Supreme Court of Canada

Bolduc v. Attorney General of Quebec et al., [1982] 1 S.C.R. 573

Date: 1982-05-10

Gérard Bolduc Appellant;

and

The Attorney General of Quebec Respondent;

and

His Honour Judge Jacques Lessard Respondent;

and

The Clerk of the Peace and the Crown for the District of Montreal Mis en cause.

File No.: 16367.

1982: February 16; 1982: May 10.

Present: Laskin C.J. and Dickson, Beetz, Estey, Mclntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Common law conspiracy—Conspiracy to cause persons to come into the United States unlawfully—Offence known to Canadian law—Presumption of territoriality under s. 423(3) of the Criminal Code—Information meets requirements of Criminal Code—Criminal Code, R.S.C. 1970, c. C-34, ss. 423(2)(a), 423(3) [as amended by 1974-75-76 (Can.), c. 93, s. 36], 463, 510, 512.

Mandamus—Preliminary inquiry—Motion to quash indictment allowed by the justice of the Peace—Error of law amounting to refusal to exercise jurisdiction—Basis for mandamus.

Appellant was charged with conspiring to cause persons to enter the United States unlawfully. At the preliminary inquiry, he moved immediately to quash the indictment on the ground that the information did not allege an offence known to Canadian law. This motion was allowed, but the Superior Court reversed the decision and ordered that a writ of mandamus be issued directing the judge of the Court of Sessions of the Peace to go forward with the preliminary inquiry. The appeal by appellant to the Court of Appeal was dismissed.

Held: The appeal should be dismissed.

The prerequisite for applying the presumption of s. 423(3) Cr.C., in light of s. 423(2)(a) Cr.C., is that the object of the conspiracy should constitute an unlawful purpose both in Canada and in the country where the conspirators intend to carry it out. The essence of the

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crime in the case at bar is conspiracy to effect unlawful entry, a crime which exists both in Canada and in the United States. As a consequence of the presumption of s. 423(3), the conspirators are deemed to have conspired to commit the offence in Canada. As regards the validity of the information, its wording meets the requirements of the law in this area (ss. 510, 512 Cr.C.).

Under s. 463 Cr.C., the justice before whom an accused is charged must inquire into the charge. When, as in the case at bar, he quashes the information by making a fundamental error of law, this amounts to refusing to exercise his jurisdiction and will be a basis for mandamus.

Board of Trade v. Owen and Seth-Smith (1957), 41 Cr. App. R. 11; R. v. Giguère (1963), 1963 CanLII 1124 (QC CQ), 41 C.R. 308; R. v. Tremblay et al. (1961), 1961 CanLII 628 (AB SCTD), 40 C.R. 382; R. v. Uvery, 1968 CanLII 876 (SK QB), [1969] 2 C.C.C. 305; R. v. McNab (1945), 1945 CanLII 284 (BC CA), 83 C.C.C. 176; R. v. Sheets, 1971 CanLII 130 (SCC), [1971] S.C.R. 614, distinguished; Kipp v. Attorney-General for the Province of Ontario, 1964 CanLII 20 (SCC), [1965] S.C.R. 57: Gralewicz et al. v. The Queen, 1980 CanLII 43 (SCC), [1980] 2 S.C.R. 493; R. v. Côté, 1977 CanLII 1 (SCC), [1978] 1 S.C.R. 8; R. v. Justices of Middlesex (1877), 2 Q.B.D. 516; Brodie and Barrett v. The King, 1936 CanLII 1 (SCC), [1936] S.C.R. 188, applied.

APPEAL from a judgment of the Court of Appeal of Quebec (1980), 1980 CanLII 2966 (QC CA), 20 C.R. (3d) 372, which affirmed a judgment of the Superior Court, [1979] C.S. 497, ordering that a writ of mandamus be issued. Appeal dismissed.

Lynne Kassie, for the appellant.

Claude Provost, for the respondent the Attorney General of Quebec.

English version of the judgment of the Court delivered by

CHOUINARD J.—The information which is the object of this appeal is based on subs. (3) of s. 423 of the Criminal Code.

Subsection (3) was added by s. 36 of the Criminal Law Amendment Act, 1975, 1974-75-76 (Can.), c. 93. Subsections (4), (5) and (6) were added at the same time. These new provisions became effective by proclamation on April 26, 1976. For purposes of clarification it is best that they be reproduced in full:

[Page 575]

423. (1) …

(2) …

(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.

