r. v. moore, [1988] 1 S.C.R. 1097
Her Majesty The Queen Appellant
v.
Barry Graham Moore Respondent
indexed as: r. v. moore
File No.: 18214.
1987: October 7; 1988: June 30.
Present: Dickson C.J. and McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Procedure ‑‑ Autrefois acquit ‑‑ Information failing to allege material averment ‑‑ Defective counts quashed ‑‑ New information sworn containing necessary words ‑‑ Whether or not plea of autrefois acquit available ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 529(1), (3), (4), 535(1), (3), (4), (5), 537(1).
Respondent was charged with eight counts of theft and possession of stolen property. The possession charges were laid under s. 312(1) of the Criminal Code. The information on two counts lacked the averment of an essential element of the offence. Respondent entered pleas of not guilty to the charges against him and elected to be tried by a provincial court judge without a jury. The trial judge and counsel agreed that it was not possible to strike the pleas and that, since two of the counts simply failed to allege an offence rather than alleging an offence improperly, it was not possible to amend them at all.
A new information containing the necessary words omitted from the earlier information was subsequently sworn. Respondent's pleas of autrefois acquit were refused by the second trial judge who convicted on one of the counts. The Court of Appeal allowed the respondent's appeal from conviction.
The issue here is whether quashing an information, after plea, for failure to allege a material averment constitutes a verdict of acquittal for the purpose of pleading autrefois acquit to a new information.
Held (Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be dismissed.
Per McIntyre, Lamer, Le Dain and La Forest JJ.: Section 529 grants very wide powers to the trial judge, subject to certain limits, to cure any defect in a charge by amending it. The judge can only quash if the required amendment cannot be made without injustice being done and it is a reversible error of law if a judge does so without coming to that conclusion. If an amendment, as a matter of law, cannot be made without causing irreparable prejudice, the quashing of the charge at the trial is tantamount to an acquittal. Relaying an amended charge before another judge would be no less prejudicial to the accused than the previous judge's amending the first one. Sections 529(4) and (5) would then be a useless exercise of judgment.
The judge should not have quashed here for an amendment would not have prejudiced the accused. The Crown, however, cannot lay an amended charge once the accused has been acquitted, albeit by error. The trial judge's decision is open to appeal. The Court of Appeal, assuming error is found, will direct the trial judge to amend and hear the case, or will amend the charge itself and return the matter for trial on the amended charge. The fact that the accused will be tried on the amended charge is no reason for downgrading the "quashing" so as to permit the Crown to relay an amended charge without facing a special plea. When a judge quashes under s. 529, that decision is deemed without error until reversed by a Court of Appeal.
Per Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. (dissenting): A defective information is not automatically a nullity disclosing no offence known to law. If the document gives fair notice of the offence to the accused, it can be amended under the broad powers of amendment s. 529 gives to the courts. Only if a charge is so badly drawn up as to fail even to give the accused notice of the charge will it fail the minimum test required by s. 510(2)(c). A charge that is this defective would have to be quashed. A conviction is possible, however, on a defective information: defects in form do not defeat what is valid in substance.
The first information was clearly not a nullity. The accused knew the charges he faced and was not prejudiced by the missing averment. Further, all the elements of the offence would have been proven by the Crown. Respondent, therefore, was in jeopardy which is the first requirement for a successful plea of autrefois acquit.
A disposition in the nature of a final determination is an essential element of a plea of autrefois acquit. Section 537 should not be read as an exception to this requirement when the possibility of an amendment is raised. Section 537 is a guide to the relationship between the amending powers and the requirement of identity and is to be used to decide whether or not charges are identical.
Whether or not a judicial determination that ends proceedings will support a plea of autrefois acquit depends on the nature of the legal basis for the decision. Decisions based on substantive legal principles will generally support a plea of autrefois acquit. Decisions based on procedure are more complex. Some decisions may end defective proceedings without barring the Crown from starting anew; other decisions may amount to a final determination that can be appealed but cannot be replaced by new proceedings. A formula precisely covering all possible situations is virtually impossible. Three of those factors important to the decision, however, are the nature of the defect involved, the stage in the proceedings at which it is raised, and the degree of prejudice to the accused.
The availability of autrefois acquit depends on the nature of the legal decision made at the earlier trial. The common law rule has always been that subsequent proceedings are not precluded by the quashing of a defective charge. While the analysis leading to that same result must now take into account the more flexible modern policy regarding technical defects, amendments, and appeals, the justice of the result reached has not changed.
The defect in the information in this case was of a technical nature. Although it related to the elements of the offence charged, the reason for the quashing in no way was an adjudication on the legal or factual issues raised by the information. The technical error was caught at a very early stage in the trial, before the Crown had even led evidence. While it may be the case that technical errors in an information can sometimes prejudice the accused so that a quashing amounts to an acquittal, it is not the case here. The decision, while on a point of law, was not a final decision. As a result, autrefois acquit was not available to the accused.
Cases Cited
By Lamer J.
Referred to: Petersen v. The Queen, [1982] 2 S.C.R. 493; Doyle v. The Queen, [1977] 1 S.C.R. 597.
By Dickson C.J. (dissenting)
R. v. Riddle, [1980] 1 S.C.R. 380; Petersen v. The Queen, [1982] 2 S.C.R. 493; R. v. Sheets, [1971] S.C.R. 614; R. v. Beason (1983), 36 C.R. (3d) 73; R. v. Major, [1977] 1 S.C.R. 826, reversing (1975), 10 N.S.R. (2d) 348; R. v. Côté, [1978] 1 S.C.R. 8; R. v. Hunt, Nadeau, and Paquette (1974), 16 C.C.C. (2d) 382; Morozuk v. The Queen, [1986] 1 S.C.R. 31; R. v. Stewart (1979), 7 C.R. (3d) 165; Re Regina and Henyu (1979), 48 C.C.C. (2d) 471; R. v. Charlesworth (1861), 1 B. & S. 460, 121 E.R. 786; R. v. Rinnie, [1970] 3 C.C.C. 218; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Ko and Yip, [1977] 3 W.W.R. 447; R. v. Tateham (1981), 63 C.C.C. (2d) 25, aff'd (1982), 70 C.C.C. (2d) 565 (B.C.C.A.); R. v. Plank (1986), 28 C.C.C. (3d) 386; Lattoni and Corbo v. The Queen, [1958] S.C.R. 603; Cheyenne Realty Ltd. v. Thompson, [1975] 1 S.C.R. 87; R. v. Jewitt, [1985] 2 S.C.R. 128; Kipp v. Attorney‑General for Ontario, [1965] S.C.R. 57; R. v. Tonner (1971), 3 C.C.C. (2d) 132; R. v. G. & P. International News Ltd. and Judd (1973), 12 C.C.C. (2d) 169; Doyle v. The Queen, [1977] 1 S.C.R. 597; Mills v. The Queen, [1986] 1 S.C.R. 863.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11(h).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 312(1)(a), 465(1)(b), 529(1), (2), (3), (4), (5), (6), (7), (8), (9), 535(1), (3), (4), (5), 537(1)(a), (b), 602, 605(1)(b), (c), 613(1)(b)(i), (3), 732, as am.
Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, s. 137.
Authors Cited
Friedland, Martin Lawrence. Double Jeopardy. Oxford: Clarendon Press, 1969.
APPEAL from a judgment of the British Columbia Court of Appeal, sub nom. R. v. Moore and Wells (1983), 9 C.C.C. (3d) 1, [1984] 2 W.W.R. 362, allowing an appeal from a judgment of Barnett Prov. Ct. J. Appeal dismissed, Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. dissenting.
William Ehrcke, for the appellant.
Peter Messner, for the respondent.
The reasons of Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. were delivered by
1. The Chief Justice (dissenting)‑‑The issue in this case is whether quashing an information, after plea, for failure to allege a material averment constitutes a verdict of acquittal for the purpose of pleading autrefois acquit to a new information.
I
Facts
2. The appellant, Barry Graham Moore, and two other people, not parties to this appeal, were charged in an eight‑count information with various counts of theft and possession of stolen property. The possession charges were laid under s. 312(1) of the Criminal Code, R.S.C. 1970, c. C‑34, which reads:
312. (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
(a) the commission in Canada of an offence punishable by indictment; . . .
3. Count 6 of the information, the count with which we are in this appeal particularly concerned, reads:
count 6 The informant also says that he has reasonable and probable grounds to believe and does believe that Barry Graham MOORE, on or about the 27th day of February A.D., 1981, at or near the Town of Williams Lake, County of Cariboo and Province of British Columbia, did UNLAWFULLY have in his possession, automobile parts, the property of Zora Enterprises Ltd. of a value exceeding two hundred dollars,
CONTRARY TO THE FORM OF STATUTE IN SUCH CASE MADE AND PROVIDED
4. It will be noted that the information lacks the averment of an essential element of the offence, namely that Moore knew that the property had been obtained from the commission in Canada of an indictable offence. Moore entered a plea of not guilty to the charges against him and elected to be tried by a magistrate without a jury.
5. When the matter came on for trial, the trial judge, Smith Prov. Ct. J., asked defence counsel if he had any submission to make. The judge also asked Crown counsel if he had any comments on the information. Counsel made no comment. The judge then pointed out the defect and asked defence counsel if he had a motion to quash under s. 529 of the Criminal Code. Defence counsel promptly argued that the counts disclosed no offence known to law. The trial judge and Crown counsel agreed with that submission. Defence counsel moved that the defective counts be quashed. Crown counsel moved that the pleas be struck to permit the Crown to amend the information pursuant to s. 529. The trial judge asked if it was possible to strike the pleas, and Crown counsel agreed that the court could not. Defence counsel then argued that since the counts simply failed to allege an offence, rather than alleging one improperly, it was not possible to amend them at all. Again the judge and Crown counsel agreed with this statement and the judge quashed the defective counts.
6. A new information containing the necessary words omitted from the earlier information was subsequently sworn. When trial on that information began, Moore entered pleas of autrefois acquit on the possession counts. The second trial judge, Barnett Prov. Ct. J., refused the special pleas because he accepted the Crown's submission that the counts in the first information had been "hopelessly bad". He ruled that since there had never been any allegation of criminal misconduct, the appellant had never been in peril of conviction. The first essential for a special plea of autrefois acquit was not present and the plea was not available. Moore then entered pleas of not guilty to the two charges. He was convicted on count 6. An appeal was taken to the British Columbia Court of Appeal.
II
The British Columbia Court of Appeal
7. Anderson J.A. held that the trial judge erred in law in quashing the defective counts, since he could have amended them. The unamended counts were not nullities. He held that the accused had been in jeopardy and the major question on the appeal was whether there was a final disposition of the charges. Anderson J.A. was of the view that the quashing of the charges was a dismissal of the charges from which the Crown had a right of appeal. Even if that decision was erroneous, it disposed of the charges before the court unless corrected on appeal. Anderson J.A. held that the case could not be distinguished from R. v. Riddle, [1980] 1 S.C.R. 380, and Petersen v. The Queen, [1982] 2 S.C.R. 493, and that it would not be proper to try to draw any distinction based on technical or procedural classifications. Anderson J.A. therefore allowed the appeal, Lambert J.A. concurring.
8. Craig J.A. in dissent agreed with Anderson J.A. that the trial judge erred by not amending the information, since there was no prejudice to the accused. He also agreed that the accused was in jeopardy and that the plea of autrefois acquit would be available if there had been a final disposition of the charges. He held that s. 537(1)(b) has not altered the requirement of a final disposition in cases where an amendment was available. Craig J.A. disagreed with Anderson J.A. on the effects of quashing the information. Relying on R. v. Sheets, [1971] S.C.R. 614, and R. v. Beason (1983), 36 C.R. (3d) 73 (Ont. C.A.), he held that quashing an information for procedural or technical defects did not amount to a disposition equivalent to an acquittal. Since the sole reason for quashing in this case was the technical failure to allege an essential element of the offence, Craig J.A. would have held that autrefois acquit was not available and would have dismissed the appeal.
III
Legislation
9. For a greater understanding of the issue in this appeal, it may be helpful to set out the relevant provisions of the Criminal Code:
535. (1) An accused may plead the special pleas of
(a) autrefois acquit,
(b) autrefois convict, and
(c) pardon.
...
(3) The pleas of autrefois acquit, autrefois convict and pardon shall be disposed of by the judge without a jury before the accused is called upon to plead further.
(4) When the pleas referred to in subsection (3) are disposed of against the accused, he may plead guilty or not guilty.
