R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 SCR 985

Supreme Court of Canada

R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 SCR 985

Date: 1980-12-18

Her Majesty The Queen (Plaintiff) Appellant;

and

Richard Ferdinand Chabot (Defendant) Respondent.

1980: May 28, 29; 1980: December 18.

Present: Martland, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Procedure—Committal for trial—Preferred indictment—Extraordinary remedies to quash committal—Criminal Code, ss. 507, 507.1.

Criminal law—Preliminary hearing—Charge of second degree murder—Committal for trial for an offence other than the offence set out in the information—Criminal Code, ss. 463, 464, 469, 473, 474, 475, 504, 511,589.

The respondent was committed for trial by a Provincial Court Judge on a charge of first degree murder at the end of a preliminary hearing which had been proceeding on the basis of an information charging the respondent with the offence of second degree murder. On August 14, 1978, the crown attorney signed an indictment which was lodged with the Registrar of the Supreme Court of Ontario. On August 18, 1978 before the indictment was preferred before a trial court, the respondent challenged the committal for trial by way of an application for habeas corpus with certiorari in aid. Dupont J., of the Supreme Court of Ontario, dismissed the respondent’s application but the Court of Appeal set aside the order committing the respondent for trial on first degree murder and remitted the matter to the Provincial Court Judge to commit for trial on a charge of second degree murder, if so advised. The Crown’s appeal to this Court raised two questions: (i) does an indictment constitute a bar to an accused’s application for habeas corpus with certiorari in aid challenging his committal for trial and, if so, at what point does it constitute a bar, and (ii) does a judge conducting a preliminary inquiry have jurisdiction to commit an accused for trial on the offence of first degree murder when the information charges the accused with the offence of second degree murder.

Held: The appeal should be dismissed.

As to the first question, the Court of Appeal concluded correctly that at some point the indictment became the operative document in the criminal process. After presentment of the indictment, the accused is free to

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move to quash the indictment by motion made in the trial court but he can no longer attack the regularity of the committal for trial by certiorari. When an indictment is preferred pursuant so s. 507 without the intervention of the grand jury, there are not separate acts of preferral of a bill of indictment, and presentment of an indictment. There is but one act, that act being the placing by the appropriate authority of “an indictment in writing setting forth the offence” before the trial court. This act constitutes the commencement of the trial and is a combination of the steps of preferral and presentment. The simple act of signing and filing the indictment with the court clerk does not constitute preferment of the indictment sufficient to bar the right of the accused to challenge his committal order by way of certiorari. If the simple act of filing were to be determinative, the accused would be left in the position where his right to move to quash his committal for trial due to irregularities in the preliminary inquiry would depend upon the decision of the prosecutor as to the appropriate moment for filing the indictment. An indictment based upon a committal for trial without the intervention of a grand jury is not “preferred” against an accused until it is lodged with the trial court at the opening of the accused’s trial, with a court ready to proceed with the trial. The mere presence of the indictment, and of the accused, before the judge in the Assignment Court are not sufficient to deprive the accused of his right to move to quash his committal. An indictment is preferred when it is before a court empowered to dispose of the case. In this case the indictment was never before a trial court constituted to dispose of the case and it did not bar the respondent’s right to challenge his committal for trial.

As to the second issue, the inquiry of the judge presiding a preliminary hearing must be limited to ‘charges’ in informations outstanding against the accused at the time of the inquiry. If the scope of the preliminary inquiry were extended beyond actual ‘charges’ to include rumour or accusations, the basic principles of criminal law would be subverted. Even if s. 475(1) of the Criminal Code gives the power to the justice to commit “for trial” without imposing any express limitation on this power, this section must be read in the context of the preceding sections and the general scheme of Part XV of the Code. Logically, the power to commit cannot be larger than the power to inquire. Had Parliament wished to confer on a magistrate the power to commit an accused for any offence disclosed by the evidence, it could easily have done so in

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clear terms. There is no authority, express or implied, in the Code to commit for trial on other offences disclosed by the evidence, whether these offences are related or unrelated to the original charge, unless it is an included offence.

Doyle v. The Queen, 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597; R. v. Nyczyk (1919), 1919 CanLII 568 (MB CA), 31 C.C.C. 240; R. v. Botting (1966), 1966 CanLII 229 (ON CA), 48 C.R. 73, [1966] 2 O.R. 121; Ex p. Salajko (1974), 1974 CanLII 1425 (ON SC), 19 C.C.C. (2d) 368; R. v. Morin (1917), 1917 CanLII 602 (QC CA), 28 C.C.C. 269; R. v. Seguin (1912), 1912 CanLII 701 (QC CA), 20 C.C.C. 69; R. v. Elliott, 1969 CanLII 373 (ON CA), [1970] 2 O.R. 102; Re Beeds and The Queen (1972), 1972 CanLII 750 (SK QB), 8 C.C.C. (2d) 462; R. v. Philbin and Henderson (1977), 1977 ALTASCAD 242, 37 C.C.C. (2d) 528; R. v. Deol, Gill and Randev (1979), 1979 CanLII 1119 (AB QB), 12 C.R. (3d) 262; Re Joly and The Queen (1978), 1978 CanLII 2323 (ON SC), 41 C.C.C. (2d) 538; R. v. Sednyk (1956), 1956 CanLII 478 (MB QB), 23 C.R. 340; R. v. Harrigan and Graham (1975), 33 C.R.N.S. 60; Exp. McGrath (1975), 1975 CanLII 1274 (BC SC), 23 C.C.C. (2d) 214; R. v. Mooney (1905), 15 Que. K.B. 57; R. v. Philips (1906), 1906 CanLII 140 (ON SC), 11 O.L.R. 478; R. v. Brown, [1895] 1 Q.B. 119; R. v. Beaudoin (1913), 1913 CanLII 637 (QC CA), 22 C.C.C. 319; Re Shumiatcher, 1964 CanLII 360 (SK CA), [1964] 3 C.C.C. 359; Re Carriere, Preet and Davidson (1970), 14 C.R.N.S. 20; R. v. Monkman (1975), 1975 CanLII 1477 (MB CA), 30 C.R.N.S. 338; Eusler and Budovitch and The Queen (1978), 1978 CanLII 2473 (NB CA), 43 C.C.C. (2d) 501, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario¹, allowing an appeal from the dismissal of an application for habeas corpus with certiorari in aid to quash the committal for trial of the accused on a charge of first degree murder. Appeal dismissed.

