McKibbon v. R., 1984 CanLII 67 (SCC), [1984] 1 SCR 131

minicounsel

McKibbon v. R., [1984] 1 S.C.R. 131

Date: 1984-03-08

Rodger David McKibbon (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 16884.

1983: May 18; 1984: March 8.

Present: Ritchie, Dickson, Estey, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Procedure—Preliminary inquiry—Preferring indictment—Additional offences disclosed by evidence at preliminary inquiry—Power of agent of Attorney General to prefer indictment on additional offences—Criminal Code, R.S.C 1970, c. C-34, ss. 496, 504, 505, 507 (as amended by 1974-75-76 (Can.), c. 93, s. 63).

At the conclusion of the preliminary inquiry, the presiding provincial court judge committed the appellant for trial on the two counts for which he was charged and declined the Crown’s request to commit him on two additional offences disclosed by the evidence. Later, the Crown counsel preferred an indictment containing four counts under s. 507(2) of the Criminal Code. Two counts corresponded to those for which appellant had been committed and the additional two to offences disclosed from evidence taken at the preliminary inquiry and arising from the same transaction. The Ontario Court of Appeal upheld an Ontario Supreme Court decision to dismiss appellant’s application to quash the two additional counts. This appeal is to determine whether an agent of the Attorney General had authority pursuant to s. 507(2) of the Code to prefer the two additional counts which arose out of the evidence adduced at the preliminary inquiry.

Held (Dickson and Wilson JJ. dissenting): The appeal should be dismissed.

Per Ritchie, Estey and Lamer JJ.: The agent of the Attorney General had the power to prefer an indictment including counts other than those charged but revealed by the evidence at a preliminary inquiry. Such power is found in s. 507(2) of the Criminal Code and was first introduced into the Code in 1907 as s. 873A. The 1969 amendments adding subs. (3), while curtailing the gen-

[Page 132]

eral power to prefer, did not take away that power. Save a few minor exceptions and Nova Scotia, the following principles govern the preferment of indictments in jury trials:

(A) The Attorney General or anyone with the written consent of a judge of the court may prefer an indictment for any offence irrespective of whether a preliminary inquiry has been held, and if so, whether the accused was discharged or committed for that or any other offence.

(B) Anyone else empowered under s. 507(2) to prefer indictments can do so only if the following conditions have been met: (1) a preliminary inquiry has been held; (2) the accused has been committed for trial on at least one of the charges inquired into by the justice; and (3) the count of the indictment must be for an offence for which the accused was committed or for an offence disclosed in the evidence introduced at the preliminary inquiry, and which is not an offence for which the accused was discharged.

[R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985; Re Criminal Code (1910), 1910 CanLII 30 (SCC), 43 S.C.R. 434, considered; R. v. Dwyer and Lauzon (1978), 1978 CanLII 2513 (ON CA), 42 C.C.C. (2d) 83 reversed, on other grounds 1979 CanLII 53 (SCC), [1980] 1 S.C.R. 481; R. v. G. & P. International News Ltd. and Judd (1973), 1973 CanLII 1518 (BC CA), 12 C.C.C. (2d) 169; R. v. Philbin and Henderson, 1977 ALTASCAD 242, [1978] 1 W.W.R. 122; R. v. Wilson (1878), 43 U.C.Q.B. 583; R. v. St. Louis (1897), 1897 CanLII 110 (QC CS), 1 C.C.C. 141; R. v. Hamilton (1898), 1898 CanLII 108 (NS SC), 2 C.C.C. 178; R. v. Duff (No. 2) (1909), 1909 CanLII 212 (SKSC), 15 C.C.C. 454; R. v. King (1956), 1956 CanLII 472 (BC CA), 114 C.C.C. 125; R. v. Sommervill (1963), 1963 CanLII 393 (SK CA), 40 C.R. 384; R. v. Biernacki (1962), 1962 CanLII 886 (QC CQ), 37 C.R. 226; R. v. Beaudry, 1966 CanLII 537 (BC CA), [1967] 1 C.C.C. 272, referred to]

APPEAL from a judgment of the Ontario Court of Appeal (1981), 1981 CanLII 83 (ON CA), 64 C.C.C. (2d) 441, 35 O.R. (2d) 124, affirming a judgment of Galligan J. (1981), 1981 CanLII 1722 (ON SC), 61 C.C.C. (2d) 126, 34 O.R. (2d) 185, dismissing appellant’s motion to quash counts in an indictment. Appeal dismissed, Dickson and Wilson JJ. dissenting.

David Smye, for the appellant.

David H. Doherty, for the respondent.

[Page 133]

The judgment of Ritchie, Estey and Lamer JJ. was delivered by

LAMER J.—Appellant applied to Galligan J. of the Supreme Court of Ontario seeking to quash some of the counts of an indictment that had been preferred against him to the General Sessions of the Peace at Hamilton. Galligan J. dismissed the application, and the accused’s appeal to the Ontario Court of Appeal was also unsuccessful. His appeal to this Court is by leave.

The Facts

An information was sworn containing two counts charging the accused with break and entry with intent to commit an indictable offence therein contrary to s. 306(1)(a) of the Criminal Code, and impersonating a police officer contrary to s. 361(a) of the Criminal Code. The accused elected trial by judge and jury.

At the preliminary inquiry the accused was committed for trial on both counts. The presiding Provincial Court Judge, applying this Court’s decision in R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985, declined a request from Crown counsel to commit for trial in respect of two additional offences. It is conceded that these two additional allegations arose out of the same transaction as that concerning the counts for which accused had been committed. It is also conceded that there was evidence led at the preliminary inquiry from which a properly instructed jury could reasonably have convicted the appellant for those requested additional counts. Finally, appellant is not arguing that the evidence in support of those additional counts was of no relevance to the two counts for which he was committed by the Provincial Court Judge.

Crown counsel, acting as an agent of the Attorney General, preferred an indictment under s. 507 of the Criminal Code containing four counts: two of which corresponded to the two counts on the information and for which the accused had been

[Page 134]

committed (the wording of one of those was in the indictment somewhat different than that in the information); and the other two for offences disclosed from evidence adduced at the preliminary hearing.

The accused had originally sought in the Supreme Court, to quash not only the two additional counts but also one of the two for which he had been committed, an order of prohibition against the conduct of a trial on these counts, and an order of mandamus to compel the quashing of these counts. In his appeal to this Court the accused has abandoned his challenge to the count of the indictment for which he had been committed and is now seeking to quash only the two added counts.

The Issue

Could the agent of the Attorney General prefer an indictment pursuant to s. 507(2) of the Criminal Code of Canada containing counts which alleged offences, the commission of which were disclosed by the evidence taken at a preliminary inquiry but which were not the subject of a charge at the preliminary inquiry, in addition to those counts alleged in the offences contained in the information which were the subject of the preliminary inquiry and for which the accused was committed to stand trial at the conclusion of the preliminary inquiry?

Section 507 reads as follows:

(1) In the Provinces of Newfoundland, Prince Edward Island, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia and in the Yukon Territory and Northwest Territories it is not necessary to prefer a bill of indictment before a grand jury, but it is sufficient if the trial of an accused is commenced by an indictment in writing setting forth the offence with which he is charged.

(2) An indictment under subsection (1) may be preferred by the Attorney General or his agent, or by any person with the written consent of a judge of the court or of the Attorney General or, in any province to which this section applies, by order of the court.

[Page 135]

(3) Notwithstanding anything in this section, where

(a) a preliminary inquiry has not been held, or

(b) a preliminary inquiry has been held and the accused has been discharged,

an indictment under subsection (1) shall not be preferred except with the written consent of a judge of the court, or by the Attorney General.

The governing section for preferring a charge in the case of a trial before a judge of Part XVI is s. 496:

(1) Where an accused elects under section 464, 484, or 492 to be tried by a judge without a jury, an indictment in Form 4 shall be preferred by the Attorney General or his agent, or by any person who has written consent of the Attorney General, and in the Province of British Columbia may be preferred by the clerk of the peace.

(2) An indictment that is preferred under subsection (1) may contain any number of counts, and there may be joined in the same indictment

(a) counts relating to offences in respect of which the accused elected to be tried by a judge without a jury and for which the accused was committed for trial, whether or not the offences were included in one information, and

(b) counts relating to offences disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any offence for which the accused was committed for trial.

(3) An indictment that is preferred under subsection (1) may include an offence that is not referred to in paragraph (2)(a) or (b) if the accused consents, and that offence may be dealt with, tried and determined and punished in all respects as if the offence were one in respect of which the accused had been committed for trial, but if that offence was committed wholly in a province other than that in which the accused is before the court, subsection 434(3) applies.