(5) Where an accused pleads autrefois acquit or autrefois convict it is sufficient if he
(a) states that he has been lawfully acquitted or convicted, as the case may be, of the offence charged in the count to which the plea relates, and
(b) indicates the time and place of the acquittal or conviction.
537. (1) Where an issue on a plea of autrefois acquit or autrefois convict to a count is tried and it appears
(a) that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and
(b) that on the former trial, if all proper amendments had been made that might then have been made, he might have been convicted of all the offences of which he may be convicted on the count to which the plea of autrefois acquit or autrefois convict is pleaded,
the judge shall give judgment discharging the accused in respect of that count.
529. (1) An objection to an indictment or to a count in an indictment for a defect apparent on the face thereof shall be taken by motion to quash the indictment or count before the accused has pleaded, and thereafter only by leave of the court or judge before whom the trial takes place, and a court or judge before whom an objection is taken under this section may, if it is considered necessary, order the indictment or count to be amended to cure the defect.
...
(3) A court shall, upon the arraignment of an accused, or at any stage of the trial, amend the indictment or a count thereof as may be necessary where it appears
(a) that the indictment has been preferred
(i) under another Act of the Parliament of Canada instead of this Act, or
(ii) under this Act instead of another Act of the Parliament of Canada;
(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, 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 a 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.
IV
Jeopardy
10. The first question in this appeal is whether Moore was in jeopardy at the first hearing. If not, autrefois acquit was not available at the second hearing and he would have been properly convicted. This was the position of the second trial judge. The judge stated that the first information was a nullity disclosing no charge known to law; since Moore could not have been convicted on that information, he was never in jeopardy and could not plead autrefois acquit. This decision is consistent with the traditional common law approach to defective indictments. At common law, a trial judge had no power to amend even a trifling error in the indictment without the agreement of the grand jury that presented it. This inability coupled with extremely technical pleadings meant that a defective indictment was a nullity that did not bar subsequent proceedings; otherwise, criminal charges would sometimes be determined solely by procedural questions. (Friedland, Double Jeopardy, at p. 65.)
11. There is a great deal to be said for the common law rule that a disposition on a technical defect in the charge will not bar subsequent proceedings. However, that result can no longer be justified on the basis that the accused was never in jeopardy. Two relatively recent judgments of this Court, R. v. Major, [1977] 1 S.C.R. 826, and R. v. Côté, [1978] 1 S.C.R. 8, demonstrate that the modern approach to technical defects is more flexible. At issue in both cases was the validity of a conviction based on a defective information. The Court upheld both convictions.
12. In R. v. Major, the accused was involved in a traffic accident and was charged with failure to report his licence number and vehicle registration to someone at the scene, as required by the Nova Scotia Motor Vehicle Act. The charge stated only that the accused had not informed the other driver. The Nova Scotia Supreme Court, Appeal Division, held that a proper statement of the offence required an allegation of a failure to report to the other driver, to a passenger in the other car, or to a witness (R. v. Major (1975), 10 N.S.R. (2d) 348). Since the information failed to mention the last two elements, it was seriously defective and did not disclose an offence known to law. The Appeal Division then went on to consider whether a conviction on a defective information could be upheld and concluded that it could, based on s. 510 of the Criminal Code. That provision provides that so long as a charge contains in substance an allegation that an offence has been committed, it is not a nullity. Provided that the accused has not been misled by the error, even the omission of an essential averment can be cured. The defective charge is voidable but amendable under ss. 529 or 732. There is one other factor: the omission of an essential averment does not free the Crown of its obligation to prove all the elements of an offence. For an appeal court to uphold a conviction, the Crown must have led some evidence at trial to prove all the elements of the offence. In other words, if the Crown proves the substance of the offence it does not matter that the process was defective, provided the accused was not misled or prejudiced by the defect.
13. On the facts in Major, however, the majority of the Appeal Division held that the Crown had not led evidence to prove all the elements of the offence. Cooper J.A. dissented on that point and would have held that there was evidence to show the accused had not reported the accident to anyone. On appeal, this Court, in a short oral judgment, adopted the reasons of Cooper J.A. and affirmed the conviction.
14. This Court examined the same issue in greater depth in Côté. In that case, the accused was charged with refusal to give a breath sample, but the information did not allege "without reasonable excuse". Nevertheless, the accused advanced a defence of reasonable excuse at trial, at trial de novo, and on appeal, without any challenge to the information. The Saskatchewan Court of Appeal raised the issue of the defective information ex proprio motu and quashed the information. This Court allowed the appeal and restored the conviction.
15. Justice de Grandpré for the majority held there was no defect, since the information referred to the correct section number. That, together with the facts set out in the information, gave the accused full notice of the offence charged. de Grandpré J. went on to consider Major and decided that it applied. He interpreted Major to say that if the defect caused no substantial wrong or miscarriage of justice, and if the Crown had actually proved all the elements of the offence, then the conviction should be affirmed. Although s. 732 could have been used to amend the information, the conviction could be upheld on appeal without an amendment. Justice Spence for the minority, concurring in the result, held that the information was not defective because it referred to the Code section.
16. The result of these two cases is that it is no longer possible to say that a defective information is automatically a nullity disclosing no offence known to law. If the document gives fair notice of the offence to the accused, it is not a nullity and can be amended under the broad powers of amendment s. 529 gives to the courts. Only if a charge is so badly drawn up as to fail even to give the accused notice of the charge will it fail the minimum test required by s. 510(2)(c). A charge that is this defective would have to be quashed. R. v. Hunt, Nadeau, and Paquette (1974), 16 C.C.C. (2d) 382 (B.C.C.A.) provides an example of a defective charge of this sort. The accused was apparently charged with intimidation by blocking a highway, but it was not clear from the information who was alleged to have blocked the highway nor did the charge refer to a Code section. The Court of Appeal held that the charge was so defective it could not be amended.
17. Major and Côté also establish that a conviction is possible on a defective information and that the conviction will be upheld on appeal. Both sides can point out defects in process to the trial judge. If there is no motion to quash or to amend and a defence is tendered, there is no need to amend the information (Côté, at p. 15). So long as the defect does not prejudice the accused and the Crown actually proves all the elements of the offence, a conviction will be valid. Defects in form do not defeat what is valid in substance.