David H. Doherty, for the appellant.

Donald B. Bayne and Alan D. Gold, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—Two questions fall to be decided in the present appeal: (i) does an indictment constitute a bar to an accused’s application for habeas corpus with certiorari in aid challenging his committal for trial and, if so, at what point does it constitute a bar, and (ii) does a judge conducting a preliminary inquiry have jurisdiction to commit an accused for trial on the offence of first degree

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murder when the information charges the accused with the offence of second degree murder.

I

The respondent, Richard Ferdinand Chabot, was charged in an information that on or about the 27th day of January 1978 at the City of Ottawa he did unlawfully kill one Dwayne Weldon Nichol, contrary to the form of the Criminal Code, s. 214. A preliminary inquiry proceeded in Ottawa before a judge of the Provincial Court (Criminal Division). Evidence was heard on each of three days. The Crown concluded its case on the second day and the accused elected to call evidence. On the third day defence counsel for the first time advanced the proposition that the information charged the offence of second degree murder and not first degree murder. Defence counsel was correct, of course, as s. 511 of the Code provides that no person shall be convicted for the offence of first degree murder unless in the indictment charging the offence he is specifically charged with that offence. The information did not specifically charge first degree murder and therefore s. 214(7) applied: all murder that is not first degree murder is second degree murder.

Counsel for the Crown advised the court that it had come as somewhat as a surprise to him that the preliminary hearing had been proceeding on the basis of an information which did not specifically charge first degree murder. He nonetheless requested a committal on the more serious charge. The Court indicated that the defence could call further evidence if so advised. Defence counsel declined the offer. On August 14, 1978, the judge concluded he had jurisdiction and committed the respondent for trial on the charge of first degree murder. The same day the crown attorney signed an indictment charging the respondent with that offence. The indictment was lodged with the registrar of the Supreme Court of Ontario at Ottawa.

By notice of motion dated August 18, 1978, returnable September 5, 1978, counsel for the respondent challenged the committal for trial by

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way of an application for habeas corpus with certiorari in aid.

On August 21, 1978, the respondent and his counsel appeared before a judge of the Supreme Court of Ontario in what is referred to in Ontario as “Assignment Court”, with a view to setting a date for trial. The presiding judge had the indictment before him and endorsed it to indicate when trial would commence. Trial did not proceed on the day assigned. Since the initial appearance the indictment has been dealt with by various judges of the Supreme Court of Ontario on six Assignment Court occasions. The respondent has never appeared on a fixed trial date; there is no suggestion in the endorsements on the indictment that he was ever arraigned or asked to plead to the indictment.

The respondent’s application for habeas corpus with certiorari in aid came before Mr. Justice Dupont on October 19, 1978 and was dismissed. The judge held that the power to commit for a more serious offence was supported by a series of cases which suggested that an accused could be committed for any criminal charge revealed by the evidence. Though none of the cases specifically authorized committal upon a more serious charge the power existed, in the opinion of Mr. Justice Dupont, at least where such other offence is “related” to the initial charge. While the power of a magistrate to commit for offences other than those specified in the information was not expressly authorized in the Code, such power was conferred by “necessary implication”: Doyle v. The Queen².

The respondent launched an appeal. The Court of Appeal allowed the appeal, set aside the order committing the respondent for trial on first degree murder and remitted the matter to the Provincial Court Judge to commit for trial on a charge of second degree murder, if so advised. The Court raised, proprio motu, the point as to whether it was open to the accused to attack his committal for trial once the indictment had been lodged.

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Brooke J.A., speaking for the Court, held that the indictment becomes the operative document only when it is “presented” to the Court and, in the circumstances, presentment had not occurred; the mere filing of the indictment did not operate as a bar to the accused’s application for habeas corpus with certiorari in aid.

On the substantive question, the Court held that the Provincial Court Judge could not commit on any charge disclosed by the evidence, but only a) upon the offence charged; b) on an included offence, or c) on an offence which the evidence disclosed the accused probably committed in the course of the alleged commission of the offence charged, but only where the evidence is not sufficient to put the accused on trial on the charge as laid. Brooke J.A. held there was no authority to commit an accused for an offence more serious than that specified in the information.

The Crown, with leave of this Court, now appeals.

II

The Indictment as a bar

Does the existence of an indictment at some point operate as a bar to an attack, by way of habeas corpus with certiorari in aid, upon the validity of the committal for trial; if so, at what point does it become a bar?

The Court of Appeal concluded, I think correctly, that at some point the indictment becomes the operative document in the criminal process. At that point, the indictment provides a “fresh starting point”. The indictment in effect becomes the foundation upon which the further proceedings are built. After presentment of the indictment, the accused is free to move to quash the indictment by motion made in the trial court but he can no longer attack the regularity of the committal for trial by certiorari.

