R. v. Tapaquon, [1993] 4 S.C.R. 535
Darren Lyle Tapaquon Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada Intervener
Indexed as: R. v. Tapaquon
1993: May 25; 1993: December 16.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Iacobucci and Major JJ.
on appeal from the court of appeal for saskatchewan
Criminal law ‑‑ Procedure ‑‑ Preferring indictments ‑‑ Non‑jury trial ‑‑ Preliminary inquiry ‑‑ Preliminary inquiry judge finding insufficient evidence to support charge ‑‑ Preliminary inquiry judge committing accused for trial on lesser included offence ‑‑ Crown prosecutor preferring indictment on original charge notwithstanding finding at preliminary inquiry ‑‑ Whether a prosecutor can prefer an indictment for original offence, even though judge at the preliminary inquiry committing only on a lesser, included offence ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 267(1)(b), 548(1)(a), (b), (2), 566(1), (2), (3), 568, 574(1)(a), (b), 576(1), 577(a), (b), (c), (d).
Appellant elected to be tried by judge alone on a charge of assault causing bodily harm (s. 267(1)(b) of the Criminal Code). The judge presiding at the preliminary inquiry found insufficient evidence to warrant committal on that charge and committed him for trial on the lesser included offence of common assault. The prosecutor nevertheless preferred an indictment on the original charge. Appellant successfully brought a motion in the Court of Queen's Bench to quash the indictment on the ground that he had been discharged on the charge of assault causing bodily harm. The Court of Appeal allowed the Crown's appeal and remitted the matter to the Court of Queen's Bench for trial on the indictment for assault causing bodily harm. At issue here is whether a prosecutor can prefer an indictment under s. 574(1)(b) for the offence originally alleged in the information, even though the judge at the preliminary inquiry has committed the accused on a lesser included offence rather than on the original charge.
Held (L'Heureux‑Dubé J. dissenting): The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Iacobucci and Major JJ.: The preliminary inquiry judge under s. 548 must commit an accused person for trial where there is admissible evidence which, if believed, could result in a conviction. He or she is presumed to have considered the evidence as it related to that particular offence and his or her refusal to commit on an offence charged in the information amounts to a judicial determination that the charge is not founded on the facts disclosed by the evidence.
The preliminary inquiry judge's power is not limited to committal or discharge so that the specification of offences is left to the prosecutor. Section 548(1) must be read with other sections including s. 548(2). If there is only one charge, the options for the judge are to commit or discharge. If there are several, the judge must specify the charges on which he or she orders the accused to stand trial (s. 548(2)). The prosecutor is empowered under s. 574(1)(a) to prefer an indictment in respect of "any charge on which that person was ordered to stand trial".
An accused who is not committed to trial on a charge is no longer charged with that offence. It has been judicially determined that no evidence supports it. The judge must inquire into all the charges and make some disposition; a charge cannot be left in limbo. The appropriate disposition of charges for which there is insufficient evidence to put the accused on trial is discharge of the accused on these charges. In order to proceed, a new charge must be laid, either by a new information or preferred indictment.
The 1985 amendments were not intended to make fundamental changes but rather were more in the nature of codification of the following principles enunciated in McKibbon v. The Queen. 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 one has been held, whether the accused was discharged or committed for that or any other offence. The prosecutor can prefer indictments if a preliminary inquiry has been held and the accused has been committed for trial on at least one of the charges inquired into by the judge. The count of the indictment, however, 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.
Section 574 cannot be interpreted in isolation in order to avoid the potential problem with the meaning of the term "discharged" in s. 577 (direct indictments). Statutory provisions should not be interpreted in isolation but rather by reference to the statute as a whole and should be given an interpretation that harmonizes provisions that bear on the same subject matter.
Section 574 applies not only to jury trials but also, by virtue of s. 566, to non‑jury trials. In jury trials it operates with s. 577 as a complete code with respect to the prosecution's power to prefer indictments. The same section cannot have one meaning in its jury setting and another in its non‑jury setting. The words in s. 574 which make it subject to s. 577, to have any meaning, require that it be interpreted subject to the limitations imposed by s. 577. The restriction on the language of s. 574 which is relevant here is that an indictment cannot be preferred under that section if the accused has been discharged. The term "discharged" has been interpreted as "not committed on the charge laid". Section 574 must be interpreted as subject to the restriction that an indictment cannot be preferred under that section in a case in which the accused was not committed on the charge laid. This restriction applies notwithstanding the words "in addition to or in substitution for any charge" in s. 574(1)(b). The power of the prosecutor to prefer an indictment for an offence not charged but which is based on facts disclosed in the evidence is preserved.
The prosecutor in a non‑jury trial can accordingly prefer an indictment: (1) on any charge in respect of which the accused has been ordered to stand trial; or (2) on any charge founded on facts disclosed in the evidence taken at the preliminary inquiry, provided that it is not an offence charged and in respect of which the accused was not ordered to stand trial. In serious criminal cases, the prosecutor can resort to s. 568 and order a jury trial. Section 577 then becomes available. In other cases, the Crown may be able to proceed by way of a new information. The common law right to do so, while removed by s. 577 in jury cases, has not been removed in non‑jury cases. Resort to this power may, however, constitute an abuse of process in some circumstances.
Per L'Heureux‑Dubé J. (dissenting): A preliminary inquiry is not a trial. A justice at a preliminary inquiry is to determine whether there is sufficient evidence to commit the accused to trial. The inquiry provides the accused with an opportunity to avoid the indignity of being placed on trial where there is simply insufficient evidence to justify the holding of a trial at all. A decision that the accused should be discharged is not appealable and can be challenged only by way of certiorari. At the same time, a discharge is not a finding of "not guilty" and cannot form the basis of a plea of autrefois acquit.
Section 548 authorizes a justice either to discharge the accused (s. 548(1)(b)) if no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction or to order the accused to stand trial (s. 548(1)(a)) if there is evidence supporting any indictable offence. The only limitation in applying s. 548(1)(a) is that the charge must be based on evidence disclosed at the preliminary inquiry.
Once an accused has elected to be tried by judge alone, the prosecutor is limited to the power of ordinary indictment in s. 574 which requires that the indictment be preferred only if the accused has been committed to stand trial after a preliminary inquiry. Where the justice and the prosecutor have differing views, s. 574(1)(b) gives the prosecutor the authority to go beyond the charges selected by the justice and add or substitute charges. This power is very broad; the only explicit limitation is that the charge must be one which is founded on the facts disclosed by the evidence taken on the preliminary inquiry. Section 548, which authorizes a preliminary inquiry justice to discharge an accused or to commit him or her to trial on the basis of the evidence at the inquiry, does not limit the scope of s. 574. The argument that a preliminary inquiry justice has made a finding mischaracterizes his or her role and the rationale underlying s. 574. Under the current s. 548, any charge must be founded on evidence disclosed at the preliminary inquiry. If it is not, the opinion of the preliminary inquiry justice that it is, is simply irrelevant.
