R. v. Joubert, 2019 BCPC 366

Citation: R. v. Joubert 2019 BCPC 366 Date: 20190621 File No: 747-1 Registry: Mackenzie IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN JOUBERT RULING RE CROWN APPLICATION TO AMEND INFORMATION ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Crown: L. Guidi Appearing on his own behalf: K. Joubert Place of Hearing: Mackenzie , B.C.

Dates of Hearing: June 20, 21, 2019 Date of Judgment: June 21, 2019 [ 1 ] THE COURT: This is an application by the District of Mackenzie to amend a four-count Information in which Kevin Joubert is charged with animal control bylaw infractions relating to a rooster kept on his property. It is alleged that on April 9, 11, 14 and 21, 2018, the crowing of Mr. Joubert's rooster affected the peace, quiet and enjoyment of other property owners in the vicinity of his premises.

The counts allege with respect to each date that: At or near 60 Columbia Drive, District of Mackenzie, in the Province of British Columbia, you did keep livestock, to wit, a rooster, on your premises at 60 Columbia Drive, located in Rural Residential 2 Zone, which rooster, by crowing on or about that date, affected the

peace, quiet and enjoyment of other property owners in the vicinity of your premises of 60 Columbia Drive, District of Mackenzie, contrary to s. 11(b)(ii) of District of Mackenzie Bylaw Animal Control and Licensing Bylaw. [ 2 ] The Information identifies Mr. Joubert's residence to be located in Rural Residential 2 Zone (RR2). Prior to the commencement of the trial, the District advised that was an error and in fact Mr. Joubert's residence is located in Rural Residential 1 Zone (RR1). The Information is not defective on its face, as contemplated in s. 100(3) of the Offence Act .

The application was adjourned as I found there was no authority under s. 100(2) of the Offence Act to amend an Information in advance of the trial to conform with trial evidence which had not yet been adduced. [ 3 ] Mr. Lester Chapman, Animal Control and Bylaw Officer for the District of Mackenzie, attested to Mr. Joubert's property being in Zone RR1. The District now advances its application to amend each count of the Information to reflect RR1 instead of RR2. By necessity, the District accordingly applies to amend the applicable bylaw provision alleged to have been contravened. [ 4 ]

Section 11(b)(ii), which Mr.

Joubert is currently charged with violating, states [as read in]: An owner is permitted to keep livestock on the owner's premises located within the Rural Residential 2 Zone (RR2), subject to the following: (ii) The livestock must not create a health problem or affect the peace, quiet and enjoyment of other property owners in the vicinity of the owner's premises. [ 5 ] The District seeks to amend each count in the Information to change the reference to s. 11(b)(ii) of the Bylaw to s. 11(a)(iii), which states [as read in]: An owner is permitted to keep livestock on the owner's premises located within the Rural Residential Zone (RR1), the Rural Residential Bed and Breakfast Zone (RRB1), or the Rural Commercial Zone (RRC1), subject to the following: (iii) The livestock must not create a health problem or affect the peace, quiet and enjoyment of other property owners in the vicinity of the owner's premises. [ 6 ] Mr.

Joubert opposes any amendment to the Information and argues that any changes which would have the effect of substituting a new offence are statute barred as the offence occurred over six months ago. [ 7 ] The issues that I must decide are,

(1) Would amending the applicable

section numbers of the Bylaw in the Information trigger the limitation period set out in s. 3(2) of the Offence Act , and (2) if not, should the proposed amendments be permitted? Power to amend. [ 8 ] Section 100(2) of the Offence Act provides the authority to amend an Information to conform with evidence heard at trial: A justice may, on the trial of an information, amend the information or a particular furnished under section 97 (3) to make the information or particular conform to the evidence if there appears to be a variance between the evidence and (

a) the charge in the information, or (

b) the charge in the information (

i) as amended, or (ii) as it would have been if amended in conformity with any particular furnished under section 97 (3). Limitation period. [ 9 ] The District's power to make bylaws controlling the possession of animals and production of noise by homeowners arises from s. 8 of the Community Charter [SBC 2003]

Chapter 26 . Bylaws may be enforced by laying an Information in Form 2 under the Offence Act . Pursuant to s. 3(2) of the Offence Act , if no time is specially limited for making a complaint or laying an Information in the Act or law relating to a particular case, proceedings must not be instituted more than six months after the time when the subject matter of the proceedings arose. [ 10 ] In this case, the subject matter arose in April 2018, over one year ago. Mr.

