[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): R. v. Harrison, 2024 ONSC 1140
COURT FILE NO.: CR-23-082
DATE: 2024/02/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
MARK HARRISON
Applicant
Stephanie Dickson, for the Crown
Anne Marie Morphew, for the Applicant
HEARD: January 3, 2024
REASONS FOR DECISION
wilcox, j.
OVERVIEW
[1] The accused was charged in an Information dated February 17, 2022 with 14 counts. Twelve were Criminal Code offences and two were drug trafficking offences. He elected to be tried by judge and jury.
[2] A preliminary hearing was held on April 13, and 14, 2023. The applicant conceded committal and was ordered to stand trial on the Criminal Code offences. He was discharged on the two trafficking offences.
[3] In the May 11, 2023 Indictment filed before the Superior Court of Justice, the Crown included two trafficking counts as counts 10 and 11.
[4] The applicant sought an order quashing counts 10 and 11 of the Indictment, alleging that they are the same offences that he was discharged of at the preliminary inquiry.
[5] The Crown countered that they are not the same charges as those that the accused was discharged of.
BACKGROUND
[6] The Information alleges in count 13 that MARK ANTHONY HARRISON between the 10th day of September in the year 2021 and the 20th day of September in the year 2021 at the City of NORTH BAY in the said Region, did traffic in a substance included in Schedule I to wit: Methylenedioxyamphetamine (ecstasy), contrary to Section 5(1) of the Controlled Drugs and Substances Act. The preliminary inquiry appears to have proceeded as if the alleged offence involved "Molly". Nothing was made of this.
[7] The Indictment alleges in count 10 that he, between the 1st day of August in the year 2021 and the 30th day of September in the year 2021 at the City of NORTH BAY in the said Region, did traffic in a substance represented or held out as a substance included in Schedule I to wit: 3,4-Methylenedioxymethamphetamine (MDMA or molly), contrary to Section 5(1) of the Controlled Drugs and Substances Act.
[8] The change in dates from between the 10th day of September and the 20th day of September in 2021, in the Information to between the first day of August and the 30th of September, 2021 was not intended to broaden the allegations.
[9] The Information alleges in count 14 that MARK HARRISON on or about the 19th day of September in the year 2021 at the Township of EAST FERRIS in the said Region, did traffic in a substance included in Schedule I to wit: Oxycodone (Percocet), contrary to Section 5(1) of the Controlled Drugs and Substances Act.
[10] The Indictment alleges at count 11 that he, on or about the 19th day of September in the year 2021 at the Township of EAST FERRIS in the said Region, did traffic in a substance represented or held out as a substance included in Schedule I to wit: Oxycodone (Percocet), contrary to Section 5(1) of the Controlled Drugs and Substances Act.
[11] There was only one occasion alleged where Percosets and Molly, respectively, were allegedly involved. The counts in the Indictment do not refer to different occasions than do the counts in the Information.
[12] The Controlled Drugs and Substances Act (CDSA) section 5(1) says that no person shall traffic in a substance included in Schedules I, II, III, IV, or V, or any substance represented or held out by that person to be such a substance.
[13] The wording of CDSA section 5(1) where it refers to trafficking in a substance included in one of the schedules, or in any substance represented or held out to be such a substance is lengthy and awkward. For ease of reference, I will use "trafficking in a substance" as a short form for the former, and "held out" or similar for the latter.
[14] With respect to preliminary inquiries, section 548(1) reads:
548.(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.
[15] Section 548(1) of the Criminal Code sets out the test, "sufficient evidence" to be applied at a preliminary inquiry, and provides that, in addition to the charges in the Information, the court could consider whether there is sufficient evidence to put the accused on trial for any other indictable offence in respect of the same transaction.
[16] At the preliminary inquiry, the court noted that counts 13 and 14 of the Information both read "did traffic in a substance included in Schedule I, to wit, Methylenedioxyamphetamine and to wit Oxycodone (Percocet)", but did not say a substance held out to be. The court was not satisfied that there was evidence that those were the substances provided and declined to commit the accused to trial on those two counts. This was despite the Crown's submissions that it was not necessary for it to be specified in the Information that it was represented or held out to be such a substance. Rather, she submitted, section 5(1) could be satisfied by evidence either of a substance or of one represented or held out to be such. However, in the event that the court disagreed with the submission, the Crown proposed to amend the counts in the Information to specify "held out". The court refused the offer, stating that the Crown had the ability to and could include the two amended counts in the Indictment.
[17] With respect to the preliminary inquiry judge's comments that the Crown could add the trafficking charges, amended to cover the presented or held out situation, to the Indictment, counsel agreed that that was not binding on me.
SUBMISSIONS
[18] Counsel framed the issue as whether the trafficking counts laid in the Indictment are the same offences that were before the court at the preliminary inquiry. If yes, they would need to be quashed. If no, they would remain on the Indictment.
[19] The defence's position was that trafficking is a singular offence that can be committed in multiple ways, so that the offences in the Indictment are the same offences as were on the Information.
[20] The Crown's position was that trafficking in a scheduled substance and trafficking in a substance held out to be a scheduled substance are both offences under the CDSA, section 5(1), but they are not the same charges. She agreed that trafficking is indeed a singular offence that can be committed in more than one way. She disagreed that the charges are the same, because the elements of trafficking in a scheduled substance are different from those of trafficking in a substance held out to be. In the former, proof that the substance was a narcotic is essential to the Crown's case. In the latter, the nature of the substance does not matter. Therefore, the elements that the Crown has to prove change with the wording of the charge. Because the charges are different for the purposes of section 574(1)(b), the Crown may include them in the Indictment. The accused had been discharged of trafficking in a substance, but not of trafficking in one held out to be.
