HER MAJESTY THE QUEEN - v. -, 2003 ABPC 128

R. v. Precision Plastics Ltd. , 2003 ABPC 128 Date: 2003 03 25 Docket: 016084881P101001 IN THE PROVINCIAL COURT OF ALBERTA BETWEEN: HER MAJESTY THE QUEEN - and - PRECISION PLASTICS LTD., 361235 ALBERTA LTD., and RALPH ACRES DECISION ON APPLICATION TO AMEND THE INFORMATION OF THE HONOURABLE JUDGE L.J. WENDEN COUNSEL : Susan McRory for the Crown Accused self represented (Crown’s case) R.D. Vigen (Defence case) SETTING AND APPLICATIONS [ 1 ] The accused, Precision Plastics Ltd. and 361235 Alberta Ltd. and Ralph Lynn Acres are charged under Section 11(1) (

c) of the Waste Control Regulation, A.R. 192/96 , and section 18 (1)(

c) of the same regulation. These subsections deal with the storage of hazardous waste/recyclables. The

section requires that: “11(1) A person who stores hazardous waste shall store it in an amount and in a manner so that (a) ... (b) ...

(

c) at least secondary containment is provided for liquid hazardous waste, and there are no openings in the secondary containment system that provide a direct connection to the area surrounding the system.” [ 2 ] Subsection 18 is in virtually identical terms except that it deals with hazardous recyclables. [ 3 ] The information that was laid against the accused states that: “On or between the 16 th day of January, 2001, and the 31 st day of January, 2001, at or near the City of Edmonton, in the Province of Alberta, did fail to store hazardous waste in an amount or in a manner so that at least secondary containment is provided for liquid hazardous waste, and there are no openings in the secondary containment system that provide a direct connection to the area surrounding the system, contrary to Section 11(1) (

c) of the Waste Control Regulation, A.R. 192/96 . On or between the 16 th day of January, 2001, and the 31 st day of January, 2001, at or near the City of Edmonton, in the Province of Alberta, did fail to store a hazardous recyclable in an amount or in a manner so that at least secondary containment is provided for liquid hazardous recyclables, and there are no openings in the secondary containment system that provide a direct connection to the area surrounding the system, contrary to Section 18(1) (

c) of the Waste Control Regulation, A.R. 192/96 .” [ 4 ] The problem is obvious. The Regulation requires the use of the ‘and ’, which is conjunctive. The Information used ‘ or ’ which is disjunctive. [ 5 ] The difference came to light very late in the trial, shortly before the date fixed for decision. The incorrect wording was noticed by the Court during a review of its draft decision. The discovery, and the problem it raised was put to both counsel. There is a difference between the use of the word “ or ” and the use of the word “ and ”.

If the former is used, then the Crown need only prove either “amount” of hazardous waste/recyclable stored without secondary containment, or the “manner” in which the hazardous waste/recyclable was stored without secondary containment. If the latter is used, then the Crown must prove both “amount” and “manner”. [ 6 ] Defence counsel made an application to quash counts one and two. The Crown made an application to amend counts one and two. Given the problem posed by the manner in which the counts were drafted the application was granted. The Court then asked for written submissions from both counsel.

POSITION OF THE DEFENCE [ 7 ] The defence argues that the charges are a nullity, and that because of this it cannot be said that the Crown has proven anything against the accused. The charges as stated are not an offence. The defence also takes the position that the accused were entitled to defend the charges as laid, and did defend them as they appeared on the information. The defence further submits that references made to the Regulation during the trial do nothing to alert the accused to the proper wording of the counts.

Moreover, any amendment made would not would not allow the charges to conform to the evidence, but would simply amend the charge. POSITION OF THE CROWN [ 8 ] The Crown argues that the counts should be amended, and that the numerous references made to the Regulation during the trial gave the accused all the notice that they needed.

The Crown suggests that there is no prejudice to the accused because “it is inconceivable that there could be a situation on this property where the Crown could prove simply by virtue of amount, regardless of the manner that there was a failure to have secondary containment.” (Crown submission at p. 8) THE LAW

[ 9 ]

Section 601 of the Criminal Code is the

section that deals with amending defective indictments or counts. It states: “601.

(1) An objection to an indictment or to a count in an indictment for a defect apparent on the face thereof shall be taken by motion to quash the indictment or count before the accused has pleaded, and thereafter only by leave of the court before which the proceedings take place, and the court before which an objection is taken under this

section may, if it considers it necessary, order the indictment or count to be amended to cure the defect.

