R. v. Nielsen Date:, 2015 BCPC 361

Citation: R. v. Nielsen Date: 20150922 2015 BCPC 0361 File No: 61891-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FREDERICK JOHNATHON NIELSEN A.K.A. FRED NELSON RULING ON APPLICATION TO QUASH INFORMATION OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: I.C. Hay Appearing on his own behalf: F.J. Nielsen Place of Hearing: North Vancouver , B.C. Date of Hearing: September 22, 2015

Date of Judgment: September 22, 2015 [ 1 ] THE COURT: Mr. Nielsen is charged with six counts on an information sworn on June 1, 2015, of breaching an order made by the British Columbia Securities Commission on March 25, 2011, in various ways between December 20, 2013, through April 15, 2015.

For example, Count Number 1 on the information reads that he: . . . from the 30th day of December, 2013 to the 7th day of January, 2015, inclusive, at or near Vancouver, in the Province of British Columbia, did unlawfully breach an order of the British Columbia Securities Commission dated March 25, 2011, by trading in a security, to wit: "International Wagering Systems Inc." (I.W.S.) and/or engaging in investor relations contrary to Section 155(1)(

c) of the Securities Act. [ 2 ] The information shows the Crown is proceeding by way of indictment, not summarily. Mr. Hay appears for the Crown; Mr. Nielsen is self-represented. [ 3 ] On September 1, 2015, Mr. Nielsen filed an application seeking an order that all charges or counts on the information be quashed because the court lacked jurisdiction. This application came on before me on September 3 in the afternoon. The application is some 36 pages in length. I had not been given an opportunity before the application commenced to review any of it. Its form is unusual.

It contains a one-page single-spaced synopsis, a three-page single-spaced document entitled "application to a judge," a copy of the information, and then copies of various letters the accused apparently faxed to Crown counsel, Mr. Hay, seven in number, a copy of a letter he directed to Justice of the Peace Ko in North Vancouver on July 17, 2015, and copies of letters directed to Mr.

Blatchford, the manager of Criminal Investigations, Enforcement Division, at the British Columbia Securities Commission (hereinafter referred to as "BCSC") July 27, 2015, and lastly, to Paul Bourque, Executive Director of BCSC, on July 20, 2015. [ 4 ] All these letters are single-spaced. Some, on review, appear in part to relate to what might be called grounds for Mr. Nielsen's application. Others deal with disclosure issues and in some cases seem critical of Mr. Hay in the manner he is conducting this prosecution. In the case of the letter to Mr.

Ko, the justice of the peace who swore the information, it says, in part, as follows: The laying of an Information and the preserving of the Administration Record in accordance to statute: The INFORMATION displaying Court File No: 61891 indicates that the information provided by the Informant was both received and heard by Justice of the Peace R. Ko and such laying of INFORMATION must be in strict accordance to statute namely the Canada Criminal Code and the Regulations Prescribing Public Officers ; therefore, due to the fact I was not invited/present, I require that Justice of the Peace R.

Ko produce and provide a copy of the text, notes or transcript of the Hearing that should or ought to be available in order to preserve the Administrative Record of the Hearing. [ 5 ] Then a heading "Regulations Prescribing Public Officers" and the following in bold letters: A person swearing an information, particularly a law enforcement officer, is not at liberty to swear the information in a perfunctory or irresponsible manner with a reckless disregard as to the truth of his assertion . Being that Justice of the Peace R. Ko presided over this matter, Justice of the Peace R.

Ko is required by Statute, namely the Canada Criminal Code

section 504 , 505 , 507 , and 508 and as part of your duty as a public officer to ensure that the Administrative Record of the Hearing is preserved and made available to me as part of my request for disclosure and such further disclosure shall include with particularity and specificity. State, produce and provide the specific

section of the Criminal Code relied upon: The specific

section of the Criminal Code relied upon by the Informant and the Judicial Justice of the Peace to bring on the laying of the INFORMATION, A criminal prosecution begins after a justice has decided to issue process at the conclusion of the pre-enquete (an in-camera hearing); and To "Receive" the Information is an Administrative/Ministerial Act; and to "Hear" the Information is a Judicial Act: The fact and evidence relied upon that was compelling enough for you, Justice of the Peace R.