Appellant's position

The appellant’s argument is, in the result, that the preferment for an additional charge is governed by subs. 3(a) of s. 507 and that only the Attorney General himself and not his agent, short of the agent’s obtaining the Court’s consent, could

[Page 136]

prefer the indictment. His position is that one must read the words “a preliminary inquiry has (not) been held” as meaning an inquiry pursuant to an information which contains the count or counts subsequently found in the indictment. He says that s. 507 is a comprehensive procedure for preferring indictments in provinces where there is no grand jury, that s. 507(2) applies only when a preliminary has been held upon the offence charged in the information followed by a committal and that, if no preliminary was held or if it resulted in a discharge, it is s. 507(3) which governs the situation. His supportive arguments are twofold. He first argues that the power to add counts in one indictment preferred to a petit jury never existed in provinces where there is no grand jury; his second argument is that, in any event, this power, if it did exist, was taken away in 1969 when the Code was amended to include what is now s. 507(3).

The Crown's position

The Crown says that the plain meaning of the words “a preliminary inquiry has not been held” makes the limitation found in s. 507(3) to the general power to prefer before a petit jury inapplicable where there has been a preliminary inquiry at which evidence, relevant to the offence charged and sufficient to support a prima facie case on all of the charges contained in the indictment was properly adduced by the Crown, and where a committal results.

The Court of Appeal

The Ontario Court of Appeal (1981), 1981 CanLII 83 (ON CA), 64 C.C.C. (2d) 441, 35 O.R. (2d) 124, adopting the obiter view of Lacourcière J.A. in R. v. Dwyer and Lauzon (1978), 1978 CanLII 2513 (ON CA), 42 C.C.C. (2d) 83, and the reasoning adopted by the Court of Appeal of British Columbia in R. v. G. & P. International News Ltd. and Judd (1973), 1973 CanLII 1518 (BC CA), 12 C.C.C. (2d) 169, which was subsequently followed by the Alberta Court of Appeal in R. v. Philbin and Henderson, 1977 ALTASCAD 242, [1978] 1

[Page 137]

W.W.R. 122, agreed with the Crown’s interpretation of the section.

I am of the view that the power to prefer counts other than those charged but revealed by the evidence at a preliminary is found in s. 507(2) since its introduction in 1907 as s. 873A.

I am also of the view that the 1969 amendments, while curtailing the general power to prefer, did not take away that power.

The Power Always Existed

A historical review of the relevant sections shows that s. 507(3) was enacted by Parliament when it realized that what had started out as an exceptional procedure had gradually become the general rule and that control by the courts and greater direct political accountability through the Attorney General’s personal involvement were desirable when by-passing the holding of an inquiry or when overlooking a discharge; and this was so even when there was to be a preferment before a grand jury.

Prior to codification, anyone could, under the common law, prefer an indictment before a grand jury except for certain offences (perjury, subornation of perjury, conspiracy, obtaining money by false pretences, keeping a gambling house, keeping a disorderly house, indecent assault (Vexatious Indictments Act, 1859 (U.K.), 22 & 23 Vict., c. 17) and libel (Newspaper Libel and Registration Act, 1881 (U.K.), 44 & 45 Vict., c. 60, s. 6)). For these offences there was a statutory requirement that the person either be bound over to prosecute by a magistrate following a preliminary inquiry or that he be given permission to prefer before the grand jury by a judge or by the Attorney General. By-passing the grand jury could only be done by a criminal information preferred before the petit jury by the Attorney General, the Solicitor General and the Master of the Crown Office, and, in any event, such a procedure was limited to mis-

[Page 138]

demeanours. The system of preferment of indictments and that of criminal informations was greatly criticized by Stephen (see Stephen, History of the Criminal Law of England (1883), vol. 1, pp. 293 et seq.). Some of his views appear to have been accommodated in our first Code of 1892.

The Canadian system required the finding of a true bill by a grand jury. At the time, criminal informations, though not abolished till 1953, were no longer being authorized (see R. v. Wilson (1878), 43 U.C.Q.B. 583). The preferment of a bill of indictment, was governed by s. 641 of the Code of 1892:

Any one who is bound over to prosecute any person, whether committed for trial or not, may prefer a bill of indictment for the charge on which the accused has been committed, or in respect of which the prosecutor is so bound over, or for any charge founded upon the facts or evidence disclosed on the depositions taken before the justice. The accused may at any time before he is given in charge to the jury apply to the court to quash any count in the indictment on the ground that it is not founded on such facts or evidence, and the court shall quash such count if satisfied that it is not so founded. And if at any time during the trial it appears to the court that any count is not so founded, and that injustice has been or is likely to be done to the accused in consequence of such count remaining in the indictment, the court may then quash such count and discharge the jury from finding any verdict upon it.
The Attorney-General or any one by his direction or any one with the written consent of a judge of any court of criminal jurisdiction or of the Attorney-General, may prefer a bill of indictment for any offence before the grand jury of any court specified in such consent; and any person may prefer any bill of indictment before any court of criminal jurisdiction by order of such court.
It shall not be necessary to state such consent or order in the indictment. An objection to an indictment for want of such consent or order must be taken by motion to quash the indictment before the accused person is given in charge.

[Page 139]

Save as aforesaid no bill of indictment shall after the commencement of this Act be preferred in any province of Canada.

A bill of indictment could be preferred with or without a preliminary inquiry into the matter, but, if no preliminary had been held, only the Attorney General, or someone by his direction or that of the Court or the consent of the Court could prefer before the grand jury. The main change in the system was that prosecutors other than those aforementioned had to go through a preliminary inquiry and then could prefer before the grand jury, for offences: 1) for which the accused had been committed, if bound over to do so; 2) for which he had been discharged but only if the prosecuting person had requested to be bound over to prosecute same; 3) which were founded upon the facts disclosed on the depositions taken before the justice in the course of the preliminary inquiry.

As for speedy trials, (roughly today’s trials before a judge of Part XVI) the charging process was governed by the following sections: 765, 767 and 773, ss. 767(2) and 773 being those relevant to this appeal:

…
If the prisoner demands a trial by jury the judge shall remand him to gaol; but if he consents to be tried by the judge without a jury the county solicitor, clerk of the peace or other prosecuting officer shall prefer the charge against him for which he has been committed for trial, and if, upon being arraigned upon the charge, the prisoner pleads guilty, the prosecuting officer shall draw upon a record as nearly as may be in one of the forms MM or NN in schedule one to this Act, such plea shall be entered on the record, and the judge shall pass the sentence of the law on such prisoner, which shall have the same force and effect as if passed by any court having jurisdiction to try the offence in the ordinary way.
The county attorney or clerk of the peace or other prosecuting officer may, with the consent of the judge, prefer against the prisoner a charge or charges for any offence or offences for which he may be tried under the provisions of this part other than the charge or

[Page 140]

charges for which he has been committed to gaol for trial, although such charge or charges do not appear or are not mentioned in the depositions upon which the prisoner was so committed.

(Emphasis added.)

We need not here consider summary trials.

The Code of 1892 was setting up a new system whereby the normal process was the holding of a preliminary before a justice or a magistrate.

Generally speaking, by-passing the grand jury, (though theoretically possible through criminal informations) occurred only when and as a result of an accused consenting to be tried for certain indictable offences under Part LIV (speedy trials).

By-passing the preliminary inquiry required the Attorney General’s direction or consent or that of the court. But, of importance, once a preliminary had been held, except for speedy trials, binding over was sufficient to overcome the effect of a judge’s discharge. Furthermore, as for offences not charged but revealed by the evidence adduced at the preliminary the rule did not even require committal. Committal would seem to be a restriction for speedy trials, but is only the result of the nature of that process. Speedy trials could only be offered to those who were going to be tried, and committal was not referred to in the governing sections as a restriction but mentioned as an inevitable prerequisite. The letter of the ancestor section to today’s s. 496 would appear at first sight to be giving a much wider charging power. But it did not, as a matter of practice operate in that way and was quite in line with the rule for jury trials. Indeed, the judge when consenting to additional charges was expected to exercise his discretion in a way that would protect the accused who had consented to the process and relinquished his right to

[Page 141]

a jury trial on the charge for which he had been committed.

Comments in Tremeear’s Criminal Code (2nd ed., 1908), on s. 834, the successor to s. 773 of the Code of 1892, support this view. At pages 668-69:

Preferring another charge.]—Notwithstanding the provisions of sec. 834, a judge should not, against the wish of a prisoner, give his consent, at the trial before him, under the speedy trials clauses without a jury, to any other charge being preferred than that upon which the prisoner was committed for trial, unless it is clear that, while it may be more formally or differently expressed, it is substantially the same charge as the one on which he was committed for trial. R. v. Carriere (1902), 1902 CanLII 102 (MB KB), 6 Can. Cr. Cas. 5, 14 Man. R. 52.