18. The Court took a similar approach to amendments for variance under s. 529(2) in Morozuk v. The Queen, [1986] 1 S.C.R. 31. The accused was charged with unlawful possession of a narcotic for the purpose of trafficking, particularized as cannabis marihuana. The evidence showed that the accused possessed cannabis resin. Justice Lamer for the Court held that the Crown had proved the possession of a narcotic and that the accused was properly convicted. The Court amended the indictment under s. 613(1)(b)(i) and (3) to read cannabis resin and dismissed the appeal.
19. The British Columbia Court of Appeal applied Major and Côté in two cases, R. v. Stewart (1979), 7 C.R. (3d) 165 and Re Regina and Henyu (1979), 48 C.C.C. (2d) 471. Henyu held that defective informations are not nullities and can be amended at trial (at pp. 474‑75). Stewart held that if the defect is not noticed at trial, the conviction will be upheld if there is no prejudice, injustice, or substantial wrong to the accused (at p. 174).
20. In the case at bar, the first information was clearly not a nullity. The accused knew that he faced a charge of possession of stolen goods. Neither Crown nor defence counsel even noticed the missing averment until the judge pointed it out. It is difficult to argue the accused was prejudiced by the missing averment. It is also fairly clear that the Crown would have led evidence to show that the accused had stolen the property in question, as the accused was also charged with theft. This evidence, if believed, would have supported the conclusion that the accused knew the property was obtained from the commission of an indictable offence in Canada, the missing averment from the possession charge. The Crown would therefore have led evidence to prove all the elements of the offence.
21. In these circumstances, it is very difficult as a practical matter to argue that the appellant was not in peril of conviction. Defence counsel, Crown counsel, and the judge all knew that Moore was charged with possession of stolen property, whatever the precise defect in the information. If the first trial judge had not noticed the defect and the accused had been convicted, the conviction would have been upheld on appeal under the principles set out in Major and Côté. From this it follows that the accused was truly in jeopardy at the first hearing, and the first requirement for a successful plea of autrefois acquit has been met.
V
Section 537
22. One of the points raised by the appeal is the relationship between s. 537 and s. 535. In cases where an amendment was possible, does s. 537 allow an accused to plead autrefois acquit simply from the fact that he was earlier in jeopardy on the same charge, even if there was no final determination? If so, the exact classification of quashing the information would not be important; the fact of jeopardy would be decisive.
23. There are two possible interpretations to s. 537. The first, based on the word "might" in para. (b), suggests that if the accused could have been convicted on the previous count, if it had been properly amended, then that is sufficient to allow a plea of autrefois acquit or autrefois convict. Peril of conviction would determine if the special pleas were available. The final disposition at the former trial would be of less importance. The second interpretation suggests that s. 537 is limited to defining identity of charges for the purposes of the special pleas made available by s. 535. By this view, s. 535 is the primary section and s. 537 plays an ancillary role, defining one of the elements of the special pleas. Peril of conviction would be necessary but not determinative.
24. How is the choice to be made between these interpretations? One consequence of the first interpretation is that it involves a major change in the analysis of the special pleas. The literal meanings of the names of the pleas identifies their nature: they are concerned with previous convictions and acquittals. Anglo‑Canadian common law has always required a disposition of the charges to allow an accused to use the special pleas (Friedland, Double Jeopardy, at pp. 21‑26; R. v. Charlesworth (1861), 1 B. & S. 460, 121 E.R. 786). To accept that s. 537 focusses the inquiry almost entirely on the danger of conviction is to accept a major change in the concept of the special pleas.
25. The second interpretation, that s. 537 is ancillary to s. 535, suggests that s. 535 has continued the special pleas from the common law and made them available under the Code without making a fundamental alteration in their common law content. This interpretation is supported by the complete absence of definition of the special pleas in s. 535, which suggests that that section simply incorporates the common law. The reason for s. 537 is that the common law did not allow amendments to the indictment. That absence of an amending power was reflected in the rule that autrefois acquit was not available when an information was quashed for technical defects (Friedland, p. 65). Section 537 changes a part of the common law principles of autrefois acquit to take account of the new amending powers. It does not make a major change in other parts of the requirements for autrefois acquit, which follow the common law. In particular, s. 537 does not eliminate the need for a final disposition of the charge, which has always been a requirement for autrefois acquit or convict at common law. The marginal notes for s. 537, "What determines identity" and "Allowance of special plea in part" are consistent with this interpretation of s. 537 and are another small indication that s. 537 defines "identity" for the purposes of the special pleas without defining the special pleas in their entirety.
26. This interpretation of the role of s. 537 is also consistent with this Court's recent cases on autrefois acquit. In both Riddle and Petersen, supra, the Court indicated that a disposition in the nature of a final determination is an essential element of a plea of autrefois acquit. Since a final disposition is required generally for autrefois acquit, s. 537 should not be read as an exception to that requirement when the possibility of an amendment is raised. The section should be read as a guide to the relationship between the amending powers and the requirement of identity.
27. I have not been able to find any case that gives a detailed examination of s. 537 and the role that it plays in relation to s. 535, but there are several cases that make some mention of the section. The lower courts have used the section to guide their decision whether or not charges at one trial are identical to those at an earlier trial. For example, in R. v. Rinnie, [1970] 3 C.C.C. 218 (Alta. C.A.), the accused was acquitted of a charge of attempted murder. The Crown then charged him with causing bodily harm with intent to wound and he was convicted, notwithstanding a plea of autrefois acquit. The Appeal Division upheld the conviction. The second charge was not an included offence of the first, nor was the first charge defective. No amendment could have been made to the first charge under s. 510 (the predecessor to s. 529) so the charges were not identical under s. 518 (the predecessor to s. 537). The section's role was limited to determining identity in the case of amendments but had no application to the question of included offences. While the result in this case may not now be consistent with the principle of Kienapple v. The Queen, [1975] 1 S.C.R. 729, and s. 11(h) of the Canadian Charter of Rights and Freedoms, its interpretation of s. 537 is consistent with the idea that the section relates only to questions of identity when there was a possibility of an amendment to the first information.