[21] Although this was contrary to the Crown's position at the preliminary inquiry, the Crown submitted that it had taken that position at the preliminary inquiry in error.
[22] The Crown pointed out that the preliminary inquiry judge had distinguished between trafficking in a substance and in one held out to be. The judge had noted that there was no evidence of the nature of the substance, and that the charges did not refer to a holding out situation.
[23] The Crown took the position that, if the preliminary inquiry judge had found that there was evidence of trafficking in a substance held out to be, the accused could have been ordered to stand trial on that under section 548(1)(a). The Crown had not raised that possibility at the preliminary inquiry. Nevertheless, the Crown submitted, it was clear from the judge's comments that she was of the opinion that there was evidence to support allegations of holding out and that they were distinct enough that the Crown could include them in the Indictment, pursuant to section 574(1)(b).
[24] The Crown submitted that only if the accused was explicitly discharged of something that was actually before the preliminary inquiry judge would the Crown be precluded from relying on section 574(1)(b) to include the charges in the Indictment. This was on the basis of R. v. Khan[^1].
ANALYSIS
[25] The crux of the matter is whether or not trafficking in a substance is the same charge as trafficking in one held out to be.
[26] As a consequence of section 548(1), if the court had understood CDSA section 5(1) to state one charge which could be done in either of two ways, one involving a scheduled substance and the other involving something represented or held out to be a scheduled substance, it declined to commit the accused to trial on the section 5(1) counts in either circumstance.
[27] On the other hand, if the court had understood the CDSA section 5(1) to state separate charges, one involving a scheduled substance and the other involving something reported or held out to be a scheduled substance, it declined to commit to trial on the former, as charged. Furthermore, it could have committed the accused to trial on the latter as being "another indictable offense in respect of the same transaction", but it did not.
[28] The Indictment in this matter was preferred under s. 574, the ordinary procedure for preferring an Indictment. It was not a direct Indictment preferred under s. 577.
[29] Section 574 reads:
574(1) Subject to subsection (3), the prosecutor may, whether the charges were included in one Information or not, 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.
[30] In R. v. Masters,[^2] Honsberger Co. Ct. J. dealt with a charge under s. 4(1) of the Narcotic Control Act. That section read:
No person shall traffic in a narcotic, or any substance represented or held out by him to be a narcotic.
At paragraph 20, he held that:
The offence is trafficking in a substance, either a narcotic or substance held out to be a narcotic. It is a single offence which may be done in one of two ways, either in a narcotic or in a substance represented or held out to be a narcotic.
The accused was ultimately convicted of and sentenced for trafficking and appealed. The Ontario Court of Appeal unanimously found that there was no merit in the appeal from conviction[^3].
[31] In R. v. Aldridge,[^4] the accused was charged with trafficking in what he represented to be cocaine, contrary to CDSA s. 5(1), but which turned out to be soap. After a review of the caselaw from various provinces on point, which included the Ontario case of R. v. Masters, Allen J. found that the "weight of authority supports the proposition that the section has one offence, trafficking, but two different modes of committing that offence". The Aldridge decision was referred to in R. v. Churchill[^5] at paragraph 85 as the most comprehensive decision on point.[^6]
[32] In light of this, I find that the two counts of trafficking in the Indictment are the same charges as in the Information, just with different modes of the offences. The counts in the Indictment, then, are ones that the preliminary inquiry judge refused to commit the accused to trial on.
[33] In R. v. Tapaquon,[^7] the Supreme Court of Canada held that, where "an accused is not committed to stand trial with respect to a charge in the Information, the accused is no longer charged with that offence...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" 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".
[34] In Khan, the preliminary inquiry judge had committed the accused for trial on offences that were charged in the Information, all of which were then charged in the Indictment. The judge refused to commit the accused under section 548(1)(a) to trial on some additional charges that were not in the Information. Nevertheless, the Crown included them in the Indictment under section 574(1)(b) as being disclosed by the evidence taken at the preliminary inquiry. The accused brought a motion objecting to this, which motion was dismissed. The motions judge found the Crown's use of the section 574 power to be fair, lawful and not an abuse of process. The judge distinguished the judicial powers in section 548(1)(a) which were limited by the "same transaction" requirement from the Crown's powers in section 574(1)(b), which were not so limited. The judge also found that "a refusal to commit for trial in relation to additional offences not charged in the Information, pursuant to section 548(1)(a), is not a "discharge" within the meaning of section 548(1)(b). The prosecutor retains the power under section 574(1)(b).
[35] I do not see Khan as assisting in the present case. It dealt with a situation wherein the charges in question were additional, different charges in the Indictment which were not in the Information but which the Crown had sought, and the preliminary inquiry judge had refused, committal on under section 548(1)(a). This is distinct from the present case in which the issue is whether the impugned charges in the Indictment are the same as those in the Information that the accused was discharged on. The defense conceded that, if they are found not to be the same, they would remain in the Indictment. Consequently, there would be no issue about the Crown's use of section 574(1) to include them in the Indictment.
CONCLUSION
[36] Therefore, the application is granted and counts 10 and 11 of the Indictment are hereby quashed.
Wilcox, J.
Released: February 23, 2024
[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): R. v. Harrison, 2024 ONSC 1140
COURT FILE NO.: CR-23-082
DATE: 2024/02/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
MARK HARRISON
Applicant
REASONS FOR DECISION
Wilcox, J.
Released: February 23, 2024
[^1]: 2014 ONSC 5664 [^2]: [1973] O.J. No. 2351 [^3]: [1974] O.J. No. 59 [^4]: 2004 ABPC 69 [^5]: 2018 ABQB 353 [^6]: See also R. v. Khalif, 2014 SKQB 165 at para. 129; R. v. Fredericks, 2013 NSPC 11. [^7]: [1993] 4 S.C.R.