Elliott v. The Queen

Elliott v. The Queen
Collection
Supreme Court Judgments
Date
1977-12-20
Report
[1978] 2 SCR 393
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
British Columbia
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Elliott v. The Queen, [1978] 2 S.C.R. 393
Date: 1977-12-20
Dale Stuart Elliott Appellant;
and
Her Majesty The Queen Respondent.
1977: May 3; 1977: December 20.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Accused charged with conspiring to traffic in MDA, trafficking in MDA and having MDA in possession for purpose of trafficking—Appeal by Crown against acquittals on first and third counts and appeal by accused against conviction on second count—Conspiracy appeal dismissed—Conviction of accused set aside and acquittal entered because evidence disclosed accused trafficked in salt of MDA but not in MDA itself—Application to amend third count to charge possession of a salt of MDA for purpose of trafficking—Amendment allowed and new trial ordered on third count as amended—Whether Court of Appeal erred in amending third count—Criminal Code, R.S.C. 1970, c. C-34, ss. 529, 610, 613(8).
The appellant and another were tried on an indictment containing three counts, namely, (1) conspiring to traffic in a restricted drug, methylenedioxyamphetamine (MDA); (2) trafficking in MDA, and (3) having MDA in possession for the purpose of trafficking. They were both acquitted of the conspiracy charge, the appellant alone was convicted on the second charge of trafficking but he was subsequently acquitted on the third charge of possession for the purpose of trafficking, the acquittal being based on the application by the trial judge of res judicata and of the principle in Kienapple v. The Queen, [1975] 1 S.C.R. 729. Proceedings against his co-accused on the third count were stayed.
The Crown appealed the acquittals on counts 1 and 3, and the accused appealed his conviction on count 2. The conspiracy appeal was dismissed. On the appellant’s appeal from his conviction of trafficking in MDA, the conviction was set aside and an acquittal entered because the evidence disclosed that the accused trafficked in a salt of MDA but not in MDA itself. The Court concluded that since the Crown had charged the appellant with trafficking in a specific drug, MDA, proof of MDA was an essential element of the offence. The Court rejected the contention that the relevant provisions of the statute, the Food and Drugs Act, R.S.C. 1970, c. F-27, listing among the restricted drugs “MDA or any salt thereof” embraced any salt of MDA in a charge that specified MDA only. McIntyre J.A., speaking for the majority of the Court, considered that an amendment to the indictment, even after the hearing of the appeal, would have been appropriate. However, an amendment was not sought and the Court decided that an acquittal had to be entered.
When the Crown’s appeal from the acquittal of the appellant on the third count of possession for the purpose of trafficking came on for hearing the Court was differently constituted. The Crown, on the appeal, applied to amend the third count to charge possession of a salt of MDA for the purpose of trafficking. The Court allowed the amendment, allowed the Crown’s appeal, set aside the acquittal and directed a new trial on the third count as amended. From that judgment the appellant appealed to this Court.
Held (Laskin C.J. and Spence and Dickson JJ. dissenting): The appeal should be dismissed.
Per Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ.: The only issue before this Court on the present appeal was whether the Court of Appeal exceeded its powers when it amended the third count of the indictment in such fashion as to conform to the evidence by adding a particular which had not been included in that count as originally drawn, upon which the appellant had been acquitted. Having regard to the extensive activities which the appellant was found to have been conducting in the manufacture of MDA hydrochloride, it could not be suggested that the appellant was in any way misled by the fact that that salt was not mentioned in the particulars. He knew in any event that he was being charged with possession of a restricted drug for the purpose of trafficking.
