R. v. Casey, 2012 NSSC 222

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Casey, 2012 NSSC 222 Date: 20120531 Docket: CRH-339421 Registry: Halifax Between: Douglas Casey Applicant v. Her Majesty the Queen Respondent Restriction on publication: That the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted before such time as, in respect of each of the accused, (

c) he or she is discharged; or (

d) if he or she is ordered to stand trial, the trial is ended, pursuant to

section 539 of the Criminal Code of Canada . Judge: The Honourable Justice Simon J. MacDonald Heard: May 24, 2012, in Halifax, Nova Scotia Written Decision: June 12, 2012 (Oral decision rendered on May 31, 2012.) Counsel: Cory Roberts, for the applicant Christopher W. Morris, for the respondent By the Court: (Orally) [ 1 ] This is an application by Mr.

Casey to determine the validity of an information laid against him alleging that he: on or about the 28th day of November 2008, at or near Halifax, Nova Scotia, did unlawfully have in his possession merchandise of a total value exceeding $5000 the property of Home Depot knowing that it was obtained by the commission in Canada of an indictable offence to wit: theft, contrary to

section 355 (

a) of the Criminal Code .

BACKGROUND [ 2 ] The background reveals the information was sworn before Lorie Angus, a Justice of the Peace for Nova Scotia, and she signed the jurat taking the oath of Pam Mills, a member of the Halifax Regional Police, as the informant. [ 3 ] An issue has arisen because the jurat of the oath states it was sworn to on May 12, 2008 yet the alleged offence is stated as having occurred on or about November 26, 2008, some six months later. [ 4 ] Mr. Casey was arrested on November 27, 2008 and elected trial by judge and jury. The file reveals several appearances by counsel either with or without Mr. Casey. On November 17, 2009, he waived any potential s. 11(

b) Charter arguments for unreasonable delay. [ 5 ] A preliminary hearing was set for November 8 and 9, 2010, and his then counsel, Mr. Warren Zimmer, after approximately 11 witnesses were called by the Crown, waived any further need of the preliminary hearing. Mr. Casey was committed to the Nova Scotia Supreme Court to stand trial. [ 6 ] On November 25, 2010, Mr. Zimmer and Mr. Casey appeared at Crownside and obtained pretrial dates. On February 24, 2011, a jury trial was set for December 12 to 16, 2011. [ 7 ] Before the date set for trial occurred, Mr.

Zimmer was appointed a Judge of the Provincial Court for Nova Scotia, thus, Mr. Casey had to obtain new counsel. The Crown contacted several lawyers about who was representing Mr. Casey. Sometime in November of 2011, Mr. Stanley MacDonald advised he represented Mr. Casey. As a result of new counsel, the trial dates were adjourned. [ 8 ] There followed several appearances before the Supreme Court namely December 22, 2011, January 26, 2012, and February 23, 2012. On March 1, 2012, Justice Rosinski of the Nova Scotia Supreme Court pointed out the information was sworn six months before the offence.

On April 19, 2012, Mr. MacDonald applied for a date to challenge the validity of the information and, thus, the hearing before the Court today. [ 9 ] The Applicant was represented by Mr. MacDonald ’ s associate, Mr. Cory Roberts and Mr. Chris Morris represented the Crown. ISSUES [ 10 ]

(1) Is the information sworn against Mr. Casey in this matter a nullity and should be quashed?

(2) If the information is a nullity and quashed does this honourable court have any jurisdiction over Mr. Casey? DISCUSSION AND CONCLUSION

[ 11 ] The Applicant argues the information was sworn before the offence date contained in the information and, thus, it is a contradiction on its face because it fails to demonstrate that an allegation has been made before a Justice of the Peace as required by the Criminal Code . In doing so, counsel has argued and raised s. 505 and s. 508 of the Criminal Code which state as follows where: 505 (

a) where an appearance notice has been issued to an accused under s.496; or (

b) an accused has been released from custody under s.497 or 498 an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him, shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in Court. [ 12 ]

Section 508 states: 508.

(1) A justice who receives an information laid before him under

section 505 shall: (

a) here 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; (

b) where he considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearance notice, promise to appear or recognizance or to an included or other offence, (

i) confirm the appearance notice, promise to appear or recognizance, as the case may be, and endorse the information accordingly, or (ii) cancel the appearance notice, promise to appear or recognizance, as the case may be, and issue, in accordance with

section 507, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice, promise to appear or recognizance, as the case may be, has been cancelled; and (

c) where he considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice, promise to appear or recognizance, as the case may be, and cause the accused to be notified forthwith of such cancellation.