(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under

section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and (

a) a count in the indictment as preferred; or (

b) a count in the indictment (

i) as amended, or (ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to

section 587.

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears (

a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament; (

b) that the indictment or a count thereof fails to state or states defectively anything that is requisite to constitute the offence, (

i) does not negative an exception that should be negatived, (ii) is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or (

c) that the indictment or a count thereof is in any way defective in form.

(4) The court shall, in considering wether or not an amendment should be made to the indictment or a count in it, consider (

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case;

(

d) whether the accused has been misled or prejudiced in his defence by a variance, error or omission mentioned in subsection (2) or (3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or (

b) the place where the subject matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.

(6) The question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law.

(7) An order to amend an indictment or a count therein shall be endorsed on the indictment as part of the record and the proceedings shall continue as if the indictment or count had been originally preferred as amended.

(8) A mistake in the heading of an indictment shall be corrected as soon as it is discovered but, whether corrected or not, is not material.

(9) The authority of a court to amend indictments does not authorize the court to add to the overt acts stated in an indictment for high treason or treason or for an offence against any provision in

section 49, 50, 51 and 53.

(10) In this section, “court” means a court, judge, justice or provincial court judge acting in

summary conviction proceedings or in proceedings on indictment.

(11) This

section applies to all proceedings, including preliminary inquiries, with such modifications as the circumstances require. R.S., c. C-34, s. 529; 1974-75-76, c. 105, s. 29; R.S.C. 1985, c. 27 (1st Supp.), s. 123; 1999, c.5, s.23 .” ANALYSIS [ 10 ] In my view, the matter before the court is to be decided with reference to subsection (3) and (4) of

section 601 . Subsection (3) states: “

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears (a) ...

(

b) that the indictment or a count thereof (

i) fails to state or states defectively anything that is requisite to constitute the offence, (ii) ... (iii) ... and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial.” [ 11 ] In the case before the court, the count is defectively stated, in that the disjunctive “ or ” is used, whereas the conjunctive “ and ” is required by sections 11, and 18 of the Regulation. Without the conjunctive “ and ”, there is no offence. The introductory lines of the section(

s) make that clear. They state: “A person who stores hazardous waste shall store it in an amount and in a manner so that,”. As the conjunctive “ and ” is required, the counts as they are presently drafted disclose no offence. [ 12 ] The following portions of

Section 601 set out the approach to be used by the trial judge when deciding if the amendment will be made. “

(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider (

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced in his defence by a variance, error or omission mentioned in subsection (2) or (3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or (

b) the place where the subject matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.” [ 13 ] The Supreme Court of Canada, in the decision R. v. Webster [1992] S.C.J.

No.92 – QL, considered the approach to be taken when faced with an information that on the face of it reveals a defect. The decision of the Court was delivered by Chief Justice Lamer. At para 13 the Chief Justice said: “In refusing to quash the information in this case, the learned Provincial Court Judge was, in my opinion, acting in conformity with the decision of this Court in R. v. Moore, 1988 CanLII 43 (SCC) , [1988] 1 S.C.R. 1097 .

The main issue in that case was whether quashing an information, after plea, for failure to allege a material averment constitutes a verdict of acquittal for the purpose of pleading autrefois acquit to a new information. However, there is to be found in both the majority and the dissenting reasons in that [page 9] case, considerable discussion about the circumstances under which a judge of first instance should quash an information or indictment.

Dickson C.J., in his dissenting reasons, stated the following, at p. 1109: ‘If the document gives fair notice of the offence to the accused, it is not a nullity and can be amended under the broad powers of amendment s.1 529 [now s. 601 ] gives to the courts. Only if a charge is so badly drawn up as to fail even to give the accused notice of the charge will it fail the minimum test required by s. 510(2)(c) [now s. 581(2)(c)].

A charge that is this defective would have to be quashed.’ Although these were dissenting reasons, Dickson C.J.'s discussion in this regard was adopted without any reservation in my reasons on behalf of the majority of the Court, at p. 1126.

In the same case, writing for the majority, I said, at p. 1128: Since the enactment of our Code in 1892 there has been, through case law and punctual amendments to s. 529 [now s. 601 ] and its predecessor sections, a gradual shift from requiring judges to quash to requiring them to amend in the stead; in fact, there remains little discretion to quash. f course, if the charge is an absolute nullity, an occurrence the conditions of which the Chief Justice has set out clearly in his reasons, no cure is available as the matter goes to the very jurisdiction of the judge. ...