In order to have the right to prefer such other charge, the prisoner must have been committed or admitted to bail and subsequently placed and held in custody, on the charge of having committed an indictable offence, for which he had the right to demand a speedy trial without a jury, he must have been brought and must be legally before the judge of sessions, he must have consented to waive his right to a trial by jury and have consented to take a speedy trial without one. The object of this provision is to permit, during the course of a speedy trial, the prosecuting officer to prefer the same charge in another form, to substitute a charge for an attempt to commit an offence when the charge is for the complete commission of the offence, or to substitute a charge for the commission of an offence which is a lesser one than the offence for which the prisoner was committed for trial, but which is included in its commission, even though it should not be stated as described in the depositions. The other charge must not be a totally distinct charge nor be wholly disconnected with the charge for which the committal or the admission to bail for trial was made. It must be cognate to the one for which the prisoner was committed or bailed. R. v. Wener (1903), 1903 CanLII 120 (QC CQ), 6 Can. Cr. Cas. 406 (Que.). When the charge has been drawn without sufficient accuracy, a proper and appropriate charge may be substituted and preferred. This gives a reasonable application to the provisions contained in sec. 834, which must preclude

[Page 142]

any other interpretation. Regina v. Lonar, 25 N.S.R., p. 124; Regina v. Smith, 25 N.S.R., p. 138, and Regina v. Morgan, 2 B.C.R., p. 829. The prisoner need not necessarily be tried for an offence in the language of the commitment or of the recognizance, but he may be tried on any form of charge in which the offence can properly be described, although not so mentioned in the depositions. R. v. Wener (1903), 1903 CanLII 120 (QC CQ), 6 Can. Cr. Cas. 406; Cornwall v. Regina, 33 U.C.Q.B. 119.

In case of a substitution of another charge for which the law permits a heavier punishment the prisoner’s consent should be distinctly obtained, not to the substitution, but to the waiving of the right of trial by jury. Goodman v. R. (1883), 3 Ont. R. 18.

Where a man consents to waive his right to a jury, and to be tried summarily by the judge on a charge which on its face would only warrant an imprisonment for less than a year, he ought not by any implication to be held as assenting to waive such right as to any charge that the law may allow to be substituted therefor which might render him liable to a larger punishment, and his assent to be summarily tried on the substituted charge should be obtained and recorded. Ibid.

The consent of the judge must be obtained before the “other charge” is preferred. R. v. Cohon, 1903 CanLII 111 (NS SC), 6 Can. Cr. Cas. 386 (N.S.).

After a committal for trial at the instance of the Crown upon a charge of manslaughter and arraignment thereon under the speedy trials clauses and election of the accused for speedy trial without a jury, the proceedings in the county court judge’s criminal court will not be stayed at the instance of the Crown to enable a charge of murder to be substituted. The King v. Telford, 1904 CanLII 90 (BC SC), 8 Can. Cr. Cas. 223.

After an election for speedy trial without a jury, leave should not be granted to add other charges substantially different from those upon which his election was made, unless the accused is willing to elect speedy trial in respect also of such additional charges. R. v. Douglas (1906), 1906 CanLII 113 (MB KB), 12 Can. Cr. Cas. 120 (Man.).

The grand jury system was generally awkward and unfair to victims or other informants who had initiated a prosecution and were bound over. Awk-

[Page 143]

ward because public officers interested in the prosecution of crime had to either get a consent from the Attorney General or the Court, or lay an information. Unfair to them because, when laying an information before a justice, they were considered as being on the same footing as a private informant, were subject to being bound over and personally risk the consequences of a grand jury not finding a true bill or the consequences of an acquittal subsequent to a true bill. (See R. v. St. Louis (1897), 1897 CanLII 110 (QC CS), 1 C.C.C. 141). Furthermore, it was unfair to the victims of crimes who prosecuted: “The fact that the attorney-general and the Crown prosecutors take charge of a case when it is transmitted to the proper Court and it is a public one and therefore submit the indictment to the Grand Jury and conduct the case before the Petit Jury, does not relieve the prosecutor from his liability to pay such costs on the happening of any of the events just enumerated.” (See R. v. St. Louis, supra, per Wurtele J., at p. 147). Added to that was the fact that “The preferring of an indictment by an agent of the Attorney-General acting under a general appointment to attend to all criminal cases at a session of the Court without having obtained the special direction of the Attorney-General or an order or consent under Cr. Code, sec. 641, is not a compliance with Cr. Code, sec. 641, requiring the indictment to be preferred by the person bound over by recognizance to prefer the same, and, if the latter fails to appear, the indictment should be quashed.” (The summary of the decision of Weatherbe J., Graham E.J., and Henry J. in R. v. Hamilton (1898), 1898 CanLII 108 (NS SC), 2 C.C.C. 178, (C.A.N.S.))

Parliament in 1900, one might assume in reaction to this latter decision of the Court of Appeal for Nova Scotia, amended s. 641 of the Code by enacting 63-64 Vict., c. 46, s. 641, which added a paragraph:

[Page 144]

…
The counsel acting on behalf of the Crown at any court of criminal jurisdiction may prefer against any person who has been committed for trial at such court a bill of indictment for the charge on which the accused has been so committed or for any charge founded on the facts or evidence disclosed in the depositions taken before the justice.

Crown counsel could therefore prefer the indictment in the stead of the person bound over or, more important, when no one was bound over following the committal. There was however a limitation, the requirement that there had to be a committal. In the case of a discharge, only the person bound over at his request could prefer the indictment, save of course a specific preferment under s. 641(3).

To summarize one sees that, by 1900, under the grand jury system the holding of a preliminary inquiry resulting in a committal was the rule and could be avoided or a discharge subsequent thereto could be overlooked only subject to either the control of the courts or to personal accountability on the part of a private citizen being open to forfeiture of his security, the payment of costs and even damages, or subject to control by the Attorney General. But on the other hand, once a preliminary had resulted in a committal, the system was lax as to what charges could be preferred, the only prerequisite (even for speedy trials as a matter of judicial practice) being that it be for a charge “founded on the facts or evidence disclosed in the depositions”.

The Revised Statutes of Canada of 1906 brought no change to the system, save a rearrangement and renumbering of the relevant sections. But in 1907, by the enactment of s. 873A (6 & 7 Ed. VII, c. 8) there was introduced for the first time as an exception for the provinces of Saskatchewan and Alberta what has now become the system for all provinces save Nova Scotia.

873A. In the provinces of Saskatchewan and Alberta, it shall not be necessary to prefer any bill of indictment

[Page 145]

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.

Such charge may be preferred by the Attorney General or an agent of the Attorney General, or by any person with the written consent of the judge of the court or of the Attorney General, or by order of the court.

This was at the time an exceptional mode of prosecution. There needed not be any preferment before a grand jury. These two new provinces had already known the system as having been part of the Northwest Territories where there was no grand jury. Preliminary inquiries were held but this was not always the rule, as appears from the remarks of Johnstone J. then of the Supreme Court of Saskatchewan, sitting en banc in 1909 in the case of R. v. Duff (No. 2) (1909), 1909 CanLII 212 (SKSC), 15 C.C.C. 454, where he said, at p. 465:

It has been of common occurrence in this Province in the past, and in the Territories forming the Provinces of Saskatchewan and Alberta for years before the foundation of these Provinces, to commence the prosecution of persons for criminal offences without first having had a preliminary hearing before a justice of the peace.

The list of persons at s. 873A does not include “counsel acting on behalf of the Crown”. The persons therein listed are practically the same persons, when adding to them the agents of the attorneys general, that could by-pass the holding of a preliminary inquiry or a discharge.

Nevertheless, following the introduction of s. 873A into the Code there was great uncertainty as to whether a preliminary could be by-passed in view of the fact that there was no grand jury. In 1910, this Court, Idington J. dissenting, on a reference Re Criminal Code (1910), 1910 CanLII 30 (SCC), 43 S.C.R. 434, found in the affirmative. Every judge clearly states in his reasons that the finding, because made on a reference, was not binding and that furthermore the Court had not had the benefit of adversarial argument. Idington J. predicated his dissent essen-

[Page 146]

tially on two arguments: first, that as regards s. 873A, there was open to the Court two interpretations, one of which permitting to read into that section the requirement for a preliminary inquiry. This is what I understand from his remarks, at p. 450:

It seems to me the question cannot be answered as if beyond doubt, and when answered here and thus ex parte can bind no one.

But I am quite sure of one thing relative to the administration of justice, and that is that no one entrusted therewith or any part thereof should ever jeopardize or prejudice by the adoption of a doubtful course of procedure, when a safer one was at hand, either the administration of justice or the standing, reputation or freedom of another for a single hour.

I therefore answer the first question, ‘yes,’ and each of the others, ‘no.’

His other argument was more textual. It seized onto the words of s. 873A “the trial of any person charged with a criminal offence be commenced by a formal charge”. His reasoning went as follows, at pp. 448-49:

With some changes in 1869 the law stood as above indicated till the Criminal Code was enacted in 1892.