(2) 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. R.S., c. 2 (2nd Supp.), s. 5; R.S.C. 1985, c. 27 (1st Supp.), s. 79. [ 13 ] The Applicant here clearly argues that the information which was sworn before the offence date cannot be in compliance with s. 505 because it was not sworn as soon as practicable after the accused was arrested and released on the undertaking. Furthermore, the

Justice of the Peace cannot possibly hear the informant ’ s allegations and determine whether there were reasonable grounds to believe that an indictable offence had been committed under s. 508 since the allegations were purportedly heard and sworn before the offences were even alleged to have taken place.

On the face of the information, there was simply no reasonable grounds for the informant to swear the information under s. 505 nor for the Justice of the Peace to find there was a prima facie case necessary to confirm the information under s. 508 the Applicant argues. [ 14 ] In his brief, the Applicant states quite simply: An information sworn before the offence is a nullity because it cannot have been laid as required by the Criminal Code .

It contains a contradiction on its face that makes it impossible to be correct. [ 15 ] In his memoranda and before the Court, the Applicant argues Justice MacLellan ’ s case of R. v. George 1993 N.S.J. No. 273, (N.S.S.C.) . In that case he says Justice MacLellan clearly held that an information sworn before the offence date renders the information an absolute nullity and completely deprives the Court of any jurisdiction over an accused. [ 16 ] The Applicant, therefore, says that the information against Mr. Casey charging him under s. 355 (

a) of the Criminal Code should be declared an absolute nullity and quashed. [ 17 ] The Crown argues not so. Mr. Morris says there was no objection by any counsel until Justice Rosinski noticed the defect on March 1, 2012. In the interim, an indictment properly sworn was presented to the Supreme Court for the matter to be dealt with as a result of Mr. Casey ’ s election to that court. The parties were getting new jury trial dates. [ 18 ] The Applicant ’ s counsel, Mr. Roberts, has referred to R. v.

Akey (1991), 1 O.R. (3rd) 393 , and used it as a case which he says supports his argument under ss. 505 and 508 in that the information should be laid before a justice as soon as practicable thereafter arrest with the offences. He further argued that the justice under s. 508 was to examine the allegations and then decide if they disclosed a prima facie case to demonstrate Mr.

Casey had committed any offences. [ 19 ] If this Court concludes the defect in the jurat does not render the information a nullity then that argument fails in the matter before me. [ 20 ] The Crown argues an oath was administered, the charge is clear and sufficient. Crown says the only defect is the date in the jurat of the information and that Mr. Casey is not prejudice by this. [ 21 ] In R. v. Dean (1985), CANL2 1142, (Alberta Queen ’ s Bench) the Court there dealt with an information in which the year in the jurat was not inserted when the information was sworn.

MacFadyen, J., as she then was, said at para. 27 onward: [27] In any event, from the information contained on the face of the information itself, the only reasonable inference which can be drawn is that the information was in fact sworn on August 30, 1983. The information dealt with offences occurring between May 2, 1982 and September 12, 1982.

The accused first appeared on the charge on September 7, 1983, and the trial during which the learned trial judge dismissed the information was being held on May 1, 1984. [28] It is evident that as a result of a typographical error, the year was not inserted to complete the date in the jurat. Can such a slip operate to nullify the whole information? In my view it cannot operate to nullify the information. The jurat is not the oath nor is it the act of administering the oath. As pointed out by the Ontario Court of Appeal in R. v.

Welsford , the presence of the signature of the Justice of the Peace on the jurat is evidence of the fact that the oath was administered. It is the statement of the Justice of the Peace to that effect. The insertion of the date and the place in the jurat is merely evidence that the oath was administered on a certain date and at a certain place.

[29] It is my view that no defect is the jurat can alter the fact that an oath was in fact administered and that the information was in factsworn. This fact is evidenced by the signature in the jurat. Without such a signature there would be no evidence before the court that theinformation was sworn as required by the Criminal Code. That signature provides evidence that it was in fact sworn. [30] The only gap in the information provided by the Justice of the Peace relates to the date on which the information was sworn. In myopinion the date is relevant and material only when the issue of limitation periods arises.

It does not arise in this case as the five yearlimitation prescribed by the relevant legislation has not yet expired. Even if the date of the swearing of the information had beenmaterial, it was possible to determine that date by inference, having reference to the factual information contained in sworn informationand endorsements thereon. [31] In the circumstances of this case, I find it impossible to find that the date on which the information was sworn becomes sosubstantial and material a defect that an inadvertent error in completing it renders the information a nullity.