But, if the charge is only voidable, the judge has jurisdiction to amend. Even failure to state something that is an essential ingredient of the offence (and I am referring to s. 529(3)(b)(i) [now s. 601(3)(b)(i)]) is not fatal; in fact, it is far from being fatal, as the

section commands that the judge ‘shall’ amend. [Emphasis added.] Once the information in this case is examined in light of these principles, it is clear that the information here was not so badly drawn up as ‘to fail even to give the accused notice of the charge’. It was, therefore, not an absolute nullity within the meaning of R. v. Moore .” [ 14 ] In R. v. Trang, 2001 ABQB 623 (CanLII) , [2001] A.J. No. 978 (Q.B.) , Binder, J. made the following trenchant observations on this issue: “20 The attitude of the courts toward amendment of indictments evolved considerably over the last century.

This change in attitude resulted from changes in the provisions of the Code regarding amendment. For example, the amendment and re-enactment of ss. 889 to 890 as s. 510 in 1955 expressly enabled the courts for the first time to amend defects in substance. That provision, now contained in s. 601(3)(b)(iii), mandates amendment where a count is defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial.

Also, in 1985 Parliament allowed for the broad amendment process for curing defects regarding indictable offences to apply to

summary conviction offences. The underlying impetus behind the change in attitude has been the increase in safeguards of accused's rights. The absence of such safeguards and the draconian penalties often faced by accused in times past had led to great formality in criminal pleadings. 21 The Supreme Court of Canada in Webster set out the current state of the law applicable to quashing and/or amending an indictment. In my view, prior decisions which are incompatible with Webster are no longer persuasive or binding ...

23 The majority in Moore concluded that s. 529 [now s. 601 ] provides that the trial judge, absent absolute nullity and subject to certain limits set out in ss. (9), has very wide powers to cure any defect in a charge by amending it. In passing, I see no useful purpose in characterizing a nullity as ‘absolute’ or otherwise in this context; in my view, a ‘nullity’ is simply a ‘nullity’. 24 DesRoches J. in Davis commented on Dickson C.J.'s statement in Moore citing T.

Quigley, Procedure in Canadian Criminal Law at p. 358: The phrase ‘not an offence known to law’... should now carry a very restricted meaning by referring only to situations where there is literally no such offence, either because it has been repealed, is not yet in force, or perhaps, because the wording is so palpably bad that it bears no resemblance to any existing offence.” [ 15 ] Dealing with the counts, the threshold issue before the court can be stated as follows: are the counts so badly drawn up “as to fail to give the accused notice of the charge.” [ 16 ] The counts inform the accused that: (1) one count deals with the storage of hazardous waste, (2) one count deals with the storage of hazardous recyclable, (3) both counts allege that the storage was done without secondary containment, (4) the word “amount” appears in both counts, as does the word “manner”. [ 17 ] As a whole, the counts do convey to the accused that they are charged with the storage of hazardous waste, and hazardous recyclable, and in both instances there is no secondary containment.

As well, they are informed that “amount” and “manner” are part of the counts. In my view the accused have notice of the charges. [ 18 ] Having decided the above, the court must now consider if the amendment ought to be made. This is governed by considering the matters set out in section 601(4). [ 19 ] As this is a trial, paragraph (

a) of s. 601(4) does not apply. (

b) The Evidence Taken on the Trial [ 20 ] By the time that the matter was discovered, the trial had long concluded. The error was discovered by the court at literally the eleventh hour. [ 21 ] The evidence heard at the trial revealed that Mr. Acres and the corporate accused were in the recycling business, and in the early nineties started to recycle plastic containers that at one time had held unused motor oil. The recycling process resulted in some oil being generated. This oil was not subject to the provisions of either

section 11, or 18 of the Regulations , and it was deemed too be non- hazardous. [ 22 ] The accused were also engaged in crushing undrained lube oil filters that had been removed from internal combustion engines. These filters along with the spent lubricating oil are deemed to be hazardous waste/recyclables under the Regulations . Throughout the course of the trial, spent lube oil was called “used oil”, and the undrained lube oil filters were called “uncrushed filters” prior to being put in the filter press, and “crushed filters” after they had been through the press.

