Supreme Court of Canada
Gunn v. The Queen, 1982 CanLII 174 (SCC), [1982] 1 SCR 522
Barry Dennis Gunn Appellant;
and
Her Majesty The Queen Respondent.
1982: February 17 and 18; 1982: April 5.
Present: Laskin C.J. and Ritchie, Dickson, Beetz, Mclntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Criminal law—Conspiracy to breach foreign law—Indictment without reference to foreign law—Amendment refused—Non-suit for want of evidence supporting indictment—Whether or not the Court of Appeal could set acquittal aside, and direct trial to continue to enable defence to call evidence or to close—Criminal Code, R.S.C 1970, c. C-34, ss. 423(1)(d), (3), 613(4).
The Crown wished to prove a conspiracy in Canada to engage in illegal arms shipments out of the United States. The indictment alleged conspiracies in violation of the Export and Import Permits Act and of s. 423(1)(d) of the Criminal Code, but made no mention of the alleged violation of U.S. law governing imports from that country. The trial began May 9, 1979. On May 29, the Crown moved to amend the indictment by adding a reference to the alleged breach of U.S. law and an alleged conspiracy in respect of that breach so as to permit it to bring in s. 423(3) which provided for the extraterritorial reach of the offences created by s. 423(1)(d). The trial judge dismissed this motion, and at the close of the Crown’s case, allowed the accused’s motion for dismissal for want of evidence supporting the indictment. The Court of Appeal set aside the acquittal and directed that the trial continue to enable the defence to call evidence or to close the case, and for final disposition.
Held: The appeal should be allowed.
Per Laskin C.J. and Ritchie, Dickson, Beetz and Chouinard JJ.: The Court of Appeal is without authority to amend an indictment by substituting a different offence for the one charged in the indictment, especially
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where that was one of the grounds upon which the trial judge refused to amend.
An order for a new trial under s. 613(4)(b)(i) means an order for a full new trial, especially if it is to proceed upon an amended indictment. Even if the Court of Appeal had the power to substitute a new charge for the one laid, it is wrong for it to force an accused to accept the Crown’s case as made under the unamended charge and to direct the accused to put in its evidence. No court can predict the possible course of cross-examination by accused’s counsel if the indictment were in the form directed by the Court of Appeal.
Accused’s alleged co-conspirator was deported prior to the appeal hearing. No court could guess how this would affect appellant’s position, even at a full new trial on the amended indictment.
Per Mclntyre and Lamer JJ.: The acquittal should be restored, because of the Crown having deported the co-accused and because, considering the cumulation of unfortunate procedural events, ordering a new trial would amount to a miscarriage of justice.
R. v. Kerr et al. (1922), 53 O.L.R. 228; Dupont v. The Queen (1958), 1958 CanLII 471 (QC CA), 123 C.C.C. 386; R. v. Elliott, 1969 CanLII 373 (ON CA), [1970] 3 C.C.C. 233; Elliott v. The Queen, 1977 CanLII 209 (SCC), [1978] 2 S.C.R. 393, referred to.
APPEAL from a judgment of the Manitoba Court of Appeal (1980), 1980 CanLII 2880 (MB CA), 54 C.C.C. (2d) 163, 4 Man. R. (2d) 269 sub nom. R. v. Apaya and Gunn, setting aside an acquittal granted by Kennedy Co. Ct. J. on a motion for dismissal for want of evidence to support the indictment and directing that the trial continue before that judge to final disposition. Appeal allowed.
K.G. Houston, Q.C., for the appellant.
E.G. Ewaschuk, Q.C., and P.M. Kremer, for the respondent.
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Judgment of Laskin C.J., Ritchie, Dickson, Beetz and Chouinard JJ.
The judgment of Laskin C.J. and Ritchie, Dickson, Beetz and Chouinard JJ. was delivered by
THE CHIEF JUSTICE—There are oddities about this case that persuade me that the order of the Manitoba Court of Appeal should be set aside and that the acquittal directed by the trial judge should be restored. An agreed statement of facts highlighted the basis of the criminal proceedings taken against the appellant and other alleged co-conspirators.