Where an accused has elected to be tried by judge alone, and where a justice commits the accused to stand trial, s. 574(1)(b) allows the Crown to prefer an indictment on any charge founded on the evidence given at the preliminary inquiry, regardless of the opinion of the justice as to that specific offence. Such an indictment may be quashed if the charge is not founded on the facts disclosed at the preliminary inquiry. This is not a question of asking whether the prosecutor incorrectly "over‑ruled" the justice, or whether the prosecutor should have deferred to the opinion of the justice. Because of the enactment of s. 566, s. 577 has no application here. The meaning of "discharged" in s. 577 was not relevant to the interpretation of s. 574 which was clear and unambiguous. The policy considerations behind the different procedures applying to the ordinary and to the direct powers of indictment support this interpretation.
At the preliminary inquiry, there was sufficient evidence to justify the preferring of an indictment on the charge of assault causing bodily harm.
Cases Cited
By Sopinka J.
Considered: R. v. Miller, 1969 CanLII 268 (ON SC), [1970] 3 C.C.C. 89; McKibbon v. The Queen, 1984 CanLII 67 (SCC), [1984] 1 S.C.R. 131; R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985; referred to: R. v. Hampton (1990), 1990 CanLII 10975 (MB CA), 69 Man. R. (2d) 293, leave to appeal refused sub nom. D.K.H. v. The Queen, [1991] 1 S.C.R. viii; R. v. Hill (1987), 1987 CanLII 4909 (SK QB), 57 Sask. R. 234; R. v. Myers (1991), 1991 CanLII 2700 (NL CA), 65 C.C.C. (3d) 135; United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067; St. Jean v. The Queen (1978), 1978 CanLII 3892 (QC CA), 7 C.R. (3d) 14; Canada (Procureur général) v. Bélair (1991), 1991 CanLII 3486 (QC CA), 10 C.R. (4th) 209; R. v. Compagnie Immobilière BCN Ltée, 1979 CanLII 12 (SCC), [1979] 1 S.C.R. 865; R. v. Hamm, 1984 CanLII 2550 (SK CA), [1984] 5 W.W.R. 696.
By L'Heureux‑Dubé J. (dissenting)
R. v. Hill (1987), 1987 CanLII 4909 (SK QB), 57 Sask. R. 234; R. v. Hampton (1990), 1990 CanLII 10975 (MB CA), 69 Man. R. (2d) 293, leave to appeal refused sub nom. D.K.H. v. The Queen, [1991] 1 S.C.R. viii; R. v. Barbeau, 1992 CanLII 76 (SCC), [1992] 2 S.C.R. 845; McKibbon v. The Queen, 1984 CanLII 67 (SCC), [1984] 1 S.C.R. 131; R. v. Compagnie Immobilière BCN Ltée, 1979 CanLII 12 (SCC), [1979] 1 S.C.R. 865.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, ss. 267(1)(b), 548(1)(a), (b), (2) [am. R.S.C., 1985, c. 27 (1st Supp.), s. 101], 566(1), (2), (3) [am. ibid., s. 111], 568 [am. idem], 574(1)(a), (b) [am. ibid., s. 113], 576(1) [am. ibid., s. 114], 577(a), (b), (c), (d) [am. ibid, s. 115].
APPEAL from a judgment of the Saskatchewan Court of Appeal (1992), 1992 CanLII 8247 (SK CA), 97 Sask. R. 245, 71 C.C.C. (3d) 50, allowing an appeal from a judgment of McIntyre J. (quashing an indictment for causing bodily harm) and remitting the matter for trial on the original charge. Appeal allowed, L'Heureux‑Dubé J. dissenting.
Norman H. Bercovich, for the appellant.
Michael M. Vass, for the respondent.
Bernard Laprade and Peter Lamont, for the intervener.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Iacobucci and Major JJ. was delivered by
Sopinka J. -- This appeal concerns an issue relating to the respective roles of the prosecutor and the judge conducting a preliminary inquiry (hereinafter "the preliminary judge" or "the judge"). Specifically, the Court must decide whether a prosecutor can prefer an indictment with respect to an offence charged in an information which the preliminary judge has found is not supported by sufficient evidence to order the accused to stand trial.
I. Facts
The appellant was charged with assault causing bodily harm under s. 267(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46. He elected to be tried by judge alone. Following a preliminary inquiry before a provincial court judge, he was committed for trial on the lesser included offence of common assault. The presiding judge found there was insufficient evidence to warrant committal on the original charge.
The prosecutor nevertheless preferred an indictment against the appellant on the original charge of assault causing bodily harm. The appellant brought a motion to quash the indictment on the ground that he had been discharged on the charge of assault causing bodily harm. The motion was granted at the Court of Queen's Bench and the prosecutor's indictment was quashed. The Crown's appeal to the Court of Appeal was allowed and the matter was remitted to the Court of Queen's Bench for trial on the indictment for assault causing bodily harm.
II. Judgments Below
Provincial Court of Saskatchewan
Meagher Prov. Ct. J. stated: "I don't see any evidence that I could commit on bodily harm, but certainly there is adequate evidence of common assault". He therefore committed the appellant on the included offence of common assault only.
Court of Queen's Bench of Saskatchewan
McIntyre J. reviewed the relevant statutory provisions and case law with respect to the preferring of indictments. He rejected the reasoning of the Manitoba Court of Appeal in R. v. Hampton (1990), 1990 CanLII 10975 (MB CA), 69 Man. R. (2d) 293, and followed the decisions in R. v. Hill (1987), 1987 CanLII 4909 (SK QB), 57 Sask. R. 234 (Q.B.), and R. v. Myers (1991), 1991 CanLII 2700 (NL CA), 65 C.C.C. (3d) 135 (Nfld. C.A.), which decided that committal on a lesser charge constituted a discharge of the accused under ss. 548(1)(b) and 577(b) of the Code. McIntyre J. added:
If the agent of the Attorney General is permitted to second guess a judge hearing the preliminary inquiry on this point, then there would be no need whatever of ss. 577(b) and (c) of the Criminal Code.
He concluded that the appellant had been discharged and therefore, in order for the Crown to prefer an indictment containing a charge of assault causing bodily harm it had to proceed under the heading of a "direct indictment" pursuant to ss. 577(b) and (c) and obtain the written personal consent of the Attorney General or Deputy Attorney General.
