R. v. 0721464 BC Ltd. and Buchanan Date, 2011 BCPC 90

Citation: R. v. 0721464 BC Ltd. and Buchanan Date: 20110301 2011 BCPC 0090 File No: 197400-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. 0721464 B.C. LTD. CHAD EDWARD BUCHANAN DECISION ON APPLICATION TO QUASH INFORMATION OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: L. Winn Counsel for the Accused Buchanan: D. Murray Place of Hearing: Vancouver , B.C. Date of Hearing: October 13, 2010 Date of Judgment: March 1, 2011 INTRODUCTION [ 1 ] Mr. Buchanan and 0721464 BC Ltd. (“the company”) are both charged with certain

summary conviction offences under the Pensions Benefits Standards Act , R.S.B.C. 1996, c. 352 . Mr. Buchanan, the personal defendant, applies to quash all three counts in Information No. 197400 (“the information”) in so far as those counts purport to apply to him. He made the application before a plea was taken. In essence, Mr. Buchanan argues that, although he was a director of the company at the material time set out in the information, all three counts are defective. He says the defect in the information is beyond repair.

In particular, he says, any attempt to amend the information would be very prejudicial to him. [ 2 ] Both Mr. Buchanan and the company are named in each of the three counts in the information. Count 1 charges that both defendants failed to remit employer and member contributions to the registered pension plan of certain employees. Count 2 charges that both defendants failed to keep separate and apart from the employer’s own assets, contributions due or owing to the pension plan.

Count 3 charges that both defendants failed to keep separate and apart, from the employer's own assets, amounts that had been deducted by the employer from a member’s remuneration and not yet remitted to the fund holder. [ 3 ] Mr. Buchanan was represented by counsel who made it clear he was only appearing on Mr. Buchanan's behalf. The company was not represented. BACKGROUND INFORMATION

[ 4 ] No evidence was called in these proceedings, however, I was provided some background information by both counsel. I have set out this background information, for purpose of this application only, in order to provide the context within which the charges arose. [ 5 ] The company was a construction company duly incorporated pursuant to the laws of British Columbia. Mr. Buchanan was a director of the company at the material times. Apparently, Mr. Buchanan was also an employee of the company. [ 6 ] The company was a participating employer of a registered pension plan.

Certain members of the International Association of Bridge Structural, Ornamental and Reinforcing Iron Workers, Local 97 were members of the registered pension plan. It is alleged that between October 1, 2005 and May 26, 2006 the company failed to remit registered pension plan contributions that were due to certain members of the pension plan. The alleged pension plan contribution amount owing from the company is $116,513.45. [ 7 ] The company was dissolved on October 1, 2007, by the Registrar of Companies for failure to file. The information against Mr.

Buchanan and the company was sworn several months after the company was dissolved. ISSUE The issue in this case is whether the information is valid on its face. POSITION OF THE PARTIES Mr. Buchanan’s argument [ 8 ] Mr. Buchanan submits this is a prosecution under the Offence Act R.S.B.C. 1996, c. 338, for offences allegedly falling under the Pension Benefits Standards Act . Mr. Buchanan concedes, for the purpose of this application, that each of the three counts in the information complies with s.13 of the Offence Act and properly alleges an offence against the employer.

However, he submits, the three counts in the information are not valid vis-à-vis himself. [ 9 ] The three counts in the information state that the offences charged were contrary to s. 43 (3) or s. 43.1(1)(

a) and s. 72 of the Pension Benefits Standards Act . Section 43 (3) provides that "an employer" must, within the prescribed period, remit employer and member contributions to the pension plan. Additionally, s. 43.1 (1) provides that an employer must keep separate and apart from the employer's own assets: (

a) all contributions that are due or owing to the pension plan by the employer, and (

b) all amounts that been deducted by the employer from a member’s remuneration and not yet remitted to the fund holder. Mr. Buchanan notes that all three counts against the employer allege a failure to do something required by the Pension Benefits Standards Act . Mr. Buchanan emphasizes that each of the three counts accurately particularizes the

section or subsection of the Pension Benefits Standards Act which specifies a requirement that applies to the employer. [ 10 ] Mr. Buchanan submits the nub of the problem with the validity of the information lies in the fact that s. 72 of the Pension Benefits Standards Act , which is specified in each of the three counts, differentiates between the type of the offence that can be committed by the company and the type of offence that can be committed by a director.