Ko to exercise judicial discretion to move this matter forward to be adjudicated; and Provide the evidence of your appointment (being a designated Justice) that authorizes you to act in the capacity as a Judicial Justice of the Peace; and Provide the evidence in accordance to statute whereby you are obliged when conducting the Administrative Tribunal Hearing of the specific points/questions (what may be referred to as "the checklist") you should have or ought to have oversight and presented to the Informant, whereby the Informant should have or ought to have provided certain answers in accordance to the specific

section [504(1), 505, 507(1), 509] of the CCC that was required by the Informant and the Judicial Justice of the Peace to lay the INFORMATION in the first instance to the matter. [ 6 ] The above synopsis set out six grounds. The application to a judge sets out eight grounds as follows: 1. The matter of whether or not the laying of the INFORMATION held on June 1, 2015 was conducted in accordance to the Statutory requirement under

section 504 , 505 , 507 , 508 or such other required

section of the Canada Criminal Code , is a material fact; and 2. The matter of whether or not the BCSC has statutory jurisdiction over the Applicant's private business affairs must be statutorily determined prior to any trial, prior to a primary hearing and/or prior to being arrested and incarcerated, is material to the fact that the process is void ab initio ; and

3. In the matter of the laying of the INFORMATION, BCSC Informant James Coates and Justice of the Peace Ko failed to conduct themselves in accordance to the statutory requirements as required by sections 504 , 505 , 507 , 508 and 509 of the Canada Criminal Code ; and further to this, the charge is by Indictment and the Judicial Justice of the Peace shall receive the Information and shall hear the Information, this is a material fact; and 4.

In the matter of the BCSC and their allegations/claims against the Applicant, the BCSC has refused or failed to statutorily establish as to whether or not the BCSC has statutory jurisdiction in the first instance to this matter, and failed to do so prior to laying an INFORMATION, this is material to the fact that the process is void ab initio ; and 5. In the matter of Justice of the Peace R. Ko, Justice of the Peace R.

Ko has refused to speak to the matter of evidencing the date he/she became "designated" by the Chief Justice, this is a material fact to the irredeemably flawed and defective procedure followed; and 6. In the matter of the BCSC providing full disclosure to the Crown, the BCSC has refused or failed to produce and provide all of the "debriefing notes" that would demonstrate the statutory basis for determining that the private business affairs of the Applicant come under the statutory jurisdiction of the BCSC, this is a material fact; 7.

In the matter of the Applicant, at no material time did the Applicant hold any position as an Officer or Director of the private corporation(

s) in question and if the Applicant did hold a position as an Officer or Director (which the Applicant did not), such private corporation(

s) do not come under the statutory jurisdiction of the BCSC, and the BCSC failed to lawfully establish the BCSC's statutory jurisdiction in the first instance to this matter, and statutory jurisdiction must be established prior to laying the INFORMATION, this is a material fact to the irredeemably flawed and defective procedure followed and that the process is void ab initio ; 8.

The BCSC cannot be the damaged party, the BCSC only represents the damaged party , Crown has failed to provide copies of any Affidavits issued by anyone that has filed a complaint against the Applicant and has failed to provide any Affidavits issued by the BCSC Informant et al , and Crown has failed to provide any and all debriefing notes and all internal memos between the Informant and those BCSC Agents/Superiors in the chain-of-command, these are material facts. [ 7 ] No affidavits were submitted in support of or opposition to the application before me nor were any witnesses called, for example, the justice of the peace, Mr.

Ko, or the informant, Mr. Coates, nor was any request made by either the applicant or the respondent to call any witness to testify. I received submissions from Mr. Nielsen during the hearing; however, he was not sworn and did not so testify. [ 8 ] Mr. Hay asserted that the application was without merit and should be dismissed. He indicated that the Provincial Court of British Columbia does have jurisdiction to hear the various charges all brought pursuant to s. 151(1)(

c) of the Securities Act by virtue of this Act 's provisions on point, and those in the Offence Act of this province. He failed to provide the sections of the legislation he referred to at the hearing before me. He also said that in his view the various counts and where particulars had earlier been provided to the accused were clear and put the accused, Mr. Nielsen, properly on notice as to the breaches of the order in question Crown was alleging. [ 9 ] At the outset, I asked Mr. Hay to provide me with some background facts in this case so I might consider the accused's application in some sort of context. Mr.