What the Crown wished to prove was that there was a conspiracy in Canada to engage in illegal arms shipments out of the United States, it being also an offence under Canadian law to export arms from Canada without an export permit. A then newly enacted provision of the Criminal Code, R.S.C. 1970, c. C-34, s. 423(3), which came into force in 1976, provided the basis for the extraterritorial reach of the offences created by Criminal Code, s. 423(1)(d). The charges laid here were (the Court was told) the first to invoke s. 423(3). This provision is also involved, in association with s. 423(2), in another appeal recently heard in this Court, Bolduc v. The Queen, in which judgment was reserved on February 16, 1982.
The Crown began proceedings in the present case by laying two informations for conspiracy against the accused and two named co-conspirators, also naming a number of unindicted co‑conspirators. Nothing turns on these informations which appeared to be in conformity with ss. 423(1)(d) and 423(3). There was a committal for trial after a preliminary hearing and then an indictment was preferred against the accused and one of the two alleged co-conspirators named in the informations. The indictment alleged conspiracies in violation of the Export and Import Permits Act, 1953-54 (Can.), c. 27, contrary to Criminal Code, s. 423(1)(d). No mention was made of the alleged violation of United States law governing export of arms from that country.
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Criminal Code, ss. 423(1)(d) and 423(3) read as follows:
- (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy, namely,
(d) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a), (b) or (c) is guilty of an indictable offence and is liable to the same punishment as that to which an accused who is guilty of that offence would, upon conviction, be liable.
(3) Every one who, while in Canada, conspires with any one to do anything referred to in subsection (1) or (2) in a place outside Canada that is an offence under the laws of that place shall be deemed to have conspired to do in Canada that thing.
The informations had been laid on March 22, 1978 and the indictments were preferred on February 15, 1979. A motion to quash the indictment was made on the ground, inter alia, that no preliminary hearing had been held on the charges now contained in the indictment, as contrasted with those in the information. Kennedy Co. Ct. J., refused to quash, saying this in his reasons:
The indictment before me presumes a breach of Canadian law, and I have no difficulty in finding that the evidence adduced at the preliminary hearing meets the requirements of Section 496. The indictment relates to offences disclosed by that evidence, and are in substitution for the offence for which the accused was committed for trial.
I have no doubt, either, that, from reviewing the preliminary evidence, as I was invited, indeed, urged to do by defence counsel, that the accused have not suffered any prejudice, or are unable to meet the allegations contained in the indictment by claiming to have been surprised or in any way misled.
On May 29, 1979, the Crown moved to amend the indictment by adding a reference to an alleged violation of United States law and an alleged conspiracy in respect thereof so as to permit it to
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bring in s. 423(3). Leave to amend was refused after a consideration of the amending power given by Criminal Code, s. 529. The trial judge said this, in the course of his reasons for refusing to amend:
I am of the view that the amendment is not to cure a variance between the evidence at trial and the charge. If anything the amendment seeks once again in my view to restore the original Information, although in somewhat different terminology. In that respect I have already ruled that the two charges were different and the Indictment before me is in substitution for the original Information laid prior to the preliminary hearing and upon which the accused were indicted. To include reference at this stage of the trial to the U.S. as being the place in which the substantive offence was committed and to allege a breach of American law, which I might add could only refer to Title 22, being a derivative of the American U.S. Neutrality Act is to add in my view a new dimension and component. This is not to suggest that the accused would be taken by surprise. Given the position of the Crown and the earlier argument the proposed amendment contains an averment that the Crown had every opportunity from the preliminary to the present to consider and it apparently chose not to introduce it until this late hour.
And, again, after referring to s. 529(2), (3) and (4):
(a) the evidence at the preliminary hearing did not disclose anything materially different than the trial evidence, and on the basis of the preliminary evidence the Crown sought to substitute this Indictment.
(b) the trial evidence could not be said to have occasioned the amendment since there was no new disclosures upon which the Crown might argue warranted the amendment.
(c) I have already commented that given the various intervening rulings on the Indictment this case is not one where new facts or evidence urge what may amount to a review, if not res judicata, on the preliminary motion.
(d) given the Crown’s position as to the sufficiency of the Indictment and my earlier ruling, I am of the view
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that the accused has been misled and perhaps prejudiced.
