43 (SCC), [1988] S.C.J. No. 58 (S.C.C.), at paras. 10 to 12, 14 to 17, and 19 to 21, had to consider the issue of whether quashing an information, after plea, for failure to allege a material averment constitutes a verdict of acquittal for the purpose of pleading autrefois acquit to a new information. In Dickson C.J.’s reasoning on how to deal with informations which are missing an averment of an essential element of an offence, the majority of the Supreme Court had also concurred with Dickson C.J.’s reasoning. In that respect, Dickson C.J. first noted that a trial judge traditionally at common law had no power to amend even a trifling error in the indictment without the agreement of the grand jury that presented it. This inability to amend coupled with extremely technical pleadings of yesteryear, Dickson C.J. noted, had meant that a defective indictment was a nullity. However, he also said that this nullity did not bar subsequent proceedings; otherwise, he emphasized, criminal charges would sometimes be determined solely by procedural questions. Furthermore, Dickson C.J. found that the modern approach for dealing with technical defects is more flexible than the traditional approach and is demonstrated in the two recent Supreme Court judgments of R. v. Major, 1976 173 (SCC), [1977] 1 S.C.R. 826, and R. v. Côté, 1977 1 (SCC), [1978] 1 S.C.R. 8. In referring to these two cases, Dickson C.J. indicated that under the modern approach it is no longer possible to say that a defective information is automatically a nullity disclosing no offence known to law. He also pointed out that if the document gives fair notice of the offence to the accused it is not a nullity and can be amended under the broad powers of amendment that s. 529 [now s. 601] of the Criminal Code gives to the courts. On the other hand, Dickson C.J. emphasized that only when a charge is so badly drawn up as to fail even to give the accused notice of the charge then it will fail the minimum test required by s. 510(2)(c) [now s. 581(2(c)] of the Criminal Code. In that case, Dickson C.J. said a charge that is this defective would then have to be quashed. In addition, Dickson C.J. also found that the cases of Major and Côté had established that a conviction is still possible on a defective information and that the conviction would be upheld on appeal. Furthermore, Dickson C.J. also indicated that either side can point out defects in process to the trial judge and where there is no motion to quash or to amend and a defence is tendered, then there would no need to amend the information. Dickson C.J. also reasoned that as long as the defect does not prejudice the accused and the Crown actually proves all the elements of the offence, a conviction will be valid. But more importantly, Dickson C.J. concluded that defects in form do not defeat what is valid in substance [emphasis is mine below]:
The first question in this appeal is whether Moore was in jeopardy at the first hearing. If not, autrefois acquit was not available at the second hearing and he would have been properly convicted. This was the position of the second trial judge. The judge stated that the first information was a nullity disclosing no charge known to law; since Moore could not have been convicted on that information, he was never in jeopardy and could not plead autrefois acquit. This decision is consistent with the traditional common law approach to defective indictments. At common law, a trial judge had no power to amend even a trifling error in the indictment without the agreement of the grand jury that presented it. This inability coupled with extremely technical pleadings meant that a defective indictment was a nullity that did not bar subsequent proceedings; otherwise, criminal charges would sometimes be determined solely by procedural questions. (Friedland, Double Jeopardy, at p. 65.)
There is a great deal to be said for the common law rule that a disposition on a technical defect in the charge will not bar subsequent proceedings. However, that result can no longer be justified on the basis that the accused was never in jeopardy. Two relatively recent judgments of this Court, R. v. Major, 1976 173 (SCC), [1977] 1 S.C.R. 826, and R. v. Côté, 1977 1 (SCC), [1978] 1 S.C.R. 8, demonstrate that the modern approach to technical defects is more flexible. At issue in both cases was the validity of a conviction based on a defective information. The Court upheld both convictions.
In R. v. Major, the accused was involved in a traffic accident and was charged with failure to report his license number and vehicle registration to someone at the scene, as required by the Nova Scotia Motor Vehicle Act. The charge stated only that the accused had not informed the other driver. The Nova Scotia Supreme Court, Appeal Division, held that a proper statement of the offence required an allegation of a failure to report to the other driver, to a passenger in the other car, or to a witness (R. v. Major (1975), 1975 1390 (NS CA), 10 N.S.R. (2d) 348). Since the information failed to mention the last two elements, it was seriously defective and did not disclose an offence known to law. The Appeal Division then went on to consider whether a conviction on a defective information could be upheld and concluded that it could, based on s. 510 of the Criminal Code. That provision provides that so long as a charge contains in substance an allegation that an offence has been committed, it is not a nullity. Provided that the accused has not been misled by the error, even the omission of an essential averment can be cured. The defective charge is voidable but amendable under ss. 529 or 732. There is one other factor: the omission of an essential averment does not free the Crown of its obligation to prove all the elements of an offence. For an appeal court to uphold a conviction, the Crown must have led some evidence at trial to prove all the elements of the offence. In other words, if the Crown proves the substance of the offence it does not matter that the process was defective, provided the accused was not misled or prejudiced by the defect.