Hay indicated that approximately four years ago, Mr. Nielsen had been caught running what he described as a "boiler room operation" in the Vancouver area and that following an investigation, he agreed with the BCSC making a 25- year ban whereby he agreed not to engage in market activities. I understood that this was the thrust of the March 25, 2011, order referred to in each count. Again, I was not given a copy of this order. The only evidence I have as to its precise wording is found in Mr. Nielsen's letter to Crown counsel, Mr.

Hay, of August 7, 2015, where he says, in part: The Crown on behalf of BCSC has filed charges against me for failing to obey an Order made by the Executive Director of the BCSC, which Order states that I shall not sell securities or conduct public relations; this Order is a broad statement and if the Order of the Executive Director has the statutory jurisdiction whereby such an order is able to be so broad as to enter and invade every facet of my life then such claimed jurisdiction by the Executive Director for the BCSC must be challenged on the merits of the allegations brought against me. [ 10 ] I do not know whether this is Mr.

Nielsen's assessment of the content of the BCSC order or ban, either in whole or in part, and if it is even accurate. That is what I was given. [ 11 ] I then called upon Mr. Nielsen to tell me why he sought the order he did; that is to say, his grounds or points. I assumed he would be in a position to outline the basis of his application before me in this way just as counsel might. At the outset, he wanted to know if I was the judge who would be hearing his trial. Mr. Hay said that Mr. Nielsen had not yet entered a plea to any count on the information so that as yet no trial date had been set. I was told by Mr.

Nielsen that he had not entered a plea as Crown had not yet made full disclosure to him. Mr. Hay said that when Mr. Nielsen last took this position, apparently before our judicial case manager, as I understood it, she invited him to make an application to the court for the items not disclosed, which to date he has failed to do according to Mr. Hay. [ 12 ] I should state that I am aware that s. 601 of the Criminal Code referred to in , for example, R. v.

Delalla , 2015 BCSC 592 , a decision of Armstrong J., at paragraph 8, does provide that where an accused objects to a count in an indictment apparent on its face, that such objection shall be taken, as here, by a motion to quash the indictment or count before the accused enters a plea. I will return to this point below. [ 13 ] Mr. Nielsen provided no legal authority supporting the proposition that only the trial judge designated to hear this case at a future trial could hear his application. Mr. Hay knew of none either.

I dismissed this sub-application, if you will, and in essence said I would hear and decide his main application. [ 14 ] In light of s. 601 in the Criminal Code , this submission cannot be correct because before a plea, no trial date can be set and no trial judge therefore assigned. How, then, can only the trial judge hear such an application as advanced here?

[ 15 ] I then called upon Mr. Nielsen to tell me why he felt he was entitled to the order he sought. He submitted that the information at page 2 showed that Justice of the Peace Ko, essentially in the space of 17 seconds, listened to the informant, the investigator with the BCSC, Mr. James Coates, and issued a warrant. The suggestion seemed to be that he had acted too hastily and potentially un-judicially.

One older legal authority not provided by either party and apparently dealing with a private and not, as here, a public prosecution would suggest that a justice of the peace acts judicially in exercising a discretion to issue process after a proper hearing is R. v. Blythe , [1973] B.C.J. No. 561 . [ 16 ] Mr. Hay submitted there was no irregularity on the face of the information. Page 2 showed that on June 1, 2015, the informant Coates swore and signed the information at 3:07 and 10 seconds, and that 13 seconds later, Justice of the Peace R.

Ko completed the jurat and 17 seconds later indicated that the process involved by which Mr. Nielsen should be brought before the court was a warrant. Mr. Nielsen did not disagree with this submission on September the 3rd at the hearing. [ 17 ] On its face, at page 2, the information shows this was the correct sequence of events. It does not show by counterpoint, as in R. v. Nandi , 2015 BCPC 26 , or R. v. Delalla , above, that the information was sworn first and then later signed by the informant. In these two cases provided by Mr.