Court of Appeal for Saskatchewan (1992), 1992 CanLII 8247 (SK CA), 97 Sask. R. 245 (Tallis J.A. for the Court)
Tallis J.A. relied on R. v. Hampton, supra, as the primary authority on whether s. 574 authorizes a Crown prosecutor to prefer an indictment for an offence following a preliminary hearing on an information alleging the same offence, where the accused is committed only on a lesser, included offence. In Hampton, the Manitoba Court of Appeal affirmed the right of the prosecutor to invoke s. 574 of the Code in similar circumstances. Given that the Supreme Court of Canada denied leave to appeal (indexed as D.K.H. v. The Queen, [1991] 1 S.C.R. viii), he found it appropriate to follow Hampton and disregard other authorities on point. Tallis J.A. stated at p. 246: "we do not think the committal on the lesser charge of common assault constituted a discharge under s. 548(1)(b) and 577(b)."
III. Analysis
Part XIX of the Code governs procedure in indictable offences where the accused has elected to be tried by judge alone. The prosecutor's authority to prefer an indictment is found at s. 566, which states:
- (1) The trial of an accused for an indictable offence, other than a trial before a provincial court judge, shall be on an indictment in writing setting forth the offence with which he is charged.
(2) Where an accused elects under section 536 or re-elects under section 561 to be tried by a judge without a jury, an indictment in Form 4 may be preferred.
(3) Section 574 and subsection 576(1) apply, with such modifications as the circumstances require, and section 577 does not apply, to the preferring of an indictment pursuant to subsection (2).
Section 566(3) referentially incorporates ss. 574 and 576(1) from Part XX ("Procedure in Jury Trials and General Provisions"). These provisions state in part:
- (1) Subject to subsection (3) and section 577, the prosecutor may prefer an indictment against any person who has been ordered to stand trial in respect of
(a) any charge on which that person was ordered to stand trial, or
(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial,
whether or not the charges were included in one information.
- (1) Except as provided in this Act, no indictment shall be preferred.
Section 574 is the provision which authorizes the prosecutor to prefer an indictment in the ordinary course of events. Under this section no special consent is required. This can be contrasted with s. 577 which provides for the preferring of "direct" indictments. Section 566 unequivocally states that s. 577 does not apply to judge alone proceedings. Section 577 states:
- In any prosecution,
(a) where a preliminary inquiry has not been held, an indictment shall not be preferred, or
(b) where a preliminary inquiry has been held and the accused has been discharged, an indictment shall not be preferred or a new information shall not be laid
before any court without,
(c) where the prosecution is conducted by the Attorney General or the Attorney General intervenes in the prosecution, the personal consent in writing of the Attorney General or Deputy Attorney General, or
(d) where the prosecution is conducted by a prosecutor other than the Attorney General and the Attorney General does not intervene in the prosecution, the written order of a judge of that court.
The crux of this appeal concerns the meaning of s. 574(1)(b), which states that the prosecutor may prefer an indictment on "any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry". Specifically, the issue in this case is whether the prosecutor can prefer an indictment under s. 574(1)(b) for the offence originally alleged in the information, even though the preliminary judge has not committed the accused to stand trial on the original charge, committing only on a lesser, included offence. This requires an examination of the judge's powers and duties at the preliminary inquiry.
The relevant section is s. 548, which states:
- (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
(2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, the justice shall endorse on the information the charges on which he orders the accused to stand trial.
In United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, Ritchie J. (for the majority) stated at p. 1080:
I agree that the duty imposed upon a "justice" under s. 475(1) [now s. 548(1)] is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction. [Emphasis added.]
As Shephard emphasizes, the preliminary judge has no discretion in making this decision. If there is any evidence, s. 548 expressly states that the preliminary judge has a duty to commit the accused to stand trial. When the accused is not committed on an offence specifically charged in the information, it must be presumed that the judge has turned his or her mind to the evidence as it relates to that particular offence. Once the judge has heard all of the evidence, his or her refusal to commit on an offence charged in the information amounts to a judicial determination that the charge is not "founded on the facts disclosed by the evidence".
In these circumstances we must determine whether Parliament intended that counsel for the Attorney General could prefer an indictment in respect of the very charge which the judge has decided is not supported by the evidence.
The submission of the Crown in the affirmative, which my colleague accepts, is based on a view of the respective roles of the preliminary judge and the prosecutor developed in Hampton, supra. In that case, Helper J.A., at p. 302, stated:
The exercise of that administrative discretion by the prosecutor does not result in a collateral attack upon the decision of the magistrate whose only power is to commit for trial or to discharge the accused from the court process.
I respectfully disagree with the view that the power of the preliminary judge is limited to committal or discharge and that the specification of offences is left to the prosecutor. While one might get this impression in reading s. 548(1) in isolation it is clear from other sections including s. 548(2) that this interpretation cannot be sustained. If there is only one charge, the options for the judge are to commit or discharge. If there are several charges either because several are laid or emerge from the evidence at the hearing the judge must specify "the charges on which he orders the accused to stand trial" (s. 548(2)). Moreover, under s. 574(1)(a) the prosecutor is empowered to prefer an indictment in respect of "any charge on which that person was ordered to stand trial".
If an accused is not committed to stand trial with respect to a charge in the information, what is its status? Clearly the accused is no longer charged with that offence. There has been a judicial determination that there is no evidence to support it so as to permit the Crown to proceed to trial. In order to proceed with the charge a new charge would have to be laid either by a new information or a preferred indictment. In requiring the judge to specify the charges in respect of which the accused is ordered to stand trial, it follows that with respect to other charges in the information the disposition is that the accused is discharged. Since the judge has a duty to inquire into all charges, surely the judge must make some disposition of all charges. A charge cannot simply be left in limbo. The appropriate disposition of charges for which there is insufficient evidence to put the accused on trial is discharge of the accused on those charges.
This view of the matter has been current since at least 1969 when Fraser J. in R. v. Miller, 1969 CanLII 268 (ON SC), [1970] 3 C.C.C. 89 (Ont. H.C.), quashed an indictment which purported to reinstitute a charge in respect of which the preliminary judge refused to commit. The accused had been charged with criminal negligence causing death. At the preliminary hearing the judge committed for dangerous driving and, in the words of Fraser J. at p. 90, "discharged him [the accused] with respect to the offence of causing death by criminal negligence". At page 95, Fraser J. continued:
Having regard to its context I am of the view that s. 486(b) is intended to be applied and used as it has been in the past; i.e., to enable a prosecutor to revise or add counts based on the evidence at the preliminary hearings as to an occurrence which has been fully investigated. It is not intended to enable him to reverse a decision made at the preliminary hearing.