Joubert argues that the District should not be permitted to amend the Information to change the charging provisions from allegations of contraventions of s. 11(b)(ii) to s. 11(a)(iii) of the Bylaw, as this would effectively be tantamount to instituting new proceedings outside the limitation period. The District argues that the charges are essentially the same in form and substance, the only difference being the zone to which each charge attaches. [ 11 ] A similar argument was considered by the Ontario Court of Appeal in R. v. Bidawi , 2018 ONCA 698 in a criminal

summary proceeding trial. The accused was charged with contravening firearms regulations by leaving a firearm unattended and visible in his vehicle. He was charged with storing a firearm in a careless manner in circumstances where the Crown's case contemplated careless transportation of a firearm. “Storage” and “transportation” are dealt with distinctively under the Regulations. [ 12 ] The accused argued the Crown's proposed amendment had the effect of substituting new charges in contravention of s. 786(2) of the Criminal Code which prohibits the institution of

summary conviction proceedings more than six months after the subject matter of the proceedings arose. [ 13 ] The court considered s. 601(4) of the Criminal Code which authorizes the court to amend Informations to conform with the evidence, taking into account factors similar to those articulated in s. 100(5) of the Offence Act . The court found the power to amend

Informations included the ability to substitute one charge for another. The essential inquiry should be into the impact of any potentialamendment on the accused, not on how the amendment will impact the charge. If no prejudice will result from the change, then itshould not matter how the change to the charge is described (paragraph 34). The essential inquiry should be into the impact of anypotential amendment on the accused, not on how the amendment will impact the charge. [14] The court considered and rejected obiter comments made in the R. v. Joy Oil Co.

Inc. (ON CA), [1959] 123C.C.C 370 ONCA, suggesting that an amendment which substitutes an entirely new charge cannot be permitted after the limitationperiod for instituting proceedings has passed, saying at paragraph 48: Joy Oil and the judgments it cites in the passage set out above, one of which is over a hundred years old, were written at a time whendecisions to amend were much more likely to turn on technicalities. Since that time, there has been a significant evolution of the lawregarding the predominant factors upon which decisions to amend rest. As noted in R. v.

Côté, some 20 years following Joy Oil, a"golden rule" governing informations and indictments had emerged, one where the "extreme technicality of the old procedure" had givenway to a focus on prejudice . . . (SCC), [1978] 1 S.C.R. 8, at p. 13.

The previous focus on technicalities gave way to apractical exploration of whether the accused had been "reasonably informed of the transaction alleged against him": Côté, at p. 13. [15] The court concluded that in the circumstances, the amendments to the Information substituting one offence for another did nothave the effect of instituting proceedings for the purposes of s. 786(2) of the Criminal Code. The proceedings are instituted by thelaying of the Information. An amendment cannot constitute the institution of proceedings because it does not constitute the laying of anInformation in Form 2.

To prevent such amendment might result in criminal cases being decided in a manner detached from theassessment of the merits of the case, giving rise to unjust acquittals based on technicalities (par. 63). [16] The court concluded the accused knew what the Crown alleged and the case he was required to meet. The Information hadbeen laid within the limitation period and the disclosure made the offence alleged abundantly clear, namely, that he had carelesslytransported a firearm in his vehicle.

The Court of Appeal found the trial judge had erred in not permitting the Crown's amendments. [17] Section 3(2) of the Offence Act mirrors s. 786(2) of the Criminal Code and the reasoning of the Ontario Court of Appeal inBidawi is persuasive in this case. The proposed substituted offence of s. 11(a)(iii) is identical in form and substance to s. 11(b)(ii). Itinvolves the same events and subject matter.