In directing a new trial, MacLean J.A. incorporated the amendment to the information in his order as he felt that the ends of justice required him to do. In granting this order the Court of Appeal was acting pursuant to the provisions of s. 613(4)(b) and (8) of the Criminal Code. The appellant’s contention that the order for a new trial could not have been made unless the amendment had been granted and that the amendment was therefore not an order “in addition” to the exercise of the court’s power under subs. (4)(b)(i), but rather that it was a prerequisite to the granting of a new trial, was not accepted. When Parliament authorized the Court of Appeal, in the exercise of its power, to order a new trial, to “make any order, in addition, which justice requires” it must be taken as having authorized that Court under those circumstances to make any additional order which the ends of justice require whether the order for a new trial is dependent upon the additional order or not.
Since, in view of the evidence, the ends of justice required the amendment which was here granted, it followed that it was unnecessary to express any view as to the submission that the authority of the Court of Appeal to grant an amendment stems from the provisions of s. 610(3) of the Code which authorize the court to exercise powers “that may be exercised by the court on appeals in civil matters…”.
As to s. 529 of the Code, which bears the heading “Amending defective indictment or count”, the only mandatory language in that section is contained in subs. (1) which provides for “an objection to an indictment or to a count in an indictment for a defect apparent on the face thereof” and requires such objection to be taken before plea or thereafter by leave of the court or a judge. In the present case there was no defect apparent on the face of the indictment and this subsection accordingly had no application to the present circumstances. There was no other language in the section which could be read as curtailing the power of the Court of Appeal to make an order under s. 613(8) which has the effect of amending the indictment so as to conform to the evidence where the ends of justice require it.
Per Laskin C.J. and Spence and Dickson JJ., dissenting: Three issues were raised by the order of the Court of Appeal in this case: (i) whether a Court of Appeal has power to amend an indictment; (ii) if so, whether that power can be exercised so as to provide a basis for ordering a new trial; and (iii) whether a Court of Appeal has power to substitute a charge different from the one laid and upon which the appeal has proceeded. There was nothing in the case law, and certainly nothing in the applicable legislation to authorize a court of appeal to do what the British Columbia Court of Appeal did in this case, namely, substitute a charge of a different offence, something which the trial judge himself could not do under the wide amending powers given to him under s. 529 of the Criminal Code.
The view that s. 610(3) of the Code confers power upon a court of appeal to amend an indictment could not be accepted. That section takes its context from the preceding provisions of s. 610 which concern evidentiary questions. The opening words of s. 610(3) show its limited range; they provide that “a court of appeal may exercise… any powers not mentioned in subsection (1) that may be exercised… on appeals in civil matters”. The subsection cannot, therefore, be read as if it was a detached and separate provision. Still less can s. 610(3) be relied upon to authorize a court of appeal to substitute a different charge from the one on which the case came before it.
As to s. 613(8), the provision for “any order, in addition, that justice requires” is sequential to the exercise of the power to order a new trial under s. 613(4). It does not enable a court of appeal to make an order upon which to found a direction for a new trial; and certainly not when that order does not relate to the charge on which the accused has been acquitted and to an error of law in respect of that charge. This is obvious when reference is had, as it must be, to s. 605(1)(a) upon which the Crown must base its right to appeal an acquittal. Assuming, however, that s. 613(8) gives a court of appeal a wider power than that which its terms appear to confer when considered alongside s. 613(4) and s. 605(1)(a), the relevant question here was whether the words “make any order, in addition, that justice requires” empower the Court of Appeal to direct a new trial on a different offence from that on which the appeal was taken.
There was here a usurpation of the function of the Attorney-General and of the Crown. It is for them to decide, the existing charge not being proved, whether to lay the different charge which the Court felt should have been brought against the accused. It is not for a Court to take an ad hominem view in a case like the present one and to do violence to the separate functions of Court and Crown lest a person guilty of an offence, but not the one charged, escape punishment.
APPEAL from a judgment of the Court of Appeal for British Columbia granting leave to amend the indictment and allowing the Crown’s appeal against the appellant’s acquittal, and ordering a new trial on the indictment as amended, on a charge of unlawfully having in his possession a restricted drug for the purpose of trafficking. Appeal dismissed, the Chief Justice, Spence, and Dickson JJ. dissenting.