Section 72 provides that a person (presumably “person” includes a corporation) who contravenes the Pension Benefits Standards Act or does certain things to avoid compliance with that Act commits an offence. Section 72 (3) provides that, if a corporation commits an offence, a director "who directed, authorized, assented to, acquiesced in or participated" in the commission of the offence also commits an offence and is liable to a fine. [ 11 ] Mr. Buchanan argues that the language of s. 72 (3), which applies to a director, creates an offence that requires a positive act rather than an offence by omission. Mr.

Buchanan argues this is significant because positive and intentional conduct must be proved. He argues that issues of strict liability and due diligence do not arise. Mr. Buchanan argues that this distinction between the classes of offences created by s. 72 is fatal to the charges against him. He says the information ought to have alleged separate offences against him and the company because both defendants cannot commit the same offences specified in each of the three counts. Mr.

Buchanan suggests that if a count identified him as being a director and alleged he had directed, authorized, or assented to certain offences committed by the company, that would be a valid count on its face. However, that is not how the counts in the information read. Mr. Buchanan argues that the counts set out in the information are not valid counts against him, as a director. He argues that the clear express wording of s. 72 (3) creates a different offence for directors than that created for corporations. [ 12 ] Mr. Buchanan asserts he is entitled to know the charges against him.

He argues there is nothing in the information, as currently worded, to suggest that the Crown is trying to prove positive conduct on his part. He maintains the information ought to have alleged separate offences against each of the defendants, because both defendants cannot commit the same offences specified in the information as currently worded. Mr. Buchanan further maintains that, since this is an application made before plea and before the commencement of the trial, this court has no jurisdiction to amend the information if requested to do so by the Crown. [ 13 ] Mr.

Buchanan notes there is one conclusion this court could reach which would result in the survival of the information, namely; that the counts as laid are valid against Mr. Buchanan as an employer or as a co-employer. However, Mr. Buchanan notes, the case did not proceed on that basis because the Crown is not attempting to hold him liable as the employer. The Crown’s argument

[ 14 ] The Crown submits the information is valid as it stands. The Crown notes that the information was sworn within the applicable limitation period. The Crown confirms this is a

summary conviction proceeding. Accordingly, the Offence Act and those sections of the Criminal Code set out in

Part XXVIII (Summary Convictions) of the Code apply. The Crown argues that the formalities of the information are dealt with under s. 789 of the Code . It submits the Crown complied with those formalities in laying the charges under the Pension Benefits Standards Act . [ 15 ] The Crown acknowledges that the defendant, Mr. Buchanan, can raise objections regarding the validity of the information. However, the adjudication of his application requires the court to take into consideration the factors set out in s. 100 of the Offence Act .

The Crown submits there are only a few requirements it must meet to establish a valid charge, namely: • the name of the defendant, • the date and time of the offence, • the description of the offence, • that the charge was laid within the limitation period, • that the information was properly sworn. [ 16 ] The Crown argues that s. 72 of the Pension Benefits Standards Act is the offence and penalty section. However, because the language of that

section is so general the Crown further particularized the nature of the offence by referring to s. 43 (3) or s. 43.1 in the counts. The Crown argues there is no need to draw up separate counts to differentiate between the company and Mr. Buchanan as director. The Crown points out the allegation is that Mr. Buchanan was a party to the offence committed by the employer (i.e. the company) in failing to remit funds as required under the Pension Benefits Standards Act . ANALYSIS The charges against Mr. Buchanan [ 17 ] The charges against Mr.

Buchanan and the company have been summarized in the introduction to this decision. The charges arise under the Pension Benefits Standards Act . For purposes of that Act an employer is defined as “a person or organization, whether incorporated or not, from whom an employee receives or received remuneration, and includes any participating employers of a multi- employer plan who have employed that employee”.

For purposes of the Act an employee is defined as “an individual employed to do work or provide a service in British Columbia or a designated province who is in receipt of or entitled to remuneration for the work or service”. [ 18 ]

Section 43 and 43.1 of the Pension Benefits Standards Act deal with the remittance of contributions and how the funds ought to be kept and provide as follows: 43 (1) and (2) [Repealed 1999-41-30.]

