R. v. Cheechoo, 2018 ONCJ 81

ONTARIO COURT OF JUSTICE CITATION: R. v. Cheechoo , 2018 ONCJ 81 DATE: 2018 02 06 Gore Bay Court Information: 16-471 BETWEEN: HER MAJESTY THE QUEEN — AND — CODY CHEECHOO Before Justice V. Christie Heard on January 23, 2018 and February 6, 2018 Reasons for Judgment released on February 6, 2018 D. Beaton.............................................................................................. counsel for the Crown B.

Allison...................................................... counsel for the defendant Cody Cheechoo APPLICATION FOR DIRECTED VERDICT / QUASH COUNT ON INFORMATION CHRISTIE J.: [ 1 ] On January 23, 2018, Cody Cheechoo was arraigned on an Information setting out two charges as follows: On or about the 2 nd day of November, 2016, at the First Nation of M’Chigeeng in the said region did operate a motor vehicle on a street to wit Bebonang Street, M’Chigeeng, Ontario in a manner that was dangerous to the public contrary to Section 249(1) (

a) of the Criminal Code ; and On or about the 2 nd day of November, 2016, at the First Nation of M’Chigeeng in the said region, having the care of a vehicle to wit 2007 Sierra GMC Pickup truck that was involved in an accident with a property at 74 Bebonang Street, M’Chigeeng and with intent to escape civil or criminal liability failed to stop his vehicle, give his name and address, and offer assistance where a person’s property was damaged contrary to

Section 252 of the Criminal Code . [ 2 ] He pleaded not guilty to these charges. [ 3 ] The Crown called several witnesses, which can be briefly summarized for the purpose of this application as follows: Alma-Jean Migwans – the home owner of 74 Bebonang Street, who described a green truck driving onto her property on November 2, 2016 and causing some damage to her property. Only one male was in the vehicle – the driver – who did not stop to give her his name or any information. Marleen Debassige – a neighbour of Alma-Jean Migwans.

She attended at the residence at 74 Bebonang Street on November 2, 2016 and observed some damage to the property. Ms. Migwans asked Ms. Debassige to follow the truck and see where it went. Ms.

Debassige saw the truck coming from the general store. It was a green GMC with a smashed front end, air bag deployed and smoke wascoming from the front engine. She recognized the driver as C.J., who previously worked at the general store. She recognized thevehicle as belonging to Bill Cheechoo who she believed to be the driver’s father. She later saw the truck parked at Bill Cheechoo’sresidence. Terry Thompson – testified that he was re-shingling the roof of the West Bay General Store on November 2, 2016. He heard a loudvehicle pulling into the store and the vehicle almost hit his ladder.

The vehicle looked like it had been in an accident and he describedthe damage to the vehicle. He saw the driver, who he knew as C.J. The driver went into the General Store. He had some briefdiscussion with the driver. He said the vehicle should not have been driven as it was “pretty rough”, was leaking fluids and smoking. Shawn Campbell-Smith – testified that he was working at the West Bay General Store on November 2, 2016. He saw Cody Cheechoocome in to purchase a bottle of alcohol. He described Mr. Cheechoo as banged up, with an abrasion on his head and cheek. CodyCheechoo told Mr.

Campbell-Smith that his dad was going to be upset with him as he had crashed his dad’s truck. Trinity Kaida (who wished to be referred to as Ashton) – testified that on November 2, 2016, she was walking with a few friends to gohave some lunch at her mother’s house. She saw a vehicle in Alma-Jean’s yard. She described the vehicle as a GMC truck, dark greenand that it was driving around the yard very carelessly. She recognized the driver as Cody Cheechoo. She saw the vehicle leave the yardand stated that it “sped off a little bit”.