28. R. v. Ko and Yip, [1977] 3 W.W.R. 447 (B.C.C.A.) involved two trials for trafficking in heroin, both arising out of the same transaction. The accused were charged and convicted at a first trial for delivering a small sample from a pound of heroin, and then charged and convicted at a second trial for delivery of the rest of the pound. McIntyre J.A., as he then was, analyzed the two charges in terms of s. 537. Although there were two separate deliveries, both counts were very generally worded and the evidence at the first trial included some mention of the delivery of the pound. McIntyre J.A. held that without any amendments at all the accused could have been convicted at the first trial for delivery of the pound. The charges were therefore identical and autrefois acquit was available at the second trial. Section 537 was used as a guide to questions of identity when the issue was not clear‑cut.
29. R. v. Tateham (1981), 63 C.C.C. (2d) 25 (B.C. Co. Ct.), involved the interpretation to be given to a stay of proceedings. The Crown wished to introduce transcript evidence at trial but the trial judge refused to admit it. The Crown then entered a stay and re‑laid the charges. The matter came on before a second judge who refused a plea of autrefois acquit, admitted the transcript evidence and convicted the accused. He held that s. 535 requires that an acquittal be entered before autrefois acquit is available. Section 537 does not mean that autrefois acquit is available whenever an accused has pleaded to a charge and the trial has begun. The conviction was upheld by the Court of Appeal ((1982), 70 C.C.C. (2d) 565), which emphasized this Court's position in Riddle that a final judgment on the charge is essential for a successful plea of autrefois acquit.
30. Finally, the Ontario Court of Appeal held in R. v. Plank (1986), 28 C.C.C. (3d) 386, that when a person is acquitted on an information that could have been amended to provide for an included offence, acquittal is a bar to a trial on the included offence. The accused was charged with impaired driving, but the evidence showed only care and control of a motor vehicle while impaired. The Crown moved to amend but the court refused the amendment and acquitted. The Crown then laid an information charging care and control and the accused pleaded autrefois acquit. This plea was upheld by Brooke J.A. for the Court of Appeal, even though he thought the trial judge should have considered whether care and control was an included offence. Section 537 was interpreted only to relate to specific issues of identity of charges, not to the requirement of a final disposition.
31. This review of the use made of s. 537 by the lower courts suggests that it has not changed the requirements for a final conviction or acquittal, recognised by the common law and repeated in Riddle and Petersen. The section is to be used to decide whether or not charges are identical, but identity of charges alone does not make the special pleas available. A final determination equivalent to an acquittal is still necessary.
VI
Final Disposition
32. The next question is thus to ask whether the action of the first trial judge in this case was a final disposition equivalent to an acquittal, such that the plea of autrefois acquit is available.
33. In Riddle, the Crown asked for an adjournment on the day of trial because the complainant was not present. The court refused the adjournment and called on the Crown to present its case. When the Crown led no evidence, the trial judge dismissed the charges against the accused. A week later, the information was re‑sworn and a second trial held, at which the accused pleaded autrefois acquit.
34. This Court held that the plea was good. The Crown should not be able to decline to lead evidence to support its case and then assert that the decision of the trial court is irrelevant to a later information. Nor should it be able to avoid the effects of a refusal to adjourn by simply laying a new information. The Court in Riddle rejected the argument that a trial "on the merits" was necessary for a successful plea of autrefois acquit, partly because that phrase has no statutory basis and partly because it was used in an inaccurate way, not truly capturing the principle underlying the plea of autrefois acquit. A case can be finally adjudicated in law without ever reaching the factual allegations which form the basis for the charge. Whenever there is a final adjudication, the matter is res judicata and the accused can use the special pleas if charged again.
35. Many cases raise more than one legal issue, any one of which can be determinative if decided in favour of the accused. The trial court is required to dispose of each question raised at various stages in the proceedings. It is only where no issue is decided against the Crown along the way that the court reaches the central issue of whether the conduct of the accused amounted to a criminal offence. A decision at an earlier stage on a decisive point of law can be a determination equivalent to an acquittal or dismissal, sufficient for autrefois acquit. On the other hand, there are legal issues, as this case exemplifies, that are not directly connected to the substantive issues raised by a case, but which must be considered and decided by the court. Some errors by the Crown in the process of bringing an accused to trial, at least in the early stages of criminal proceedings, will not automatically give an accused immunity from any further proceedings.
36. Whether or not a judicial determination that ends proceedings will support a plea of autrefois acquit will depend on the nature of the legal basis for the decision. Decisions based on substantive legal principles will generally support a plea of autrefois acquit. Riddle is an example of this sort of decision. The Crown was called upon to prove its case against the accused and could not do so. The courts should not try to distinguish cases where the Crown fails to lead evidence or leads insufficient evidence. Either way, the Crown has failed to prove its case and the accused is entitled not to be subjected to another trial. Decisions based on procedure are more complex. Some decisions may end defective proceedings without barring the Crown from starting anew; other decisions may amount to a final determination that can be appealed but cannot be replaced by new proceedings. It would be difficult, if not impossible, to devise a formula which would precisely cover all possible situations. Without attempting to identify all the factors involved, three that are important to the decision are the nature of the defect involved, the stage in the proceedings at which it is raised, and the degree of prejudice to the accused.
37. A review of the cases decided under the old Crown appeal provisions helps to demonstrate this principle. In one line of cases, decisions that ended the proceedings were held to be equivalent to acquittals; in the other, the decisions were not final for appeal purposes. In the first group of cases, there was an adjudication of legal issues raised by the case, even though the court never reached the particular factual allegations that were at the heart of the offence. The decisions were considered final because those legal issues were determinative in those cases. See Lattoni and Corbo v. The Queen, [1958] S.C.R. 603; R. v. Sheets, supra; Cheyenne Realty Ltd. v. Thompson, [1975] 1 S.C.R. 87, and R. v. Jewitt, [1985] 2 S.C.R. 128.
38. The common thread to all these cases is that a question of law was raised which, if decided in favour of the accused, meant that no prosecution of the charge could ever continue to a formal acquittal or conviction. In Lattoni and Corbo, the accused argued that the charge was prescribed. In Sheets, it was held that the accused did not come within the definition of "official", a necessary first step for a conviction under the offence charged. In Cheyenne Realty Ltd., the accused challenged the validity of the by‑law under which it was charged. The Crown led no evidence in Riddle. In Jewitt, a judicial stay of proceedings was entered because of police entrapment. In each of these cases, a judicial determination had been made which, if correct, was sufficient to dispose of the charges permanently in the accused's favour. The trial judge had considered the charges and made a final decision. If the Crown disagreed with the decision, its remedy was to appeal.