Section 641 thereof expressly prohibited indictments being preferred unless there had been the preliminary examination followed by a prosecutor being bound over or a committal; or the Attorney-General or any one by his direction or a judge permitted.

This was again amended by 63 & 64 Vict. ch. 46, and again by the Revised Statutes of Canada and stood as it now stands in the Criminal Code sections 870 to 873 inclusive.

These sections are plain. They require, except in specified cases left to the discretion of an Attorney-General or a judge of a court of record or of criminal jurisdiction, preliminary proceedings.

The amendment section 873(a) does not in the slightest degree imply any intention to repeal them beyond the obvious necessity arising from the substitution of the officers above named for the discharge of the functions of the grand jury relative to placing a man on his trial.

[Page 147]

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.

(Emphasis added.)

The majority’s view was that the system those Territories had known prior to their becoming provinces would continue. Though they did not expressly say so one might assume that they felt that the fact those Territories had become provinces did not change the need for an exceptional mode of prosecution in that part of the country. Also, they said that the text of s. 873A was clear, unambiguous and expressed clearly what Parliament had intended. But the Court so insisted on the fact that the decision was in no way binding that I cannot but think that the uncertainty the reference was intended to dispel remained. Nevertheless, Parliament did not speak out on that aspect of the matter till 1953. In the meantime however, by amendments in 1909, 1925 and in 1943, the charging power in the case of speedy trials was gradually modified.

By 1944 the Criminal Code provided:

…
If the prisoner has been brought before the prosecuting officer, and consents to be tried by the judge, without a jury, the trial shall proceed on the day named by the judge in the manner provided by the next following subsection.

(3) In such case or if the prisoner has been brought before the judge and consents to be tried by him without a jury, the prosecuting officer shall prefer a formal statement in writing, setting forth as separate counts therein the charge or charges against him for which he has been committed for trial and any charge or charges founded on the facts or evidence disclosed in the depositions and any charge or charges preferred against him pursuant to the provisions of section eight hundred and thirty-four.

[Page 148]

The prosecuting officer may, with the consent of the judge, prefer against the prisoner a charge for any offence for which he may be tried under the provisions of this Part other than the charge for which he has been committed to jail for trial or bound over, although such charge does not appear or is not mentioned in the depositions upon which the prisoner was committed or is for a wholly distinct and unconnected offence: Provided that the prisoner shall not be tried under this Part or upon any such additional charge unless with his consent obtained as hereinbefore provided.
Any such charge may thereupon be dealt with, prosecuted and disposed of, and the prisoner may be remanded, held for trial or admitted to bail thereon, in all respects as if such charge had been the one upon which the prisoner was committed for trial.

Following a committal, no longer was the judge’s and the accused’s consent required as regards offences revealed at the preliminary. The criterion of the case law for the judge giving his consent had been enacted. By 1944, the special intervention, consent or direction of the attorney general or his agent or of the court was only required to by-pass a preliminary or to overcome a discharge so as to go directly to trial with a jury in petit jury provinces or to the grand jury in others. If a preliminary had been held and resulted in a committal “a prosecuting officer” could, in speedy trials, charge additionally or in the stead of the offence the object of the committal for any offence revealed by the evidence. On the other hand, the powers of the agent of the Attorney General (as all others listed in today’s s. 507(2)) were unlimited for jury trials but limited to those of a “prosecuting officer” in speedy trials: the offence charged had to be disclosed in the evidence taken at the preliminary. The limitation to the Attorney General’s and his agent’s wide powers to indict in the case of jury trials when charging in speedy trials is understandable in the light of two facts: the Attorney General could always avoid a speedy trial by ordering a trial by jury (see R. v. King (1956), 1956 CanLII 472 (BC CA), 114 C.C.C. 125; that power recognized by the courts was eventually enacted by 1968-69 (Can.), c. 38,

[Page 149]

s. 43, and is today s. 498 of the Code); furthermore, this was only fair to the accused, who has relinquished his right to a jury trial on the assumption that he would be tried for an offence related to the events that were investigated and disclosed to him at the preliminary inquiry.

In the new Code of 1953, Parliament modified the wording of the section, by then s. 489, and replaced the words “the trial of any person charged with a criminal offence” upon which Idington J. rested in part his dissenting views by the words “the trial of an accused”.

(1) In the provinces of Quebec, Manitoba, Saskatchewan, Alberta and British Columbia and in the Yukon Territory and Northwest Territories it is not necessary to prefer a bill of indictment before a grand jury, but it is sufficient if the trial of an accused is commenced by an indictment in writing setting forth the offence with which he is charged.

(2) An indictment under subsection (1) may be preferred by the Attorney General or his agent, by the Deputy Attorney General, or by any person with the written consent of a judge of the court or of the Attorney General or, in any province to which this section applies, by order of the court.

By then other provinces, namely Quebec, Manitoba and British Columbia, that had formerly been grand jury provinces, had joined Saskatchewan and Alberta in a non grand jury system. The considerations that could explain and justify for Alberta and Saskatchewan such an exceptional system at the outset were no longer valid for those two provinces and in any event could surely not be invoked as regards these newcomers. Yet Parliament did not speak out, except to take out of the Code most of the footing of the argument of Idington J. Curiously, Parliament specifically abrogated in 1953 what had since long disappeared, the laying of criminal informations. Yet,

[Page 150]

this is precisely for all practical purposes what could be done under s. 489, and even more so as it applied to all indictable offences and not only to misdemeanours as was the case for criminal informations. Be that as it may, I cannot read down, as suggested by appellant, the unambiguous language of s. 489 of the 1953 Code that Parliament could well have modified had it intended to express its disagreement with the views of the majority of this Court in Re Criminal Code.

At the time of the 1969 amendments, there was no restriction on the power enjoyed by those persons listed at today’s s. 507(2) to indict directly in jury trials. Furthermore, the restriction to their powers to indict was only for trials before a judge of Part XVI, and, though requiring that a preliminary had been held, that there be a committal, and that the count be one related to offences disclosed in the evidence, clearly did not require that a preliminary have been held and a committal have ensued for each count found in the indictment.

The 1969 Amendments

But there was an anomaly. As I said, at the outset the exceptional mode of prosecuting instituted in 1907 had become the rule. Also, there was a controversy between the courts of various provinces as to whether, having chosen to proceed by resorting to a preliminary inquiry, an attorney general could under the section shortcircuit the process before the magistrate’s decision, or overrule his discharge by indicting directly. (For a review of the case law on the point, see Culliton CJ.S. in R. v. Sommervill (1963), 1963 CanLII 393 (SK CA), 40 C.R. 384). Even those courts acknowledging that the attorney general was so empowered expressed concern over the fact that it should exist and expressed the feeling that in any event that it should be only in exceptional circumstances that the attorney general disregard a finding of the judiciary resulting in

[Page 151]

a discharge, and indict notwithstanding. This was further aggravated by the fact that gradually most prosecutions were being handled by full time Crown attorneys who were usually agents of the attorney general and that the attorney general was more and more remote from the taking of such a delicate decision and that as a result his political accountability was not sufficiently being triggered. Furthermore, a review of the cases in the 1960’s reveals conflicting attitudes from one province to another and in a few jurisdictions, what some might consider an abuse of the power by the Crown Attorneys acting as agents of the attorney general. (See, as illustrations, R. v. Biernacki (1962), 1962 CanLII 886 (QC CQ), 37 C.R. 226; R. v. Beaudry, 1966 CanLII 537 (BC CA), [1967] 1 C.C.C. 272).

In 1969, Idington J.’s policy arguments, though not his conclusions, finally prevailed. I am referring to those expressed when he said, at pp. 449-50:

I am satisfied from the practice of such a thing, though possible in law, never having been attempted, it was of set purpose to bring about a definite preliminary examination, as the key-note of criminal prosecution save where an Attorney-General or judge directed otherwise.

The result was in the plainest possible case the hearing had to be repeated before a magistrate to ensure committal for trial.

The policy of the law that there should be a preliminary examination was thus clearly settled and so settled in order that on grounds of humanity and justice that examination might, as so often happens, enable one accused, without perhaps the slightest foundation, by cross-examination of his accusers or by his own explanations to dispel the false appearances against him and save him the pain and indignity of being improperly placed on his trial.

The differences between that and the system of placing a man on his trial without being given such opportunity is most radical. The tendency in the one method is towards a humane administration of justice and in the other towards the vicious reverse thereof.

(Emphasis added.)

[Page 152]

His views were predicated, and with respect I should say rightly so, on the need to afford an accused a mechanism to “dispel the false appearances against him” and avoid a trial by ensuring that he be given an opportunity to cross-examine and be heard and offer his own evidence, and that a decision to deprive the accused of same or to override a justice’s discharge be taken by the Attorney General himself with full knowledge of the circumstances, a decision for which he would be politically accountable.