Hay at the hearing before me, the justice of the peace completed the jurat and executed the process provision before the informant signed the same, in which case the information would, based on these authorities, likely be a nullity. [ 18 ] I find this ground, if you will, is without merit insofar as it is intended to be based on the order in which the informant and justice of the peace executed page 2 of the information. [ 19 ] Mr. Hay says there are no irregularities on the face of the information and that the presumption of regularity should apply. Thus the onus is on Mr.

Nielsen to show on the balance of probabilities and based on evidence that there is some defect in the information or that it is a nullity. This principle is set out in various cases, including R. v. Delalla , above, at paragraph 26 , which statement the British Columbia Supreme Court seems not to have taken issue with. [ 20 ] Mr. Nielsen did not, in his oral submissions on September 3rd, point to any irregularity on the face of the information beyond his above reference to times at page 2. Mr.

Nielsen then said I should find that this court had no jurisdiction to hear these matters because he was somehow aware - and I recall he did not say how - that Mr. Coates had told the West Van police on June 2, 2015, that he had no jurisdiction in, for example, Brazil. Mr. Hay suggested that the applicant seemed to confuse the jurisdiction of the BCSC and that of this court. Insofar as this ground is concerned, I agree. [ 21 ] Mr. Hay also submitted that the counts in the indictment and particulars of same when given to Mr. Nielsen were all related to activities on the part of Mr.

Nielsen done by him at or near the City of Vancouver in this province and not elsewhere. Mr. Nielsen did not really take issue with this point. [ 22 ] Assuming without finding that the BCSC has no jurisdiction in Brazil, this is not, in my opinion, a reason to find that the Provincial Court of B.C. has no jurisdiction to deal with the charges on the information before the court. [ 23 ] The brief hearing ended on September 3rd when I pressed Mr.

Nielsen for other grounds in his application, and he made it clear he simply wanted me to review it, all 36 pages, before finally deciding his application, which I, of course, agreed to do and have done. [ 24 ] I have now taken the time to review all his application, and for convenience, I will deal with the eight points set out above in his application to a judge, which he has rather awkwardly referred to as "statutory disclosure requirements," which he says needs to be heard by an unbiased judge. His present application does not deal with disclosure issues.

Rather, it seeks to quash the information because this court is without jurisdiction. [ 25 ] I recognize Mr. Nielsen is not a lawyer. If he is, he did not tell me that he was. If the information is fatally flawed or defective, it does follow it would not give rise to valid charges any court would be able to hear. Nothing would be properly before the court. The court in such a case might have jurisdiction to hear the charges if properly brought. [ 26 ] Mr.

Nielsen, in point number one, complains that the laying of the information was not properly done in accordance with ss. 504 , 505 , 507 , and 508 of the Criminal Code . He seems to allege that Justice of the Peace Ko, when he swore the information, was conducting an administrative tribunal hearing and had a fiduciary duty to maintain and preserve the record of the hearing, whether it be in the form of debriefing notes, transcripts, or such other method, so that he, in essence, could be sure things were done properly (see page 5 of attachments to application, the application itself being page 1). [ 27 ] Mr.

Nielsen asserts at page 17 of his application that this entire administrative tribunal hearing took place in 17 seconds. He was critical, at page 17, that Mr. Coates' belief in essence that he breached the BCSC order is not sworn to "under penalty of perjury." In fact, the information is sworn. He suggests at page 17 that Justice of the Peace Ko "rubber-stamped" the information. I take this assertion to mean that the hearing he says was required was too brief and that perhaps the informant Coates did not give Justice of the Peace Ko sufficient information.

I am of the view that on its face the information appears to be regular and thus at this hearing the onus is on Mr. Nielsen to demonstrate on the balance of probabilities that this presumption should be rebutted and, for example, to show that the informant swearing it did not, in fact, have reasonable and probable grounds to believe and did not believe that Mr. Nielsen was guilty of the various counts on the information: see R. v.