(4) Every one who, while in a place outside Canada, conspires with any one to do anything referred to in subsection (1) or (2) in Canada shall be deemed to have conspired in Canada to do that thing.

(5) Where a person has conspired to do anything that is an offence by virtue of subsection (3) or (4), the offence is within the competence of and may be tried and punished by the court having similar jurisdiction in respect of similar offences in the territorial division where he is found in the same manner as if the offence had been committed in that territorial division.

(6) Where, as a result of a conspiracy that is an offence by virtue of subsection (3) or (4), a person has been tried and convicted or acquitted outside Canada, he shall be deemed to have been tried and convicted or acquitted, as the case may be, in Canada.

The information of July 5, 1978 reads:

[TRANSLATION] Between 29-4-78 and 17-6-78 Mr. Gérard BOLDUC conspired with Jagdat BABOOLAL and other persons as yet unknown to commit in the United States of America an unlawful act, to wit, causing persons to come into the United States of America unlawfully, the whole contrary to the American Immigration and Naturalization Act and the Canadian Criminal Code, in particular ss. 423(2)(a) and 423(3) of the Criminal Code.

Appellant elected trial by a judge and jury.

On the day fixed for the preliminary inquiry, appellant immediately made a motion to quash, on the ground that the information did not allege an offence known to Canadian law.

In a very detailed judgment dated December 12, 1978, [1979] C.S.P. 1001, a judge of the Court of Sessions of the Peace allowed the motion and quashed the “indictment”.

The Attorney General of Quebec, who is the respondent for the purposes of this appeal, filed in the Superior Court (criminal side) a motion asking that this decision be reversed and a writ of mandamus be issued.

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In his judgment of May 16, 1979 the Superior Court judge first ruled that mandamus is the correct remedy. He went on to find that a motion to quash the information could not be made at the stage of the preliminary inquiry: it should wait until the trial of the issue. He accordingly ruled in favour of respondent on this ground. Although it was not then necessary for him to do so, the judge nevertheless ruled on the question of substance and expressed the view that the offence charged is an offence known to Canadian law. He proceeded to quash the decision of the judge of the Court of Sessions of the Peace and ordered that a writ of mandamus be issued directing the judge to go forward with the preliminary inquiry.

The appeal to the Court of Appeal of Quebec was dismissed unanimously.

In support of his appeal to this Court, appellant put forward three arguments which may be summarized as follows:

1. The information neither sets forth an offence known to Canadian law nor an offence contemplated by subs. (3) of s. 423 Cr.C.;

2. The information is void in that it does not meet the requirements of s. 510 Cr.C.;

3. There is no basis for a mandamus against a decision of the judge of the Court of Sessions of the Peace to quash the information.

4. The information does not set forth an offence known to Canadian law nor an offence contemplated by subs. (3) of s. 423 Cr.C.

On this point appellant submitted, if I understood correctly, two propositions:

(a) The information does not set forth an offence known to Canadian law;

(b) The offence described in the information is not the type of offence contemplated by subs. (3) of s. 423 Cr.C.

At the hearing counsel for the appellant presented these two propositions as two separate arguments. As however appellant dealt with them under the same heading in his factum, and if either is allowed the result is the same, namely to quash

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the information, I will deal with them as two propositions in support of the same argument, though I will treat the second proposition as an alternative to the first.

The offence charged here is the so-called “common law” conspiracy referred to in s. 423(2)(a) Cr.C: “Every one who conspires with any one (a) to effect an unlawful purpose”.

In Gralewicz et al. v. The Queen, 1980 CanLII 43 (SCC), [1980] 2 S.C.R. 493, a majority of this Court held that “in 423(2)(a) unlawful purpose means contrary to law, that is prohibited by federal or provincial legislation”.

In the case at bar, the unlawful act stated in the information is [TRANSLATION] “causing persons to come into the United States of America unlawfully…”. The information adds “the whole contrary to the American Immigration and Naturalization Act and the Canadian Criminal Code, in particular ss. 423(2)(a) and 423(3) of the Criminal Code.” [sic]

This is where the new subs. 423(3), comes in, and it needs to be reproduced again:

(3) Every one who, while in Canada, conspires with any one to do anything referred to in sub- section (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.

