R. v. Royer, 2021 BCPC 54

Citation: R. v. Royer 2021 BCPC 54 Date: 20210312 File No: 47205 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KALEB ANTHONY JAMES ROYER REASONS FOR JUDGMENT ON MOTION TO QUASH OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: N. Devji Counsel for the Defendant: N. Selamaj Place of Hearing: Penticton , B.C.

Dates of Hearing: March 11, 2021 Date of Judgment: March 12, 2021 [ 1 ] Mr. Royer makes a motion pursuant to s. 601 of the Criminal Code to quash the information on which he currently stands trial. This comes in the middle of the Crown’s case. Mr. Selamaj, on behalf of Mr. Royer, says that the information is a nullity because there is an apparent defect on the information which was laid by telecommunication that produces a writing. Specifically, the informant appears to have sworn the information on December 6, 2019.

However, the justice of the peace (JP) who received the document certified that she received it on “10:34 a.m. on Dec 5, 2019 ”, i.e., before the informant actually swore it. [ 2 ] As a preliminary matter, Mr. Selamaj seeks leave of this Court to make this motion. This is because pursuant to s. 601 , an objection to an indictment should be made prior to the plea being entered. Thereafter, such a motion may be made only with leave of the Court.

Section 601 provides that: 601

(1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. 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. [ 3 ] In this case, pleas of not guilty had already been entered and the trial commenced on August 7, 2020. Mr. Selamaj advised the court that he only recently noticed this apparent defect on the eve of the continuation of this matter. As such, this was the first opportunity he had to make this motion. [ 4 ] In my view, there is no prejudice to the Crown for this motion to be heard at this time. I fully accept that the irregularity on the information was not apparent to counsel until very recently.

Further, the Crown had not yet closed its case. It remains open for the Crown to call further evidence as Ms. Devji considers necessary. As such, I am granting leave to Mr. Royer to bring this motion. [ 5 ] Mr. Selamaj relies principally on two cases. The first case is R. v. Delalla, 2015 BCSC 592 . In that case, both the informant and the JP testified. They told the court about the practice at that registry whereby the informant would bring a number of informations before a JP at the same time, often between 20 to 30 of them. The informant is sworn in at the beginning of the meeting.

Each information would then come up on the computer screen, one at a time. An oath would not be re-administered upon the signing of each information. This was referred to as “bulk swearing”. With respect to the information in question, the informant had signed the information 12 seconds after the JP signed the jurat. My sister Judge Oulton allowed the motion to quash on the basis that the presumption of regularity had been rebutted and that it was not something that could be cured. [ 6 ] On appeal to the Supreme Court of British Columbia, Mr.

Justice Armstrong clarified the distinction between the oath/affirmation itself and the signature on the information. The latter evidences the former, but it is the former that is a legal requirement; not the latter. Section 789(1) (

a) of the Criminal Code provides that: 789

(1) In proceedings to which this Part applies, an information (

a) shall be in writing and under oath ; and … [Emphasis added.] [ 7 ] Accordingly, as long as there is some proof that an oath or affirmation was administered, the information is valid. For that reason, even if the jurat was not signed, that is not necessarily fatal to the information (see para. 43 of Delalla) . [ 8 ] What was fatal in the Delalla case, however, is that the informant had sworn the oath even before seeing the information, i.e., before it came up on the computer screen.

As such, his oath was not complete (and could not be completed) until the informant became aware of the circumstances of the alleged offences. Otherwise, he could not possibly be said to have reasonable and probable grounds to believe that the accused committed the offences charged as required by s. 504 of the Criminal Code . [ 9 ] At para. 52 of Delalla, the Court said: [52] In this case, the parties testified that the usual practice in laying informations is for the informant to take an oath when he first enters the swearing room.

The oath given is a promise to tell the truth about each information as it is presented to the informant and to the JP. At that point, however, Mr. Ellard had not seen the Information, nor had he been provided any details concerning the alleged offence. Mr. Ellard could not possibly know his oath to be true; his oath was, in reality, only a promise to tell the truth about facts unknown to him at the time he swore the oath. The oath could thus not be complete until Mr.

Ellard informed himself of the circumstances of the alleged offence and acquired reasonable grounds to believe the offence had been committed – and communicated that fact to the JP. As JP Fullerton completed the jurat before Mr. Ellard reviewed any materials concerning the offence or said anything regarding the Information, she was certifying that the Information had been sworn before it had, in fact, been sworn. [53] This was not a technical defect. As Durno J. held in EPR Services Inc ., the jurat is evidence of the fact that the oath was administered.

In the case at bar, the evidence before the Provincial Court revealed that the jurat was not in fact evidence that the oath had been administered. This case is distinguishable from the cases cited by the Crown, as unlike in those cases the evidence here establishes that the oath had not been made at the time of the defect. [ 10 ] Ultimately, the Crown’s appeal to overturn the trial judge’s quashing of the information was dismissed. [ 11 ] I find that there are three important distinctions between the Delalla case and the case at bar.