At the close of the Crown’s case, counsel for the accused moved, on June 4, 1979, for a dismissal on the ground that there was no evidence to support the indictment. The motion was granted, the trial judge holding that the deeming provisions of s. 423(3) did not apply. The Crown appealed and, in reasons of the Manitoba Court of Appeal delivered by Monnin J.A., it was held that the trial judge ought to have allowed the amendment sought by the Crown “in order to comply with the evidence which was on the record and to conform to the charges as originally laid”. (The formal order of the Court of Appeal restored the charges as they were originally set out in the informations.) The acquittal was set aside and the Court of Appeal further directed that the trial continue before Kennedy Co. Ct. J. to enable the defence to call evidence or close the case and for final disposition. Monnin J.A. rejected the contention of prejudice to the accused when the trial judge had refused the amendment, saying that nothing had happened between May 2, 1979 (when the accused moved unsuccessfully to quash the indictment) and May 29, 1979 when the trial judge refused to allow the Crown to amend. This, however, ignores the fact, as forcibly pointed out by counsel for the appellant in this Court, that the trial had begun on May 9, 1979 and the Crown had been presenting evidence under the indictment as then framed.
Nowhere in the reasons of the Court of Appeal is any reference made to any power that it has to amend an indictment by substituting a different offence for the one charged in the indictment, especially where that was one of the grounds upon which the trial judge refused to amend. The weight of authority is against any such power: see, for example, R. v. Kerr et al. (1922), 53 O.L.R. 228, at p. 231; Dupont v. The Queen (1958), 123
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C.C.C. 386, at p. 390; R. v. Elliott, 1969 CanLII 373 (ON CA), [1970] 3 C.C.C. 233, at p. 237. This Court considered the matter in Elliott v. The Queen, 1977 CanLII 209 (SCC), [1978] 2 S.C.R. 393, where the same position against any power in a court of appeal to substitute a new offence by amendment was asserted in the dissenting judgment at p. 401 and implicitly approved in the majority judgment, at pp. 426-27. The difference in the judgments was whether a new offence was substituted by the British Columbia Court of Appeal (as the dissenting reasons stated) or whether there was merely specification of a particular of an offence already charged (as the majority reasons stated).
This aside, however, there is another defect in the judgment appealed from. Criminal Code, s. 613(4) deals with the powers of a court of appeal upon an appeal from an acquittal. An order for a new trial under s. 613(4)(b)(i) means an order for a full new trial, especially if it is to proceed upon an amended indictment. In the present case, even if the Court of Appeal has the power (and I do not think it has) to substitute a new charge for the one laid, it is wrong for it to force an accused to accept the Crown’s case as made under the unamended charge and to direct the accused to put in its evidence. It is not for this Court or any court to say what course counsel for the accused would have taken in the cross-examination of Crown witnesses if the indictment had been in the form directed by the Court of Appeal. There is a further problem here. The accused’s alleged co-conspirator was deported from Canada some days before the appeal hearing. Again, it is not for this or any court to guess how this would or could affect the appellant’s position, even at a full new trial on the amended indictment.
For all these reasons, the acquittal is restored. This is not a case where this Court finds it neces-
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sary to give any direction in detail as to how a charge of conspiracy involving breach of foreign criminal law, as envisaged by Criminal Code, s. 423(3), should be framed. It is enough to say that the statutory fiction of a conspiracy in Canada in violation of foreign law can only become operative if a breach of the foreign law is charged.
Reasons of McIntyre and Lamer JJ.
The reasons of Mclntyre and Lamer JJ. were delivered by
LAMER J.—I have had the advantage of reading the reasons for judgment of the Chief Justice. I also would allow this appeal and quash the order of the Court of Appeal for Manitoba directing that the trial continue before Kennedy Co. Ct. J. to enable the defence to call evidence, if it so wishes, and then determine the issue of guilt. Indeed, the Court of Appeal was not empowered by law to make such an order as set out in the reasons of the Chief Justice.
I also would order that the acquittal be restored, but would predicate this finding on the fact that, in all probability, considering the cumulation of unfortunate procedural events and the fact that the Crown has since deported the alleged co-conspirator, to order a new trial would amount to a miscarriage of justice. I therefore need not make any comment as to the trial judge’s decision not to amend the indictment. Furthermore, as s. 423(3) is being considered by this Court in Bolduc v. The Queen, I should prefer reserving for that decision any comment as to how a charge of conspiracy involving a breach of foreign criminal law should be framed.
Appeal allowed.
Solicitors for the appellant: Houston, Maclver, Winnipeg.
Solicitor for the respondent: Department of Justice, Winnipeg.