Awad , 2015 NSCA 10 at paragraphs 15 , 50, 52, and 67. [ 28 ] Where, for example, a judge finds that the informant knowingly did not have reasonable and probable grounds to validly swear the information in issue, the burden on the accused would be met: see Awad at paragraph 52 . In Awad , a police officer swore hundreds of informations and said that she had reasonable grounds to believe various persons named therein had committed crimes.

The facts on point in Awad are set out in paragraphs 4 and 5 as follows: [4] An information is the formal document that commences, and subsequently governs, most criminal proceedings until their conclusion. Constable Mary Gibbons had numerous duties as an officer with the Cape Breton Police Service. One of them was to pick up informations that had been prepared by other officers and take them to the Courthouse. She would appear before a Justice of the Peace and swear she had reasonable grounds to believe that the persons named had committed the charges enumerated in the various

informations. [5] The problem was, Cst. Gibbons had no knowledge whatsoever about the charges against the individuals named in theinformations. Nonetheless, she swore under oath, before a Justice of the Peace, that she did. Cst. Gibbons testified that she had followedthis process hundreds of times from 2009 to June 2012. [29] On the motion to quash the information in Awad, the informant police officer was called and testified at a hearing that she hadno personal knowledge or reasonable grounds to believe that any criminal offence had been committed.

She swore them on the basis thatwhoever the investigating officers were, either they had reasonable and probable grounds or that their superiors did: see paragraph 8. The informations were found to be nullities. [30] In the case at bar, unlike in Awad, the informant, Mr. Coates, is said by Mr. Hay to be the BCSC investigator who investigatedthe matters referred to in the information.

There is thus no reasonable suggestion that he did not have reasonable and probable groundsto believe what the information says he believed with respect to the various counts. [31] In the course of the reasons of the Nova Scotia Court of Appeal, Beveridge J.A. said this at paragraph 49 in the Awad case: [49] The swearing of an information is the act that commences the prosecution of an accused . . . Such

an act should not be relegatedto being merely part of the paperwork. In R. v. Peavoy, supra, the evidence fell short of establishing that the informant did not have therequisite reasonable and probable grounds. Henry J. wrote about the importance of the act of swearing an information (p. 106): Recognizing that the pressure of duties and administration upon police forces may quite naturally cause them, when under pressure, tomanage the laying of informations as a form of routine 'paperwork', I feel obliged to add the following comments.

A person swearing aninformation, particularly a law enforcement officer, is not at liberty to swear the information in a perfunctory or irresponsiblemanner with a reckless disregard as to the truth of his assertion. To do so is clearly an affront to the Courts and is at variancewith the right of the citizen to be left alone by the authorities unless there is reasonable and probable grounds for invading hisliberty by compelling his attendance before the Courts.

The police officer who does not satisfy himself that he can personallyswear to the truth of the information according to its terms (i.e., personal knowledge or reasonable and probable grounds), yetdoes so, jeopardizes his personal position and also does a disservice to the upholding of law in the community. His oath must bebeyond reproach. He need not, of course, have personal knowledge of all the facts or even most of the facts that support theallegation; indeed much of what would be available to him will, so far as he is concerned, be hearsay.

He must however, besatisfied, even if it be on the basis of reliable reports made by other persons in the course of an investigation, that there is someevidence to support the charge, that that evidence in fact constitutes reasonable and probable grounds for believing that theaccused committed the offence and that he believes that the accused did so. Moreover, he must be prepared to so satisfy the Justiceof the Peace who, in turn, has an obligation judicially, not arbitrarily, to hear and consider the allegations before endorsing theinformation.

Emphasis of the court included; citations omitted. [32] There is no evidence before me to suggest that Mr. Coates swore the information before the court in an irresponsible way,reckless as to the truth of his assertions, or lacked appropriate knowledge on which to swear his belief, as was clearly the case with theofficer in the Awad case. This passage was cited with approval in Delalla at paragraph 61. Awad was also considered by Armstrong J. atparagraph 65 in Delalla. [33] The above passage from R. v. Peavoy is one of two statements in the case law provided by Mr.