[ 23 ] The majority of the investigation was done on January 16, 2001, and the only investigation done on January 31, 2001 was with respect to count 3, which does not figure in this application. The evidence heard dealt with the condition of the site on previous site inspections, and on the date of the investigation, the manner of storage, the fact that there was no secondary containment at the sampling points, and the way that the samples were taken. [ 24 ] There was some evidence about the amount of used oil that was stored without secondary containment, but that was imprecise.

For example, no measurements were made of the containers or the contents of the containers. Estimates were not approximate amounts, but only, on an unsubstantiated basis that the quantity was over five liters. [ 25 ] The defence evidence was about the process used for recycling the plastic oil containers, and what was done with the water and oil that had been extracted, and the ultimate destination of both of these. [ 26 ] The defence response to the Crown’s evidence on the manner in which the liquid hazardous waste/recyclable was stored at the various sample sites varied, depending on the sample site.

For some sites the defence called evidence to show that what was stored at the site did not require secondary containment, or alternatively, it was secondary containment.

As well, much of the evidence that the defence called dealt with the business premises, and the fact that it was constructed in such a way that the flow of any liquid was controlled and channeled into oil/water separators. [ 27 ] With respect to the presence of used oil in some of the drums, the defence brought out the fact that as oil floated on water, and that no measurements had been done, it might well have been that the layer of oil was very thin. (

c) Circumstances of the Case [ 28 ] The charges in this case are under Section 11(1) (

c) and Section 18(1) (

c) of the Waste Control Regulation, A.R. 192/96 , and deal with the storage of hazardous waste/recyclable. The issues before the Court, that is the nature of the testing, and the type of analysis required by the Regulation before material was deemed to be hazardous waste/recyclable, representative sampling, and secondary containment had not been previously litigated. The expert evidence dealing with the results of the analysis was detailed and complex. [ 29 ] For the most significant part of the Crowns’s case the accused were not represented by counsel.

Defence counsel did not appear on the record until the conclusion of the Crown’s case. By that time, all of the testimony dealing with sampling, analysis, and the

interpretation of the test results had been given. Having said that, throughout that testimony, the accused were assisted by Mr. Brownlee, an environmental consultant. This witness was available to the accused, and on several occasions he assisted Mr. Acres. He cross- examined the Crown expert Dr. Birkholz about the test results. His cross-examination of the Crown expert satisfied me that he had an in-depth understanding about the chemistry of the materials alleged to be hazardous waste, as well as an understanding of the requirements of representative sampling.

His understanding of the subject was such that he was able to elicit from the expert evidence that the test results of the sample from the closed drum (sample site

B) displayed such properties that the material might have come from a different source than spent lube oil. Another example of his understanding of the subject was that he also elicited from the Crown expert that sampling protocol required that all phases of a container must be sampled. [ 30 ] There remains the fact that the accused Mr. Acres was self-represented, and given the close connection between Mr. Acres and the corporate accused, he acted as counsel for them. Like most self-represented accused, Mr.

Acres was somewhat anxious, and this came out during his cross-examination of some of the witnesses as well when he was being addressed by the court. Still, he was able to make the points that he wanted to on cross-examination of the witnesses. (

d) Whether the accused has been mislead in his defence by a variance error or omission in subsection (2)( or (3) [ 31 ] The matters discussed in (

b) and (

c) when considered together show that the accused Mr. Acres was alive to the issues facing him and the corporate accused. On cross-examination, he was able to elicit answers from Crown witnesses that were helpful to his defence. Moreover, when it came time to present his defence he was represented by experienced counsel. I find that the accused Mr.

Acres and the other accused were not misled or prejudiced in their defence. (

e) Whether, having regards to the merits of the case, the proposed amendment can be made without injustice being done [ 32 ] Subsection 601(4)(

e) addresses a proposed amendment against the context of the proper administration of justice. This encompasses a consideration of all the matters that were discussed in (b), (

c) and (d), as collectively they make up the merits of the case. [ 33 ] Collectively viewed I am satisfied that they demonstrate that the accused were alive to the issue of “amount”, and the manner in which the Crown factored in amount with the rest of the Crown evidence. [ 34 ] Having considered all of the factors set out in Section 601(4), I am satisfied that an amendment can be made without injustice being done. [ 35 ] The Crown’s application is granted. [ 36 ] Counts one and two will be amended by replacing the word “or” in the phrase “ in an amount or in a manner” with the word “ and ”.

Dated at the City of Edmonton , in the Province of Alberta this 25th day of March , 2003. Judge L.J. Wenden