R. v. McGRATH Date:, 2015 BCPC 5

Citation: R. v. McGRATH Date: 20150116 2015 BCPC 0005 File No: 58370-1 Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW ALLAN McGRATH RULING ON APPLICATION OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: D. Clements Counsel for the Defendant: M. LeHouillier Place of Hearing: Richmond , B.C. Date of Hearing: January 16, 2015 Date of Judgment: January 16, 2015

[ 1 ] THE COURT : This is an application to quash an Information that was sworn on December 31st, 2013 here in Richmond. The defence questions the validity of the document for reasons relating to the jurat.

Essentially what has occurred in the jurat here is that there is a time stamp beside the electronic signature of each of the parties who have signed that document (those two parties are the justice of the peace and the informant), and the order of those signatures being affixed to this Information are of concern. [ 2 ] In this document, the justice of the peace appears to have sworn the oath of the informant at 11:15 and 15 seconds on December 31st, 2013, and the signature of the informant appears to have been affixed, or at least stamped, on December 31st, 2013 at 11:15 and 47 seconds, some 32 seconds after the justice of the peace had affixed their signature. [ 3 ] There was a case of Delalla which was before me.

That is a case of Judge Oulton dated July 18th, 2014. The Crown did call evidence in that case. In my case, I am dealing with it on the basis of some admissions that were made. The Crown called evidence in that case that the justice of the peace swore the jurat at 1346 and 01 seconds, and she described a process where she is in a room with her computer screens and the informant comes in. She described a process of an omnibus oath kind of a system with respect to various Informations that she and the informant would deal with on a particular day.

And the omnibus oath was essentially, "Do you solemnly swear that the contents of this Information are true to the best of your knowledge and belief, so help you God?" That oath was not repeated for any of the subsequent Informations that were dealt with, so there is basically a stack of Informations, the oath is given at the outset of the process and then not repeated for any of the subsequent Informations that are dealt with. [ 4 ] So at the end of the hearing the judge finds, based on the evidence that was heard in that case, that the applicant did meet the onus on them on a balance of probabilities, to rebut the presumption of regularity because the time of the jurat swearing where the justice of the peace affixes the signature is 12 seconds before the time that the informant attested to the contents, and as such is something that cannot be cured.

In that case, the application was granted to quash the Information. [ 5 ] This sort of omnibus swearing of oaths was dealt with in 1981 by Judge Wong in a case called MacLennan 1981 BCJ No. 2205 where he quotes in paragraph 16: “A justice of the peace who receives a written complaint on an alleged offence must first determine whether the complainant has satisfied the conditions precedent mentioned. I fail to see how that duty can be satisfied without receiving and considering each Information on an individual basis.

To do otherwise is to apply a thoughtless impression of an automaton, rather than the proper administration of a solemn duty .” [ 6 ] In this case, counsel has sought what the process was for this particular Information, and the admission is that the justice of the peace would enter her signature first, and then the informant would enter their signature second, and that is indicated by the time stamp. But her practice was to receive the Information from the informant prior to any signatures being entered.

She confirmed as well, this is an admission, that she would swear each Information one at a time, she would receive the Information from the informant, affix her signature first and then the informant second, but that each would be done one at a time after she had sworn the oath from the informant. [ 7 ] On the face of it, there are two possible conclusions on the face of this Information.

One is that the justice of the peace has orally taken the oath of the informant and then affixed her signature in advance of the informant, or secondly, that the justice of the peace has signed the jurat prior to taking any oath of the informant. In my mind, this former situation is the one that exists in this case, given the evidence, and in that case, because we have that evidence of an oath being taken prior to the affixing of signatures, which was done, admittedly, I think everybody is in agreement, a fashion that is somewhat misleading.

The evidence is consistent with a proper taking of an Information by a justice of the peace and then the affixing of signatures in an order that on its face may be misleading, but in substance is really just not the kind of error, certainly not the kind of problem that would lead one to the conclusion that there is a substantive basis on which to quash the Information. [ 8 ] For that reason, I find that this Information is valid. (RULING CONCLUDED)