(3) An employer must, within the prescribed period, remit employer and member contributions due to the pension plan, as follows: (

a) in the case of a multi-employer plan, to the administrator; (

b) in the case of a plan other than a multi-employer plan, to the fund holder.

(4) If the administrator of a multi-employer plan is not the fund holder, the administrator must, on receipt of the contributions, promptly remit them to the fund holder.

(5) If, 60 days following the period allowed by subsection (3) for remitting contributions, an employer has still failed to remit the contributions, the administrator or the fund holder who should have received the contributions must notify the superintendent, in writing and within 30 days, respecting the failure of the employer to remit, whether or not the contributions were subsequently remitted. (6) Subsection (5) does not apply to a pension plan administered by a board of trustees. 43.1

(1) An employer must, with respect to a pension plan to which the employer is required to make contributions, keep separate and apart from the employer's own assets (

a) all contributions that are due or owing to the pension plan by the employer, (

b) all amounts that have been deducted by the employer from a member's remuneration and not yet remitted to the fund holder, and (

c) all contributions that have been received by the employer with respect to a member and not yet remitted to the fund holder.

(2) The amounts referred to in subsection (1) are deemed to be held in trust for members of the pension plan, former members, and any other persons entitled to pension benefits, refunds or other payments under the plan in accordance with their interests under the plan.

(3) If there is, in respect of an employer, a proceeding

(

a) under the Companies Creditors Arrangement Act (Canada), (

b) under the Winding-up and Restructuring Act (Canada) or similar provincial legislation, (

c) in relation to liquidation, receivership or secured creditor enforcement, or (

d) in relation to insolvency other than under the Bankruptcy and Insolvency Act (Canada), an amount equal to the amounts deemed to be held in trust under subsection (2) is deemed to be separate and apart and form no part of the estate of the employer, whether or not that amount has in fact been kept separate and apart from the employer's own assets or from the assets of the estate. [ 19 ]

Section 72 of the Pension Benefits Standards Act sets out what constitutes an offence as well as the penalty for offences under that Act. That

section reads as follows: 72

(1) A person who (

a) contravenes this Act or the regulations, or (

b) to avoid compliance with this Act or the regulations, (

i) destroys, alters, mutilates, secretes or otherwise disposes of records, (ii) makes a false or misleading statement or entry in any record, or (iii) fails to state anything in any records, commits an offence and is liable to a fine of not more than $25 000.

(2) Despite subsection (1), if a corporation is convicted of an offence against this Act or the regulations, the maximum penalty that may be imposed is $100 000.

(3) If a corporation commits an offence against this Act or the regulations, an officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence commits an offence and is liable to a fine of not more than $25 000. The application of the Offence Act and the provisions of the Criminal Code [ 20 ] The Offence Act applies to prosecutions of offences under the Pension Benefits Standards Act . The Offence Act provides that an offence created under an enactment is punishable on

summary conviction (see s. 2 ). The Offence Act also provides that a person who contravenes an enactment by doing

an act which it forbids or omitting to do

an act that it requires to be done, commits an offence against the enactment (see s. 5 ). Additionally, the Offence Act contains specific provisions relating to informations and the amendment of informations. However, before turning to those sections it should be noted that the Offence Act specifically provides for the application of the Criminal Code in s. 133 as follows: If, in any proceeding, matter or thing to which this Act applies, express provision has not been made in this Act or only partial provision has been made, the provisions of the Criminal Code relating to offences punishable on

summary conviction apply, with the necessary changes and so far as applicable, as if its provisions were enacted in and formed part of this Act. [ 21 ] The Offence Act defines “information” as including, among other things, a count in an information. It also addresses the question of “formalities of an information” in s.13: a. must be in writing and, except for violations tickets under s.13, must be under oath; and b. may charge more than one offence or relate to more than one matter of complaint. If it does so, however, each offence or matter of complaint must be set out in a separate count. [ 22 ]

