R v. Nandi Date:, 2015 BCPC 26

Citation: R v. Nandi Date: 20150204 2015 BCPC 0026 File No: 58970-1 Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRYAN MUDIMBWA NANDI RULING ON APPLICATION OF THE HONOURABLE JUDGE GOVE Counsel for the Crown: N. Reithmeier / S. Smith Counsel for the Defendant: J. Malik / J. Bal, Articled Student Place of Hearing: Vancouver , B.C. Date of Judgment: February 4, 2015 [ 1 ] THE COURT: The accused is charged, on Count 1:

[ 1 ] THE COURT: The accused is charged, on Count 1: . . . on or about the 4th day of October, 2013, at or near Richmond, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle, contrary to Section 253(1) (

a) of the Criminal Code . Count 2 : . . . on or about the 4th day of October, 2013, at or near Richmond, in the Province of British Columbia, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to Section 253(1) (

b) of the Criminal Code . [ 2 ] The information was sworn on February 19, 2014. The Crown has proceeded summarily. Application: [ 3 ] Prior to the commencement of the trial, the accused has applied for the information to be quashed as it is a nullity. The accused submits that the procedure used by the justice of the peace was incorrect and the information was never legally sworn. [ 4 ] Criminal court proceedings are commenced by the laying of an information. The information is prepared by a justice of the peace.

An informant or affiant swears an oath to a belief that the contents of the information are true, and signs the information. Upon swearing the informant, the justice of the peace then signs a jurat acknowledging that the oath has been taken.

The justice of the peace may then issue process by adding to the information whether there is to be a summons or a warrant issued, and again signing another jurat. [ 5 ] Evidence in this case was that all signatures placed on the information were done so electronically, and a timestamp records on the document the precise time that each signature was so placed. [ 6 ] The accused submits that the proper process for swearing an information was not followed here. This can be seen by examining the timestamps that are on the information.

From this evidence, it is apparent that the justice of the peace signed both the jurat related to the affiant swearing an oath and the jurat issuing process prior to the informant signing the information. [ 7 ] The accused submits that the information was not properly sworn. It is therefore a nullity and should be quashed. Facts: [ 8 ] The Crown called evidence from the justice of the peace who had sworn and issued the process in the information before the court. She testified that she could not remember swearing the specific information before the court, but accepts that she must have, as her name is on it.

She testified that she would have used the procedure that she was instructed to use and did use on all informations that she swore in February 2014. [ 9 ] In February 2014, the procedure that the justice of the peace used to swear an information was as follows: 1) A police court liaison officer came to the office of the justice of the peace with a Crown file and a draft information. 2) The court liaison officer provided an oral brief synopsis of the case and a request for process, either summons or warrant. 3) The justice of the peace checked the draft information for typographical or other errors. 4) The justice of the peace then went to a computer and, using the JUSTIN program, brought the draft information onto her monitor, where she could correct any errors. 5) The justice of the peace would then fill in any missing fields, such as the date, the location, and the name of the court liaison officer.

The amended information would then be ready to be sworn and was done so, on the evidence of the justice of the peace before me, in the following sequence. 6) The justice of the peace placed her signature electronically on the information under the jurat "sworn before me". 7) The justice of the peace then placed her signature under the jurat words saying "Process issued". 8) The court liaison officer then signs an electronic keypad that put his signature on the information above where it reads, "Signature of informant". 9) The justice of the peace takes the oath by asking the court liaison officer, "Do you swear the contents of this information to the best of your knowledge to be true, so help you God." 10) The court liaison officer then says, "Yes." 11) If more than one information was being sworn by the same liaison officer, the files would be presented as a batch and the justice of the peace would deal with each information in the same manner, except that all the informations would be sworn after they were all signed by referring to "these informations".

[ 10 ] I accept the evidence of the justice of the peace that she followed the procedure for swearing the information before the court, following her practice used in February 2014.

The procedure used is confirmed by the timestamps on the information showing the precise time when each of the signatures was placed on the information. [ 11 ] It is of note that in June 2014, justices of the peace were given new instructions and were told to change their procedure as follows: 1) The court liaison officer is to sign the information first. 2) The justice of the peace signs the oath jurat next. 3) The justice of the peace signs the process jurat. 4) The oath is still taken after the information has been signed by both the court liaison officer and the justice of the peace.

Argument: [ 12 ] The accused applies to the court to quash the information as a nullity. Four issues were argued: 1) Does the accused require leave of the court to apply to quash the information? 2) Can the Crown apply to reswear the information? 3) Does the presumption of regularity apply? 4) Is the information a nullity?