This is what in my view was enacted by Parliament by the addition of subs. (3) to s. 489:

(3) Notwithstanding anything in this section, where

(a) a preliminary inquiry has not been held, or

(b) a preliminary inquiry has been held and the accused has been discharged,

an indictment under subsection (1) shall not be preferred except with the written consent of a judge of the court, or by the Attorney General.

The effect of this amendment is to put all those listed in s. 507(2), except the Attorney General (or save judicial intervention), as regards jury trials in the position they were already in when preferring charges before a judge of Part XVI. While the amendment to s. 507 is the result of the two policy considerations I have already alluded to, its drafting reflects the interaction of two facts: the very general power enjoyed until then by those listed at s. 507(2) as regards jury trials, and the relatively limited scope of the powers to charge enjoyed by them and others when acting before a judge of Part XVI. The draftsmen proceeded by subtraction rather than by rewriting s. 507(2) along the lines of s. 496(2)(b). Questionable as that may be, I cannot find any further curtailment to the very general power to indict such as to require that the preliminary inquiry be held for each specific charge contained in the indictment. What Idington J. was thinking of, an opportunity to cross-examine, to be heard and put the Crown’s case to the test, is accommodated by the fact that, an inquiry having to be held, any count in the indictment will necessarily be related to the charge investigated at the preliminary under the evidenti-

[Page 153]

ary rules of relevancy, and by the requirement that there be a committal for that charge.

Cory J.A., speaking for the Court of Appeal in the present case, put the matter as follows:

The question of relevancy and thus the admissibility of evidence relating to a charge other than that contained in the information will always constitute a serious problem for the Crown. The question of relevancy will also act as a safeguard for the accused and ensure that he has had full opportunity to investigate. The issue will only arise in those cases where the additional counts disclosed by the evidence form an integral part of the offence with which the accused is charged, in other words, they are really a part of the same transaction. The acts upon which these counts are based will be so closely interwoven with the offence facing the accused on the preliminary inquiry that they will be a part of the res gestae. Thus the evidence will be admissible on the preliminary hearing as an essential part of the history of events pertaining to the charge under investigation.

Appellant in his factum and in oral argument before this Court relied greatly on what this Court said in R. v. Chabot, supra. The issue in that case was inter alia, as stated by my brother Dickson, as follows, at p. 1000:

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?

and concluded at p. 1009:

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

[Page 154]

included offences necessarily form part of the original charge: s. 589(1) of the Criminal Code.

One of his reasons in support of this conclusion followed, at pp. 1008-09:

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…”. 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.

These remarks must be read in the light of those preceding where he said, at p. 1002:

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 implication. This is evident from the opinion of Mr. Justice Ritchie in Doyle v. The Queen, 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597, 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?

(Emphasis added.)

Appellant seeks support from these remarks now and says that the letter of s. 507(2) does not and never did expressly confer the power to prefer for

[Page 155]

additional charges and that Parliament could well have done so as it did for trials before judges sitting under Part XVI of the Code and for the preferment of indictments before grand juries in Nova Scotia.

As I have already said, s. 507 was, until the introduction in 1969 of s. 507(3), as clear and unambiguous as was s. 873A in 1907 and s. 489 in 1953, and to all mentioned at s. 507(2) it granted expressly, given the unqualified broad language of s. 507(1), the power to indict for any offence irrespective of a preliminary inquiry having been held or the result thereof.

By saying that, if the power ever existed, it was taken away in 1969 by the addition of s. 507(3), it is the appellant who is arguing, as the Crown did unsuccessfully in Chabot, that it is manifest that Parliament took the power away by “necessary implication” by reading into the words of s. 507(3)(a) (as was the Crown in Chabot by reading in words into the words of s. 475 of the Code) “a preliminary inquiry has not been held.” the additional words “into each of the offences charged in the indictment.”

Furthermore, the amendment of 1969 could not so curtail the general power that existed under subss. (1) and (2) of s. 507 as such would be giving to the words “a preliminary inquiry has not been held” a different meaning under s. 507(3) than that under subs. (4) of s. 505, infra, notwithstanding the fact that both sections using identical language were introduced at the same time. On the other hand, if appellant’s suggested meaning were given to both sections, we are led into an absurdity. Indeed, dealing with this latter hypothesis, giving to those words the meaning suggested by appellant in both sections would lead to an absurdity as regards s. 504.

Section 504 reads:

The prosecutor may prefer, before a court constituted with a grand jury, a bill of indictment against

[Page 156]

any person who has been committed for trial at that court in respect of

(a) the charge on which that person was committed for trial, or

(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry.

Section 505 reads:

(1) A bill of indictment may be preferred

(a) by the Attorney General or anyone by his direction, before the grand jury of any court constituted with a grand jury,

(b) by anyone who has the written consent of the Attorney General, or the written consent of a judge of a court constituted with a grand jury, before the grand jury of the court specified in the consent, or

(2) No reference is necessary in an indictment to a consent that is given or an order that is made under this section.

(3) No objection shall be taken to an indictment for want of a consent or order required by this section unless it is taken by motion to quash the indictment before the accused is given in charge to the jury.

(4) Notwithstanding anything in this section, where

(a) a preliminary inquiry has not been held, or

(b) a preliminary inquiry has been held and the accused has been discharged,

a bill of indictment shall not be preferred except with the written consent of a judge of a court constituted with a grand jury, before the grand jury of the court specified in the consent, or by the Attorney General before the grand jury of any court constituted with a grand jury.

Parliament could not have intended to abolish under s. 505(4) the power it had conferred upon the prosecutor under s. 504(b).

To summarize, and to relate my conclusion as regards s. 507(2) to s. 507(1) and (3): except in Nova Scotia (and save a few exceptions, such as, to illustrate a prosecution under s. 124) the preferment of indictments in jury trials is governed as follows:

[Page 157]

The Attorney General or anyone with the written consent of a judge of the court may prefer an indictment for any offence irrespective of whether a preliminary inquiry has been held, and if so, whether the accused was discharged or committed for that or any other offence.
Anyone else empowered under s. 507(2) to prefer indictments can do so only if the following conditions have been met:

A preliminary inquiry has been held;
The accused has been committed for trial on at least one of the charges inquired into by the justice;
The count of the indictment must be for

a) an offence for which the accused was committed, or

b) for an offence disclosed in the evidence introduced at the preliminary inquiry, and which is not an offence for which the accused was discharged.

I would dismiss the appeal.

The reasons of Dickson and Wilson JJ. were delivered by

DICKSON J. (dissenting)—The question is whether the provisions of s. 507 of the Criminal Code, R.S.C. 1970, c. C-34, permit an agent of the Attorney General to prefer an indictment containing counts alleging offences additional to those with which an accused has been charged, and committed to trial, at a preliminary inquiry. Though essentially a question of statutory interpretation the ramifications extend to basic issues concerning the nature and purpose of a preliminary inquiry.

I The Facts

On April 2, 1980 the appellant Rodger David McKibbon appeared before Bennett Prov.Ct.J. on charges of breaking and entering with intent to commit an indictable offence contrary to

[Page 158]

s. 306(1)(a) of the Criminal Code and with impersonating a police officer, contrary to s. 361(a). Following a preliminary inquiry, McKibbon was committed for trial on both charges. Counsel for the Crown requested that the appellant be committed for trial on two additional counts which he maintained were disclosed by the evidence at the preliminary inquiry, namely breaking and entering a dwelling place and committing therein an indictable offence contrary to s. 306(1)(b) and possession of a weapon for a purpose dangerous to the public peace contrary to s. 85. The presiding judge following the decision of this Court in R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985, refused to commit for the additional offences.

On April 18, 1980 the Assistant Crown Attorney for the Judicial District of Hamilton-Wentworth purported to prefer an indictment on all four counts, the two for which McKibbon had been committed for trial and the two on which the judge presiding at the preliminary inquiry had declined to commit. McKibbon subsequently brought an application before Galligan J. to quash the two additional counts as improperly preferred. Galligan J. (1981), 1981 CanLII 1722 (ON SC), 61 C.C.C. (2d) 126, 34 O.R. (2d) 185, dismissed the application and his decision was confirmed by the Ontario Court of Appeal (Brooke, Weatherston and Cory JJ.A.) now reported sub nom. Re McKibbon and The Queen (1981), 1981 CanLII 83 (ON CA), 64 C.C.C. (2d) 441, 35 O.R. (2d) 124. In this decision Cory J.A. held that where a preliminary inquiry results in an accused being committed for trial, the Crown prosecutor may, without the personal intervention of the Attorney General, prefer an indictment which includes counts with which the accused was not originally charged but which were disclosed in the evidence adduced at the preliminary inquiry.