39. By way of contrast, there is another series of cases where a disposition was held not to be equivalent to an acquittal or dismissal: Kipp v. Attorney‑General for Ontario, [1965] S.C.R. 57; R. v. Tonner (1971), 3 C.C.C. (2d) 132 (Ont. C.A.), and R. v. G. & P. International News Ltd. and Judd (1973), 12 C.C.C. (2d) 169 (B.C.C.A.) In Kipp, erroneously quashing an indictment for duplicity was held not to be tantamount to a dismissal. The indictment was there quashed on a pre‑trial motion, before plea. This Court upheld an order for mandamus, saying that the issue had to be tried and was not affected by an erroneous preliminary decision on the form of the indictment. Kipp was applied in Tonner, where the Ontario Court of Appeal held that there was no Crown appeal from the quashing of an indictment for duplicity, since the disposition in that case did not amount to an acquittal on the charges. In G. & P. International News Ltd., the British Columbia Court of Appeal held that an erroneous quashing of an indictment for formal defects did not amount to a verdict of acquittal, since the decision was merely procedural or technical in nature.
40. The guiding principle in these cases is just the opposite of the other line of cases. Here, the basis of the judgment under consideration, whether or not correctly decided, was of a formal, technical nature. The decisions turned on points of law, but were not directly connected to the substantive issues raised by the offence charged. The questions raised in these cases all related to the process by which the case was brought before the courts, rather than to the adjudication of the legal and factual issues of the offence charged.
41. In R. v. Jewitt this Court stated, at p. 147‑48:
On a true reading of s. 605(1)(a) of the Code, to determine whether a stay of proceedings is a judgment or verdict of acquittal, we must look to the substance of the action of the trial judge and not the label he used in disposing of the case. Substance and not form should govern. Whatever the words used, the judge intended to make a final order disposing of the charge against the respondent. If the order of the Court effectively brings the proceedings to a final conclusion in favour of an accused then I am of opinion that, irrespective of the terminology used, it is tantamount to a judgment or verdict of acquittal and therefore appealable by the Crown.
The exact form of a decision does not decide the availability of autrefois acquit: it is the reason for the decision and its substantive effect that govern. Whether or not a particular decision supports a plea of autrefois acquit will depend in part on the facts of each case. In Jewitt, the stay for abuse of process was held to be a final determination that could be appealed under the then s. 605. The stay in that case would also have supported a plea of autrefois acquit.
42. The Court in Jewitt also addressed the question of a quashing of an indictment, at p. 141:
From this review, it can be concluded that quashing an indictment is tantamount to an acquittal where (a) the decision to quash is not based on defects in the indictment or technical procedural irregularities, and (b) the decision is a final decision resting on a question of law alone, such that if the accused were charged subsequently with the same offence he or she could plead autrefois acquit.
43. I have left to the last a discussion of Petersen v. The Queen, supra. In that case, the trial judge, after a series of adjournments, held that there was nothing in the record to show that the accused had consented to adjournments of greater than eight days, as required by s. 738. He held that he had lost jurisdiction and dismissed the charges. A new information was sworn and the Crown began a new trial by indictment. This Court applied Riddle and upheld a plea of autrefois acquit, saying that the Crown had no right to lay new charges and could only appeal the decision of the trial judge concerning jurisdiction.
44. The Court in that case does not appear to have considered an earlier decision of this Court, the case of Doyle v. The Queen, [1977] 1 S.C.R. 597, which examined the effects of an adjournment of more than eight days without the accused's consent, under s. 465(1)(b) of the Code. Justice Ritchie for the Court held that a breach of that section meant a loss of jurisdiction over both the accused and the "offence", but he also held that "offence" in this context referred to the information and that further proceedings based upon a new information would be possible (at p. 610):
Much of the difficulty in this area has, I think, been occasioned by the use of the phrase "jurisdiction over the offence". In my opinion the word "offence" as used in this phrase must be construed as meaning the "information" charging the accused with the offence and the result of an error such as occurred in the present case is, in my view, that that information is to be treated as if it had never been laid. This in no way affects the jurisdiction of the court in relation to the "offence" itself so as to preclude the laying of another information in the same jurisdiction charging the same offence. This result, I think, follows from the case of Trenholm v. Attorney General of Ontario, [[1940] S.C.R. 303]. [Emphasis added.]
45. The closing passage in Petersen is as follows (at pp. 502‑3):
In the facts of this case I am of the view that the appellant was put in jeopardy, and the summary conviction court dismissed the informations thus giving the appellant such a determination of the issue that it could be raised in bar of any later proceedings on the same charge. The fact that the provincial court judge may have made an error in law in dismissing the informations does not alter the situation. He made an order. Assuming, as I do, that his order was wrong, it nonetheless disposed of the informations. Such an order, though voidable, must stand, however, until it is rescinded, quashed, or reversed on appeal. It was therefore in force and effect when the plea of autrefois acquit was raised and it should have received effect. This is not to say the Crown was left without remedy in the face of judicial error. The Crown could have appealed; it might have had the right to relief by prerogative proceedings, but it could not simply conclude that the summary conviction court's order was ex facie a nullity and ignore it by commencing new proceedings. By this approach, the Crown has foregone its remedy and a plea of autrefois acquit should have succeeded. I would allow the appeal. [Emphasis added.]
It is very difficult to reconcile the holdings in Doyle and Petersen on this point.
46. Whether or not autrefois acquit is available will depend on the nature of the legal decision made at the earlier trial. Doyle established that the failure to respect the adjournment provisions is a serious procedural error, one that ends the proceedings before the court, but it does not preclude subsequent proceedings on a new information, subject of course to any applicable limitation period or possible abuse of process. This approach to the problem of loss of jurisdiction caused by procedural defects is consistent with the principles of autrefois acquit outlined earlier. It follows that the holding in Petersen, which did not consider Doyle, went too far in its application of autrefois acquit. In any event, Petersen certainly should not be extended and applied here. We must not lose sight of the fact that the common law rule has always been that subsequent proceedings are not precluded by the quashing of a defective charge. While the analysis leading to that same result must now take into account the more flexible modern policy regarding technical defects, amendments, and appeals, the justice of the result reached has not changed.
