R. v. Benji, [2002] 1 S.C.R. 142, 2002 SCC 5

Her Majesty The Queen Appellant

v.

Rajinder Kumar Benji Respondent

Indexed as: R. v. Benji

Neutral citation: 2002 SCC 5.

File No.: 28443.

2002: January 15.

Present: McLachlin C.J. and Gonthier, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for british columbia

Criminal law -- Indictment -- Direct indictment -- Attorney General can prefer direct indictment against accused for offences for which accused has already been committed for trial after preliminary inquiry -- Criminal Code, R.S.C. 1985, c. C‑46, s. 577.

Cases Cited

Applied: R. v. Cross (1996), 1996 5992 (QC CA), 112 C.C.C. (3d) 410, leave to appeal refused, [1997] 2 S.C.R. viii; Canada (Procureur général) v. Bélair (1991), 1991 3486 (QC CA), 10 C.R. (4th) 209; R. v. Tapaquon, 1993 52 (SCC), [1993] 4 S.C.R. 535; McKibbon v. The Queen, 1984 67 (SCC), [1984] 1 S.C.R. 131.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, ss. 574(1)(a) [rep. & sub. c. 27 (1st Supp.), s. 113], 577 [idem, s. 115].

APPEAL from a judgment of the British Columbia Court of Appeal (2001), 151 C.C.C. (3d) 229, 150 B.C.A.C. 1, 245 W.A.C. 1, [2001] B.C.J. No. 63 (QL), 2001 BCCA 25, allowing the accused’s appeal from a decision of the British Columbia Supreme Court, [2000] B.C.J. No. 2332 (QL), 2000 BCSC 1465, dismissing the accused’s application to quash a direct indictment on charges of murder and kidnapping. Appeal allowed.

William F. Ehrcke, Q.C., for the appellant.

Peter Leask, Q.C., for the respondent.

The judgment of the Court was delivered orally by

[1] Arbour J. -- We are all of the view that the Court of Appeal for British Columbia erred in its interpretation of the Criminal Code provisions dealing with the preferring of indictments. The better view was expressed by Proulx J.A. of the Quebec Court of Appeal in the similar case of R. v. Cross (1996), 1996 5992 (QC CA), 112 C.C.C. (3d) 410, leave to appeal refused, [1997] 2 S.C.R. viii, and by Baudouin J.A. in Canada (Procureur général) v. Bélair (1991), 1991 3486 (QC CA), 10 C.R. (4th) 209 (Que. C.A.) (approved in R. v. Tapaquon, 1993 52 (SCC), [1993] 4 S.C.R. 535, at pp. 549-50).

[2] In the present case, the respondent concedes that he could have been indicted through the ordinary process of s. 574(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. This in itself is sufficient to permit his inclusion in the direct indictment which could only be brought under s. 577 of the Code against his co-accused Bhatti.

[3] This interpretation is consistent with the reasons of Sopinka J. in Tapaquon, supra, at pp. 548-49, referring to Lamer J. (as he then was) in McKibbon v. The Queen, 1984 67 (SCC), [1984] 1 S.C.R. 131, at p. 157, dealing with the predecessor provisions to s. 577, where he said:

1. 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.

[4] For these reasons, the appeal is allowed, the judgment of the British Columbia Court of Appeal is set aside and the indictment charging the respondent and Suraj Singh Bhatti is reinstated.

Judgment accordingly.

Solicitor for the appellant: The Ministry of the Attorney General, Vancouver.

Solicitors for the respondent: Leask Bahen, Vancouver.