[Page 159]

II The Effect of R. v. Chabot

Much of the argument before this Court dealt with the implications for this case of the decision in R. v. Chabot, supra. In the Chabot case this Court unanimously held that the judge presiding at a preliminary inquiry has no power to commit a person for trial for any offences (except for included offences) other than those with which that person was charge at the beginning of the preliminary inquiry. The Court held that in view of the principle in Doyle v. The Queen, 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597, any power of committal would have to be found either expressly or by necessary implication in the provisions of the Criminal Code. None of the sections of the Code cited by the Crown was capable of supporting a power to commit for offences with which the accused had not been charged at the preliminary inquiry, even if such offences were disclosed by the evidence. At pages 1008-09 of the judgment the following was said about the presiding judge’s purported power to commit in such circumstances:

The appellant seeks to extend this reasoning to the present case. In Chabot the issue was a judge’s power to commit. Here it is a Crown prosecutor’s power to prefer an indictment. According to the appellant, however, the principles are the same. If the Crown prosecutor is to be authorized to prefer

[Page 160]

an indictment alleging offences other than those for which a preliminary inquiry has been held, that power must appear either explicitly or by necessary implication in the Criminal Code. Where the trial is to take place before a judge sitting without a jury or before a judge and jury in a jurisdiction where indictments are preferred before a grand jury, the Criminal Code explicitly grants the Crown prosecutor the powers in dispute in the present case. As Chabot points out the relevant sections are ss. 496 and 504. Section 496 deals with a trial to be held before a judge sitting without a jury:

(1) Where an accused elects under section 464, 484 or 492 to be tried by a judge without a jury, an indictment in Form 4 shall be preferred by the Attorney General or his agent, or by any person who has the written consent of the Attorney General, and in the Province of British Columbia may be preferred by the clerk of the peace.

(2) An indictment that is preferred under subsection (1) may contain any number of counts, and there may be joined in the same indictment

(b) counts relating to offences disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any offence for which the accused was committed for trial.

(Emphasis added.)

Where an accused elects to be tried by a judge and jury in a grand jury jurisdiction (currently Nova Scotia is the only such jurisdiction) powers such as those in issue are specified in s. 504:

The prosecutor may prefer, before a court constituted with a grand jury, a bill of indictment against any person who has been committed for trial at that court in respect of

[Page 161]

(a) the charge on which that person was committed for trial, or

(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry.

(Emphasis added.)

In the present case the appellant elected trial by judge and jury in a jurisdiction in which indictments are not preferred before a grand jury. The relevant section of the Criminal Code in such a situation is s. 507. According to the appellant, unlike ss. 496 and 504, but like the sections of the Code cited by the Crown in Chabot, s. 507 contains no mention of the power being claimed:

(1) In the Provinces of Newfoundland, Prince Edward Island, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia and in the Yukon Territory and Northwest Territories it is not necessary to prefer a bill of indictment before a grand jury, but it is sufficient if the trial of an accused is commenced by an indictment in writing setting forth the offence with which he is charged.

(3) Notwithstanding anything in this section, where

(a) a preliminary inquiry has not been held, or

(b) a preliminary inquiry has been held and the accused has been discharged,

an indictment under subsection (1) shall not be preferred except with the written consent of a judge of the court, or by the Attorney General.

In the absence of the explicit authorization found in ss. 496 and 504, the appellant contends, the Crown prosecutor in a non-grand jury jurisdiction, should, like the presiding judge in Chabot, not be held to possess the powers claimed for him.

In the Ontario Court of Appeal, Cory J.A. pointed out a flaw in this argument. It was his opinion that the Crown prosecutor’s purported

[Page 162]

power of indictment, though not specified in the detail found in ss. 496 and 504 was nevertheless included in the general power granted by s. 507. Section 507(2) provides:

In the opinion of Cory J.A. this section, when combined with s. 507(1) which provides that it is sufficient if the trial of an accused is commenced “by an indictment in writing setting forth the offence with which he is charged”, constituted adequate specific authorization within the Criminal Code for a Crown prosecutor to prefer an indictment in a situation such as the present. In his opinion, the only remaining issue was whether s. 507(3) limited this wide power.

The conclusion of Cory J.A. as to the width of s. 507(1) and (2) echoes the majority view in Re Criminal Code (1910), 1910 CanLII 30 (SCC), 43 S.C.R. 434. In that reference this Court was asked its opinion as to whether the predecessor of s. 507(1) and (2) (s. 873A of the 1906 Criminal Code, R.S.C. 1906, c. 146 as amended by 1907 (Can.), 6 & 7 Ed. VII, c. 8, s. 2) permitted an agent of the Attorney General to prefer an indictment in the absence of a prior preliminary inquiry. The majority of the Court had no difficulty in finding a power to prefer an indictment (even where no preliminary inquiry had been held) in the following words of s. 873A, substantially still present in s. 507(1):

… 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.

It is true that each member of the majority in Re Criminal Code, supra, emphasized that the opinions in that reference had no binding force, and it is also true that the case was the occasion

[Page 163]

for a powerful and eloquent dissent by Idington J. which concluded that no such power was to be found in the words in question. Nevertheless, most judicial opinion has endorsed the majority view, especially in view of the fact that in 1953 (1953-54 (Can.), c. 51, s. 489(1)) Parliament deleted the words “the trial of any person charged with a criminal offence” upon which Idington J. based much of his dissent, and substituted the phrase “trial of an accused”.

Assuming that this preponderant judicial opinion is correct, then the words of s. 507(1) and (2) standing alone would provide more than ample authorization for the Crown prosecutor to prefer the indictment now in issue. In that case, the only question, as Cory J.A. points out, is whether s. 507(3) limits the wide powers granted in subss. (1) and (2) so as nevertheless to prohibit what the Crown prosecutor purported to do.

III "Where a preliminary inquiry has not been held"

Section 507 was amended in 1969 by the addition of subs. (3):

(3) Notwithstanding anything in this section, where

(a) a preliminary inquiry has not been held, or

(b) a preliminary inquiry has been held and the accused has been discharged,

an indictment under subsection (1) shall not be preferred except with the written consent of a judge of the court, or by the Attorney General.

(Emphasis added.)

There is no question that this provision limits the wide powers otherwise apparently conferred by s. 507(1) and (2). Does it limit them sufficiently to apply to the present case? The answer depends on the meaning of the words “a preliminary inquiry has not been held”. The appellant claims that these words contemplate a preliminary inquiry on the specific charges for which the indictment is sought to be preferred; otherwise “a preliminary inquiry has not been held”. The Crown says that

[Page 164]

this is reading too much into the phrase and so long as the charges in question arise following a preliminary inquiry, even if that inquiry is into charges other than those for which the indictment is sought to be preferred, it cannot be said that “a preliminary inquiry has not been held”.

Cory J.A. agreed with the Crown’s contention, citing in support, inter alia, R. v. G. & P. International News Ltd. and Judd (1973), 1973 CanLII 1518 (BC CA), 12 C.C.C. (2d) 169 (B.C.C.A.), R. v. Philbin and Henderson, 1977 ALTASCAD 242, [1978] 1 W.W.R. 122 (Alta. C.A.) and R. v. Dwyer and Lauzon (1978), 1978 CanLII 2513 (ON CA), 42 C.C.C. (2d) 83 (Ont. C.A.), reversed on other grounds 1979 CanLII 53 (SCC), [1980] 1 S.C.R. 481. The appellant’s submission, on the other hand, harks back to lower court judgments, inter alia R. v. Dwyer (1976), 38 C.R.N.S. 129 (Ont. H.C.) and R. v. Cormier (unreported, Ont. H.C.).

Counsel for the Crown argues that the appellant’s interpretation of the phrase is essentially similar to the unsuccessful argument by the Crown in Chabot, namely that a meaning absent from the express words of the section is to be read into it “by necessary implication” and is to be preferred to the plain meaning of the words in question. I do not think the Crown can succeed on this argument. In my view the reading proposed by the appellant does not depart from the plain meaning of the words in question and it is, with respect, more likely than the Crown’s reading.

A preliminary inquiry cannot be held in the abstract. It is a proceeding designed to investigate specific charges in order to determine whether there is sufficient evidence to commit an accused for trial on those charges. It begins with a reading of the charges in question and ends with the presiding judge’s decision whether or not to commit on any or all of those charges. This means that if the preliminary inquiry does not pass through all these stages, if it is commenced but not completed, then “a preliminary inquiry has not been held” within the meaning of s. 507(3)(a) (Re Stewart and The Queen No. 2 (1977), 35 C.C.C.