This view of the powers of the prosecutor was affirmed by the Quebec Court of Appeal in St. Jean v. The Queen (1978), 1978 CanLII 3892 (QC CA), 7 C.R. (3d) 14. It was further affirmed by this Court in McKibbon v. The Queen, 1984 CanLII 67 (SCC), [1984] 1 S.C.R. 131, which dealt with the relevant provisions of the Code prior to the 1985 amendments to which my colleague refers. In McKibbon, the accused was charged with two counts in an information and elected trial by jury. He was committed to stand trial on the two counts in the information but the prosecutor preferred an indictment adding two counts which were not in the information but were allegedly based on the facts elicited at the preliminary hearing. The preliminary judge acting on this Court's decision in R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985, refused to commit the accused to stand trial on the additional counts. In Chabot the Court held that a preliminary judge had no power to commit for an offence not charged but disclosed in the evidence taken at the hearing. Lamer J. (as he then was), speaking for the majority in McKibbon, held that the prosecutor was empowered to prefer an indictment adding the two charges. After an exhaustive review of the history of the provisions relating to the preferment of indictments, he summarized the then current powers as follows at p. 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;
2)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. [Emphasis added.]
My colleague is of the view that McKibbon is inapplicable for two reasons:
(1) the 1985 amendments have changed the powers of the prosecutor to prefer indictments; and
(2) this Court in McKibbon was required to consider the relationship between ss. 574 and 577 while this is unnecessary in this case. This relieves the Court in this case of having to assign a meaning to the term "discharged" in s. 577 which would affect the interpretation of s. 574.
With respect to the first reason, I agree with the reasoning of Baudouin J.A. in Canada (Procureur général) v. Bélair (1991), 1991 CanLII 3486 (QC CA), 10 C.R. (4th) 209, to the effect that the 1985 amendments were not intended to make fundamental changes but rather were more in the nature of codification of the principles in McKibbon with respect to the power of the prosecutor to prefer indictments. At page 221, Baudouin J.A. states:
[translation] In view of, first, this historical perspective, and second, the presumed intent of the legislature, I am persuaded from an analysis of the 1985 amendments that the legislative intent in 1985 was not to fundamentally alter the Attorney General's powers to prefer indictments.
Furthermore, it seems to me that the legislature intended, in a different form and with a number of other ad hoc amendments, to reproduce the earlier law regarding the Attorney General's powers. To begin with, s. 574(1) Crim. C., which provides that a prosecutor may prefer an indictment against an accused ordered to stand trial in respect of any charge on which he or she was ordered to stand trial or any charge founded on facts disclosed by evidence taken on the preliminary inquiry, whether or not the charges were included in one information, restates the provisions of the old s. 504 Crim. C. It codifies the interpretation given by the Supreme Court in McKibbon v. R., supra, to the old ss. 505(1) and 507(2) Crim. C. [Emphasis in original.]
With respect to the second point, I do not see how the reasoning in Hampton can be espoused without deciding whether the accused was discharged in relation to the offence for which the indictment was preferred. The premise on which the Hampton decision is based is that the preferment involves no collateral attack on the decision of the judge because "discharge" means complete discharge "from the court process," to quote in part from Hampton, at p. 302. If a decision not to commit on a specific charge is a discharge, then the decision of the prosecutor to charge is a collateral attack on the decision of the judge and the premise of Hampton is erroneous.
Furthermore, I do not agree that s. 574 can be interpreted in isolation in order to avoid the potential problem with the meaning of the term "discharged" in s. 577. It is a fundamental rule of statutory construction that the provisions of a statute should be interpreted not in isolation but by reference to the statute as a whole. An interpretation should be adopted that as far as possible harmonizes provisions that bear on the same subject matter. In R. v. Compagnie Immobilière BCN Ltée, 1979 CanLII 12 (SCC), [1979] 1 S.C.R. 865, Pratte J., writing for the Court, stated, at p. 872:
One of the most important rules to be followed in the interpretation of a particular provision of a statute was expressed as follows by Lord Herschell in Colquhoun v. Brooks (1889), 14 A.C. 493, at p. 506:
It is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act.
And, in Canada Sugar Refining Company, Limited v. The Queen, [1898] A.C. 735, Lord Davey said at p. 741:
... Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter.
Clearly, this basic rule of statutory construction is still in effect.... [Emphasis added.]
Section 574 applies to both jury trials and non-jury trials. In jury trials both ss. 574 and 577 are operative to provide a complete code with respect to the powers of the prosecutor to prefer indictments. Section 566 makes s. 574 applicable to non-jury trials, the latter section being "[s]ubject to . . . section 577". Surely the same section cannot have one meaning in its jury setting and another in its non-jury setting. I would come to this conclusion even in the absence of the express language in s. 574 which makes it subject to s. 577. If specific language in s. 577 confers a power to be exercised only by the Attorney General or his or her deputy in cases to be tried by a jury, it would be difficult to suggest that by the use of general language in s. 574 Parliament intended to confer the same power on agents of the Attorney General in non-jury cases. Notwithstanding the contradictory effect of s. 566, I am of the opinion that the use of the words "[s]ubject to . . . section 577" in s. 574 reinforces this conclusion.
It is difficult to reconcile the conflicting wording of s. 566 which both incorporates by reference s. 574 and provides that s. 577 does not apply in non-jury trials. In my opinion, the peremptory language of s. 566 clearly expresses the intention of Parliament that the additional powers conferred by s. 577 on the Attorney General and his or her deputy are not to apply in non-jury trials. In trials by jury, that section operates both to enlarge the powers of a prosecutor and limit the ambit of the language in s. 574. The enlarged powers can only be exercised with the written consent of the Attorney General or his or her deputy. The enlarged powers relate to preferring indictments: (1) when no preliminary hearing has been held, and (2) when a preliminary hearing has been held and the accused has been discharged, whether or not the indictment is based on facts disclosed in the evidence at the preliminary hearing. This latter power is clearly intended to permit the Attorney General or deputy to overrule the discharge by a judge at a preliminary inquiry. The restriction on the language of s. 574 which is relevant here is that an indictment cannot be preferred under that section if the accused has been discharged. The words in s. 574 which make it subject to s. 577, if they are to have any meaning, require that it be interpreted subject to the limitations imposed by s. 577.
In respect of jury trials the crown successfully argued in R. v. Myers, supra, that in circumstances similar to this case an indictment could be preferred under s. 577 in respect of the charge laid when the preliminary judge ordered the accused to stand trial only on an included lesser offence. The accused was charged with sexual assault and was committed to stand trial on simple assault. The prosecutor preferred an indictment under s. 577 and his power to do so was upheld by the Court of Appeal. This result was reached by interpreting the term "discharged" in s. 577 as "not committed on the charge laid" (p. 140). I agree with this conclusion. Applying it to the circumstances of this case, s. 574 must be interpreted as subject to the restriction that an indictment cannot be preferred under that section in a case in which the accused was "not committed on the charge laid".
This restriction applies notwithstanding the words "in addition to or in substitution for any charge" which appear in s. 574(1)(b). They do not extend to permit the addition or substitution of a charge for which the accused was discharged. On the other hand, the power of the prosecutor to prefer an indictment for an offence not charged but which is based on facts disclosed in the evidence is preserved. This is a power which the prosecutor had before the 1985 amendments when a similar power was first given to a preliminary judge. See R. v. Chabot, supra, and McKibbon v. The Queen, supra. It was not the intention of Parliament to remove this power from the prosecutor in giving it to the judge.