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The Crown relies generally on a line of authority developed during the period when the grand jury was still common in Canada. Under that system anyone, including the attorney general, could prefer a bill of indictment before the grand jury. The law did not require any notice to be given to an accused nor was it necessary to obtain prior authorization before preferring the indictment. The grand jury would proceed to hear evidence from the witnesses whose names were endorsed on the back of the indictment. If the jury found that a prima facie case had been made out, they would return a true bill against the accused, and the foreman would endorse upon the indictment the words, “a true bill”. If the jury thought no such case had been made out, the foreman would endorse upon the indictment the words “no true bill”.

The public return of the bill in open court was termed the ‘presentment’ of the indictment. When, under the earlier procedure, an indictment had been presented, the trial of the accused upon the indictment could then proceed, notwithstanding any irregularities in the proceedings before the magistrate, these last mentioned proceedings forming no part of the trial or the indictment: R. v. Nyczyk³. See R. v. Botting⁴; Ex p. Salajko⁵; R. v. Morin⁶; R. v. Seguin⁷ and Tremeear’s Annotated Criminal Code (6th Ed.) 836.

In nine of the provinces, including Ontario, there is no longer any grand jury; the attorney general or his agent may now prefer an indictment to the court following a preliminary inquiry (s. 507(2) of the Code). This new procedure has raised the problem of the application of the jurisprudence developed under the grand jury regime. Specifically, at what point can it be said that an indictment brought under s. 507(2) is ‘presented’ to the court? When does the indictment become

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the operative document closing the door to a challenge, by certiorari, to the committal?

I agree with counsel for the Crown that where an indictment is preferred pursuant to s. 507 without the intervention of the grand jury, there are not separate acts of preferral of a bill of indictment, and presentment of an indictment. There is but one act, that act being the placing by the appropriate authority of “an indictment in writing setting forth the offence” before the trial court. This act constitutes the commencement of the trial and is a combination of the steps of preferral and presentment.

The Courts have spoken with less than complete unison as to the precise moment at which the indictment becomes the operative document in the proceedings. Broadly speaking, two views emerge from the authorities. The first is that expressed by Jessup J.A. in the case of R. v. Elliott⁸. In that case, in contrast to the instant case, the Crown was arguing that an indictment was not ‘preferred’ until the accused had actually been arraigned on the charge. Jessup J.A. dealt with the submission in these words.

It is the result of my view of what actually transpired at the trial that it is unnecessary to determine the precise moment at which an indictment must be deemed to be preferred within the meaning of s. 478. In R. v. Jun Goon et al. (1916), 1916 CanLII 345 (BC CA), 25 C.C.C. 415, 28 D.L.R. 374, 22 B.C.R. 381 sub nom. Jun Goon, Martin J.A., expressed the view that it is the reading of the charge to the accused by the clerk which constitutes the preferring of an indictment as well as the first part of the arraignment, the second part of which consists in asking the accused whether he is guilty or not. However, I think it is clear that preferment occurs at an earlier time in proceedings under ss. 486 and 487. If it were necessary to decide the point I would prefer the view that an indictment is preferred when it is delivered into the custody of a Court constituted to try the accused. (p. 106) (Emphasis added.)

This dictum was followd by J. Holland J. in Re Newstead and Dollan and The Queen (unreported decision of the Ontario High Court, October 30,

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1979). In that case, the Crown had preferred two indictments against two accused. The accused had appeared before a trial judge on a fixed trial date on two occasions but each time the proceedings had been adjourned. Subsequently, Holland J. heard applications to quash the committals for trial. He dismissed the applications on the ground that the indictments had been before a trial court constituted to try the accused and thus it was no longer open to the accused to challenge the committal for trial directly.

The other view that has emerged on the question is slightly different. In addition to requiring that the indictment be before a court ready to try the accused, this approach requires that the indictment actually shall have been read to the accused and a plea taken before the indictment becomes the operative document. In Re Beeds and The Queen⁹, Disberry J. heard an application to quash a committal for trial after an indictment had been signed by the attorney general and filed with the court. Disberry J. concluded that the signing and filing of the indictment were only administrative acts which did not alter the right of the accused to challenge his committal. He stated:

I find, following these authorities that indictments are “preferred” in Court and during the arraignment of the accused which precedes the commencement of the trial: R. v. Wakeling, Ex. p. Block, 1965 CanLII 420 (SK QB), [1966] 1 C.C.C. 90 at pp. 93 et seq., 52 W.W.R. 548 sub nom Block v. Schauerte. It is done by the Clerk reading the indictment to the accused followed by the question: “How say you, Are you Guilty or Not Guilty”, (p. 470)

This approach was endorsed by the Court of Appeal of the Province of Alberta in R. v. Philbin and Henderson¹⁰. In R. v. Deol, Gill and Randev¹¹ it was held that an indictment had been preferred when signed, handed to the clerk, and read to the accused.