Issue 1 : Does the accused require leave of the court to apply to quash the information ? [ 13 ] Code s. 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.” [ 14 ] The case law that counsel has referred me to talks about why it is important to bring such an application prior to the commencement of the trial and not after the Crown has called evidence. [ 15 ] In the Provincial Court of British Columbia, the case flow management rules require that an accused person enters a plea prior to a trial date being set.

This is often done months, sometimes over a year, before the actual trial date. [ 16 ] Here the accused appeared and entered a not guilty plea, not before a judge, but before a judicial case manager so authorized to receive the plea. Defence counsel was not present. In fact, at the commencement of this application, defence counsel did not realize that a plea had been entered. [ 17 ] The application now before me was brought prior to the date set for trial.

The Crown has been given ample notice and was prepared for today with argument and case law. [ 18 ] When a case comes before a judge for the purposes of either a guilty plea, disposition, or a trial, the court should confirm what the plea is, and if the confirmation is that the plea is not guilty, the trial starts. I think that that is the plea that is referred to in s. 601(1). [ 19 ] The plea taken before a judicial case manager is rather more an indication of what the plea will be.

I am therefore not satisfied that the accused requires leave to challenge the information here prior to the commencement of his trial. If I am wrong on this, then leave of the court ought to be and is granted. The application has been brought before the date for trial, no evidence has been called, the Crown was aware of the application, and it cannot claim prejudice. Issue 2 : Can the Crown apply to re-swear the information? [ 20 ] The Crown is proceeding summarily on the information. It would be out of time to swear a new information.

I was told during submissions that in other cases with similar problems in swearing the informations, if discovered within the statutory limitation, new informations have been sworn. [ 21 ] If the information is a nullity, it cannot be re-sworn. In R. v. Awad, 2014 NSSC 44 , the Nova Scotia Supreme Court distinguishes the difference between a defect that can be amended and a nullity that cannot. Therefore, if the information before the court is a nullity, it cannot be re-sworn.

Issue 3: Does the presumption of regularity apply? [22] The presumption of regularity here would be that the oath was properly made by the informant swearing to his belief in thetruth of the contents of the information, and the justice of the peace received this oath and acknowledged this by signing the jurat. [23] The evidence before this court, both viva voce of the justice of the peace, and the documentary evidence of the timestamps onthe information, is evidence of the usual practice of this justice of the peace.

Her evidence is that she was following her practice andswearing every information during February 2014, and although she cannot recall specifically dealing with the information before thecourt, she would have followed her practice. This is supported by the document. [24] There is, therefore, no presumption of regularity on the face of the document, as here there is evidence specific to this justice ofthe peace and this information that allows the court to conclude that the practice that might have been assumed to be "regular" was notfollowed.

Issue 4: Is the information before the court valid or is it a nullity? [25] If the information is a nullity, the court has no jurisdiction over the accused on the offence charged. [26] Counsel for the accused and counsel for the Crown referred me to many cases dealing with the process of commencing criminalproceedings and laying informations. Aside from R. v. Delalla, which I will deal with below, none were on point for the issue beforeme, although the Nova Scotia case of R. v. King, (NS SC), [1990] N.S.J. No. 550, clearly states the law when itcomes to swearing informations: “. . .

I cannot accept that the procedure could be other than that the signature of the Justice of the Peace on the document would be thelast entry made. His signature and stamp of authority is his signification that he has exercised his judicial discretion and that theproceeding has commenced.” [27] R. v. Delalla, is a July 18, 2014, decision of the Provincial Court of British Columbia by my sister Judge Oulton sitting inSurrey.

As here, the information had timestamps on the signatures of the justice of the peace and the affiant, showing that the justice ofthe peace signed the jurat before it was sworn by the affiant. [28] On the basis of that, the court held that the information was a nullity and ordered that it be quashed. [29] I have come to the same conclusion and see no reason not to follow the decision of R. v. Delalla. The facts are on point withthose before me. The principles set out in R. v. Re Hansard Spruce Mills Ltd., (BC SC), [1954] 4 D.L.R. 590 apply.

However, even without the decision of Delalla, I conclude that the information before me is a nullity. [30] In the case before me, the process is more egregious than it may have been in Delalla. Not only did the justice of the peacesign the jurat before the informant swore the information, but she also signed and issued process. [31] The swearing of an information is not a technical matter. It is the commencement of a judicial proceeding which leads to anaccused person being charged with a crime. The process that follows may be by warrant, resulting in the arrest and detention of anaccused.

The safeguards to ensure that only proper informations are issued are essential. [32] The information was not sworn according to law, it is a nullity, and is quashed. (RULING CONCLUDED)