To summarize, the prosecutor in a proceeding governed by Part XIX of the Code relating to "Indictable Offences _ Trial Without Jury" has the following power to prefer an indictment:
(1) an indictment may be preferred on any charge in respect of which the accused has been ordered to stand trial;
(2) an indictment may be preferred in respect of any charge founded on facts disclosed in the evidence taken at the preliminary hearing, provided that it is not an offence charged and in respect of which the accused was not ordered to stand trial.
While it might be desirable that the prosecutor have the benefit of the powers conferred by s. 577 subject to its special conditions, it apparently was Parliament's intention not to provide such powers in non-jury trials. This is the inevitable conclusion to be drawn from the language of s. 566. This is consistent with Parliament's policy to restrict the powers of the prosecutor to prefer indictments in non-jury cases. See McKibbon, supra, at pp. 148-49. Parliament can, of course, confer this power by amending the Code if it is thought desirable. Meanwhile, in serious criminal cases, the prosecutor can avail him- or herself of the power contained in s. 568 of the Code and order a jury trial, in which case s. 577 becomes available. In other cases, the Crown may be able to proceed by way of a new information. The common law right to do so, while removed by s. 577 in jury cases, has not been removed in non-jury cases. Resort to this power may, however, constitute in some circumstances an abuse of process. See R. v. Hamm, 1984 CanLII 2550 (SK CA), [1984] 5 W.W.R. 696.
It follows from the above that the prosecutor in this case had no power to prefer an indictment in respect of assault occasioning bodily harm. Accordingly, the appeal is allowed, the judgment of the Court of Appeal is set aside and the judgment of McIntyre J. is restored.
The following are the reasons delivered by
L'Heureux-Dubé J. (dissenting) -- This case concerns a narrow and technical point of criminal procedural law: that is, the scope of the powers of indictment contained in s. 574(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46 (the "Code").
Facts
A dance was held at the Core Ritchie Centre in Regina, Saskatchewan on November 10, 1989. Joe Francis, initially a co-accused in this case, got into a fight early in the evening, left the dance, and then returned with a group of friends, none of whom had tickets. One of these friends was the appellant, Mr. Tapaquon. The group pushed and shoved their way in through an unlocked door and into a boot rack area. Fighting broke out between this group, and those people who had been policing the door to prevent entry by those without tickets. One of these people, David Wood, was knocked unconscious, and suffered a broken nose, broken tooth, and other injuries.
The appellant was charged with assault causing bodily harm under s. 267(1)(b) of the Code, and elected to be tried by judge alone. At the preliminary inquiry, the judge concluded that there was insufficient evidence of assault causing bodily harm, but committed the appellant to stand trial on the lesser included offence of common assault. The Crown, however, preferred an indictment on the original charge of assault causing bodily harm. The appellant then brought a motion to quash the indictment, arguing that he had been discharged on the charge of assault causing bodily harm. This motion was granted by the Court of Queen's Bench and the indictment was quashed. The respondent Crown brought an appeal to set aside the quashing of its indictment. The Court of Appeal allowed the appeal, and the matter was remitted back to the Court of Queen's Bench for trial on the charge of assault causing bodily harm. The appellant now appeals that decision.
Relevant Provisions of the Criminal Code, R.S.C., 1985, c. C-46
- (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
- (1) The trial of an accused for an indictable offence, other than a trial before a provincial court judge, shall be on an indictment in writing setting forth the offence with which he is charged.
(2) Where an accused elects under section 536 or re-elects under section 561 to be tried by a judge without a jury, an indictment in Form 4 may be preferred.
(3) Section 574 and subsection 576(1) apply, with such modifications as the circumstances require, and section 577 does not apply, to the preferring of an indictment pursuant to subsection (2).
- (1) Subject to subsection (3) and section 577, the prosecutor may prefer an indictment against any person who has been ordered to stand trial in respect of
(a) any charge on which the person was ordered to stand trial, or
(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial,
whether or not the charges were included in one information.
(3) In any prosecution conducted by a prosecutor other than the Attorney General and in which the Attorney General does not intervene, an indictment shall not be preferred under subsection (1) before any court without the written order of a judge of that court.
(1) Except as provided in this Act, no indictment shall be preferred.
In any prosecution,
(a) where a preliminary inquiry has not been held, an indictment shall not be preferred, or
(b) where a preliminary inquiry has been held and the accused has been discharged, an indictment shall not be preferred or a new information shall not be laid
before any court without,
(c) where the prosecution is conducted by the Attorney General or the Attorney General intervenes in the prosecution, the personal consent in writing of the Attorney General or Deputy Attorney General. . . .
Judgments
Provincial Court of Saskatchewan (Meagher Prov. Ct. J.)
Meagher Prov. Ct. J. gave the following reasons orally for committing the appellant on a charge of common assault instead of the original charge of assault causing bodily harm:
Well, I don't see any evidence at all of -- there was a malie [sic] of a dozen or so people and any -- and there is evidence that he landed I think that would be about a total of three blows to Wood's face. But that wasn't -- had nothing to do with which one would conclude the injuries were. That three individuals were kicking him in the body and the head. And as I say, any more than I would think that charges could be laid against the other dozen or several people anyway that were pushing to get into that and involved in the malie [sic] as it might be called.
I don't see any evidence that I could commit on bodily harm, but certainly there is adequate evidence of common assault. And I do commit the accused to stand trial at the next regular sittings of the Court of Queen's Bench, judge without a jury, on the charge of -- included charge of common assault.
Court of Queen's Bench of Saskatchewan (McIntyre J.)
McIntyre J. reviewed ss. 248, 574 and 577 of the Code, and the case law dealing with the preferring of indictments. He expressed concern that, if he accepted the Crown's submissions, prosecutors would be able to lay charges even where a judge had made a specific finding that there was insufficient evidence to commit an accused on that charge. Not considering himself bound by the case law from other provinces, McIntyre J. chose to follow the decision of his own court in R. v. Hill (1987), 1987 CanLII 4909 (SK QB), 57 Sask. R. 234. In that case, Maher J. concluded that, under ss. 548(1)(b) and 577(b) of the Code, committal for trial on the included offence of manslaughter constitutes a discharge on the charge of second degree murder. Based on this approach, McIntyre J. found that the accused had been discharged on the charge of assault causing bodily harm, and so quashed that charge. He commented that prosecutors should not be "permitted to second guess a judge hearing the preliminary inquiry". In his view, in order to prefer an indictment containing a charge of assault causing bodily harm, the Crown would have to prefer a direct indictment pursuant to s. 577(b) and (c), and obtain the written personal consent of the Attorney General.