It is apparent on its face that this subsection does not create an offence. It creates a presumption of territoriality so as to make the conspiracy an offence punishable in Canada. Where, as in the case at bar, persons conspire in Canada to effect an unlawful purpose in the United States, which would not in itself be an offence punishable in Canada, they “shall be deemed to have conspired to do in Canada that thing”. The result is to introduce the essential aspect which would otherwise be absent, and to make the offence punishable in Canada.

Subsection (2) of s. 5 Cr.C. provides as follows:

[Page 578]

(2) Subject to this Act or any other Act of the Parliament of Canada, no person shall be convicted in Canada for an offence committed outside of Canada.

In principle, therefore, a crime committed abroad is not punishable in Canada. A crime committed abroad will be punishable in Canada only in exceptional cases and as a result of the reservation contained in s. 5(2) above.

There are a number of these exceptions in the Criminal Code. Thus, in the case of piracy under s. 75:

75. (1) Every one commits piracy who does any act that, by the law of nations, is piracy.

(2) Every one who commits piracy while in or out of Canada is guilty of an indictable offence and is liable to imprisonment for life.

The same is true of offences committed on aircraft (s. 6(1.1), 6(3), 6(7) Cr.C.), certain offences committed abroad by public service employees (s. 6(2) Cr.C.), treason (s. 46(3) Cr.C.), the obtaining of passports (s. 58 Cr.C.), bigamy (s. 254 Cr.C.) and possession of stolen property (s. 312 Cr.C.).

A conspiracy in Canada to commit one of the listed offences abroad would be punishable in Canada. So would a conspiracy to commit murder or to cause another person to be murdered abroad, in view of s. 423(1)(a) Cr.C., which provides for this specific case. However, appellant submitted that this is not true for conspiracy to commit abroad an offence which is not the subject of an exception. Appellant relied on the decision of the House of Lords on October 2, 1956 in Board of Trade v. Owen and Seth-Smith (1957), 41 Cr. App.R. 11, and he cited the following passage from the Lord Chief Justice at pp. 19 and 20:

Now, clearly if two Englishmen commit a burglary in France, they cannot be indicted for that crime in England. It would certainly seem illogical to hold that by agreeing to go to France to commit the offence they are guilty of a crime against our laws. But there are certain acts which by statute are crimes punishable in England

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wherever committed. Instances are murder, bigamy, offences against the Foreign Enlistment Act, 1870, the Official Secrets Acts and the Merchant Shipping Acts. The statutory exceptions are all collected on pp. 29 et seq. of Archbold, 33rd ed. In our opinion, the true rule is that a conspiracy to commit a crime abroad is not indictable in this country unless the contemplated crime is one for which an indictment would lie here.

However, this decision preceded the adoption of s. 423(3), and assuming that it was in keeping with Canadian law at the time, it cannot be used to interpret the new provision of the Code.

The parties admitted that the prerequisite for applying the presumption of s. 423(3) in light of s. 423(2)(a) is that the object of the conspiracy should constitute an unlawful purpose both in Canada and in the country where the conspirators intend to carry it out. The lower courts are unanimous on this point.

It is common ground that the unlawful entry of persons into Canada constitutes an offence under the Immigration Act, 1976, 1976-77 (Can.), c. 52, s. 95. Although there is as yet no evidence of this, since no evidence has yet been presented at the preliminary inquiry, appellant admitted for the purposes of the appeal that the unlawful entry of persons into the United States constitutes an offence under the American “Immigration and Naturalization Act”.

The difference between the parties lies in the fact that, in the submission of appellant, for there to be what counsel for the respondent called identity of offences, unlawful entry into the United States itself would have to constitute an offence in Canada. In other words, there would have to be a Canadian statutory provision specifically providing that unlawful entry into the United States constitutes an offence in Canada. Respondent argued, on the contrary, that the essence of the offence is unlawful entry, regardless of the country. Thus, in his submission, unlawful entry into the United States constitutes an offence in the United States and the corresponding offence in Canada is unlawful entry into Canada.

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For my part, I favour the interpretation of respondent, but I would point out that the comparison must be not so much between the names of the offences, which may vary, but more between their essential elements. It is possible, for example, that what constitutes the unlawful sale of alcoholic beverages in a given country will not necessarily constitute unlawful sale in Canada. The identity of offences must be understood as identity of their essential elements, so that the act, if committed in Canada, would constitute an offence in Canada. There is no problem in this respect in the case at bar, as for the purposes of this appeal, but for the purposes of this appeal only, the identity of the offences is admitted.