Section 100 of the Offence Act (which is similar but not identical to s. 601 of the Criminal Code ( “ the Code” ) deals with amending a defective information. It provides, in

summary, as follows: 1. An objection to an information for a defect apparent on its face must be made by motion to quash the information before the defendant has pleaded; 2. A justice, on the trial, may amend the information to make it conform to the evidence if there appears to be a variance;

3. A justice at any stage of the trial may amend the information as may be necessary; 4. The justice may, additionally, consider a number of factors (which are not set out here) in determining whether or not anamendment should be made. [23] The Offence Act also contains provisions regarding what must be contained in an information in ss. 96 and

Section 96provides that: 1. An information must in general apply to a single transaction and must contain a sufficient if it did contain in substance, astatement that the defendant committed an offence or

an act specified in the proceeding and punishable on

summary convictions. 2. The statement on the information may be in: a. popular language without technical averments, b. in the words of enactments that describe the offence, or c. in words that are sufficient to give the defendant notice of the offence with which the defendant is charged. 3.

An information must contain sufficient detail of the circumstances of the alleged offence to give the defendant reasonableinformation with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise theabsence or insufficiency of details does not vitiate the information. 4. An information may refer to a section, subsection or clause of the enactment that creates the offence charged. For purposesof determining whether an information is sufficient, consideration must be given to any such reference.

Section 97 provides that no information is insufficient because of the absence of details if, in the opinion of the justice, the informationotherwise fulfils the requirements of s. 96. In particular, s. 97. provides that no information is insufficient merely because if fails tospecify the means by which the alleged offence was committed. [24]

Part XXVIII of the Code deals with

summary conviction offences. Section 789 (1) sets out the formalities of an information interms that are not identical but are similar to what is set out in s. 13 of the Offence Act. Furthermore, s. 795 provides that other parts ofthe Code, including

Part XX, apply, with such modifications as the circumstances require, to proceedings under the

summary convictionpart of the Code as long as they are not inconsistent with

Part XXVIII.

Section 581 (general provisions respecting counts) and s. 601(amendment) apply to

summary conviction proceedings under the Code as they fall under

Part XX. Applicable case law [25] In Vancouver (City) v. Wisebert [2005] B.C.J. No. 2085 (B.C.S.C.), Dillon J. considered whether the provincial court judge wascorrect in quashing a 28 count information alleging unlawful removal of trees on private property. In that case the respondent appliedbefore plea to quash the information pursuant to s. 100 (1) of the Offence Act. The respondent argued the information did not meet thetest set out in s. 96 (3) of the Offence Act because each count in the information did not identify the specific tree which was the subjectmatter of the counts.

The respondent argued that the provision of particulars did not matter if the information was defective on its face. Further the respondent argued the trial judge did not have the power to amend the information.

Consequently, there was no remedyexcept to quash the information because the defect was one of substance so not curable [26] In that decision Dillon J. stated that the “golden rule”, in determining whether a charge gives the defendant reasonableinformation and identifies the transactions referred to, is to ask whether the accused was reasonably informed of the transaction againsthim thus giving him the opportunity for a full defence and a fair trial.

Dillon J. noted that, in British Columbia, if the information statesthe time of the offence, the place, the victim, and the offence, in the language of the enactment, it will not be quashed unless there is apossibility of prejudice to the accused. Furthermore, she noted that the current approach is to reject insufficiency arguments as overlytechnical and a holdover from another time. The court must look not only at the face or wording of the information, but at all the othermaterial in the possession of the accused, including disclosure. [27] Dillon J. found, based upon the

interpretation of a similar provision in the Code in R. v. Wis Development Corp. Ltd. (SCC), [1984] 1 S.C.R. 485, that s. 100 (1) of the Offence Act does not provide for an amendment prior to commencementof the trial. However, she concluded that s. 100 should be read contemporarily in light of legislation enacted since the decision in R. v.Wis Development Corp. Ltd., s. 32 of the

Interpretation Act, R.S.B.C. 1996 c. 238, and the determination of our courts to avoid overlytechnical arguments on insufficiency. She concluded that s. 100, as worded, only provides a partial provision for amendment of aninformation because it does not provide for amendment before a plea. However, applying s. 133 of the Offence Act (which deals withthe applicability of the Code where no express provision or partial provision has been made on a particular point) the court shouldincorporate s. 601 (1) of the Code and thus allow the power to cure a defect (if one is found) in an information prior to plea, and toamend it if necessary.