P.C.P. Thompson and J.A.D. Bohun, for the appellant. S.M. Froomkin, Q.C., and R. Leclaire, for the respondent.
The judgment of Laskin C.J. and Spence J. was delivered by
THE CHIEF JUSTICE (dissenting)—This case raises an important issue in the administration of the criminal law. The issue, briefly stated, is whether a court, in particular an appellate court, has the power to raise a charge against an accused and to direct that he be tried on that charge, not being the one laid or sought to be laid by the Crown and not being an included offence in that respect. I should have thought that the answer must be emphatically “no”, but the British Columbia Court of Appeal resolved the issue in the affirmative under what, in my view, was a misconception of the problem that it faced. A recital of the facts makes this clear.
The appellant and another were tried on an indictment containing three counts, namely, (1) conspiring to traffic in a restricted drug, methylenedioxyamphetamine, more conveniently called MDA; (2) trafficking in MDA, and (3) having MDA in possession for the purpose of trafficking. They were both acquitted of the conspiracy charge, the appellant alone was convicted on the second charge of trafficking but he was subsequently acquitted on the third charge of possession for the purpose of trafficking, the acquittal being based on an application by the trial judge of res judicata and of the principle in Kienapple v. The Queen[1]. Proceedings against his co-accused on the third count were stayed.
The Crown appealed the acquittals on counts 1 and 3, and the accused appealed his conviction on count 2. The conspiracy appeal was dismissed by the British Columbia Court of Appeal on November 26, 1975, and is of no concern here. The appellant’s appeal from his conviction of trafficking in MDA was heard on February 4 to 6, 1976, by a Bench composed of Maclean, Seaton and McIntyre JJ.A. The latter delivered the principal judgment of the Court[2] on March 26, 1976, whereby the conviction was set aside and an acquittal entered because the evidence disclosed that the accused trafficked in a salt of MDA but not in MDA itself. The Court concluded that since the Crown had charged the appellant with trafficking in a specific drug, MDA, proof of MDA was an essential element of the offence. The Court rejected the contention that the relevant provisions of the statute, the Food and Drugs Act, R.S.C. 1970, c. F-27, listing among the restricted drugs “MDA or any salt thereof”, embraced any salt of MDA in a charge that specified MDA only. In its opinion, the trial judge had erred in making interchangeable references to MDA and salt of MDA.
McIntyre J.A. concluded his reasons for judgment as follows:
This is a case where in my view an amendment to the indictment, even after the hearing of the appeal, would have been appropriate. Had the Crown sought an amendment I would have been disposed to allow it. However, no application having been made I feel obliged for the reasons given above to consider that this appeal should be allowed and an acquittal entered.
Seaton J.A., who wrote brief concurring reasons, noted that although the expert evidence was to the effect that MDA and salt of MDA were the same drug, a view accepted by the trial judge, the question was one of law turning on the interpretation of the relevant provisions of the Food and Drugs Act, and particularly Schedule H. Under the Act they were not the same drug, and since the Crown did not seek an amendment, an acquittal had to be entered.
The issue now before this Court arises from the disposition by the British Columbia Court of Appeal of the Crown’s appeal against the acquittal of the appellant on the third count, namely, possession for the purpose of trafficking. In approaching the issue, I take no position on the correctness of the decision of the Court of Appeal that the Narcotic Control Act created two distinct offences, one relating to MDA and the other to a salt of MDA. That differentiation must stand for present purposes. The appeal by the Crown from the acquittal of the appellant on the third count of possession for the purpose of trafficking came on for hearing on May 12, 1976, some six weeks after the provincial Court of Appeal had disposed of the appellant’s appeal on the second count favourably to him. The Court was differently constituted, consisting of Maclean, McFarlane and Branca JJ.A. The Crown, on the appeal, applied to “amend” the third count to charge possession of a salt of MDA for the purpose of trafficking. In short reasons with which the other members of the Court agreed, Maclean J.A. allowed the “amendment”, allowed the Crown’s appeal, set aside the acquittal and directed a new trial on the third count as amended. He said only this:
In my view the ends of justice require that the amendment in this case be granted and in my view no substantial wrong would be suffered thereby by the accused person.