In my opinion, respondent’s interpretation represents precisely what was intended by the presumption of subs. (3) of s. 423. The persons are deemed to have conspired to commit the offences in Canada. When applied to the circumstances here, this means that persons who have conspired to cause others to come into the United States unlawfully are deemed to have conspired to cause persons to come into Canada unlawfully.

Appellant submitted in this regard that a distinction should be made between an offence like that before the Court and an offence like, for example, robbery, which constitutes an offence in itself without it being in any way necessary to relate it to a particular country. He argued that robbery is still an offence, whether in New York or Toronto, in the United States or in Canada: whereas unlawful entry must be related to the country, and thus unlawful entry under American law is unlawful entry into the United States.

In my view this distinction is in error. It is only the nature of the offence which requires that it be described in terms of the country, and apart from the exceptions which we have seen such as piracy, in which an offence committed in another country constitutes an offence punishable in Canada, an offence is always created in Canada in terms of its territory. When the Criminal Code makes robbery an offence it refers to robbery committed in Canada, and not robbery committed in New York: however, it is not necessary to say this in every case, because it is self-evident and is in keeping

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with subs. (2) of s. 5 of the Code. It is more difficult to describe unlawful entry without reference to the country, but even at that and although it is not necessary to decide the point, if s. 95 of the Immigration Act, 1976 (supra) contained only the word “comes” without adding “into Canada”, it would read badly, but I am inclined to think that as a consequence of subs. (2) of s. 5 it would nonetheless mean “comes into Canada”. Section 95(a) reads:

95. Every person who

(a) comes into Canada at any place other than a port of entry and fails to report to an immigration officer for examination as required by subsection 12(1),

Appellant further argued that the information itself states the offence as “causing persons to come into the United States of America unlawfully…”. To this, respondent replied that this statement is not an essential component of the offence: it is only a detail, a statement of fact. The offence charged is common law conspiracy committed in Canada, to effect an unlawful purpose. Causing persons to enter the United States unlawfully constitutes an offence under American law, just as causing persons to come into Canada unlawfully constitutes an offence under Canadian law. As a consequence of the presumption of s. 423(3), the conspirators are deemed to have conspired to commit the offence in Canada. It is as if they had conspired to cause persons to come into Canada unlawfully.

To conclude discussion of this point, I adopt the following passage from Bisson J. of the Superior Court, as he then was, cited with approval in the reasons of Owen J.A. of the Court of Appeal:

[TRANSLATION]Does the information disclose a crime which is known, in the sense that it contains the essential elements of a criminal offence in Canada as well as in the United States of America?

It is admitted for these purposes that unlawful entry of persons into the U.S.A. is an offence.

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The essential elements of the information under consideration are conspiracy in Canada to effect this unlawful purpose of causing persons to come into another country unlawfully.

It is clear that unlawful entry into the U.S.A. is not a crime in Canada, any more than the crime of kidnapping a citizen in New York could be tried in Canada.

However, if a person conspires in Canada to kidnap someone in New York, a crime is committed here, since kidnapping is as much an offence in Canada as in the United States, and the essence of the crime is the conspiracy to kidnap.

In the same way, a conspiracy in Canada to cause persons to enter the U.S.A. unlawfully may be prosecuted as a crime in Canada, since the essence of the crime is conspiracy to effect unlawful entry, a crime which exists both in Canada and in the U.S.A.

Alternatively, appellant submitted, as his second proposition, that the offence charged is not the type of offence contemplated by s. 423(3).

I do not think it is necessary to go into all the details of the argument made in support of this proposition. In short, in the appellant’s submission what the legislator had in mind was offences which constitute a malum in se, and not a malum prohibitum; these are serious international crimes, inter alia crimes such as skyjacking, international terrorism and kidnapping. Appellant relied primarily on the following extract which he said was from the “codifier’s report” on the bill which introduced s. 423(3), (4), (5) and (6):

In light of the ever increasing international nature of criminal activity, it is desirable and in the interest of Comity of Nations, that Canada should discourage International criminals from using its territory as a basis for planning criminal acts in other Countries. Conversely, it is desirable that Canada should deter International criminals from conspiring abroad to commit offences in Canada.

The proposed amendments are designed to achieve these twin objectives. In the first case where persons conspiring in Canada to commit crimes in another State, the amendment proposes as a basis for the assertion of jurisdiction that the acts agreed to be done must constitute an offence both by the law of the State in which they are agreed to be done and by the law of Canada.