She was only about 5 feet away from the vehicle when it left the yard and that this made her feelscared. Constable Mike Souliere and Constable Dave Mack – testified about their investigation into this matter. [4] These are not all of the facts heard as part of the Crown’s case, however, this

summary is sufficient to provide context for thisapplication. [5] At the close of the Crown’s case, defence counsel, on behalf of Mr. Cheechoo, brought a motion for a directed verdict inrelation to count 2, failure to stop at the scene of an accident, contrary to

section 252 of the Criminal Code. [6] The defence argued that the charge on the Information, on its face, does not make out an offence. It was argued that section252 of the Criminal Code specially states the circumstances under which an obligation arises and where criminal sanctions attach, andthat those circumstances are where the accident involves another person, another vehicle, or cattle. The defence argued that not everyvehicular accident or collision attracts criminal sanction.

The defence argued that, in this case, there is no evidence of another person,another vehicle, or cattle being involved in the accident. This was clearly a single vehicle accident. The defence argued that the sectioncould apply where there is a passenger but that there is no evidence of another person being in the vehicle in this case. The defencerequested a directed verdict of acquittal from the Court on this count. [7] The Crown argued that there was another person involved, Trinity Kaida. She testified that she felt scared when the truck leftthe yard and came within 5 feet of her.

Therefore, the Crown argued that Trinity Kaida is another person in this factual matrix who wasusing the roadway and was affected. He further argued that Mr. Cheechoo had a statutory duty that was not complied with as he did notstop and offer his name, address or offer assistance. [8] The defence in reply submitted that Ms. Kaida testified that she was there after the vehicle came to rest in the yard of Ms.Migwans and questioned how Ms. Kaida could be absent from the accident yet still be involved in the accident. The defence againreferred to the plain language of the

section and argued that the vehicle was not involved in an accident with Ms. Kaida, who is merely abystander after the fact. [9] Prior to making a decision and after considering the matter, the Court invited counsel to consider this as a motion to quash asopposed to a directed verdict. The Court invited counsel to make further submissions in this regard. Counsel made brief furthersubmissions on the return date of February 6, 2018.

Analysis Directed Verdict / Non-Suit [10] A motion for directed verdict, or otherwise referred to as a motion for a non-suit, is properly made at the end of the Crown’scase before an accused is put to his/her election. The test to be applied on a motion for directed verdict is whether there is any evidenceupon which a reasonable jury, properly instructed, could return a verdict of guilty. This is the oft-cited Sheppard test. [11] On a motion for a directed verdict, the Court is not permitted to weigh the evidence for the Crown as to its credibility orreliability.

The Court must only decide whether there is any evidence, direct or indirect, implicating the accused on each constituentelement of the offence. The trial judge only weighs the sufficiency of evidence in a limited manner in the sense that the judge mustdetermine whether there is sufficient evidence to permit a properly instructed jury to reasonably convict.

A directed verdict of acquittalwill only result where there is no evidence which if believed could form the basis for a conviction. [12] Where the Crown’s case includes circumstantial evidence, the judge must engage in a limited weighing of the totality of theevidence to determine whether a reasonable jury, properly instructed, could return a verdict of guilty. A trial judge may direct anacquittal only if there is no evidence capable of supporting a conviction. See: R. v.

Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828,157 C.C.C. (3d) 21, 44 C.R. (5th) 213, 203 D.L.R. (4th) 20, 150 O.A.C. 126, 274 N.R. 274, at paras. 21, 25 and 29 [13] The charge as read alleges an accident with a property at 74 Bebonang Street, M’Chigeeng. [14] There is certainly some evidence of an accident with a property at 74 Bebonang Street in M’Chigeeng. In fact, there is a wealth

of direct evidence on this issue. There is further some evidence of identity, jurisdiction, date and time, the vehicle involved, and that the driver failed to stop his vehicle, give his name and address, and offer assistance. [ 15 ] There is certainly evidence on each essential element of the offence capable of supporting a conviction. [ 16 ] As a result, the motion for a directed verdict of acquittal on count 2 must fail. Motion to Quash [ 17 ]

Section 601 of the Criminal Code states as follows: 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.

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or (

b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.

(6) The question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law.