[28] In R. v. Moore (SCC), [1988] 1 S.C.R. 1097, the court considered the issue of whether quashing an information,after plea, for failure to allege a material averment, constituted an acquittal for purposes of pleading autrefois acquit. In the course ofaddressing that issue, Mr. Justice Dickson (dissenting) reviewed the approach to defective indictments. He noted that as a result of twocases (R. v. Major, [1997] 1 S.C.R. 826, and R. v.

Cote, (SCC), [1978] 1 S.C.R. 8), it is no longer possible to say that adefective information is automatically a nullity disclosing no offence known to law: 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 ofamendment s. 529 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 willit fail the minimum test required by s. 510 (2) (c). A charge that this defective would have to be quashed (at para. 16). [29] Mr.

Justice Lamer, as he then was, writing for the majority also reviewed the approach taken to defective informations: Since the enactment of our Code in 1892 there has been, through case law and punctual amendments to s. 529 and its predecessorsections, a gradual shift from requiring judges to quash to requiring them to amend in the stead; in fact, there remains little discretion toquash.

Of course, if the charges are an absolute nullity, an occurrence the conditions of which the Chief Justice has set out clearly in hisreasons, no cure is available as the matter goes to very jurisdiction of the judge (at para. 58). [30] In R. v. Davis [2000] P.E.I.J. No. 100 (P.E.I. S.C. Trial Division), the court considered a decision in which a provincial courtjudge found that charges against the respondents under the Securities Act of P.E.I. were void ab initio and quashed the information.

Deroches J. said that the position in current Canadian law is that only an indictment or information that discloses no offence known tolaw or is so badly drafted that it fails to provide notice of the offence charged will be quashed, and then only if it cannot be amended (seepara. 9). [31] Deroches J. noted that in reaching his conclusion, the provincial court judge had found an amendment under s. 601 was notavailable to cure the defect because the application to quash was brought before plea.

In doing so, the provincial court judge hadappeared to accept and apply the reasoning of the Supreme Court of Canada in R. v. Wis Development Corp. Ltd. Deroches J. said that,in his view, Wis Development Corp. Ltd. has little precedential value today. He noted that, as a result of that case, s. 796 of the Codewas repealed in 1995 and s. 795 was re-enacted to extend to informations those powers of amendment relating to indictments. He alsonoted that s. 601 (1) is now incorporated in

summary conviction proceedings by s. 795. [32] Deroches J. further noted that s. 601 has introduced into our criminal law a marked preference for amendment of an informationover quashing it: Clearly, the discretion of the presiding judge to quash an information has been severely limited, as it is only in rare circumstances inwhich an information is so faulty that it fails to meet the basic requirement of s. 581 (see R. v. Webster (1993), (SCC),78 C.C.C. (3d) 302 (S.C.C.)).

In my view the case at bar does not come within those rare circumstances, and the charge in questionshould not have been quashed as an absolute nullity (at para. 15). [33] In R. v. Trang 2001 ABQB 623 , [2001] A.J. No. 978 (A.B.Q.B.), Binder J. undertook an extensive review of theapproach taken in dealing with the quashing of an indictment. He noted that the application before him raised a vexing issue: This issue arise because the courts have been reluctant to shed the shackles of the past to adopt the principled approach to ss. 581, 587and 601 of the Criminal Code (“Code”).

On one hand, the Supreme Court of Canada has moved to a concept of “nullity” as the test for quashing an indictment or a count thereof. On the other hand, the remnants of the past echo in cases which continue to look to the distinction between form and substance. As willbe demonstrated, this distinction is insignificant in circumstances where s. 601 (1) of the Code is engaged, certainly before plea andlikely after plea as well. (at paras. 3-4). [34] An issue in that case was whether one of the counts was a nullity because it failed to give the accused notice of the charge.

If theanswer to that question was “no”, the issue which then arose was whether the count was defective on its face by not specifically recitingan essential element of the offence, namely; that the accused were parties to an offence. Binder J. said that the attitude of the courtstowards amendment of indictments has evolved considerably over the last century. This change in attitude resulted from the changes tothe Code regarding amendments. [35] Binder J. also noted that the Supreme Court of Canada in R. v.