[Page 165]

(2d) 281 (Ont. C.A.)). In other words “a preliminary inquiry has not been held” absent a conclusion about the specific offence with which the accused has been charged. Section 507(3) refers to “an indictment under subsection (1)”, that is “an indictment in writing setting forth the offence with which [the accused] is charged”. I agree with Goodman J. (as he then was) in R. v. Dwyer, supra, that this is strong evidence that s. 507(3)(a) contemplates a preliminary inquiry into each and every charge with reference to which an indictment is sought to be preferred. In my view, as a purely textual issue, based only on the wording of s. 507, the appellant’s reading is preferable to that of the Crown.

The Crown, however, presents additional arguments essentially to the effect that even if the appellant’s reading is a possible one when s. 507 is looked at in isolation, when one considers the wider context of the Criminal Code provisions relating to the preferment of indictments, the appellant’s reading becomes logically and pragmatically insupportable.

The phrase “where a preliminary inquiry has not been held” appears not only in s. 507 but also in s. 505 dealing with indictments before a court constituted with a grand jury. If in s. 507 this phrase contemplates a preliminary inquiry into the specific charges in question then it must have the same meaning in s. 505. But this, the Crown contends, leads to a logical absurdity.

In order to understand the Crown’s contention on this point it is useful to place side by side the Criminal Code provisions dealing respectively with indictments in grand jury and non‑grand jury jurisdictions.

GRAND JURY

NON-GRAND JURY

The prosecutor may prefer, before a court constituted with a grand jury, a bill of indictment against any person who has been commit-

[Page 166]

ted for trial at that court in respect of

(a) the charge on which that person was committed for trial, or

(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry.

(1) A bill of indictment may be preferred

(a) by the Attorney General or anyone by his direction, before the grand jury or any court constituted with a grand jury,

(1) In the Provinces of Newfoundland, Prince Edward Island, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia and in the Yukon Territory and Northwest Territories it is not necessary to prefer a bill of indictment before a grand jury, but it is sufficient if the trial of an accused is commenced by an indictment in writing setting forth the offence with which he is charged.

(2) No reference is necessary in an indictment to a consent that is given or an order that is made under this section.

(4) Notwithstanding anything in this section, where

(3) Notwithstanding anything in this section, where

(a) a preliminary inquiry has not been held, or

(b) a preliminary inquiry has been held and the accused has been discharged,

A bill of indictment shall not be preferred except with the

an indictment under subsection (1) shall not be preferred

[Page 167]

written consent of a judge of a court constituyted with a grand jury, before the grand jury of the court specified in the consent, or by the Attorney General before the grand jury of any court constituted with a grand jury.

except with the written consent of a judge of the court, or by the Attorney General.

(Emphasis added.)

In the sections dealing with indictments before a grand jury the phrase currently in issue appears in s. 505(4)(a). If one looks only at s. 505, there is nothing inherently implausible about reading “where a preliminary inquiry has not been held” in the manner suggested by the appellant. The problem arises when one considers the effect of such a reading on s. 504. Where there has been a committal, s. 504 explicitly authorizes the prosecutor in a grand jury jurisdiction to prefer an indictment on charges disclosed by the evidence taken on the preliminary inquiry. This is, of course, precisely the power claimed for the Crown prosecutor in non-grand jury jurisdictions in the present case, a power which the appellant claims is specifically negated by s. 507(3). If section 505(4) has—as it must—the same meaning and effect as s. 507(3), then the result, says the respondent, will be that s. 504 gives the Crown prosecutor a power which s. 505(4) immediately takes away. This, he says, would be an absurd result and one which points to the impossibility of reading “where a preliminary inquiry has not been held” in the manner proposed by the appellant.

If this were indeed the effect of the appellant’s reading it would be a telling, and perhaps decisive, factor against it. In my view, however, it does not have this effect.

Subsection 505(4) provides that its restrictions apply “notwithstanding anything in this section”. Its effect is to modify the general powers of preferment articulated in s. 505(1)(a-c). It has no effect on the powers granted the “prosecutor” in s. 504, which is a separate and distinct provision from

[Page 168]

s. 505. The relationship between these two sections is somewhat obscured by the fact that s. 504 precedes s. 505. This sequence is, however, of no particular significance. When the predecessor of s. 504 was enacted in 1900 (63-64 Vict., c. 46) as s. 641(2) of the then Criminal Code it followed some of the provisions now contained in s. 505 and preceded others. Over the course of time the original provisions relating to the preferment of indictments have been amended, split up, renumbered and rearranged. Their present sequence is more fortuitous than deliberate and does not reflect their logical relationship. If one considers the logical sequence of ss. 504 and 505 rather than their numerical arrangement, it will be seen that s. 505(1-3) sets out the general principles governing the preferment of an indictment before a court constituted with a grand jury. Subsection (4), which contains the phrase in issue, imposes a general restriction on the powers of preferment set out in subs. (1) by restricting who may prefer an indictment where no preliminary inquiry into the charge in question has been held or where such a preliminary inquiry has been held and the accused has been discharged. Section 504 then lays out an exception to the restriction contained in s. 505(4)(a). Where the accused has been committed for trial on a charge for which a preliminary inquiry has been held, and where this preliminary inquiry discloses evidence of further offences, then despite the fact that a preliminary inquiry into these charges has not been held within the meaning of s. 505(4)(a), s. 504 nevertheless authorizes the Crown prosecutor to add to the indictment counts relating to these additional offences.

On this reading it becomes possible both to give the phrase in issue its more probable meaning and to avoid any contradiction between ss. 504 and 505. Admittedly this reading does result in different powers being given a prosecutor in grand jury jurisdictions from those accorded in non-grand jury jurisdictions. This, however, is objectionable

[Page 169]

from neither an historical nor a policy point of view. The majority in Re Criminal Code, supra, was of the opinion that it was possible to bypass the preliminary inquiry in non-grand jury jurisdictions in a way that was impossible before a court constituted with a grand jury. This is an indication that almost from the beginning the predecessors of ss. 504 and 505 on the one hand, and s. 507 on the other, were conceptualized as capable of leading to dramatically different procedural results. Further, the limited exception embodied in s. 504 to the general rule prohibiting a prosecutor from preferring an indictment where no preliminary inquiry has been held into the charges in question can be justified in a grand jury jurisdiction in a way that it could not be where there is no grand jury. The deliberations of the grand jury will afford an opportunity for the sufficiency of the charges in question to be tested before the accused is made to stand his trial, an opportunity which would be totally missing were a similar power to be granted to a prosecutor in a non-grand jury jurisdiction.

On the basis of this analysis there seems little justification for the Crown’s contention that the reading proposed by the appellant is unacceptable from the point of view of either logic or policy. On the contrary, on closer examination it would seem that it is the reading proposed by the Crown that exhibits the infelicities purported by the Crown to mar the appellant’s reading.

The Crown contends that a preliminary inquiry has been held within the meaning of ss. 505(4) and 507(3) even if the ostensible subject of the preliminary inquiry is a charge other than and in addition to the one for which the indictment is sought to be preferred. This reading leads to startling results when it is applied to s. 507(3)(b). If, for example, a preliminary inquiry were held on the basis of an information alleging three different offences and the inquiry ended with the accused

[Page 170]

being committed on two counts and being discharged on the third, then on a consistent application of the Crown’s proposed reading, the situation would be one where “a preliminary inquiry has been held and the accused has been discharged”. It would therefore fall directly within the terms of s. 507(3)(b) and therefore, despite the committal, an indictment could not be preferred except by the Attorney General or with the written consent of the court. This would clearly be an absurd result but it is difficult to see how it could be avoided on the Crown’s reading of what constitutes a situation “where a preliminary inquiry has been held”.

There are further problems with the Crown’s interpretation. If the Crown’s submission is correct and in this case s. 507 authorizes a prosecutor to add to an indictment counts relating to offences disclosed in the evidence on a preliminary inquiry into other charges, then it of course follows that the similar wording in s. 505 has the same effect. But this is also precisely what s. 504 authorizes. This fact leads to one of two very problematic conclusions as to the effect of s. 504. One possibility is that s. 504 merely confirms a power that the Crown prosecutor already has by virtue of s. 505. In that case s. 504 constitutes a totally redundant provision, a highly unlikely possibility with regard to a section of the Criminal Code. The other perhaps more likely possibility is that since the powers given the prosecutor in s. 504 are cast in narrower terms than those which the Crown says are given by s. 505, s. 504 modifies and constricts the ampler provisions of s. 505. This gives s. 504 some purpose within the Criminal Code but it results in a situation in which the powers to indict of a Crown prosecutor are narrower in a grand jury jurisdiction than they are in jurisdictions where there is no grand jury (where there is no equivalent to s. 504 to constrict the powers the Crown says are granted by s. 507). From a policy point of view this is an unlikely result since it results in less protection for the accused precisely in the jurisdiction where he also does not have the added safeguard of a grand jury to test the sufficiency of the charges in question. This surprising

[Page 171]

consequence also has the effect of undermining the Crown’s argument that its interpretation is superior since it results in a uniformity of procedure in grand jury and non-grand jury jurisdictions. It would appear that it is the Crown’s interpretation that is logically and pragmatically unsupportable.