Hay at the hearing of thisapplication that deal with the duty of a justice of the peace who swears an information. The second is the reference in paragraph 74 ofAwad as follows: [74] Edwards J. quoted Justice Ewaschuk from R. v. Whitmore, supra, as follows: [14] . . . Mr. Manning's point is that an information laid by an informant who lacks reasonable and probable grounds is void ab initio.I disagree. An information laid in such circumstances remains valid provided it is valid on its face.

In fact, the failure of a justice toconduct a pre-inquiry prior to issuing process does not affect jurisdiction to proceed with the charges: R. v. Pottle (1978), (NL CA), 49 C.C.C. (2d) 113 at 119 (Nfld. C.A.). Furthermore, the swearing to an information on personal knowledge when theinformant has only hearsay knowledge is likewise not fatal to jurisdiction. Such information may be amended even after a limitationperiod has passed: R. v. Canadian Industries Ltd. (1982), (NB CA), 69 C.C.C. (2d) 533 . . . [Emphasis by Justice Edwards] [34] Here, Mr. Nielsen relies on s. 504, 5, 7, 8, or 9 of the Criminal Code.

Section 504 states as follows: In what cases justice may receive information 504. Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writingand under oath before a justice, and the justice shall receive the information, where it is alleged (

a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and thatthe person (

i) is or is believed to be, or (ii) resides or is believed to reside, within the territorial jurisdiction of the justice; (

b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;

(

c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of thejustice; or (

d) that the person has in his possession stolen property within the territorial jurisdiction of the justice. [35] There is no express statutory requirement that the justice of the peace in the case of laying an information containing anallegation of an indictable offence must conduct any sort of a hearing as part of the process. The case of R. v. Jean-Talon FashionCenter Inc. [phonetic] (1975), (QC CS), 22 C.C.C. (2d) 223 (Que. Q.B.), stands for the proposition that the act of thejustice receiving an information is a ministerial one and not a judicial one. [36]

Section 505 deals with when an information should be laid and is not relevant, in my view, to this application. To the sameeffect is R. v. Pottle, above, at page 5 of 10. [37]

Section 506 provides that an information laid under s. 504 may be in Form 2. No issue was taken in the application before mewith respect to the form of the information. [38] Section 507(1) and (3) dealing with public and not private prosecutions provides as follows: 507.

(1) Subject to subsection 523(1.1), a justice who receives an information laid under

section 504 by a peace officer, a public officer,the Attorney General or the Attorney General's agent, other than an information laid before the justice under

section 505, shall, except ifan accused has already been arrested with or without a warrant, (

a) hear and consider, ex parte, (

i) the allegations of the informant, and (ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and (

b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for thearrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to acharge of an offence . . .

(3) A justice who hears the evidence of a witness pursuant to subsection (1) shall (

a) take the evidence on oath; and (

b) cause the evidence to be taken in accordance with

section 540 in so far as that

section is capable of being applied. [39] Because reference is made to the "informant" therein, I consider for purposes of these provisions the term "witness" used in s.507(1)(a)(ii) does not include the informant. It would seem to me that Mr. Coates is at least a public officer as defined in s. 2 of theCriminal Code. [40] Certain cases provide that the failure of a justice of the peace to hold an inquiry pursuant to s. 507(1) does not affect thejurisdiction of a Provincial Court judge. I refer to R. v. Pottle, above, and R. v. Bachman, (BC CA), [1979] 6 W.W.R.468, a judgment of our Court of Appeal.

The Bachman case is also cited in Delalla at paragraph 68, as are two further cases on point: R.v. Lawson, 2012 BCSC 356, and In re Tait (1950), (BC CA), 98 C.C.C. 241, also a judgment of our Court of Appeal. [41] In Bachman, a second information was sworn on February 17, 1978, before a justice of the peace who held no hearing under thethen provisions of s. 455.3 of the Criminal Code of Canada as part of the process. The accused objected to the jurisdiction of the trialjudge to hear the charges set out on the new information. The trial judge did not agree.