Webster, (SCC), [1993] 1 S.C.R. 3, sets out thecurrent state of the law applicable to quashing and/or amending an indictment. In his view, prior decisions incompatible with R. v.Webster are no longer persuasive or binding. [36] In the matter before me the Crown relies on the fact that Mr. Buchanan is charged as a party. There are several cases which havespecifically considered whether failure to specify that an offence was committed by a defendant as a party is fatal to the validity of aninformation. In R. v.

Harder [1956] 1 S.C.R. 489, the accused was charged with having carnal knowledge of a woman who was not hiswife without her consent. The accused did not rape the woman but, by use of force, assisted in subduing her while three others rapedher. He was found guilty. However, on appeal, the Court of Appeal of British Columbia quashed the conviction on the basis that theindictment, which charged the accused as a principal in the offence, was not sufficient because there was no evidence to support thecharge as drafted since he had not raped the woman himself.

A majority of the Supreme Court of Canada concluded that the indictmentcharging the accused as a principal was sufficient and the indictment as written was valid. The court noted that an indictment cannotproperly be construed without regard to the substantive and procedural provisions of the Code. [37] In R. v. Dougdale [1979] B.C.J. No. 1487 (B.C.C.A.), the accused and another person were charged with committing

an act ofgross indecency. Both accused moved to quash the information before election or plea. The accused argued the information was anullity and beyond correction through amendment. A provincial court judge quashed the information. On appeal the respondentsargued the information was a nullity. They were not given information as to what acts or events constituted gross indecency as allegedagainst them. They said the information as written could cover many different types of conduct and hence sufficient details of the

circumstances were not given as required by the Code . The Court of Appeal relied on R. v. Harder. The court noted that the charge was in the words of the applicable Code provisions. It concluded that the failure to specify details of a specific act alleged to constitute the act of gross indecency was nothing more than a failure to specify the means by which the offence was alleged to have been committed. The court found the charge as drafted was sufficient. [ 38 ] In R. v. Nica [2002] B.C.J. No. 2863 (B.C.C.A.) , the accused helped his son forcibly take his grandson from his daughter-in-law.

One of the issues raised in that case was whether the indictment or information was confusing because the provisions of s. 21 were not specifically set out. The information charging the accused did not specify he was being charged as a party. The court noted that, had the information specifically alleged the accused had aided and abetted his son to abduct his grandson, nothing would have changed in the preparation for or the conduct of the trial. The court found the information as worded did not give rise to any possibility of confusion.

It said there was no other possibility than that the appellant was being charged as a party to the offence. In reaching its decision the court cited R. v. Rosen , [1995] 1 S.C.R. 83 . In that case the Supreme Court of Canada stated there is no doubt about the soundness of the proposition that an aider or abettor may be charged and convicted as a principal. However, in R. v. Rosen the accused had been charged with breach of trust, being a trustee. The Supreme Court of Canada said that if particulars are volunteered, or ordered by the court, they must be met. Accordingly, since Mr.

Rosen was not a trustee, the count so charging him was not proven and his conviction on that count was quashed. Application of law to facts [ 39 ] The three counts as drafted in the information before me each include the essential elements of the charge. The wording used in each count is the same as the wording used in the Pension Benefits Standards Act . The counts each identify a transaction, the place, and the time period when the offences are alleged to have occurred. In my view, the counts as drafted are not a nullity. Mr.

Buchanan is not charged as the employer; instead he is charged as a party under s. 21 of the Code . That

section allows the Crown to charge a person as a party for acts or omissions done for the purpose of aiding a principal to commit an offence. The cases cited above make it clear that the failure to specify that a person is charged as a party is not fatal to the validity of an information. [ 40 ] In deciding the issue before me I have considered not only the information but also the applicable provisions of the Offence Act and the Code . The information is not a nullity and therefore will not be quashed. Accordingly, Mr.

Buchanan’s application is dismissed and this matter may proceed to trial in relation to both Mr. Buchanan and the company. _________________________ M.F. Giardini Provincial Court Judge