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Other authorities which have had occasion to consider the question have not expressed any decided view on the precise moment at which it can be said that an indictment has been ‘preferred’, but have held that the simple act of signing the indictment and filing it with the clerk of the court cannot constitute preferment. One such case is Re Joly and The Queen¹², a decision of Mr. Justice Krever of the Ontario High Court. In that case an indictment had been signed and filed with the Court but no further action had been taken by the Crown. Krever J. rejected the submission that the accused could no longer challenge his right to committal:

The first matter to be dealt with is Mr. Macdougall’s submission that I have no jurisdiction to entertain this motion because an indictment has now been signed by an Assistant Crown Attorney as agent for the Attorney General and the applicant is now facing trial under that indictment and not the order of warrant of committal of the learned Provincial Court Judge. I do not accept that submission. I do not think that Ex parte Salajko (1974), 1974 CanLII 1425 (ON SC), 19 C.C.C. (2d) 368, and Re Stewart et al. and The Queen (No. 2) (1977), 1977 CanLII 2009 (ON CA), 35 C.C.C. (2d) 281, when read together, given the issues those cases actually dealt with, fairly give rise to the proposition that the jurisdiction of a Supreme Court Judge to entertain the important remedy of habeas corpus is removed simply by the Crown Attorney’s signing an indictment before the accused, who moves with reasonable speed after his committal, has in fact served his notice of motion. In this situation the race cannot be to the swifter. (p. 539) (Emphasis added.)

To the same effect is the judgment of Freedman J., as he was then, in R. v. Sednyk¹³. In this case the accused sought to quash his committal for trial after the indictment had been signed and filed. He was to be arraigned on the indictment in two days time. Freedman J. stated that “notwithstanding the existence of the indictment, the accused was entitled to bring the present motion” (p. 342). He proceeded to review the evidence and eventually set aside the committal order of the provincial court judge.

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In R. v. Harrigan and Graham¹⁴ (appeal dismissed for want of jurisdiction¹⁵), Mr. Justice Henry of the Supreme Court of Ontario noted the distinction between s. 505 of the Code (preferral of a bill of indictment before the grand jury of any court constituted with a grand jury) and s. 507, with which we are concerned, where there is no grand jury, saying at p. 64:

While s. 507 bears striking similarities to s. 505 of the Code (with which I am concerned) it is to be noted that in provinces where there is provision for a grand jury a bill of indictment is preferred before the grand jury and the latter presents the indictment to the court.

There is a distinction between the two subsections in that where there is no grand jury the indictment is preferred in the court at the opening of the trial and the accused is thereupon arraigned whereas under s. 505 the bill of indictment is preferred before the grand jury before the trial commences and in practice in the absence of the accused. It is not a part of the trial.

This review of the authorities yields the following three propositions:

1. The simple act of signing and filing the indictment with the court clerk does not constitute preferment of the indictment sufficient to bar the right of the accused to challenge his commital order.

2. Preferment of the indictment may occur when the indictment is before a trial court constituted to try the accused (R. v. Elliott, supra).

3. Alternatively, preferment may occur when the indictment is read to the accused in open court and he is asked to plead to the charge (Re Beeds, supra).

This ambiguity in the authorities was not entirely resolved by the judgment of the Court of Appeal in the present case. The relevant passage in the judgment of Brooke J.A. reads:

In my opinion the right of the accused to move against his committal for trial by way of habeas corpus with certiorari in aid was not affected by the unilateral act of simply signing and filing a form of indictment in the office of the registrar of the Court. It is only when the indictment has been presented to the Court that the accused is indicted and this means more than simply

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filing an indictment in the office of the registrar. This was and is the effect of the procedure where there is a grand jury and I think that parliament intended that the procedure in provinces where there is no grand jury should be substantially the same. It was for this reason that parliament equated “presentment” and “preferring” in s. 503 of the Criminal Code.

Perhaps the grand jury added a safeguard to the interest of the accused, and so with the abolition of the grand jury it is much fairer to the accused that there be no technical obstructions to his challenging his committal for trial down to the time that he may be called upon to answer the indictment.

Brooke J.A. clearly endorses “proposition 1” above to the effect that the simple act of filing the indictment cannot affect the rights of the accused. It is less certain which of propositions 2 or 3 he accepts.

Following the hearing of this appeal, the Court, with a view to determining whether any uniform practice prevailed, requested the attorneys general of the various provinces and of the federal government to provide information as to the procedures normally followed within their respective jurisdictions with regard to the drafting and filing of indictments. The last of such reports containing such information has now come to hand. One can only conclude upon reading the reports that no uniform practice prevails. Procedures differ as between provinces and indeed, at times from jurisdiction to jurisdiction within the provinces and even within a single jurisdiction. This is not surprising. In the absence of statutory or other directives it is natural and proper that practices and procedures should develop to meet local needs and conditions.

In very general terms the normal procedure appears to be the following:

a) The indictment is usually prepared almost immediately after the committal for trial and is at once filed with the clerk of the relevant court; it should be noted, however, that in some jurisdictions it is never filed; in others, an unsigned copy of the indictment is filed and the indictment is not signed until the opening of trial.

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b) the accused may or may not be informed when the indictment is filed with the court. A number of the provinces indicated that, as a courtesy, a copy of the indictment is mailed to the accused or his counsel, but British Columbia, Quebec and a number of federal prosecutors indicated that they did not inform the accused when the indictment is filed.

c) in general, the indictment is first placed before the court in which the trial is to be held on the actual trial date itself. At this time the accused is arraigned and a formal plea is entered, but this practice is not uniform and some jurisdictions have a separate “arraignment date” at which time the accused is asked to plead to the charge.

d) in a very limited number of jurisdictions an assignment court is held for the purpose of fixing trial dates.

I regard this evidence as relevant to the question of the point at which the indictment can be said to have been ‘preferred’. In particular, I regard it as confirming “proposition 1” derived from analysis of the case law—the simple act of filing an indictment with a clerk could not operate as a bar to the rights of an accused to challenge his committal by way of certiorari. As I have indicated, in many jurisdictions there is no formal procedure for informing the accused as to when the indictment has been filed with the court. The reports show, unmistakably to my mind, that, across the country, neither crown counsel nor defence counsel have considered the mere filing of the indictment to be material.