Court of Appeal (1992), 1992 CanLII 8247 (SK CA), 97 Sask. R. 245 (Tallis J.A. orally; Cameron and Jackson JJ.A. concurring)
Tallis J.A. expressly disavowed the view that committal on the lesser charge of common assault constitutes a "discharge" under s. 548(1)(b) or 577(b). Finding that s. 574(1)(b) was the controlling provision in this case, he was of the view that this section empowers a prosecutor to prefer an indictment in substitution for any charge on which the accused was ordered to stand trial. As the requirements of s. 574 had been met, he concluded that the prosecutor was not precluded from substituting the original charge for the charge on which the accused was committed to stand trial. He also commented that this conclusion was consistent with the decision reached in R. v. Hampton (1990), 1990 CanLII 10975 (MB CA), 69 Man. R. (2d) 293, (leave to appeal denied, sub nom. D.K.H. v. The Queen, [1991] 1 S.C.R. viii), where the Manitoba Court of Appeal concluded that s. 574 allows the prosecutor to broaden the indictment in keeping with what the evidence reveals.
Issue
As I mentioned at the outset, the issue in this case is a narrow one of statutory interpretation: where an accused has elected to be tried by judge alone, does s. 574(1)(b) of the Code allow a prosecutor to prefer an indictment on a given charge, even if a justice presiding at a preliminary inquiry declines to commit the accused on that charge? The appellant argues that s. 574(1)(b) is not so broad, and that the prosecutor's power is limited by the powers of a justice at a preliminary inquiry under s. 548. As such, I will first briefly examine s. 548, then, the context being established, move on to examine the powers of the Crown to prefer an indictment under s. 574. Last I will consider the application of s. 574 to the facts of this case.
The Preliminary Inquiry
First, I would emphasize that a preliminary inquiry is not a trial, and that the function of a justice at a preliminary inquiry is, as Cory J. stated in R v. Barbeau, 1992 CanLII 76 (SCC), [1992] 2 S.C.R. 845, at p. 853, "to determine whether there is sufficient evidence to commit the accused to trial." The inquiry provides the accused with an opportunity to avoid the indignity of being placed on trial where there is simply insufficient evidence to justify the holding of a trial at all. The justice presiding at such an inquiry has the task of determining whether or not the accused should stand trial. A decision that the accused should be discharged is not appealable, and can be challenged only by way of certiorari. At the same time, a discharge is not a finding of "not guilty", and cannot form the basis of a plea of autrefois acquit.
The powers of the justice presiding at a preliminary inquiry are set out in s. 548, which reads as follows:
- (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction. [Emphasis added.]
Section 548 authorizes a justice to take one of two possible actions: under s. 548(1)(a), to order the accused to stand trial; under s. 548(1)(b), to discharge the accused. The second of these two options is taken when the justice is of the opinion that "no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction". If there is evidence which would support any indictable offence, the justice does not discharge the accused, but instead commits the accused to stand trial. Where the justice is of the opinion that the accused should stand trial, s. 548(1)(a) confers very broad powers of committal. The section imposes few limitations, authorizing the justice to commit on any offence, whether in addition to or in substitution for those specified in the information. The only limitation is that the charge must be based on evidence disclosed at the preliminary inquiry.
The Powers to Prefer an Indictment
The provisions dealing with powers of indictment are found in Part XX of the Code, in particular, ss. 574 to 580. Section 574 contains what is sometimes referred to as the power of ordinary indictment, s. 577 the more extraordinary power of direct indictment.
In this case we are concerned only with the ordinary power of indictment in s. 574. This is so because s. 566 of the Code, reproduced above, specifically directs that s. 577 has no application in judge alone trials. According to this 1985 amendment to the Code, once an accused has elected to be tried by judge alone, the prosecutor is limited to the power of ordinary indictment in s. 574. The wording of s. 574 bears repetition here, with the inapplicable reference to s. 577 bracketed out:
- (1) Subject to subsection (3) [and section 577], the prosecutor may prefer an indictment against any person who has been ordered to stand trial in respect of
(a) any charge on which the person was ordered to stand trial, or
(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial,
whether or not the charges were included in one information.
(3) In any prosecution conducted by a prosecutor other than the Attorney General and in which the Attorney General does not intervene, an indictment shall not be preferred under subsection (1) before any court without the written order of a judge of that court. [Emphasis added.]
What can be said about the scope of the powers under this section? First, an indictment can only be preferred under s. 574 if an accused has had a preliminary inquiry, and "has been ordered to stand trial". If a preliminary inquiry was not held, or if the accused was not ordered to stand trial at all, no indictment can be preferred pursuant to this section.
Assuming these threshold elements have been met, the prosecutor has two options. First, under s. 574(1)(a), the prosecutor can prefer an indictment on any charge on which the accused was committed to stand trial. Recall that, under s. 548(1)(a), the justice at the preliminary inquiry can commit the accused on any offence as long as it is one founded on the facts disclosed on the evidence. The justice and the prosecutor may agree that an accused should stand trial for a given offence. Where they agree, the prosecutor can simply adopt the opinion of the justice at the preliminary inquiry, and prefer the indictment on those specific charges under s. 574(1)(a).
The prosecutor, however, may not agree with the justice's opinion of the sufficiency of the facts. Where the justice and the prosecutor have differing views, s. 574(1)(b) gives the prosecutor the authority to go beyond the charges selected by the justice, and add or substitute charges. This power is very broad; the only explicit limitation is that the charge must be one which is "founded on the facts disclosed by the evidence taken on the preliminary inquiry". This is a limitation similar to the one placed on the justice under s. 548. The clear language of s. 574(1)(b) supports the interpretation followed by the Court of Appeal. That is, where an accused has been ordered to stand trial, s. 574(1)(b) authorizes a prosecutor to add charges as long as those charges are founded on the facts disclosed at the preliminary inquiry.
At this point, I return to the appellant's claim that s. 548 limits the scope of s. 574. First, I would note that there is nothing in the language of s. 574 which would support this claim. Had Parliament intended that s. 574 be "subject to s. 548", these words could easily have been added. Alternatively, s. 574(1)(b) could have been drafted so as to give the prosecutor the sole power to prefer "any charge founded on the facts except a charge on which the justice conducting the preliminary inquiry has refused to order the accused to stand trial". No such words are present. Instead, the language of s. 574(1)(b) clearly gives the prosecutor the authority to add or substitute "any charge founded on the facts disclosed by the evidence." There is no indication that these broad powers of indictment are to be limited by s. 548, and I see no reason to read in words that simply are not there.
Beyond the express language of the section, the appellant argues that the limitation necessarily arises by implication, given that the justice under s. 548 has made a finding that the evidence does not support the charge. He argues that deference should be paid to this determination, and that the prosecutor should not be permitted to "over-rule" the justice. In my view, this argument mischaracterizes the role of a justice at a preliminary inquiry and the underlying rationale of s. 574.