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Nothing in this passage has the effect of categorizing the type of offence contemplated. Further, without ruling on the merits, because that is not at issue here, creating a system in Canada for bringing persons into the United States unlawfully would seem to me to constitute a definite manifestation of international activities of dubious legality. In any case, nothing in the wording of s. 423(3) or in the other subsections adopted at the same time justifies the proposition submitted by appellant, which in my opinion is without foundation.

2. The validity of the information

In his factum, appellant argued that the information was insufficient in light of s. 510 Cr.C., and asked that it be quashed on this ground.

This argument was not made in any of the lower courts, and their judgments are consequently silent on the point.

It should also be noted that counsel for the appellant did not deal with this argument at the hearing; but it must be disposed of nevertheless.

In opposition to this argument, respondent submitted that the judge at the preliminary inquiry had no jurisdiction to quash an information, because it was not in accordance with s. 510 Cr.C. Alternatively, respondent submitted that the information as worded met the requirements of the Code.

On the first point, respondent acknowledged that a judge at a preliminary inquiry has the power to determine whether the information [TRANSLATION] “charges the accused with committing an indictable offence, because the mention of an indictable offence in an information is a condition precedent to the exercise of his jurisdiction”. Respondent agreed in this respect with the Court of Appeal, which so held.

[TRANSLATION] “But”, the respondent went on, “we submit that acknowledgment of this jurisdiction does not at the same time imply acknowledging a power to quash an information the wording of which is not in accordance with the provisions of ss. 510 and 512 of the Criminal Code”. As I mentioned, this question was not submitted to the

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Court of Appeal, since the sufficiency of the information was only raised in this Court.

Can the relevant provisions of Part XVII of the Code be in any way applied to the preliminary inquiry (Part XV), or can a motion to quash of this type only be admitted at trial? This question has not been finally resolved, but I do not think that the case at bar is a suitable context in which to resolve it. The question is not directly presented: the judge of Sessions of the Peace did not quash the information for insufficiency. He was not even asked to do so. In my view it would be better to wait for a case in which the question was raised at the outset, not simply once it had got as far as the Supreme Court. Support is lent to this view by the fact that even if the information could be quashed at the preliminary inquiry by applying ss. 510, 512, and 529, in the case at bar the information is not defective.

More specifically, in his submission appellant argued that the information should contain a reference to the specific section or sections of the American “Immigration and Naturalization Act”, a reference to the specific section or sections of the Canadian Immigration Act, 1976 (supra) which would have been infringed if the offence had been committed in Canada, and a mention of the names of the other co-conspirators.

Counsel for the respondent based his opposing argument primarily on a decision of this Court in R. v. Côté, 1977 CanLII 1 (SCC), [1978] 1 S.C.R. 8, in which, speaking for the Court, de Grandpré J. said at p. 13:

…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 them 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.

Reference may also be made to the decision of this Court in Brodie and Barrett v. The King, 1936 CanLII 1 (SCC), [1936] S.C.R. 188, in which Rinfret J., as he then was, speaking for the Court, analysed s. 852 Cr.C., which later became s. 510 without substantial

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alteration. Rinfret J. observed, inter alia, at pp. 193-94:

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 (Compare dictum of Channel, J., in Smith v. Moody, [1903] 1 K.B. 56, at 63), of stating the facts alleged to constitute the indictable offence.

The manner of stating the matter is of no absolute importance, in view of subsections 2 and 3. The statement may be made in popular language, without any technical averments or allegations; or it may be in the words of the enactment describing the offence or declaring the matter charged to be an indictable offence; but we think the latter parts of subsections 2 and 3 are indicative of the intention of Parliament: 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.

In the case at bar, the offence charged is the so-called “common law” conspiracy, and the information refers to the specific provision of the Criminal Code, s. 423(2)(a). The offence is described in the actual wording of the Code and the circumstances relating to its commission are stated. The information indicates the substance of the offence and the time, place and facts constituting the offence. I therefore agree with the contention of respondent:

[TRANSLATION] …that in specifying the place of the conspiracy, the date of that conspiracy, the name of a co-conspirator, the place of the unlawful purpose, the nature of the unlawful purpose, the reference to the section creating the offence and even a reference to the

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section creating the presumption as to extra-territoriality, respondent met the requirements of the law in this matter by reasonably informing appellant of the offence with which he was charged and so affording him an opportunity for a complete defence.