47. Much of the debate in the cases on the Crown's right of appeal, cited earlier, and in older decisions under the common law, centred on the absence of any remedy for technical defects in an information, other than to quash the defective information and begin again with a new information. In these circumstances, the Crown's power to re‑lay charges was necessary to ensure that a well‑founded charge could be heard and adjudicated. The law in this area has now been altered, with extensive powers to amend and to appeal. The most recent change was in 1985, when the Attorney General was given the power to appeal stays, quashes, and refusals to exercise jurisdiction, in addition to the previous right to appeal "a judgment or verdict of acquittal." (See the Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, s. 137, which added new paras. (b) and (c) to s. 605(1).) Do these changes mean that the rationale for the common law rule no longer exists and that an appeal is the only available recourse?
48. I have had the benefit of reading the reasons of my colleague, Lamer J. With the greatest respect, I cannot agree that because the Crown has a right of appeal, an appeal is its only recourse. The argument based on the availability of an appeal overlooks the long‑term effects. If every decision of a trial judge to quash must be appealed by the Crown, the costs and delays of criminal proceedings, already high and long, will increase further. Such appeals would focus solely on the procedural points raised by the applications to quash or amend, rather than on the substantive issues raised by the charges. If the Crown is successful on appeal, the trial would continue with the possibility of a second appeal, this time on the issues raised by the charges themselves. It has always been a principle of criminal procedure that multiple appeals should be avoided and a case should move as a whole up the court system (Mills v. The Queen, [1986] 1 S.C.R. 863, per McIntyre J.; Criminal Code, s. 602). When a count is quashed for technical defects entirely unrelated to the substantive legal and factual issues raised by the charge and when the accused is not prejudiced or caught by surprise, it is difficult to see why a lengthy appeal process is more favourable to the accused than a simple re‑laying of the charges. The accused can always challenge the validity of the new charge at the trial before the second judge, by pleading autrefois acquit as in this case, or perhaps by a motion for a stay for abuse of process. If the accused is unsuccessful at the second trial, the judge's decision can be appealed along with any other grounds of appeal. The case would then move up the court system as a whole. Overall, single appeals rather than multiple appeals work to everyone's advantage, including that of the accused.
49. There are many possible reasons for allowing or refusing an amendment. Section 529(4) sets out five factors the court shall consider. Only two of these factors concern prejudice and injustice (s. 529(4)(d) and (e)). A judge may well decide to refuse an amendment and quash an information based on the other three factors, namely, matters disclosed at the preliminary inquiry, evidence taken at trial, and the circumstances of the case. Where the motivating factor for refusing an amendment is that to allow it would be prejudicial to the accused, very often such a disposition will be tantamount to an acquittal, and as a subsequent charge will be precluded by autrefois acquit, the Crown's only recourse would be to appeal. But in my view that does not mean that all refusals of amendments should be accorded this treatment. Where a judge quashes an information for technical defects at an early stage of the proceedings, with no prejudice to the accused, I do not think that the Crown is thereby barred from correcting its error by laying a new information.
50. I also do not think that the fact that a second trial judge will be required to review the first trial judge's decision suggests that an appeal is the only recourse. Any time an accused pleads autrefois acquit, the trial judge will have to review the decision of another trial judge to determine if the charges are identical, if the first court had jurisdiction, and if there was a disposition tantamount to an acquittal. Any of these inquiries could involve a review of a legal decision made by the first judge. For example, if the second judge decides that the first court erroneously assumed jurisdiction, the second court would be required to reject the special plea in spite of the first court's decision. While it is unusual for one trial judge to review the decision made by another trial judge, the nature of the special pleas requires that review.
51. In summary, not every judicial decision that stems the trial process will support a plea of autrefois acquit. A court has broad powers to remedy defective process, but when it decides that the errors cannot be remedied the decision on that procedural point does not necessarily block a further prosecution, subject to concerns about abuse of process and prejudice to the accused.
52. The defect in the information in this case was of a technical nature. Although it related to the elements of the offence charged, the reason for the quashing in no way was an adjudication on the legal or factual issues raised by the information. The first trial judge made no comment on the accused's legal liability, or even addressed his mind to the issue. Without making any adjudication on the accused's guilt, the trial judge simply held that the Crown had not correctly started the trial and the allegations could not be properly heard at that stage. Nor can it be said that the accused was prejudiced by the defect. He was not caught by surprise nor had he built his defence around it. The technical error was caught at a very early stage in the trial, before the Crown had even led evidence. While it may be the case that technical errors in an information can sometimes prejudice the accused so that a quashing amounts to an acquittal, it is not the case here.
53. Overall, the quashing in this case does not meet the test established in Jewitt. There was no adjudication on the legal or factual issues raised. While a decision on a point of law, it is not a final decision. As a result, autrefois acquit is not available to the accused in this case.
VII
Conclusion
54. In this case, and in summary, the information was quashed for technical reasons, at an early stage of the proceedings. That disposition did not relate to the substantive legal and factual issues raised by the charge. There was no prejudice to the accused. The Crown had the power to re‑lay the charges and the plea of autrefois acquit should be rejected. The appeal should be allowed, the judgment of the Court of Appeal set aside, and the conviction restored.
The judgment of McIntyre, Lamer, Le Dain and La Forest JJ. was delivered by
55. Lamer J.‑‑The Chief Justice has set out the facts, analyzed the judgments below, and identified the issue to be decided in this case, namely, ``...whether quashing an information, after plea, for failure to allege a material averment constitutes a verdict of acquittal for the purpose of pleading autrefois acquit to a new information."
56. There appears to be no disagreement, either between ourselves or with the judges below, as regards the fact that, acting under s. 529 of the Code, the judge erred in quashing the information. Indeed, the information was not a nullity but only voidable and the accused was clearly in jeopardy of being convicted when the judge quashed the information. On this it is without any reservation that I agree with the reasons of the Chief Justice. I also agree with his analysis of s. 537 and that, added to the requirement that the accused must have been put in jeopardy, there must also have been a final determination equivalent to an acquittal.
57. My respectful disagreement with the Chief Justice is in the qualification to be given to a quashing by a judge when he does so acting, at trial, under the authority of s. 529. I find it necessary to reproduce s. 529 in its entirety.