It is thus clear that judges of the British Columbia Court of Appeal who made up the different Benches that heard the appeals on the second and third counts were in no doubt of the Court’s power to “amend” an indictment so as to charge a different offence from the one on which the accused was tried. This is not the view of my brother Ritchie, whose reasons in this appeal I have had the advantage of reading, because he speaks not of an “amendment” to charge a different offence but of an amendment “to conform to the evidence by adding a particular which had not been included in [the third] count as originally drawn”. Since for the purposes of this case, as I have already noted, it must be taken that the specification of a particular drug in the charge made proof thereof an essential element of the offence, the substitution in the wording of the charge of another drug amounts to a charge of a different offence, even though the other essential elements, namely, possession for the purpose of trafficking, are the same in either situation. Indeed, counsel for the Crown conceded that in this case he must accept as a fact that different offences were involved in the indictment as laid and as altered by the Court of Appeal.
Does then a court of appeal have the power to order an accused to be retried on a different charge from that originally laid and different from that on which he was originally tried? It is one thing to amend, so as to rectify an imperfect charge or indictment of an offence where the charge or indictment is not itself a nullity; it is another thing to substitute a charge of a different offence. Supplying an omitted essential averment of a charge which is clearly indicated is one thing; changing a charge to allege a different offence is something else.
II
Three issues are raised by the order of the court of appeal in the present case. They are, first, whether a court of appeal has power to amend an indictment; second, if so, whether that power can be exercised so as to provide a basis for ordering a new trial; and third, whether a court of appeal has power to substitute a charge different from the one laid and upon which the appeal has proceeded. I think it relevant to these issues to begin with a consideration of the powers of a trial judge to amend an indictment.
Those powers are now set out in s. 529 of the Criminal Code. It is unnecessary in this case to trace its history, other than to note that it goes back not only to the original Criminal Code of 1892 (see s. 723) but beyond that Code to the Criminal Procedure Act, 1869 (Can.), c. 29, s. 70. Although there was originally some doubt whether the power to amend extended beyond the amendment of formal defects, statutory clarification and ensuing judicial decisions settled that question in favour of an extended power, including a power to supply an essential averment of the offence charged as well as power to make changes in the assertions of the charge to conform with the evi- dence as to any such details: see R. v. Lacelle[3]; R. v. Kerr[4]; Yanovitch v. The Queen[5]. Wide as was the power to amend reposed in the trial judge, it did not extend to authorize him to substitute an offence different from the one charged. This was asserted more than fifty years ago in the Kerr case, supra, at p. 231, where Meredith C.J.O. said, referring to the provision for amendment of an indictment that “[it] does not, of course, authorize an amendment which substitutes a different offence for that intended to be charged or the addition of other offences”. The same view was taken more recently by the Quebec Court of Appeal in Dupont v. The Queen[6], at p. 390, and re-affirmed by the Ontario Court of Appeal in R. v. Elliott[7], at p. 237. An earlier authority to the same effect is R. v. Cohen[8].
I am not unmindful of s. 496 of the Criminal Code which relates to the preferring of an indictment by the Crown and to the inclusion of counts of offences disclosed by the evidence taken on the preliminary inquiry, even if the accused was not committed for trial thereon. Although this provision does not touch the powers of the trial judge, it indicates that it is left to the prosecution to determine, in the defined circumstances, whether to add or substitute a charge other than that set out in the information. The farthest that the courts have gone in respect of the substitution of offences is to permit the Crown to ask for an amendment to that effect of an information upon which an accused has elected trial before a magistrate but in such case the accused must be allowed to re-elect: see R. v. Hollman[9]. I do not pass on the correctness of this view of a court’s power. The substance of the matter appears to be a withdrawal of one information by the Crown and the laying of another, and this is open to the Crown in respect of indictments.