The accused sought a prohibition in theSupreme Court of British Columbia, which was granted, and the Crown appealed the order. [42] Craig J.A. of our Court of Appeal in paragraph 11 of his reasons referred to the Pottle decision of the Newfoundland Court ofAppeal and said this in paragraph 14: 14 In this particular case the information remains valid, notwithstanding the fact that a justice of the peace did not hold a hearingpursuant to s. 455.3. There may have been various reasons for this. I need not examine them or discuss them.

Suffice it to say that he didnot, apparently, hold the hearing contemplated by the section. The information did not thereby become a nullity. It remained valid.Accordingly, when Bachman, the respondent, appeared in court before Collver Prov. J., he was before Collver Prov. J. on a charge overwhich the Judge had jurisdiction to adjudicate.

That being so, in my opinion, the chambers Judge erred in directing that prohibition issuewith respect to the information sworn 17th February 1978. [43] I take this case to support the proposition that even where the justice of the peace conducts no hearing when an information issworn, the information does not become a nullity and remains valid. [44] The justice of the peace's decision and determination to issue a warrant is one where he exercises a discretion and he actsjudicially in determining whether or not he will issue process requiring the accused to attend in court: see R. v.

Coughlan, (1970) (AB KB), 3 C.C.C. 61 (Alta. S.C.), and R. v. Allen (1974), (ON CA), 20 C.C.C. (2d) 447 (Ont. C.A.). Thus by virtue of s. 507(1), the justice receiving a s. 504 information in a public prosecution must hear and consider on an ex parte basisthe allegations of the informant, here Mr. Coates, and only has a discretion to hear evidence from witnesses if desirable or necessary. Hearing the informant seems mandatory.

Hearing witnesses is optional in the discretion of the justice of the peace. [45] No guidance is provided in the Criminal Code as to the duration of the hearing or what information should be provided by theinformant to the justice of the peace, if any, thereat.

[ 46 ] Mr. Nielsen argues, based on the apparently electronic entries on the information in the case at bar, that the hearing lasted 17 seconds and seems to submit that the procedure called for in s. 507(1) was therefore not followed by Justice of the Peace Ko and therefore the information is somehow defective.

He offers no other evidence to support the inadequacy of the hearing or any precedent binding on me contrary to the above cases, for example, the Bachman decision in our Court of Appeal. [ 47 ] As well, how can I conclude with no evidence that Justice of the Peace Ko did not take more than 17 seconds to consider this matter? For example, there is no evidence to suggest that before Coates signed the information at page 2 that he and Ko did not discuss the charges fully. The 17 seconds is merely the time which elapsed from Mr. Ko attesting to having administered an oath to Mr.

Coates, and Ko is then directing what process should issue to bring Mr. Nielsen before the court, nothing more. [ 48 ] The information, in my view, does not set out difficult charges to understand. The idea is that Mr. Nielsen was banned, apparently, from doing something, and he did it. I would not have thought any discussion, if there was one at all, would be required to be lengthy for the justice of the peace to fully understand what was in issue in the counts in the information. [ 49 ] I find that Mr.

Nielsen has failed to establish on the balance of probabilities that the information was irregular, defective, or even a nullity by reason of Justice of the Peace Ko failing to perform some judicial duty he was obliged to perform under s. 507(1) of the Criminal Code of Canada on June 1, 2015. [ 50 ] As to the effect of s. 508 of the Criminal Code , it only applies to an information laid under s. 505 of the Criminal Code which the one in the case at bar was not. It is therefore not relevant to this application, in my view, nor is s. 509 of the Code . It deals with a summons.

Here the process was a warrant. [ 51 ] I turn to the second point in the accused's application. There is precious little evidence before me as to what Mr. Nielsen is alleging he did or did not do that would be encompassed in the concept "private business affairs," whatever this means. Mr. Hay submitted that at the heart of all counts on the information was what Mr. Nielsen did in or about Vancouver at the times stipulated. His conduct is the focus of the six counts. I have not been told why it would somehow affect this court's jurisdiction if his conduct was done in the context of private business affairs.

Surely, most people's business affairs are private. This turn of phrase would likely describe, for example, insider trading. This ground is therefore not a reason to quash the information for any reason, in my view. [ 52 ] Point three. I have dealt with this point fully above. There is no evidence to suggest Mr. Coates conducted himself in any way contrary to any relevant provision in s. 505 to 509 of the Criminal Code and insofar as any apply to him at all. [ 53 ] As to point four, in my view, had Mr.