529. (1) An objection to an indictment or to a count in an indictment for a defect apparent on the face thereof shall be taken by motion to quash the indictment or count before the accused has pleaded, and thereafter only by leave of the court or judge before whom the trial takes place, and a court or judge before whom an objection is taken under this section may, if it is considered necessary, order the indictment or count to be amended to cure the defect.
(2) A court may, on the trial of an indictment, amend the indictment or a count thereof or a particular that is furnished under section 516, to make the indictment, count or particular conform to the evidence, where there appears to be a variance between the evidence and
(a) the charge in a count in the indictment as found; or
(b) the charge in 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 516.
(3) A court shall, upon the arraignment of an accused, or at any stage of the trial, amend the indictment or a count thereof as may be necessary where it appears
(a) that the indictment has been preferred
(i) under another Act of the Parliament of Canada instead of this Act, or
(ii) under this Act instead of another Act of the Parliament of Canada;
(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, 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 a 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.
(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 thereof, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the trial to a subsequent day in the same sittings or the next 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 thereof shall be endorsed on the indictment as part of the record and the trial shall proceed as if the indictment or count had been originally found 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 high treason or treason or for an offence against any provision in sections 49, 50, 51 and 53.
58. Since the enactment of our Code in 1892 there has been, through case law and punctual amendments to s. 529 and its predecessor sections, a gradual shift from requiring judges to quash to requiring them to amend in the stead; in fact, there remains little discretion to quash. Of course, if the charge is an absolute nullity, an occurrence the conditions of which the Chief Justice has set out clearly in his reasons, no cure is available as the matter goes to the very jurisdiction of the judge. In such a case, the doctrine of autrefois acquit is never a bar to the relaying of the charge because the accused was never in jeopardy and the disposition of the charge through quashing was for lack of jurisdiction. Also, if and when a charge is laid before that or another judge, it will be the first time the accused is in jeopardy before a judge having jurisdiction on the accused and the subject matter. There was nothing to be acquitted of, and for this reason, there is no "autrefois", as there was no offence, and no "acquit" as there was no jurisdiction to acquit or convict. But, if the charge is only voidable, the judge has jurisdiction to amend. Even failure to state something that is an essential ingredient of the offence (and I am referring to s. 529(3)(b)(i)) is not fatal; in fact, it is far from being fatal, as the section commands that the judge "shall" amend.
59. My understanding of s. 529, when read in its entirety, is that it commands the following to the trial judge: absent absolute nullity and subject to certain limits set out in subs. (9), the judge has very wide powers to cure any defect in a charge by amending it; if the mischief to be cured by amendment has misled or prejudiced the accused in his defence, the judge must then determine whether the misleading or prejudice may be removed by an adjournment. If so, he must amend, adjourn and thereafter proceed. But, if the required amendment cannot be made without injustice being done, then and only then the judge is to quash. Therefore, a judge must not quash a charge, and it is reversible error of law if he does, unless he has come to that conclusion, namely that "the proposed amendment" cannot "be made without injustice being done". However if having determined, as a matter of law (see subs. (6)), that an amendment cannot be made without causing irreparable prejudice, his quashing of the charge at the trial is then, in my view, tantamount to an acquittal. This is equally true whether, to terminate the proceedings under s. 529, the judge uses the word "quash", "dismiss", "discharge" or "acquit". With respect, this to me is obvious, because relaying before another judge an amended charge would be no less prejudicial to the accused than the amendment of the first one by the previous judge. Sections 529(4) and (5) would then be a useless exercise of judgment.
60. It has been suggested that the factors, other than those related to prejudice, to be considered by the trial judge under s. 529(4) are indicative of the fact that irreparable prejudice is not necessarily the ultimate factor to determine whether to amend or quash. This with respect is to read s. 529 with an "all‑or‑nothing" approach, that is, that the judge must either amend or quash. The factors listed under s. 529(4) are, as the opening words of the subsection indicate, relevant to determine whether there should be an amendment, and not whether the judge should amend or quash. Quashing will occur only if there is irreparable prejudice. A judge may well come to the conclusion that there is no need to quash because there is no prejudice to the accused, without necessarily concluding that there need be an amendment. Such could be the case where the defect is one of pure form as contemplated by s. 529(3)(c). If there is irreparable prejudice, there is no amendment available. A contrario, however, there need not always be an amendment. In other words, the question whether one quashes or not is not on all fours with whether one, absent irreparable prejudice, amends or not.
61. What is misleading here is that it is clear to us, as it was to the Court of Appeal, that the judge quashed when he clearly should not have, as an amendment would not have caused any prejudice to the accused. However, this is no reason to allow the Crown to lay an amended charge once the accused has been acquitted, albeit by error. The trial judge's decision is open to appeal. Assuming error is found, the Court of Appeal will direct him to amend and hear the case, or will amend the charge itself and then return the file to the judge for trial on the amended charge. The fact that this will result in the accused being tried on the amended charge in any event, is no reason for downgrading the "quashing" so as to permit the Crown to relay an amended charge without facing a special plea. When a judge quashes under s. 529, that decision is deemed without error until reversed by a Court of Appeal. Otherwise the second judge, ordinarily of the same jurisdiction, when assessing whether the "quashing" is or is not tantamount to an acquittal for the purpose of determining whether there is autrefois acquit, would have to determine whether his colleague was or was not in error in deciding to quash.
62. Finally, I have not changed my mind as regards the concurrence I gave to my brother McIntyre in Petersen v. The Queen, [1982] 2 S.C.R. 493. I have, with respect, no difficulty whatsoever reconciling our Court's decision in Petersen with our previous decision in Doyle v. The Queen, [1977] 1 S.C.R. 597. Petersen was dealing with the termination of proceedings at a trial, albeit a summary conviction, while in Doyle, the proceedings were terminated at a preliminary inquiry. The latter lacks the required "jeopardy", amongst other differences in nature between the two types of proceedings. Furthermore, in Petersen, supra, as in the case at bar, the Crown simply ignored the disposition of a case in a court of record and commenced new proceedings on the same information, alleging the same cause, while leaving the record in the court below unchallenged. I would therefore dismiss this appeal.
Appeal dismissed, Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. dissenting.
Solicitor for the appellant: The Ministry of the Attorney General of British Columbia, Vancouver.
Solicitors for the respondent: Messner, Foster & Stevens, 100 Mile House.