Coming then to the powers of a court of appeal in respect of amendments or substitutions, I find no provision of the Criminal Code which gives a court of appeal greater powers in these respects than are given to a trial judge; and, indeed, there is no provision which expressly gives any power relating to indictments to a court of appeal. Neither Bench of the British Columbia Court of Appeal discussed or even referred to any provision of the Criminal Code which supported the power it asserted, but during the argument before this Court ss. 610 and 613(8) as well as s. 529 were brought to the fore.
I shall deal first with s. 610 which reads as follows:
610. (1) For the purposes of an appeal under this Part the court of appeal may, where it considers it in the interests of justice,
(a) order the production of any writing, exhibit, or other thing connected with the proceedings;
(b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial,
(i) to attend and be examined before the court of appeal, or
(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose;
(c) admit, as evidence, an examination that is taken Under subparagraph (b)(ii);
(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness;
(e) order that any question arising on the appeal that
(i) involves prolonged examination of writings or accounts, or scientific or local investigation, and
(ii) cannot in the opinion of the court of appeal conveniently be inquired into before the court of appeal,
be referred for inquiry and report, in the manner provided by rules of court, to a special commissioner appointed by the court of appeal; and f) act upon the report of a commissioner who is appointed under paragraph (e) in so far as/the court of appeal thinks fit to do so.
(2) In proceedings under this section the parties or their counsel are entitled to examine or cross-examine witnesses and, in an inquiry under paragraph (1)(e), are entitled to be present during the inquiry and to adduce evidence and to be heard.
(3) A court of appeal may exercise in relation to proceedings in the court any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings preliminary or incidental thereto.
(4) Any process that is issued by the court of appeal under this section may be executed anywhere in Canada.
Although I have reproduced the entire section for context, the only terms thereof relevant here are the opening words of subs. (3), namely “A court of appeal may exercise in relation to proceedings in the court any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters…”. Section 610 first appeared as s. 1021(1) of the Criminal Code, enacted by 1923 (Can.), c. 41, s. 9, and was taken from s. 9 of the English Criminal Appeal Act, 1907 (U.K.), c. 23. The concern of the English Courts with this provision does not appear to have gone beyond reliance on it to permit fresh evidence to be admitted on appeal: see R. v. Robinson[10]. A similar provision was at issue in the New South Wales case of R. v. Burns[11] to support the power of an appellate court to amend an indictment. In that case an indictment charged the accused with obtaining a travel document by a false pretence to one N with intent to defraud, but the evidence did not show a false pretence to N but rather to another, and it was held that the provision was not ample enough to empower an appellate court to make the amendment. Although dissenting on the ground that there was no substantial wrong or miscarriage of justice in the conviction of the accused, Chief Justice Cullen was nonetheless of the same opinion as his colleagues in declaring that the provision comparable to our now s. 610(3) did not enable an appellate court to make an amendment to an indictment which had been finally dealt with by the trial judge; and he added (at p. 356): “so drastic a power, if it had been the intention of the Legislature to confer it, one would expect to have seen expressed in plain words”.