This Court examined the same issue in greater depth in Côté. In that case, the accused was charged with refusal to give a breath sample, but the information did not allege "without reasonable excuse". Nevertheless, the accused advanced a defence of reasonable excuse at trial, at trial de novo, and on appeal, without any challenge to the information. The Saskatchewan Court of Appeal raised the issue of the defective information ex proprio motu and quashed the information. This Court allowed the appeal and restored the conviction.
Justice de Grandpré for the majority held there was no defect, since the information referred to the correct section number. That, together with the facts set out in the information, gave the accused full notice of the offence charged. de Grandpré J. went on to consider Major and decided that it applied. He interpreted Major to say that if the defect caused no substantial wrong or miscarriage of justice, and if the Crown had actually proved all the elements of the offence, then the conviction should be affirmed. Although s. 732 could have been used to amend the information, the conviction could be upheld on appeal without an amendment. Justice Spence for the minority, concurring in the result, held that the information was not defective because it referred to the Code section.
The result of these two cases is that it is no longer possible to say that a defective information is automatically a nullity disclosing no offence known to law. If the document gives fair notice of the offence to the accused, it is not a nullity and can be amended under the broad powers of amendment s. 529 gives to the courts. Only if a charge is so badly drawn up as to fail even to give the accused notice of the charge will it fail the minimum test required by s. 510(2)(c). A charge that is this defective would have to be quashed. R. v. Hunt, Nadeau, and Paquette (1974), 1974 1443 (BC CA), 16 C.C.C. (2d) 382 (B.C.C.A.) provides an example of a defective charge of this sort. The accused was apparently charged with intimidation by blocking a highway, but it was not clear from the information who was alleged to have blocked the highway nor did the charge refer to a Code section. The Court of Appeal held that the charge was so defective it could not be amended.
Major and Côté also establish that a conviction is possible on a defective information and that the conviction will be upheld on appeal. Both sides can point out defects in process to the trial judge. If there is no motion to quash or to amend and a defence is tendered, there is no need to amend the information (Côté, at p. 15). So long as the defect does not prejudice the accused and the Crown actually proves all the elements of the offence, a conviction will be valid. Defects in form do not defeat what is valid in substance.
The British Columbia Court of Appeal applied Major and Côté in two cases, R. v. Stewart (1979), 1979 2989 (BC CA), 7 C.R. (3d) 165 and Re Regina and Henyu (1979), 1979 508 (BC CA), 48 C.C.C. (2d) 471. Henyu held that defective informations are not nullities and can be amended at trial (at pp. 474-75). Stewart held that if the defect is not noticed at trial, the conviction will be upheld if there is no prejudice, injustice, or substantial wrong to the accused (at p. 174).
In the case at bar, the first information was clearly not a nullity. The accused knew that he faced a charge of possession of stolen goods. Neither Crown nor defence counsel even noticed the missing averment until the judge pointed it out. It is difficult to argue the accused was prejudiced by the missing averment. It is also fairly clear that the Crown would have led evidence to show that the accused had stolen the property in question, as the accused was also charged with theft. This evidence, if believed, would have supported the conclusion that the accused knew the property was obtained from the commission of an indictable offence in Canada, the missing averment from the possession charge. The Crown would therefore have led evidence to prove all the elements of the offence.
In these circumstances, it is very difficult as a practical matter to argue that the appellant was not in peril of conviction. Defence counsel, Crown counsel, and the judge all knew that Moore was charged with possession of stolen property, whatever the precise defect in the information. If the first trial judge had not noticed the defect and the accused had been convicted, the conviction would have been upheld on appeal under the principles set out in Major and Cote. From this it follows that the accused was truly in jeopardy at the first hearing, and the first requirement for a successful plea of autrefois acquit has been met.
[86] In short, the rigid and formalistic approach of dealing with informations or counts that were missing an averment of an essential element of the offence has now been replaced with an approach that is based on flexibility and substance to ensure just results, so that quashing informations or counts that were missing an essential averment is now rarely done because of the broad amendment and curative powers contained in both the Criminal Code and the [Provincial Offences Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p33/latest/rso-1990-c-p33.html