It is my view that the failureto provide evidence of the date on which the information was sworn could only constitute a substantial defect where a doubt arose as towhether the charge had been laid within the limitation period. I do not comment on the issue of whether such a defect might be cured byamendment as authorized by s. 732(3)(

b) of the Criminal Code. [32] The defect in this case caused no prejudice to the accused. While the jurat in this case has not been perfectly filled out, the absenceof information relates only to the date on which the information was sworn, a date which is not material to any issue before the court. Inmy view, the absence of the date in the jurat results from a simple error which was not in any way calculated to mislead the accused. Theabsence of the date has caused no prejudice to the accused and has not mislead the accused in any fashion.

To hold that such an error bythe Justice of the Peace in completing the jurat resulted in a nullity would, in my view, be contrary to the general intent expressed in theprovisions of the Criminal Code and in recent decisions of the Supreme Court of Canada; that being that technicalities are to be avoidedin considering the validity of informations. [22] She then referred to R. v. Sault Ste Marie, (SCC), [1978] 2 S.C.R. 1299 and R. v.

Cote, (SCC),[1978] 1 S.C.R. 8, as authorities for a more liberal view to be taken when considering the validity of informations. [23] She went on to say at para. 34 in her decision: [34] The learned trial judge erred in law in holding that the information was a nullity. The failure to specify the complete date in thejurat does not render the information a nullity unless it can be shown that the error was a material one as possibly in the case of an issueinvolving the expiration of a limitation period or if the error is shown to have caused some prejudice to the accused.

The appeal will beallowed and a new trial ordered. [24] In the Dean, supra, case, the year was missing in the jurat and the Court referred to it as a typographical error. In the casebefore me, the date in the jurat was before the date of the alleged offence. [25] In R. v. Ramirez, [1993] CANL2, 2488, (B.C.C.A.) the Court was dealing with an information sworn to on February 16, 1991,alleging an offence on February 15, 1992.

Legg, J.A., writing on behalf of the Court found the issue to be, at para.14: [14] Appellant's counsel before us argued that the date in the jurat is a fundamental component of the jurat in the information and thatany error in the jurat rendered the information a nullity because it caused prejudice to the appellant. [26] The British Columbia Court of Appeal rejected this argument. In so doing, it referred to R. v. Moore (1988), (SCC), 41 C.C.C. (3rd) 289, where the Supreme Court of Canada was considering an amendment to the wording of the charge contained

in the information. In Moore , supra, the Court confirmed a more liberal

interpretation of correcting defective informations by allowing amendments. Legg, J.A. found the comments made in Moore , supra, allowing amendments would also apply a fortiori to the jurat insofar as defects. He adopted the comments of McFadyen, J. in Dean, supra, as to the purpose and function of the jurat. [ 27 ] With the greatest of respect to my former colleague Justice MacLellan, I do not agree with his finding nor his

interpretation of R. v. Moore , supra. I do not find where he considered the conditions required by Chief Justice Dickson in the Moore , supra, case in order to arrive at the conclusions he did. [ 28 ] I prefer the reasoning in R. v. Dean, supra, and adopted in Ramirez, supra, and say that an information was sworn and attested to. It contains sufficiency of information for Mr. Casey to know the charge he was facing and for which he had to prepare a defence. [ 29 ] I do not find that the information was so badly drawn as to fail to give the accused notice of the charge, in fact I find quite the contrary.

Furthermore, I do not find the issue of limitation arises here so the error in the jurat does not go to the jurisdiction of the Court. The accused was not misled. [ 30 ] I find the date in the jurat was a simple error which did not cause any prejudice to Mr. Casey nor mislead him. I would think it reasonable to conclude it was sworn after the date of the allegation and that an error was made inserting the date in the jurat.

The proceedings of the Court on file indicate the matter developed after the date of the offence. [ 31 ] I find that to concur in the argument of the Applicant would be to make a technical determination. This might have been done in days gone by. However, now a more liberal view is taken of matters such as this, unless possibly there is an argument about prejudice or an issue about a limitation period. I found this was not the case here. [ 32 ] It should be noted that in R. v.

Akey, supra, referred to by the Applicant, Granger, J., put the issue this way: At the heart of this matter is whether the omission of the month in the jurat renders the information a nullity or [is] merely a technical defect. [ 33 ] The Court concluded in Akey, supra, that the failure of the jurat in the information to specify the month in which it was sworn before the Justice of the Peace did not make the information a nullity and the Court adapted the reasoning in R. v. Dean, supra, and R. v.

Sault Ste Marie , supra . [ 34 ] Lamer, C.J., said in Moore , supra, at para. 16 , “ defects in form do not defeat what is valued in substance ” . [ 35 ] I do not find the date on which the information as contained in the jurat to be so substantial an error to cause the information to be a nullity. [ 36 ] To conclude, I have considered all the arguments of the Applicant but I am unable to accept them for the above reasons and I am denying the application. J.