Section 610(3) was considered in a series of British Columbia cases, which I wish to examine. R. v. Danyleyko[12] may be put to one side because there the British Columbia Court of Appeal sitting as the Yukon Territory Court of Appeal relied on s. 610(3) and on the provincial Court of Appeal Act to support its right to send a stated case back to a magistrate for amendment; it does not, therefore, touch the issue in question here. In R. v. McNutt[13], an issue arose as to proof of the territorial jurisdiction of a magistrate under an indictment charging an assault in place H whereas it occurred in place W, both being within the territorial jurisdiction. No amendment was made or sought before the magistrate. A new trial was ordered by the majority in view of the course of the proceedings below (the dissenting judge concluded that territorial jurisdiction had not been proved) but Davey J.A. in obiter also adverted to what is now s. 610(3) as being broad enough to empower the Court of Appeal to make an amendment to prevent a miscarriage of justice. This statement was induced, however, by doubt whether the British Columbia Court of Appeal was right in an earlier case, R. v. More and Melville[14] (Davey J.A. being a member of the Court), which held that an allegation of the commission of an offence at a defined place was an essential averment, and where the evidence showed its commission at a different place and no amendment was made at trial, the Court of Appeal could not itself amend but must quash the conviction. However, it was held that it was open to the Court to order a new trial in the interests of justice, and it would be for the trial judge to decide whether an amendment was necessary and, if so, whether it should be made. In the McNutt case, Wilson J.A. was content to apply the More and Melville case in this respect while also agreeing with Davey J.A. that a new trial was warranted in McNutt because of the course of proceedings there.
Among the authorities relied on in the More and Melville case was R. v. Austin[15] where the Ontario Court of Appeal held that on a charge of robbing a named person, proof that the person robbed was the one named was essential, and in the absence of an amendment at trial to make the indictment conform to the evidence the Court of Appeal could not remedy the defect because it had no power to amend, and consequently an acquittal must be entered. There was no such additional ground in the Austin case as there was in the More and Melville case to warrant a new trial; there was simply failure of proof at trial of an essential averment, and the Court of Appeal did not think it should enter the lists and do for the Crown what it was open to it to do and what it failed to do for itself, namely, seek an amendment at trial.
This brings me to the later judgment of the British Columbia Court of Appeal in R. v. Wixalbrown and Schmidt[16], in which the force of R. v. More and Melville was eroded and in which the majority of the five-man Bench concluded that (to use the words of Davey J.A. at p. 39) “this Court may in appropriate cases exercise the powers of amendment conferred by the Code upon trial Judges” but it was a power to be exercised with greatest care. Davey J.A. did not himself indicate the provisions of the Criminal Code giving this asserted power to a court of appeal. It is clear from his words that he was purporting to exercise the powers of a trial court under what is now s. 529. At the same time, he based his conclusion on adoption of the reasons of Wilson J.A. who invoked what is now s. 610(3), pointing out that there was no reference to that provision in the More and Melville case, and holding that s. 529 did not extend to a court of appeal. I should say at this point that the decision in Wixalbrown and Schmidt cannot be justified by reliance on s. 529 which, by its own words, is restricted to matters at trial. It is included in Part XVII of the Criminal Code—Procedure by Indictment—while the powers of the Court of Appeal are set out in Part XVIII—Appeals—Indictable Offences—and there is no incorporating reference.
What Davey J.A. said on the question of a court of appeal’s power to amend, speaking also for Bird and Tysoe JJ.A., with Sheppard J.A. dissenting on this point, was an alternative ground of decision, having regard to the facts of the case. The two accused were charged with breaking and entering certain premises at a specified time and committing an indictable offence, to wit, theft. The charge was laid under what is now s. 306(1)(b) (then s. 292(1)(b)) which concluded with the word “therein” in defining the offence but that word was not included in the indictment nor was objection taken to the omission at the trial which proceeded on the basis that the alleged theft was committed in the specified premises. The word “therein” had been included in the information upon which the preliminary inquiry was conducted which resulted in the committal for trial. On appeal from conviction, counsel for the accused took for the first time two objections; first, that there were no or no sufficient particulars of the alleged offence of theft, as was a requisite under s. 492, (now s. 510) and, second, that the omission of the word “therein” was an omission of an essential averment and hence the accused was convicted of an offence not known to the law.