If the simple act of filing were to be determinative, the accused would be left in the position where his right to move to quash his committal for trial due to irregularities in the preliminary inquiry would depend upon the decision of the prosecutor as to the appropriate moment for filing the indictment. The right to challenge committal for trial by prerogative writ would be fleeting indeed. Witness the present case. In the language of Mr. Justice Krever in Joly, the race would be to the

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swifter. The accused’s remedy should not be left to the whim of the Crown. I can see little justification for raising technical obstructions to the right of an accused to attack by prerogative writ his committal for trial, down to the time when he may be called upon to answer the indictment.

This leaves a choice between proposition 2 and proposition 3 as to the point at which the indictment has been ‘preferred’. I would observe, however, that regardless of which proposition is selected, the result will be that the respondent in this case would not be precluded from challenging his committal. There is no suggestion that the indictment has ever been before a trial court constituted and ready to try him nor has he ever been arraigned and pleaded to the indictment.

I turn for a moment to s. 507.1(1) which reads:

507.1(1) Where an indictment has been presented to a court, a judge of the court, if he considers it necessary, may issue

a) a summons addressed to the accused, or

b) a warrant for the arrest of the accused to compel the accused to attend before him to answer the charge described in the indictment.

Crown counsel did not take the point during argument but it should, I think, be noted that in the French version of the Code, the opening words of s. 507.1(1) read: “Après le dépot de l’acte d’accusation…”. Although the French version may be thought to support the argument that the indictment is presented to the Court when it is deposited or filed, and thereafter follow sequentially a summons or warrant to compel attendance and then a trial, I would reject the argument. Section 507.1(1) is of recent origin. Enacted recently (1974-75-76 (Can.), c. 93, s. 59), its purpose, I think, was to provide statutory authority for compelling attendance by an accused, following indictment, see Ex. p. McGrath¹⁶. If it had been enacted for some other purpose, such as to impose an obligation to file, the result of which would foreclose challenge to committal for trial, one would

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have expected this to be spelled out in clearer language, accompanied by some obligation on the part of the Crown to give notice to the accused.

It might be thought that the question as to whether the indictment is preferred when it is before a trial court, or when the accused has actually been arraigned on the charge, is of purely academic interest. The general practice, subject to exceptions is that the accused is arraigned when he appears at trial. In the interests of clarity, however, I would hold that an indictment based upon a committal for trial without the intervention of a grand jury is not “preferred” against an accused until it is lodged with the trial court at the opening of the accused’s trial, with a court ready to proceed with the trial.

In the days of the grand jury, presentment did not include the step of reading the indictment in the presence of the accused and seeking his plea. Presentment was a unilateral act performed in the accused’s absence by an accusatorial body. I think it is not unimportant to note that presentment was made in open court by the grand jury to a judge of the trial court. True, presentment was not to a judge constituted with a petit jury to try the case. The Crown contends that the placing of an indictment before a judge in Assignment Court constitutes presentment, with respect, I disagree. Such judge is not, as I understand the practice, constituted as a court to try the accused. I agree with Anderson J. when he said in R. v. Hansen (unreported judgment of the Ontario High Court, March 11, 1980) “it seems to me excessively technical to say that the mere presence of the indictment and of the accused, before the judge in the Assignment Court and the Practice Court are sufficient to deprive the accused of his right to move to quash his committal. An indictment is preferred when it is before a court empowered to dispose of the case”.

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It follows that in this case the indictment was never before a trial court constituted to dispose of the case and it did not bar the respondent’s right to challenge his committal for trial.

III

Committal on First Degree Murder

How wide is the scope of a provincial court judge’s power to commit for trial at a preliminary inquiry? Can the judge commit for any charge disclosed by the evidence at the hearing? Alternatively, can he commit only for charges that are ‘related’ to the charge specified in the information? Can he commit only for the actual offence charged in the information or an included offence?

Preliminary inquiries have a long history, dating back at least to the statutes of Philip and Mary in 1554 and perhaps earlier. By 1 & 2 Phil. & Mary, c. 13, (1554), it was enacted that, when any person arrested for manslaughter or felony, being bailable by the law, is brought before two justices they are “to take the examination of the said prisoner and information of him that brings him of the fact and circumstances thereof”. This Act, extended the following year, continued until the year 1826 when it was further extended to misdemeanours. It survived until replaced in 1849 by 11 & 12 Vict., c. 42, known as Sir John Jervis’s Act. It is this latter Act which has guided much of the practice of preliminary inquiries in Canada.

As Sir James Stephen points out in his History of the Criminal Law of England, vol. 1, at p. 221, under the procedure established in the sixteenth century, the magistrate acted the part of a public prosecutor. The accused person was examined. He was to be fully questioned as to all the circumstances connected with his supposed offence. Under the procedure of the nineteenth century he could be asked no questions at all, though he was invited to make any statement he pleased, being

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cautioned that it might be taken down and might be given in evidence against him. The object of the earlier statute, Stephen says, was to expose and detect a man assumed to be guilty. In the later statute, the subject was a full inquiry into his guilt or innocence.

It is important to note that the inquiry under 11 & 12 Vict. is broader than that envisaged by our Criminal Code. The English statute contemplates committal, at the end of the inquiry, for “any indictable offence”. Many of the Canadian cases appear to treat the preliminary inquiry as though it were governed by 11 & 12 Vict., c. 42 rather than the Canadian Criminal Code.

One of the early Canadian authorities is R. v. Mooney¹⁷ in which Madore J. held that since there was no law prohibiting a justice from committing an accused for trial on charges other than those specified in the information, that the judge had such power.