The primary role of the justice is to determine whether or not the accused should stand trial. The justice makes this determination based on his or her opinion as to the sufficiency of the evidence. If the justice does not order the accused to stand trial, the prosecutor has no power to prefer an indictment under s. 574. This is the case even if the prosecutor is of the view that the evidence presented was sufficient. The preferring of indictments under this section is contingent on the decision that an accused should be committed to stand trial. This has historically been the case. As Lamer J. noted in McKibbon v. The Queen, 1984 CanLII 67 (SCC), [1984] 1 S.C.R. 131, at p. 144:
... 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".
Under the current s. 548, the justice at a preliminary inquiry has powers of committal far broader than was the case under previous Code versions of this section. However, any charge must be founded on evidence disclosed at the preliminary inquiry. If it is not, the opinion of the justice that it is, is simply irrelevant. For example, let's assume for a moment that the prosecutor prefers an indictment pursuant to s. 574(1)(a), for the charges on which the justice ordered an accused to stand trial. The accused who feels that the charges are not founded on the evidence is entitled to bring a motion before the trial judge to have the charges quashed. The judge hearing this motion is required to examine the actual record itself. The judge does not "defer" to the opinion of the justice at the preliminary inquiry, but decides whether or not to quash based solely on the evidence disclosed at the preliminary inquiry. This is neither a question of deferring nor of "over-ruling." It is a matter of quashing or not quashing an indictment based on the evidence.
Is anything different if the prosecutor prefers an indictment under s. 574(1)(b)? Once again, an accused can bring a motion to quash, and once again, the judge goes to the record. The only question is whether the charge itself is founded on the facts. If it is not, the charge will be quashed. This is not a question of asking whether the prosecutor incorrectly "over-ruled" the justice, or whether the prosecutor should have deferred to the opinion of the justice. In this respect, I agree with the comments of Helper J.A. in R. v. Hampton, supra, at p. 302:
The specific charges upon which the justice commits the accused do not affect the prosecutor's discretion under s. 574 to prefer the same, additional or substituted charges against the accused. ...The condition precedent to the exercise of the prosecutor's authority in s. 574 is the committal on a specific transaction. The exercise of that administrative discretion by the prosecutor does not result in a collateral attack upon the decision of the magistrate whose only power is to commit for trial or to discharge the accused from the court process.
I would briefly comment on another aspect of the appellant's argument. He suggests that the powers in s. 574 are not available where the accused has been discharged, and that the word "discharge" in s. 548 should be given the meaning "discharge on a specific offence", relying on the decision of this Court in McKibbon v. The Queen, supra. In my view, the appellant's reliance on this decision is misplaced.
First, McKibbon v. The Queen is not strictly applicable to this case. In that case, the issue was the interpretation of s. 574, but, as the legislation then stood, this interpretation necessarily required the Court to consider the scope of s. 577. When s. 548 and s. 577 were placed together, there were serious problems related to the meaning to be given to the word "discharged". The interpretation of s. 574 adopted in that case was the only one possible in order to give effect to the legislative scheme which, in that case, required the reconciliation of ss. 548, 574 and 577. However, McKibbon v. The Queen was decided before the 1985 amendments, and involved a jury trial. In the present case, the Court is dealing with an amended legislative scheme, and a different set of issues. Mr. Tapaquon elected to be tried by judge alone. Because of the enactment of s. 566, s. 577 has no application here. In this context, potential problems with the meaning of the term "discharged" in s. 577 should not be used to shape the interpretation of s. 574, which is clear and unambiguous.
Second, it is not necessary for the Court to comment on the meaning of the word "discharged" as the question is simply not relevant to the issue before us. The issue is one of the interpretation of s. 574(1)(b). Under this section, the only question is whether or not the accused has had a preliminary inquiry and has been committed to stand trial on any offence. If so, the prosecutor is authorized to prefer an indictment so long as the charges are founded on the facts disclosed at the preliminary inquiry. It does not matter in the least whether the word "discharge" in s. 548 is given a broad or narrow interpretation. As noted above, s. 574(1)(b) gives the Crown the authority to prefer an indictment on any charge founded on the facts. The opinion of a justice that there is insufficient evidence to support a specific charge does not alter or limit this power. This power is limited only by the facts.
I find further support for this interpretation of s. 574(1)(b) in the policy considerations behind the different procedures applying to the ordinary and to the direct powers of indictment. Section 577 allows for an indictment to be preferred where there has been no preliminary inquiry, or where the accused has been discharged. When an indictment is preferred under s. 577, the accused clearly does not enjoy the advantage of certain procedural protections. For example, there is no requirement that the indictment be founded on any facts, and so an accused cannot bring a motion to quash. In this context, it is both reasonable and desirable that the prosecutor have the personal consent of the Attorney General, whose political accountability acts as a safeguard against potential abuse.
Where, however, ordinary indictments are preferred pursuant to s. 574, an accused has procedural protections. A preliminary inquiry must be held, and the accused must be committed to stand trial. When the prosecutor then prefers an indictment, whether under s. 574(1)(a) or (b), the charge must be one which is "founded on the facts disclosed by the evidence". If the accused believes that the charge is not founded on the facts, the accused can bring a motion to quash. On such a motion, there is no burden on the accused to prove the absence of facts. Whether one looks at the powers of the justice under s. 548, or the powers of the prosecutor under s. 574, one thing is clear: the charges must be founded on the facts. The judge hearing the motion to quash is required to ensure that there is in fact a foundation for the preferring of that specific charge. If the trial judge finds that either the justice or the prosecutor was mistaken as to the sufficiency of facts, the indictment will be quashed. Under this interpretation, unless the trial judge decides that the charge should be quashed, there is no reason to require the intervention of the Attorney General. The accused has adequate procedural protection, and any potential for abuse is greatly reduced, if not totally absent.
I conclude that, where an accused has elected to be tried by judge alone, and where a justice commits the accused to stand trial, s. 574(1)(b) allows the Crown to prefer an indictment on any charge founded on the evidence given at the preliminary inquiry, regardless of the opinion of the justice as to that specific offence. Such an indictment may be quashed if the charge is not founded on the facts disclosed at the preliminary hearing. This conclusion reached, I turn to its application to the case at hand.
Application
On the motion to quash, the trial judge, relying on his own interpretation of s. 574(1)(b), concluded that the Crown did not have the authority to prefer the indictment in this case. Given this interpretation, the trial judge did not turn his mind to the central question raised by the motion to quash, which is whether or not the charges were founded on facts disclosed at the preliminary inquiry. A consideration of the evidence is, accordingly, in order to determine whether or not the motion to quash was well founded.