Davey J.A. disposed of the first objection by agreeing that if theft alone had been charged the indictment would have been fatally defective (rely- ing on Brodie v. The King[17], at p. 199), but theft being alleged as part of a compound offence and there being sufficient particularity to enable the accused to meet the charge, the objection failed. As to the second objection, the omission of the word “therein” from the indictment, Davey J.A. took alternative positions. He held, first, that as a matter of context (purporting to distinguish this Court’s judgment in McNeil v. The King[18], with, in my opinion, questionable success) there was not an omission of an essential averment but rather an imperfect allegation of such an averment which caused no substantial wrong or miscarriage of justice. His alternative position, agreeing for this purpose that there was omission of an essential averment, was that in principle (to quote him, at p. 39),
…no person ought to stand convicted or be imprisoned on a charge that totally omits an essential averment required to constitute an offence known to the law. That in itself is a substantial wrong. I can see no difference in principle between a conviction for a charge that lacks one averment necessary to constitute a crime, and a conviction for one that is totally unknown to the law. To allow the former to stand would open the door to grave abuses, the end of which cannot be foreseen.
He went on to say, however, that “that objection can be met by amendment if we have the power”. He concluded, as I have already noted, that a court of appeal “may in appropriate cases exercise the powers of amendment conferred by the Code upon trial Judges”. He did not say whence comes this power—it could only be given by statute—and I can only infer from Davey J.A.’s reliance on Wilson J.A.’s reasons that in Davey J.A.’s view it derived from what is now s. 610(3) of the Criminal Code. However, s. 610(3) speaks of the power of a court of appeal in civil matters and it is impossible to find authorization in it for the exercise of powers conferred by the Criminal Code upon trial judges. Sheppard J.A. met the issue of the omission of an essential averment, to which no objection was taken at trial, by invoking the principle laid down in R. v. Leclair[19], namely, that when an accused has failed to move to quash before pleading to an indictment and has failed as well to object during the trial, the Court of Appeal may refuse to allow him to raise the matter there unless it is of opinion that the accused has been in some way prejudiced or misled. In Leclair, although an essential averment was omitted, the section of the Code under which the offence was charged was referred to, and this, it seems to me, must have some bearing on the statement of principle which, otherwise, would appear to contradict Davey J.A.’s opinion, quoted above, that omission of an essential averment itself is a substantial wrong. I do not need, however, to dwell on this point here but pass to Sheppard J.A.’s observation on whether there is a power in a court of appeal to amend an indictment. He said this on the point (at p. 44):
The Court of Appeal has not power to make the amendment of the indictment and conviction by adding the word “therein” as requested by the Crown. By reason that Parliament has expressly conferred on the trial Court the power to amend indictments subject to certain restrictions (s. 510) [now s. 529] there is difficulty in construing other sections of the Code as impliedly conferring upon another Court, such as the Court of Appeal, the power to amend the indictment and conviction, either subject to the same restrictions on the trial Court or without any restriction. Moreover, the primary question for the Court of Appeal is whether or riot substantial wrong or miscarriage of justice has occurred (s. 592(1)(b)(iii)) [now s. 613(1)(b)(iii)]; if not the appeal would be dismissed and the matter thereby ended. If substantial wrong or miscarriage of justice has occurred the appeal would be allowed and the conviction quashed, with the direction of an acquittal, or of a new trial (s. 592(2)) [now s. 613(2)]. Only in the event of a new trial would any amendment be required and the power to make such amendment has been given to the trial Court where the accused would have an opportunity to plead thereto and to meet the issue raised thereby. It would follow that the Court of Appeal has not the power to amend the indictment and conviction as requested for the Crown. I have reviewed the Wixalbrown and Schmidt case at some length because it has spawned other decisions to the same effect on the power to amend. Certain observations must be made about it. In the first place, and central to the present case, it does not deal with the substitution of a charge of a different offence from that sought to be alleged. Second, Wilson J.A. did not say what Davey J.A. said he did. Wilson J.A. noted that a court of appeal could not found a power to amend an indictment on the now s. 529, that provision being limited to trial judges, but it could be founded on the now s. 610(3) as giving the same power to amend as the Court of Appeal had in civil cases.