Nielsen wanted to challenge the statutory jurisdiction of the BCSC to issue the ban or order in issue on March 25, 2011, which Mr. Hay said Nielsen had agreed to, the time to have done so would have been either before the sanction was determined or within a relevant appeal period thereafter. For now and for purposes of this court's jurisdiction under s. 155(1)(

c) of the Securities Act , I am of the view that the order made should be considered to have been properly made by the BCSC in the first instance. I therefore reject this ground as a basis for finding this court lacks jurisdiction and that the information should be quashed. [ 54 ] As to point five, it is completely irrelevant to the application before me. [ 55 ] As to point six, this, in my view, relates to a disclosure issue that has nothing to do with the application before me. I have no evidence as to whether these notes exist or not or whether Mr. Nielsen has earlier demanded them or not.

I will deal with this disclosure issue below more fully. [ 56 ] As to point seven, no evidence is provided as to Mr. Nielsen's allegations to the effect that he was not an officer or director of the private corporations in question. None are named save International Wagering Systems Inc., "I.W.S.," and with respect to I.W.S., it is alleged he traded in its securities, not that he caused this company to do something in any capacity including as an officer or director.

The accused has failed to establish on any basis that his alleged misconduct referred to in the six counts is somehow beyond the reach of the BCSC or outside the purview of the March 25, 2011, order. This ground is therefore not a reason, in my view, to quash the information before this court. [ 57 ] As to point eight, I am of the view that this may be a disclosure issue in substantial part. I have trouble understanding his bolded statement: "The BCSC cannot be the damaged party.

The BCSC only represents the damaged party." [ 58 ] It is far from clear to me why or how this point can be supportive of the relief he seeks. In any event, I would generally understand, even without evidence on point, that the BCSC is an agent of the provincial government and is responsible to administer the province's securities law as per the Securities Act .

It is, at its heart, a regulator of the securities business in this province, and clearly, one of its functions is to prevent improper dealings in securities and to protect the public by prohibiting certain persons from certain involvements with securities. This ground, in my view, is not a reason to quash the information before the court. [ 59 ] For completeness, I have as well considered all six points set out in the one-page "synopsis" forming part of Mr. Nielsen's application.

None of them alone or together with any other point one to six in my view demonstrate on any basis that I should quash the information before the court. For example, point five states as follows: 5. The Informant clearly states to the Applicant during a video/audio interview that the BCSC has no jurisdiction with regards to the Applicant within the country of Brazil; [ 60 ] No evidence was placed before me as to what Coates may have said that would challenge or question this court's jurisdiction to hear any of the six counts on the information which on their face do not allege Mr.

Nielsen did anything in breach of the March 25, 2011, BCSC order in Brazil. Mr. Nielsen's application is therefore dismissed. [ 61 ] I return to the matter of disclosure.

[ 62 ] Mr. Hay said Mr. Nielsen had by September 3rd already written to him and he had responded as to further disclosure requests. Because it was unclear to me that Mr. Nielsen had by September 3rd tabled all his disclosure requests, I directed him not later than two days before today, namely, the 20th of September, to direct a written communication to Mr. Hay setting out any further disclosure requests on his part not yet provided to Mr. Hay. [ 63 ] I indicated further that today, if this issue is somehow preventing Mr.

Nielsen from entering a plea, that if disclosure issues could not be resolved by consent, that I would make an order for a date by which Mr. Nielsen should file an application in court seeking a disclosure order. As well, I invited Mr. Hay to consider in what circumstances, if any, a judge of this court could enter a not guilty plea on behalf of an accused facing charges of the sort Mr. Nielsen faces where the accused himself might be seen to be refusing to do so. [ 64 ] I merely set out the above points by way of a potential agenda, if you will, for the balance of this hearing, which must be brief.

I repeat, it is important to Mr. Nielsen and in the public interest that this matter move forward at least to the point where an arraignment hearing can be held particularly in light of my decision herein. [ 65 ] Those are my reasons. (REASONS CONCLUDED)