At the preliminary inquiry, David Wood testified that he was a chaperon at the dance, and identified the appellant in court as having struck him three times in the face with a closed fist. For greater certainty, he stated that the person who struck him had been standing behind Joe Francis. The first two blows had just grazed his face, but the third blow landed on the left cheekbone rocking his head around and knocking his glasses off, though not knocking him down. According to his evidence, "apparently at that point I was struck from the side or something and my head was slammed into a window and I was unconscious from that point." He was unable to say where the last blow which rendered him unconscious had come from. He suffered a mild concussion, a broken left front tooth, broken nose, bruises to the right side of the face, a cut lip and sore ribs. Two root canals were required in addition to the replacement of the broken tooth. The evidence indicated that the broken tooth was on the same side of his face that was struck by the appellant.
Michelle Guay also testified that the appellant hit David Wood a couple of times. She testified that the appellant and others were all pushing, then she heard a big bang and saw that David Wood was lying on the ground. She indicated that the people around David Wood at the time were Brad Spence, the appellant, and possibly Joe Francis. She also gave evidence that she saw David Wood being kicked, and that she thought the person doing the kicking was Brad Spence. Her evidence continued as follows:
Q.What about Darren Tapaquon, where was he at this time?
A.He was standing there. I think somebody was holding him, or people were trying to hold him back or something, like hold Darren and Brad. They were telling them to stop or whatever.
Q.After it had began, did you see where Darren Tapaquon was in relation to where that fight was?
A.He was like basically like David was laying, like laid out. And I was standing in front of him. And Darren was standing about on this side and Brad was about this side right here. They were basically standing beside each other.
Stephen Liebel had described the person standing behind Joe Francis as the only person from outside wearing a pink shirt. This person was, according to him, really trying to provoke Joe into throwing the first punch, and said something to Joe along the lines of "stabbing or slicing at him," referring to either Stephen Liebel or David Wood. Stephen Liebel testified that two or three males were kicking David as he was lying on the ground, and that David was kicked once in the face and two or three times in the ribs.
Jody Taylor testified that the appellant took a couple of punches at David Wood and hit him a couple of times in the face. She identified the appellant in court, but for greater certainty, added that the person who hit David Wood that night was wearing a pony tail and either a pink or green neon shirt.
Constable Thomas Abrook who observed the appellant following his arrest identified him in court, and described him as having a pony tail and a pink shirt which was out of character of everybody else that was out there. He also testified that the appellant had a cut on his left ring finger consistent with injuries sustained from punching something, and that the appellant also had blood on his shirt.
What to make of this evidence? Meagher Prov. Ct. J. concluded that the injuries to David Wood were a result of the kicking, and that there was no evidence linking the appellant to these kicks. I disagree. First, contrary to the conclusions of the preliminary justice, being struck in the face may be consistent with a broken nose, and damage to teeth. Further, though Michelle Guay stated that she saw Brad Spence doing the kicking, there was additional evidence that two or three people had been kicking David Wood, and the accused was identified as one of the people around the body. There was also evidence that the appellant was held back and that people were telling him to stop. The appellant had blood on his shirt, and injuries consistent with punching someone.
Whatever the evidence at trial may disclose, that is a matter for the trial judge. At the preliminary inquiry, however, it remains that there was, in my view, sufficient evidence on the record to justify the preferring of an indictment on the charge of assault causing bodily harm.
For these reasons, I conclude that, under s. 574(1)(b) of the Code, where an accused has elected to be tried by judge alone, a prosecutor has the authority to prefer an indictment on any charge, so long as that charge is founded on facts disclosed at the preliminary inquiry. In this case, there was evidence of assault causing bodily harm on the facts disclosed at the preliminary inquiry, and I agree with the Court of Appeal that the motion to quash should have been dismissed.
Since writing these reasons, I have had occasion to read those of my colleague Justice Sopinka and I would like to add the following.
My colleague states at p. 546 that, once the justice presiding the preliminary inquiry "has heard all of the evidence, his or her refusal to commit on an offence charged in the information amounts to a judicial determination that the charge is not "founded on the facts disclosed by the evidence"" (emphasis added). I disagree. This statement, in my view, implies a larger role for the justice than contemplated by the Code (s. 548). The justice's role at the preliminary inquiry consists only in the determination of whether or not the accused should stand trial, as this Court unanimously held in R. v. Barbeau, supra. It also implies that deference should be paid to his or her "judicial determination", therefore again mischaracterizing the role of the justice at a preliminary inquiry. As I indicated earlier, the prosecutor who prefers an indictment under s. 574(1)(b) does not overrule the justice. My colleague relies on s. 548 of the Code and on the fact that the justice presiding at the preliminary enquiry makes a "judicial determination" to conclude that the "appropriate disposition of charges for which there is insufficient evidence to put the accused on trial is discharge of the accused on those charges" (p. 547). In this connection, the meaning of s. 574 is very clear and does not require the determination of the accused's status in respect of the charges for which there was insufficient evidence to put him or her on trial. Section 574(1)(b) states that an indictment can be preferred in respect of "any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial" (emphasis added). I cannot see how such clear wording could prevent an indictment from being preferred in respect of a charge for which the justice found that there was insufficient evidence to put the accused on trial. Section 574 does not deal with the question of discharge. Contrary to what my colleague asserts, while I agree that the Code must be read as a whole (R. v. Compagnie Immobilière BCN Ltée, 1979 CanLII 12 (SCC), [1979] 1 S.C.R. 865), when s. 566(3) is read in context, it is clear that only s. 574, and not s. 577, applies where the accused elects to be tried by a judge without a jury. To go beyond such clear words would violate Parliament's intent. Section 577 applies only to jury trials and is of no help in the interpretation of s. 574. These are two separate and different rules which obey different imperatives.
The reference to McKibbon v. The Queen, supra, is not relevant. That case dealt with s. 577 in the context of a jury trial, before the 1985 amendments. According to my colleague, the 1985 amendments were not intended to make fundamental changes but rather were more in the nature of a codification of the powers of prosecutors to prefer indictments. Even if this were so, s. 496 of the Criminal Code, R.S.C. 1970, c. C-34, which governed trials without a jury, made no reference to whether an accused was discharged or not (see s. 496(2)(b)). Consequently, McKibbon v. The Queen cannot support my colleague's point that the issue of whether the accused was discharged is relevant to this case.
Furthermore, it makes eminent sense that, for the more serious crimes, those to be tried before judge and jury, exigences be greater than for less serious crimes, those tried before judge alone. This is, in my view, what ss. 577 and 574 of the Code aim to accomplish. My colleague's interpretation blurs that distinction to the point of devoiding s. 574 of its real meaning.
As a result, I would dismiss the appeal.
Appeal allowed, L'Heureux‑Dubé J. dissenting.
Solicitors for the appellant: Ryan, MacIsaac & Associates, Regina.
Solicitor for the respondent: The Attorney General of Saskatchewan, Regina.
Solicitor for the intervener: John C. Tait, Ottawa.