I am unable to accept the view that s. 610(3) confers any power upon a court of appeal to amend an indictment. That subsection takes its context from the preceding provisions of s. 610 which concern evidentiary questions. The opening words of s. 610(3) show its limited range; they provide that “A court of appeal may exercise… any powers not mentioned in subsection (1) that may be exercised… on appeals in civil matters”. The subsection cannot, therefore, be read as if it was a detached and separate provision. Although Wilson J.A. purported to find support for his view in this Court’s judgment in Kissick v. The King[20], that case was concerned with an issue as to admissibility of evidence and thus related to the very subject-matter of s. 610. Still less can s. 610(3) be relied upon to authorize a court of appeal to substitute a different charge from the one on which the case came before it.
Wixalbrown and Schmidt was invoked by the British Columbia Court of Appeal in R. v. Breland and George[21], where essential averments were omitted from a charge but no objection was taken at trial. The majority judgment proceeded on alternative bases, relying, first, on the principle of R. v. Leclair, supra, that where no objection is taken at trial the accused will not be allowed to take it on appeal unless he has been misled or prejudiced; and, second, on the principle allegedly derived from the judgment of Davey J.A. in Wixalbrown and Schmidt that even if the accused has been misled or prejudiced, the Court of Appeal may amend and affirm the conviction under s. 529 of the Criminal Code if there has been no substantial wrong or miscarriage of justice. I have doubts whether Wixalbrown and Schmidt goes this far (and the dissenting judgment of Whittaker J.A. supports my doubt), since Davey J.A. was mistaken as to what Wilson J.A. said in that case but, in any event, I need not pursue this because we are not dealing in the Breland and George case with the substitution of a different charge but only with the perfection of an imperfect one.
There is another line of cases represented by Morin and Morin v. The Queen[22] and by R. v. Pearson[23] which take a strict approach against the Crown where an essential particular of a charge is not proved and no application to amend is made by the Crown to the trial judge. In the Morin case, there was a charge of illegal possession of goods on a stated date but the evidence showed possession at a later date. The Crown did not move to amend but a conviction was entered at trial. The Quebec Court of Appeal held that the offence charged was not proved and that it had no power to rectify the matter, citing R. v. Volaine[24]. This class of case differs from those where an essential averment or some particular is omitted; the charge is good in all respects but, as in the Volaine case, it alleges an offence committed on a specific date and the evidence does not show any of the prohibited acts to have been committed on that date. No rectification having been effected at the trial, it was held in Volaine that the Court of Appeal had no power to rectify the mistake, with the result that a conviction on the charge could not stand and an acquittal had to be ordered. In the Pearson case, supra, there was a variance as to the place of commission of an offence between the statement in the charge and the evidence that was adduced but no application was made to amend. On appeal, a majority of the Quebec Court of Appeal held that the conviction must be quashed and an acquittal entered because the Court of Appeal had no power to amend the charge to conform to the evidence. Owen J.A. dissented in an extensive review of the authorities, preferring to follow and to apply, in respect of a variance as to the place of commission of an offence, a line of cases, having their source in English case law, holding that a variance as to date was not fatal to a conviction because the place, like the date, was not an essential averment, and since the accused was not misled or prejudiced the conviction should stand. He added this (at p. 26):
In view of this conclusion, I do not deem it necessary to discuss whether this Court, in the present case, had the power to amend the indictment so as to conform with the proof.
One further point may be noted, arising from the judgment of the New Brunswick Court of Appeal in R. v. Christiansen[25]. That Court was unanimous in holding that a charge of trafficking in narcotics by distributing was not supported by the evidence and further that an attempt to commit the offence was not established. However, it divided on the consequences of its holding. Since it appeared that the evidence supported a finding of trafficking by giving, the question was whether the trial judge should have amended the indictment suo motu and whether, not having done so, this was a reversible error. Hughes C.J.N.B. held on the authorities that there was no duty on the trial judge to amend the indictment to conform to