Another early authority is R. v. Philips¹⁸ a decision of Boyd, C. of the Ontario High Court. Relying upon R. v. Brown¹⁹, the judge held that “the scope of the (preliminary) inquiry may be enlarged and matters touched upon beyond the scope of the original charge”.

This line of authority has been followed on numerous occasions in Canada. Some of these cases which have discussed the issues include the following: R. v. Beaudoin²⁰; Re Shumiatcher²¹; R. v. Botting²²; Re Carriere, Preet and Davidson²³; R. v. Monkman²⁴; Eusler and Budovitch and The Queen²⁵.

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Brooke J.A. in the present case reviewed these cases. He pointed out, quite rightly in my view, that none of them engaged in a comprehensive review of the relevant Criminal Code provisions. They proceeded either on the footing that a magistrate had such power because it was not expressly denied him by the Code; or on the basis that the power to commit had been recognized by the British case of Brown. The cases which purport to apply Brown to the Canadian scene are, at best, of dubious authority.

It is critical, as it seems to me, to commence the inquiry with an analysis of the provisions of the Code. If the power to commit for trial on offences other than those specified in the information exists, such power must be found in the Code, either expressly or by necessary inplication. This is evident from the opinion of Mr. Justice Ritchie in Doyle v. The Queen, supra, at p. 602, where he stated:

Whatever inherent powers may be possessed by a superior court judge in controlling the process of his own Court, it is my opinion that the powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication.

It is conceded by the Crown that nowhere is a power to commit for a greater offence expressly conferred by the Code. The question therefore becomes, is it manifest that Parliament conferred such power by necessary implication?

Provincial Court Judge Bordeleau founded his decision on s. 463 of the Code. This section provides:

463. Where an accused who is charged with an indictable offence is before a justice, the justice shall, in accordance with this Part, inquire into that charge and any other charge against that person. 1953-54, c. 51, s. 449.

Judge Bordeleau held that the words “and any other charge against that person” gave him the power to commit the accused for first degree murder.

[Page 1003]

Dupont J., in the Ontario High Court, concurred with the result but disagreed with the interpretation of s. 463. Dupont J.’s opinion was that s. 463 did not purport to deal with preliminary inquiries at all, and thus could not be the authority for a committal. In his opinion, authority for holding a preliminary inquiry is found in s. 464(4) which reads in part as follows:

Where an accused does not elect to be tried by a magistrate, the justice shall hold a preliminary inquiry into the charge…

Dupont J. noted that s. 464(4) speaks of an inquiry into “the charge”, as opposed to s. 463 which speaks of an inquiry into “that charge and any other charge”. He held, however, this difference in wording did not mean that the provincial court judge could only commit for trial on “the charge”; the power to commit for other offences could be derived by ‘necessary implication’ from the Code.

In the Court of Appeal, Brooke J.A. disagreed both with the interpretation of ss. 463 and 464(4) and with the result reached by Dupont J. Brooke J.A. stated that s. 464(4) only dealt with a preliminary inquiry in circumstances where the accused had a right of election to be tried by other than a magistrate. Thus s. 463 must deal with the scope of the preliminary inquiry; otherwise, “there is no authority in the Criminal Code for the holding of the preliminary inquiry in a charge such as the one before the Court in this case”.

Brooke J.A. did not accept the view that s. 463 entitled the judge to inquire into and commit on any offence which might be disclosed by the evidence; in his opinion the words “any other charge” in s. 463 refer to “charge or charges in other informations outstanding against him at the time. These charges are specific and are the limit of the inquiry”. He went on to hold, as I have indicated earlier, that this entitled the judge to commit for an included offence or, in some circumstances, for a ‘related offence’, but not for an offence more serious than that laid out in the information. Accordingly, he quashed the committal for trial on first degree murder.

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The word “charge” is not defined in the Code. In In re Criminal Code²⁶ this Court considered the Criminal Code Amendment Act 1907, (Can.), c. 8 and in particular s. 873A, in very similar terms to present s. 507(1). Section 873A read:

873A. In the provinces of Saskatchewan and Alberta, it shall not be necessary to prefer any bill of indictment before a grand jury, but it shall be sufficient that the trial of any person charged with a criminal offence be commenced by a formal charge in writing setting forth as in an indictment the offence with which he is charged.

Idington J. said, p. 448:

It deals only with the case of “the trial of any person charged with a criminal offence”. How charged? Is it confined to those who have been judicially so charged, by virtue of the provisions of the law for committing the accused for trial?

How can it mean aught else? The word “charged” is the apt one to designate a person accused and in charge. Doubtless it has another meaning, but it may well be argued that it is in this restricted sense that the Act applies it.

In R. v. D’Eyncourt²⁷, Field J. at p. 119 said:

I am of the opinion that the word ‘charged’ [in the Metropolitan Police Courts Act 1839, s. 29 (repealed; see now Police (Property) Act 1897, s. 1(1))] must be read in its known legal sense, namely, the solemn act of calling before a magistrate an accused person and stating, in his hearing, in order that he may defend himself, what is the accusation against him.

In Stirland v. Director of Public Prosecutions²⁸, it was held that “charged” for the purposes of the Criminal Evidence Act (1898) (U.K.), c. 36, s. (f) meant accused before a court and in Arnell v. Harris²⁹, “person charged” was taken to mean at least accused of some felony or misdemeanour. Black’s Law Dictionary (5th ed.) defines “charge”, for the purposes of the criminal law, as “Accusation of a crime by a formal complaint, information

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or indictment”, and in Jowitts Dictionary of English Law (2nd ed.) the word is given the following meaning, among others, “to prefer an accusation against anyone”.