Counsel for the respondent further stated with regard to the names of the co-conspirators that one of them is mentioned in the information and [TRANSLATION] “if the others are not mentioned, this is because they are not known”.

Moreover, the decisions cited by appellant are not conclusive, in my opinion. In R. v. Giguère (1963), 1963 CanLII 1124 (QC CQ), 41 C.R. 308, the accused was acquitted after trial for lack of evidence of conspiracy with the only co-conspirator named. In the case at bar, we are not yet even at the stage of hearing evidence. In R. v. Tremblay et al (1961), 1961 CanLII 628 (AB SCTD), 40 C.R. 382, the accused were acquitted after trial because there was no evidence that the offence had been committed in Calgary as alleged, or even near that city. In R. v. Uvery, 1968 CanLII 876 (SK QB), [1969] 2 C.C.C. 305, the accused was acquitted on appeal because evidence was not presented of commission of the offence at the place alleged, Prince Albert, or even anywhere in Saskatchewan. In R. v. McNab (1945), 83 C.C.C. 76, the accused, who was charged with uttering a forged cheque, was acquitted on appeal because the evidence showed that the cheque was good and it was the endorsement which was forged.

3. The mandamus

Finally, appellant submitted that the quashing of the information by the trial judge cannot be a basis for a writ of mandamus.

It was common ground that the trial judge’s decision is not appealable, but counsel for the appellant submitted that “The fact that the Justice’s decision was not appealable, does not necessarily mean that a writ of mandamus should or must lie.”

Respondent relied on the majority decision of this Court in Kipp v. Attorney-General for the Province of Ontario, 1964 CanLII 20 (SCC), [1965] S.C.R. 57, which in my opinion is conclusive. Appellant sought to show that this case does not apply in the circumstances

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of the case at bar, but with respect this proposition cannot be supported, and I will discuss this below.

In Kipp the accused, after the indictment was read at the trial, but before a plea had been entered, made a motion to quash on the ground that the indictment applied to more than one case. The judge allowed the motion. On a motion by the Crown, Grant J. of the High Court of Ontario reversed the decision of the county court judge and by mandamus ordered him to proceed. The Court of Appeal of Ontario and this Court affirmed the judgment of the High Court.

Judson J., speaking for the majority, commenting on the cases cited by the accused, in particular R. v. Justices of Middlesex (1877), 2 Q.B.D. 516, on which appellant relied in the case at bar, wrote at pp. 60-61:

The cases merely hold that such decisions are not reviewable by way of mandamus. They do not touch the problem in the present case where an indictment is quashed before plea and no trial is held. All that the Crown is seeking is an order directing the County Court Judge to proceed with the trial. If he proceeds with the trial and gives a decision, that decision is open to appeal and is not reviewable on mandamus. But he can be compelled to give a decision on the merits and it is no answer to such an application to say that he has exercised his jurisdiction in quashing the indictment and that such a decision cannot be reviewed.

The use of the word “jurisdiction” in this context does not help one towards a solution. There is no dispute that the judge had the power to deal with the form of the indictment and that he was acting within his jurisdiction when he quashed the indictment. But he made an error in quashing this indictment. He was there to try the charge. As the matter stands now, unless the order of mandamus issues, the case as framed cannot be tried and it should be so tried. It is proper, in the circumstances, to issue the writ of mandamus.

The only distinction suggested by appellant between Kipp and the case at bar is that in the first case the proceeding was at the trial stage, whereas here it was only at the stage of a preliminary inquiry.

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I do not see how this changes the position. Under s. 463 Cr.C. the justice before whom an accused is charged must inquire into the charge. When, as in the case at bar, he quashes the information by making a fundamental error of law, this amounts to refusing to exercise his jurisdiction and will be a basis for mandamus.

Appellant cited the decision of this Court in R. v. Sheets, 1971 CanLII 130 (SCC), [1971] S.C.R. 614, which is in no way relevant. That case concerned not mandamus but an appeal. This Court held that in the circumstances the trial judgment constituted a judgment on the merits and the provisions relating to appeal applied.

For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Robinson, Cutler, Sheppard, Borenstein, Shapiro, Langlois, Flam & Green, Montreal.

Solicitor for the respondent the Attorney General of the Province of Quebec: Claude Provost, Montreal.