IV The Effects of the Powers Claimed by the Crown

On the basis of the preceding analysis it is my firm view that as a question of statutory interpretation the words “where a preliminary inquiry has not been held” must refer to a preliminary inquiry with reference to the specific charge for which an indictment is sought to be preferred. I am glad to come to this conclusion because in my view it produces a result that is both truer to the purpose of a preliminary inquiry and more equitable to the accused.

The function of a preliminary inquiry is to allow the sufficiency of the case for the Crown to be tested and if the case does not persuade the presiding judge that the accused is “probably guilty”, to spare the accused the expense, anxiety and humiliation of a criminal trial. Its purpose therefore is to benefit the accused and to provide him with a preliminary opportunity to clear himself of the charges against him without having to go to trial. Its purpose is not to serve as an investigatory tool to allow the Crown to strengthen or broaden its case.

Does the power contended for by the Crown accord with the purposes of a preliminary inquiry? In the argument before this Court, as in the decision in the Ontario Court of Appeal, the question at issue was treated as though it were confined to the powers of a Crown prosecutor to add to an indictment counts alleging offences disclosed by the evidence at the preliminary inquiry where an accused has already been committed for trial fol-

[Page 172]

lowing a preliminary inquiry on other charges. That indeed is what the Crown prosecutor purported to do in the case before us, and it is on the basis of this understanding of the issue that Cory J.A. was able to dismiss the possibility of a Crown prosecutor taking unfair advantage of the power in issue. Basing himself on the statement in Chabot, supra, that the rules of evidence relating to relevancy apply to preliminary hearings as well as trials, it was his opinion that the scope afforded to a Crown prosecutor for adding counts to an indictment was very narrow:

The question of relevancy and thus the admissibility of evidence relating to a charge other than that contained in the information will always constitute a serious problem for the Crown. The question of relevancy will also act as a safeguard for the accused and ensure that he has had full opportunity to investigate. The issue will only arise in those cases where the additional counts disclosed by the evidence form an integral part of the offence with which the accused is charged, in other words, they are really part of the same transaction. The acts upon which these counts are based will be so closely interwoven with the offence facing the accused on the preliminary inquiry that they will be a part of the res gestae. Thus the evidence will be admissible on the preliminary hearing as an essential part of the history of events pretaining to the charge under investigation.

I cannot agree that the power claimed for the Crown prosecutor can logically be restricted in this way. Whatever the limits on the authority claimed for the Crown in the present case, the arguments advanced in support of this purported power are capable of sustaining a much broader claim. Assuming the majority opinion in Re Criminal Code, supra, to be correct, then standing by themselves s. 507(1) and (2) would authorize an agent of the Attorney General to prefer an indictment on any charge whether or not there has been a preliminary inquiry on the charge in question or any other charge. The only limitations on this power are those contained in s. 507(3), and these on the Crown’s interpretation amount only to a requirement that (a) a preliminary inquiry leading to a committal on some charge has been held and (b) the accused has not been discharged with reference

[Page 173]

to the offence for which the indictment is sought to be preferred. This is a considerably wider power to indict than that contemplated by Cory J.A. If, in a grand jury jurisdiction the Crown prosecutor’s power to indict is restricted in the way described by Cory J.A. it is the result of the operation of s. 504, a section which has no equivalent in the provisions applicable to non‑grand jury provinces.

It might be suggested that the words in s. 507(3) operate as the requisite restriction. The essence of such a submission would be that while it is not necessary to hold a preliminary hearing into the precise offence for which the indictment is sought to be preferred in order to satisfy the requirement that a preliminary inquiry be held, this requirement does at least make it necessary that a preliminary hearing be held into “related charges” so that additional charges would be based on evidence adduced at the preliminary inquiry.

An essentially similar argument was advanced in Chabot with reference to the purported power of the presiding judge at a preliminary inquiry to commit an accused for trial on charges “related” to those that formed the subject matter of the preliminary inquiry. That argument was rejected in Chabot. I can see no more basis for it in the language of s. 507 than there was in the language of the sections in issue in Chabot.

I am very far from impugning the integrity or sense of decency of Crown prosecutors in Canada, but in my view acceding to the Crown’s submissions in this case would open, at least as a theoretical consequence, the possibility of preliminary inquiries being used to bolster and widen rather than to test the Crown’s case, for “fishing expeditions” rather than to allow the accused to rebut the accusations against him.

Putting aside any fanciful flights of imagination as to potential prosecutorial abuses of the wide

[Page 174]

powers latent in the Crown’s interpretation of s. 507, it is plain that simply knowing that any evidence he gives can lead to additional charges being preferred against him will have a chilling effect on an accused’s willingness to testify himself, or to ask others to testify on his behalf, at a preliminary inquiry. Furthermore, since he cannot know in advance the nature of possible additional charges against him, his ability to rebut these charges will be crucially weakened. Finally, as regards such additional offences, the preliminary inquiry cannot be at all to the benefit of the accused. With regard to alleged offences that form the subject of the preliminary inquiry, it is possible for the presiding judge to dismiss the charges and the accused is thereafter protected by the provisions of s. 507(3)(b). No such conclusion is possible in relation to any additional offences or to offences “disclosed by the evidence”. Where no charges have been laid, they cannot be dismissed. Under such conditions the preliminary inquiry can only benefit the Crown.

Finally, it should be noted that while granting the powers claimed on behalf of the Crown could cause substantial inequity to an accused, rejecting these claims would seem to have little deleterious effect on the Crown’s ability to make its case or on the administration of justice. All that is really being asked of the Crown prosecutor is that he know the nature of his case before he embarks on the preliminary inquiry. In special circumstances such as where it would be unjust to witnesses to compel them to repeat at a second inquiry testimony of a particularly distressing or traumatic character, s. 507(3) does allow for an indictment to be preferred even absent a preliminary inquiry, with the consent of the court, or as is more usual, by the Attorney General himself. This provision is capable of dealing sensibly with unusual or exceptional cases without turning the preferring of indictments on charges for which a preliminary inquiry has not been held, into an ordinary part of criminal procedure.

[Page 175]

V Conclusion

In Re Criminal Code, supra, at p. 450, Idington J. said as follows:

… I am quite sure of one thing relative to the administration of justice, and that is that no one entrusted therewith or any part thereof should ever jeopardize or prejudice by the adoption of a doubtful course of procedure, when a safer one was at hand, either the administration of justice or the standing reputation or freedom of another for a single hour.

In my view, the course of procedure proposed by the Crown in this case is more than just “doubtful”. It is based on an interpretation of s. 507 that is logically and practically the less acceptable of the two alternatives. It would place in the hand of the Crown prosecutor a power not in accord with the purpose of a preliminary inquiry, inherently inequitable to the accused and potentially open to abuse. For all these reasons I prefer the “safer course” advocated on behalf of the appellant.

I would allow the appeal. The two additional counts in the indictment should be quashed as improperly preferred.

Appeal dismissed, DICKSON and WILSON JJ. dissenting.

Solicitors for the appellant: MacKesy, Smye, Turnbull & Grilli, Hamilton.

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

McKibbon v. R., 1984 CanLII 67 (SCC), [1984] 1 SCR 131

Case Summary

The Facts

The Issue

Appellant's position

The Crown's position

The Court of Appeal

The Power Always Existed

The 1969 Amendments

I The Facts

II The Effect of R. v. Chabot

III "Where a preliminary inquiry has not been held"

IV The Effects of the Powers Claimed by the Crown

V Conclusion

McKibbon v. R., 1984 CanLII 67 (SCC), [1984] 1 SCR 131

Case Summary

The Facts

The Issue

Appellant's position

The Crown's position

The Court of Appeal

The Power Always Existed

The 1969 Amendments

I The Facts

II The Effect of R. v. Chabot

III "Where a preliminary inquiry has not been held"

IV The Effects of the Powers Claimed by the Crown

V Conclusion

Cited By (5 cases)

Her Majesty the Queen v. Khurram Syed Sher, 2012 ONSC 4783

R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426

R. v. Benji, 2002 SCC 5

R. v. Tapaquon, 1993 CanLII 52 (SCC), [1993] 4 SCR 535

R. v. Barbeau, 1992 CanLII 76 (SCC), [1992] 2 SCR 845

Cited By (5 cases)

Her Majesty the Queen v. Khurram Syed Sher, 2012 ONSC 4783

R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426

R. v. Benji, 2002 SCC 5

R. v. Tapaquon, 1993 CanLII 52 (SCC), [1993] 4 SCR 535

R. v. Barbeau, 1992 CanLII 76 (SCC), [1992] 2 SCR 845