It is contended by the Crown that when s. 463 of the Code speaks of inquiry into “that charge” reference is made to the formal written charge but when the section speaks of “any other charge against that person” the word “charge” takes on another meaning namely, “any other allegation which arises during the course of the inquiry. This allegation may arise out of the evidence and need not be in existence at the outset of the inquiry”. I quote from the Crown factum. Although occasionally it is necessary to give a word a somewhat different meaning in different parts of an enactment it would be strange, it seems to me, to give a word different meanings in the same section of an enactment and indeed on the same line of the section. As the Supreme Court of the United States observed in United States v. Patterson³⁰ (at p. 68) a criminal charge, strictly speaking, exists only when a formal written complaint has been made against the accused and a prosecution initiated. “In the eyes of the law a person is charged with crime only when he is called upon in a legal proceeding to answer to such a charge.”

There is another aspect of the Crown’s argument which gives concern. Although a preliminary hearing is not a trial it must be conducted in a judicial manner (Patterson v. The Queen³¹ (at p. 412). The rules of evidence relating to relevancy apply to preliminary hearings in the same manner as to trials. I would question the relevance, and therefore the admissibility, of evidence relating to a charge other than that formally spelled out in the information.

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The argument is advanced that the combined effect of ss. 473 and 474 of the Code is to provide that a justice may hear evidence relating to a charge or charges different from those set forth in the information. These sections read as follows:

473. The validity of any proceeding at or subsequent to a preliminary inquiry is not affected by

(a) any irregularity or defect in the substance or form of the summons or warrant,

(b) any variance between the charge set out in the summons or warrant and the charge set out in the information, or

(c) any variance between the charge set out in the summons, warrant or information and the evidence adduced by the prosecution at the inquiry.

474. Where it appears to the justice that the accused has been deceived or misled by any irregularity, defect or variance mentioned in section 473, he may adjourn the inquiry and may remand the accused or grant him interim release in accordance with Part XIV.

Although the argument has considerable force, I do not think it is tenable when one has regard to the other sections of Part XV of the Code. The “Variance” of which s. 473(c) speaks must, I think, be regarded as a variance in respect of such matters as names, places, dates, and the like. The sweep of ss. 473 and 474 is limited. In my view it is not such as to authorize an inquiry at large into not only the offence specifically charged but also all information charges in respect of which the Crown may choose to lead evidence. An accusation does not exist in latent form. A person is charged or he is not. The charge or charges into which a justice may inquire must be in existence at the time the preliminary inquiry commences. See also Salhany, Canadian Criminal Procedure (3rd ed.) at p. 100: Pursuant to the authority conveyed by s. 463 “The justice before whom the accused is brought must inquire into any charge pending against the accused”. (Emphasis added.)

Emphasis on ‘the charge’ is repeated through Part XV of the Code. Section 465(1)(h) provides:

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A justice acting under this Part may grant or refuse permission to the prosecutor or his counsel to address him in support of the charge, by way of opening or summing up or by way of reply upon any evidence that is given on behalf of the accused;

This provision only makes sense if one assumes that the inquiry must be limited to ‘the charge’ in the information; otherwise one is faced with the anomalous situation that the court would be entitled to inquire into other matters but crown counsel could only address the court with respect to ‘the charge’.

Section 469(1) provides, in part:

When the evidence of the witnesses called on the part of the prosecution has been taken down and, where required by this Part, has been read, the justice shall address the accused as follows or to the like effect:

“Having heard the evidence, do you wish to say anything in answer to the charge?...”

Again, this section is only intelligible if one assumes that the scope of the inquiry is limited to ‘the charge’ as laid in the information; otherwise one would have a situation in which an accused would be asked to answer ‘the charge’ when in reality he was in danger of being committed for another offence; the caution in s. 469(1) would serve only to confuse and mislead.

I do not think that, in this case, anything turns upon whether s. 463 purports to deal with a preliminary inquiry or merely with an initial mandatory inquiry by the justice after the accused has been arrested, directed at determining whether the charge is one over which the justice had absolute jurisdiction. On either view, I agree with the Court of Appeal that such an inquiry must be limited to ‘charges’ in informations outstanding against the accused at the time of the inquiry. As Brooke J.A. pointed out, this view is consistent with basic principles of criminal law which require that a warrant should issue for arrest on a specific charge, that the arrest should be executed on that basis, and that the charge be specified with particularity in the information so that the accused

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knows the charge against him and what he has to meet. If the scope of the preliminary inquiry were extended beyond actual ‘charges’ to include rumour or accusations, these basic principles of our law would be subverted. A preliminary inquiry is not, and should not become, an inquisition into any and all misdeeds of the accused, whether “charged” against him or not.

The power to commit the accused for trial is found in s. 475(1) which provides:

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

(a) if in his opinion the evidence is sufficient to put the accused on trial,

(i) commit the accused for trial, or

(ii) order the accused, where it is a corporation, to stand trial in the court having criminal jurisdiction; or

(b) discharge the accused, if in his opinion upon the whole of the evidence no sufficient case is made out to put the accused on trial.

Crown counsel properly observes that this section gives the power to the justice to commit “for trial” without imposing any express limitation on this power. However, I think the section must be read in the context of the preceding sections and the general scheme of Part XV of the Code. Logically, the power to commit cannot be larger than the power to inquire. If the justice is entitled to inquire into the ‘charge’ then he must commit on that charge or not at all.