Firstly, in Delalla , both the informant and the JP testified and the court made a finding of fact that the informant had signed the information after the JP signed the jurat. In this case, the informant signed the information on December 6, 2019. Because it was an information by telecommunication that

produces a writing, the information also contains the date and time that the fax was sent, along with the sender and recipient information. According to that banner, the document was faxed from the Penticton RCMP records on December 6, 2019, at 10:33:26 a.m. [ 12 ] The JP in this case certified that she received the fax at 10:34 a.m. on December 5, 2019. However, it is quite clear on the document that everything pertaining to this certification is handwritten (including the time, city, name of the JP, and signature), EXCEPT the date.

The date was provided by way of a mechanical stamp. [ 13 ] Neither the informant nor the JP testified. And on the totality of the evidence presented, I conclude that the date stamp of December 5, 2019, was simply an error. Undoubtedly, the JP did not rotate the mechanical stamp to the correct date. The JP could not have actually signed the jurat on December 5 since she only received the information on December 6.

Unlike in Delalla , the JP’s signature in this case did NOT precede the informant’s signature. [ 14 ] Secondly, in Delalla , the informant did not have the requisite knowledge at the time the oath was administered. Here, there is no evidence that the informant was not in possession of the requisite knowledge at the material time. The presumption of regularity in that regard had not been rebutted. [ 15 ] Finally, unlike in Delalla and the other cases cited by counsel, the information in this case was laid by telecommunication that produces a writing.

Section 508.1 of the Criminal Code provides for this procedure: 508.1

(1) For the purposes of sections 504 to 508, a peace officer may lay an information by any means of telecommunication that produces a writing. Alternative to oath

(2) A peace officer who uses a means of telecommunication referred to in subsection (1) shall, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to the officer’s knowledge and belief, and such a statement is deemed to be a statement made under oath. [ 16 ] Accordingly, the informant in this case was actually not required to swear an oath. It was sufficient that she certify in writing that the matters contained in the information are true to her knowledge and belief. Such a statement is then deemed to be made under oath.

On the document before me, she has made such a statement in writing and there is nothing here to suggest that at the time she made such a statement, she lacked the requisite knowledge pertaining to the allegations. [ 17 ] For all of the above reasons, the circumstances that rendered the Delalla information invalid are not present in the case at bar. [ 18 ] Both s. 601(1) and (3) of the Criminal Code give the court authority to amend this apparent defect should I consider it necessary. The factors to be considered are governed by s. 601(4) : 601

(1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. 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 (

i) fails to state or states defectively anything that is requisite to constitute the offence, (ii ) does not negative an exception that should be negatived, (iii) 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 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 any 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. [Emphasis added.] [19] Mr. Selamaj cites R. v. Peremiczky, (BCSC), for the proposition that an amendment to the jurat could not bemade and that the only remedy available to the Crown may be an adjournment to allow a re-swearing of the information. However, in R.v. Ramirez, (BC CA), 31 BCAC 236, our Court of Appeal, in essence, overturned the apparent ratio in Peremiczky.

Atpara. 11 of Ramirez, the Court cited the reasons from the court below with approval: With respect, I think that while Stubbington, Peremiczky and Village of Bobcaygeon may reflect the law on amending the jurat, as itstood at that time, they are not an accurate expression of the current principles… [20] Accordingly, I conclude that it is open to this Court to amend the defective jurat on the information. Mr. Selamaj quite fairlyconceded that there had been no prejudice that was caused by the error and that his client was not misled by it.

Taking into account all ofthe factors under s. 601(4) collectively, I conclude that I should amend the defect on the information. Doing so also conforms with thejurisprudential shift during the last decades to prefer substance over form. Although commenting on a slightly different issue, theSupreme Court of Canada gave a historical context as to why judges in the past were quicker to grant motions to quash, rather thanamend indictments. At p. 1307 of R. v. City of Sault St.

Marie, (SCC), [1978] 2 SCR 1299, Dickson J. (as he then was)said: Each of these tests is helpful as far as it goes, but each is too general to provide a clear demarcation in concrete instances. This is shownby the variety of cases and the diversity of opinion in this case itself. To resolve the matter one must recall, I think, the policy basis of therule against multiplicity and duplicity. The rule developed during a period of extreme formality and technicality in the preferring ofindictments and laying of informations.

It grew from the humane desire of judges to alleviate the severity of the law in an age whenmany crimes were still classified as felonies, for which the punishment was death by the gallows. The slightest defect made anindictment a nullity. That age has passed. Parliament has made it abundantly clear in those sections of the Criminal Code having to dowith the form of indictments and informations that the punctilio of an earlier age is no longer to bind us. We must look for substance andnot petty formalities. [21] For the foregoing reasons, I am amending the jurat on the information.

The date on which the JP received the information wasDecember 6, 2019, and not December 5, 2019. With that amendment made, the motion to quash is hereby dismissed. _________________________ The Honourable Judge A. Tam Provincial Court of British Columbia