The Information was laid within the prescribed time limitation period. [18] I find the proposed amendments would not have the effect of instituting new proceedings outside the limitation period contraryto s. 3(2) of the Offence Act. Should the amendment be permitted? [19] Section 100(5) of the Offence Act sets out the applicable principles in an application to amend: The justice must, in considering whether or not an amendment should be made, consider (

a) the evidence taken on the trial, if any, (

b) the circumstances of the case, (

c) whether the defendant has been misled or prejudiced in his or her defence by a variance, error or omission mentioned in subsection(2) or (3), and (

d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. [20] The power to amend an information or count within an information is a broad one (R. v. Irwin (1998), (ONCA), 107 O.A.C. 102, at par. 9; R. v. S.(A.) (1998) (ON CA), 113 O.A.C. 340, at par. 4). Provided there is noirreparable prejudice to the accused and the fairness of the trial will not be adversely impacted, the trial judge may exercise her or hispower in favour of making an amendment (R. v. Morozuk, 1986 (SCC), [1986] 1 S.C.R. 31, at para. 22; R. v.

Bidawi,2018 ONCA 698, at par. 33). [21] In City of Vancouver v. Wiseberg et al., 2005 BCSC 1377, Madam Justice Dillon considered an application to quash anInformation pursuant to s. 100(1) of the Offence Act on the basis that it was defective and insufficient on its face. The accused wascharged with cutting down trees on his property without a permit and challenged the information on the basis that it failed to sufficientlyidentify each tree that was the subject of each of the 28 counts on the Information.

Justice Dillon addressed the principles governingamendment applications at paragraph 18: [18] By section 96(3) of the Offence Act, the information must contain sufficient detail of the circumstances to give the defendantreasonable information and to identify the transaction referred to. The “golden rule” to determine whether a charge fulfills thisrequirement is to ask whether the accused is reasonably informed of the transaction against him thus giving him the possibility of a fulldefence and a fair trial (R. v. Cote, (SCC), [1978] 1 S.C.R. 8 at 13, [1977] 2 W.W.R. 174; Wis at 137; R. v.

Fox (1986), (BC CA), 24 C.C.C. (3d) 366, 50 C.R. (3d) 370 (B.C.C.A.); R. v. Horsland, [1995] B.C.J. No. 1367 at para. 5(S.C.)). The right to make answer and defence must be considered within the context of a regulatory or

summary conviction offence (R.v. Cooper (2005), 197 C.C.C. (3d) 391, 2005 BCCA 256 at para. 22; R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, 8 C.R. (4th) 277 at para. 26)). The essential question is whether the accused has been treated fairly in the context of the case, not whetherthe most favourable procedure to the defence has been adopted (R. v. Rose, (SCC), [1998] 3 S.C.R. 262, 129 C.C.C.(3d) 449 at para. 99)). [22] The question is whether the defence is reasonably informed. If the information recites the facts and relates them to an offence,an accused cannot be misled (Wiseberg at par. 19).

[ 23 ] A court now has wide powers to cure any defect in a charge by amendment pursuant to s. 100 of the Offence Act , provided that no injustice results and that the accused has not been misled or prejudiced in his or her defence ( R. v. Hiebe, 2000 BCSC 1296 , at par. 14 ). [ 24 ] In this case, the substance of the District's theory, evidence and allegation remains unchanged. It is alleged Mr. Joubert keeps a rooster which crows in a fashion that affects his neighbours' peace, quiet and enjoyment of his property. The restrictions on keeping livestock in those circumstances is the same whether Mr.

Joubert's premises are located in RR1 or RR2. Both RR1 and RR2 have identical bylaws prohibiting owners from keeping livestock which affect the peace, quiet and enjoyment of other property owners in the vicinity. The evidentiary burden on the District would be unchanged by the proposed amendments, as would any due diligence or other defence available to Mr. Joubert. The issues in evidence would remain the same. [ 25 ] Mr. Joubert acknowledges he would not be prejudiced by the proposed amendments. In fact, he asserts he believes his property is zoned RR2 as currently charged.

As such, he did not intend to advance a technical defence that the District failed to prove the zoning as particularized in the Information. If Mr. Joubert is correct on the zoning issue, the proposed amendment could potentially open up further avenues of defence not currently available to him. [ 26 ] The District's evidence at trial that Mr. Joubert's premises are located in RR1 varies with the charge that identifies premises to be in RR2.

As such, in order to conform with the evidence, all four counts may be amended to reflect rural residential zone one and the contravention of s. 11(a)(iii) of the Bylaw. [ 27 ] I find, in the circumstances of this case, Mr. Joubert has had fair notice of the charges against him. The issues, evidence, burden, defences and conduct of the trial would be unaffected by the amendment and Mr. Joubert would not be prejudiced by it. The District's application to amend the Information is allowed. (RULING CONCLUDED)