Had Parliament wished to confer on a magistrate the power to commit an accused for any offence disclosed by the evidence, it could easily have done so in clear terms. The failure to specify such a power in s. 475 is not due to inadvertence. Later sections dealing with the power of the Crown to prefer an indictment expressly contemplate such power. In s. 496 (2)(b), for example, it is provided that the attorney general, in certain circumstances, may prefer an indictment which includes counts “relating to offences disclosed by the evidence taken on the preliminary inquiry…”.

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A similar provision is included in s. 504, which deals with procedure before a court constituted with a grand jury. Parliament clearly adverted to a power such as is argued for by the Crown in the present case. Parliament chose expressly to provide such power in ss. 496 and 504. No such power was intended under s. 475.

I conclude, therefore, that a justice conducting a preliminary inquiry may inquire into, and commit only on, the charge specified in the information or informations. This includes any ‘included offences’ since included offences necessarily form part of the original charge: s. 589(1) of the Criminal Code.

The Ontario Court of Appeal went on to consider another question; whether the accused could be committed for trial on a ‘related charge’ I have never been too clear as to what is comprehended by the phrase “related charge”. The Court of Appeal cited R. v. Monkman, supra. Here the accused had been charged with assault causing bodily harm but at the preliminary inquiry these charges were dismissed and the accused was committed on a charge of criminal negligence in the operation of a motor vehicle. On appeal, it was held that the committal was justified since, on the particular facts of the case, the charge of criminal negligence was ‘related’ to the charge of assault causing bodily harm. Mr. Justice Brooke’s conclusion on the point was that the accused could be committed for “an offence which the evidence discloses the accused probably committed in the course of the alleged commission of the offence with which he is charged but only where the evidence is not sufficient to put the accused on trial on the charge as laid”. Such a conclusion was said to flow “by necessary implication” from the relevant provisions of the Criminal Code. With great respect, I cannot perceive how the distinction sought to be made can be said to flow from the provisions of the Code.

It seems to me that once it is determined that the justice may commit on “the charge” and not on “other offences disclosed by the evidence”, the logical conclusion is that the justice may commit on ‘the charge’ and nothing else. Simply put, there

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is no authority, express or implied, in the Code to commit for trial on other offences disclosed by the evidence, whether these offences are ‘related’ or ‘unrelated’ to the original charge. I would hold that a justice holding a preliminary inquiry can only commit for the charge as laid in the information or informations and included offences.

I would dismiss the appeal and remit the matter back to the provincial court judge to commit for trial on the charge of second degree murder, if so advised.

Appeal dismissed.

Solicitor for the appellant: The Attorney General of Ontario, Toronto.

Solicitors for the respondent: McCann & Bayne, Ottawa.

Footnotes

1. 1(1979), 1979 CanLII 80 (ON CA), 49 C.C.C. (2d) 481, 10 C.R. (3d) 24.
2. 21976 CanLII 11 (SCC), [1977] 1 S.C.R. 597.
3. 3(1919), 1919 CanLII 568 (MB CA), 31 C.C.C. 240 (Man C.A.).
4. 4(1966), 1966 CanLII 229 (ON CA), 48 C.R. 73 (Ont. C.A.).
5. 5(1974), 1974 CanLII 1425 (ON SC), 19 C.C.C (2d) 368 (Ont. H.C.).
6. 6(1917), 1917 CanLII 602 (QC CA), 28 C.C.C. 269 (Que. K.B.).
7. 7(1912), 1912 CanLII 701 (QC CA), 20 C.C.C. 69 (Que. K.B.).
8. 81969 CanLII 373 (ON CA), [1970] 2 O.R. 102.
9. 9(1972), 1972 CanLII 750 (SK QB), 8 C.C.C. (2d) 462.
10. 10(1977), 1977 ALTASCAD 242, 37 C.C.C. (2d) 528 (Alta C.A.).
11. 11(1979), 1979 CanLII 1119 (AB QB), 12 C.R. (3d) 262 (Alta Q.B.).
12. 12(1978), 1978 CanLII 2323 (ON SC), 41 C.C.C. (2d) 538.
13. 13(1956), 1956 CanLII 478 (MB QB), 23 C.R. 340 (Man. Q.B.).
14. 14(1975), 33 C.R.N.S. 60.
15. 15(1975), 33 C.R.N.S. 72.
16. 16(1975), 1975 CanLII 1274 (BC SC), 23 C.C.C. (2d) 214 (B.C.S.C).
17. 17(1905), 15 Que. K.B. 57.
18. 18(1906), 1906 CanLII 140 (ON SC), 11 O.L.R. 478.
19. 19[1895] 1 Q.B. 119.
20. 20(1913), 1913 CanLII 637 (QC CA), 22 C.C.C. 319.
21. 211964 CanLII 360 (SK CA), [1964] 3 C.C.C. 359 (Sask. C.A.).
22. 221966 CanLII 229 (ON CA), [1966] 2 O.R. 121 (Ont. C.A.).
23. 23(1970), 14 C.R.N.S. 20 (Ont. C.A.).
24. 24(1975), 1975 CanLII 1477 (MB CA), 30 C.R.N.S. 338 (Man. C.A.).
25. 25(1978), 1978 CanLII 2473 (NB CA), 43 C.C.C. (2d) 501 (N.B.C.A.).
26. 26(1910), 1910 CanLII 30 (SCC), 43 S.C.R. 434.
27. 27(1888), 21 Q.B.D. 109.
28. 28[1944] A.C. 315.
29. 29[1945] K.B. 60.
30. 30(1893), 150 U.S.R. 65.
31. 311970 CanLII 180 (SCC), [1970] S.C.R. 409.