(7) An order to amend an indictment or a count therein shall be endorsed on the indictment as part of the record and the proceedings shallcontinue as if the indictment or count had been originally preferred as amended.

(8) A mistake in the heading of an indictment shall be corrected as soon as it is discovered but, whether corrected or not, is not material.

(9) The authority of a court to amend indictments does not authorize the court to add to the overt acts stated in an indictment for hightreason or treason or for an offence against any provision in sections 49, 50, 51 and 53.

(10) In this section, court means a court, judge, justice or provincial court judge acting in

summary conviction proceedings or inproceedings on indictment.

(11) This

section applies to all proceedings, including preliminary inquiries, with such modifications as the circumstances require. [18] Even though this

section is found in

Part XX of the Criminal Code – Procedure in Jury Trials – it is clear from the

section andsubsections that this applies equally to an Information in a

summary conviction proceeding. [19] A preliminary question to be answered is whether a trial judge has jurisdiction to deal with a pretrial motion to quash after aplea has been taken and evidence heard or has the Court lost jurisdiction to deal with such a motion. In R. v. Hill, [1986] O.J. No. 2937(Ont. Prov. Ct.), Justice Lampkin stated the following about the timing of such a motion and the jurisdiction of the Court at para 13: [13] ……Certainly there are occasions when even after plea and evidence, the whole proceedings including the information may bequashed.

Without attempting to exhaust the list of instances in which this may occur, a few instances readily spring to mind. Thus ifduring a trial, the Court ascertains, as sometimes happens, that the information was never sworn, the whole proceeding is a nullitybecause the document on which the proceeding is based is nothing more than a piece of paper with writing on it, but an information it isnot. So too, if in a

summary conviction offence, it is discovered during the trial that the information was sworn after the limitationperiod, the information and proceeding may be quashed.

Or in a hybrid offence where the Crown elects to proceed summarily and theevidence discloses that the offence was committed more than six months before the laying of the information, the Crown may withdrawthe information and re-lay a new information and proceed by way of indictment…..Or even perhaps where during trial, upon consultingthe statute it is discovered that the information discloses an offence that is not known to law, it may be quashed as being a nullity.

Orwhere a judge embarks upon a trial of an information over which he has no jurisdiction. [20] Based on this reasoning, the Court in the case at bar would have jurisdiction to quash the count on the Information, if it isdetermined that the count on the Information does not allege an offence known to law. [21] In deciding whether to quash a charge on an Information, a court must consider whether an amendment would be required tomaintain the charge and further must consider whether an amendment can be made without irreparable prejudice to the accused. See: R. v.

Moore, (SCC), [1988] 1 S.C.R. 1097, 41 C.C.C. (3d) 289 [22] An Indictment or Information which refers to an offence not known to law at the time of the charge, such as an attempt toconspire, an offence so badly drafted that it is nonsensical, or a statutory offence that did not exist at the date of occurrence, all constitutenullities, which are incapable of revival by amendment. D.P.P. v. Withers, [1974] 3 All E.R. 984 (H.L.); R. v. Déry (2006), 213 C.C.C. (3d) 289, 272 D.L.R. (4th) 385, 354 N.R. 335, 71 W.C.B.(2d) 318, 2006 SCC 53 (S.C.C.); R. v. Nelson (1989), (ON SC), 51 C.C.C. (3d) 150 (Ont. H.C.J.); R. v.

Gralewicz, (SCC), [1980] 2 S.C.R. 493, 54 C.C.C. (2d) 289; R. v. Catalano (1977), (ON CA), 37 C.C.C. (2d)255 (Ont. C.A.) [23] In R. v. O’Hanley [1986] O.J. No. 2934 (Ont. Prov. Ct.), Justice Lampkin was faced with an Information that charged theaccused with possession of Diazepam for the purpose of trafficking without having a prescription. The regulations, however, did notprohibit the sale of the drug but rather a substance containing the prohibited drug. Justice Lampkin stated: [6] Mr.

DeBecker, on behalf of the Crown, states that one has really to look at the intention of the Governor-in-Council in passing thatregulation; that the intention must be really not to sell the drug, whether or not it is contained in a substance, and submits that the AlbertaCourt of Appeal came to a wrong decision. It is quite true that one has got to look at the intention of Parliament, but the only way thecourts are allowed to do that, is to look at the regulation and determine the intention from the words used in the regulation. We cannotlook at Hansard, nor can we review the debates.

If Parliament and the Governor-in-Council had wanted to proscribe the sale of a drug,then there would have been no difficulty in simply saying in the regulation that “No person shall sell a drug”, but rather they used theterm, “No one shall sell a substance containing a drug”. ….. [8] I had thought perhaps that the remarks of Mr. Justice Dickson (as he then was) in R. v. City of Sault St Marie, (SCC), [1978] 2 S.C.R. 1299, 40 C.C.C. (2d) 353, may have cured the problem.

In that case, speaking of an earlier age, when manycrimes were classified as felonies, for which the punishment was death by the gallows, he said at p. 360: “The slightest defect made an indictment a nullity. That age has passed. Parliament has made it abundantly clear in those sections of theCriminal Code having to do with the form of indictments and informations that the punctilio of an earlier age is no longer to bind us.

We must look for substance and not petty formalities”. [9] I think however that those remarks are based on the premise that the offence charged in the information is at least known to law, andif there are other little slips, like incorrect dates and duplicity which do not mislead an accused person, then you don’t look at thepunctilio of the information, but try to ascertain: “Does the accused, on reading the information, know what charge he has to face?” Inthis case the offence is not known to law and therefore I give effect to the application.

[ 24 ] In R. v. Powless, [1988] O.J. No. 2794 (Ont. Prov. Ct.) , Justice MacDonald dealt with an application for an order quashing an Information leading to a charge of contravening the provisions of a custody order contrary to s. 250.1 of the Criminal Code . The accused had been granted custody of the children of the marriage and the father was granted access. The mother was said to be in breach of the custody order by preventing the father from exercising his access.

The court stated as follows: [5] ….the legislators, in their wisdom, have decided to frame this particular section, “….contravention of the custody provisions of the custody order”.

Having already indicated that there is a vast difference between the custody provisions and the access provisions, it is the feeling of this court that s. 250.1 was meant, by the legislature, to limit it to the large picture: a breach of the custody provisions, as opposed to any other provisions in that particular order, including the right to access. [6] Having said that, since the allegation in the information is not that she breached the custody provisions, but, in effect, that she violated some right of access, it is the feeling of this court that the information, as laid, cannot be brought within s. 250.1, to that extent it does not disclose an offence….

In that case, the information was quashed. [ 25 ] Having carefully considered the wording of

section 252 of the Criminal Code , it is clear that there is no offence of an accident with property. It is absolutely clear from the wording of that

section that the accident must be with another person, a vehicle, vessel or aircraft, or in the case of a vehicle, cattle in the charge of another person. There is absolutely no reference in the

section to an accident with property as the Information in this case alleges. [ 26 ] The Crown suggested that Trinity Kaida is another person in the factual matrix. However, the wording of count 2 is not an accident involving Trinity Kaida. The wording of count 2 is very specific.

It states: On or about the 2nd day of November, 2016, at the First Nation of M’Chigeeng in the said region, having the care of a vehicle to wit 2007 Sierra GMC Pickup truck that was involved in an accident with a property at 74 Bebonang Street, M’Chigeeng and with intent to escape civil or criminal liability failed to stop his vehicle, give his name and address, and offer assistance where a person’s property was damaged contrary to

Section 252 of the Criminal Code . [emphasis added] [ 27 ] This count on the Information does not make out an offence known to law. [ 28 ] An amendment cannot be made without injustice being done. An amendment would result in irreparable prejudice to the accused, as any amendment would completely change the case to meet. [ 29 ] Therefore, count 2 on the Information will be quashed. Released: February 6, 2018 Signed: Justice V. Christie