R. v. Awad (K.M.) et al., (2015) 356 N.S.R.(2d) 116 (CA)

• Judge: Beveridge, Bryson and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 14, 2014
• Jurisdiction: Nova Scotia
• Citations: (2015), 356 N.S.R.(2d) 116 (CA);2015 NSCA 10

R. v. Awad (K.M.) (2015), 356 N.S.R.(2d) 116 (CA);

    1126 A.P.R. 116

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JA.056

Karim Mohamed Awad, Brian Boudreau, Catherine Nicole Haddad, Philip Blair Lahey, Joseph Matthew Nardocchio, Kyle John Sakalauskas, Derrick Silby Smith, Irving James Warner (appellant) v. Her Majesty The Queen (respondent)

(CAC 425207; 2015 NSCA 10)

Indexed As: R. v. Awad (K.M.) et al.

Nova Scotia Court of Appeal

Beveridge, Bryson and Scanlan, JJ.A.

January 30, 2015.

Summary:

A police officer (Gibbons) was assigned the ongoing task of swearing informations at the Cape Breton Regional Police Service. Her practice was to swear the informations after reading the "Information and charges", but without having reviewed the Crown Sheet, Occurrence Reports or any Supplemental Reports and without having spoken to the investigating officers. She relied on process and believed that the investigating officers had reasonable and probable grounds and, if not, the Sergeant in charge had grounds. Several accused applied to quash informations that had been sworn by Gibbons.

The Nova Scotia Provincial Court, in a decision reported at 334 N.S.R.(2d) 96; 1059 A.P.R. 96, allowed the applications. The Crown appealed.

The Nova Scotia Supreme Court, in a decision reported at 340 N.S.R.(2d) 223; 1077 A.P.R. 223, allowed the appeal and directed the trial judge to allow the informations to be re-sworn and to hear the respective cases on their merits. The accused applied for leave to appeal and, if granted, appealed.

The Nova Scotia Court of Appeal granted leave to appeal, allowed the appeal and reinstated the Provincial Court's decision.

Criminal Law - Topic 4271

Procedure - Indictment - Amendment - Circumstances permitting - A police officer (Gibbons) was assigned the ongoing task of swearing informations at the Cape Breton Regional Police Service - Her practice was to swear the informations after reading the "information and charges", but without having reviewed the Crown Sheet, Occurrence Reports or any Supplemental Reports and without having spoken to the investigating officers - She relied on process and believed that the investigating officers had reasonable and probable grounds and, if not, the Sergeant in charge had grounds - Several accused applied to quash informations that had been sworn by Gibbons - The trial judge held that the accused had rebutted the presumption of regularity - Gibbons had no personal knowledge or reasonable and probable grounds to believe that an offence had been committed - She swore a false information and misled the Justice of the Peace - Each information was a nullity and was to be quashed - The summary conviction appeal court judge held that the judge erred in quashing the informations - They were all regular on their face and gave fair notice of the alleged offence to each accused - They were therefore not nullities and the trial judge was obliged to allow the informations to be amended by having them re-sworn - The Nova Scotia Court of Appeal restored the trial judge's decision - Once it was demonstrated that Gibbons had neither personal knowledge nor reasonable grounds to believe that any of the accused had committed any offences, each information was a nullity - This was neither a defect in form nor in substance and could not be amended under s. 601 of the Criminal Code - This conclusion was not a "free pass" enabling the accused to escape the reach of law - New informations could have been re-sworn - Although more than six months had elapsed since the subject matter of the proceedings had occurred, the Crown could have sought each accused's agreement to proceed by summary conviction on a new information - If the accused declined to agree, the Crown would have had to decide whether to proceed by indictment (the accused were charged with hybrid offences) or not at all - See paragraphs 22 to 87.

Criminal Law - Topic 4272

Procedure - Indictment - Amendment - Duty to amend - [See Criminal Law - Topic 4271 ].

Criminal Law - Topic 4273

Procedure - Indictment - Amendment - Circumstances prohibiting - [See Criminal Law - Topic 4271 ].

Criminal Law - Topic 4276

Procedure - Indictment - Withdrawal or replacement - [See Criminal Law - Topic 4271 ].

Criminal Law - Topic 4277

Procedure - Indictment - Amendment - Quashing - [See Criminal Law - Topic 4271 ].

Criminal Law - Topic 7256

Summary conviction proceedings - Informations - Time for laying of - [See Criminal Law - Topic 4271 ].

Criminal Law - Topic 7263

Summary conviction proceedings - Informations - Nullities - General - [See Criminal Law - Topic 4271 ].

Criminal Law - Topic 7275

Summary conviction proceedings - Informations - Amendments - General - [See Criminal Law - Topic 4271 ].

Cases Noticed:

R. v. Moore, [1988] 1 S.C.R. 1097; 85 N.R. 195, refd to. [para. 17].

R. v. Pottie (A.F.) (2013), 330 N.S.R.(2d) 361; 1046 A.P.R. 361; 2013 NSCA 68, refd to. [para. 23].

R. v. Kamperman (1981), 48 N.S.R.(2d) 317; 92 A.P.R. 317 (T.D.), refd to. [para. 25].

R. v. Peavoy (1974), 15 C.C.C.(2d) 97 (Ont. H.C.), refd to. [para. 26].

R. v. Pilcher and Broadberry, [1981] M.J. No. 552 (Prov. Ct.), refd to. [para. 26].

R. v. Ingraham (1988), 82 N.S.R.(2d) 421; 207 A.P.R. 421 (C.A.), refd to. [para. 27].

R. v. Bobcaygeon (Village) (1974), 17 C.C.C.(2d) 236 (Ont. C.A.), refd to. [para. 31].

R. v. Rafuse and Bowlby (1991), 108 N.S.R.(2d) 442; 294 A.P.R. 442 (Co. Ct.), refd to. [para. 33].

R. v. Welsford, [1969] S.C.R. 438, refd to. [para. 33, footnote 1].

R. v. Southwick (1967), 2 C.R.N.S. 46 (Ont. C.A.), refd to. [para. 49].

R. v. Millar (J.), [2012] O.T.C. Uned. 1809; 2012 ONSC 1809, refd to. [para. 51].

R. v. Oliveira (A.) (2009), 247 O.A.C. 156; 2009 ONCA 219, refd to. [para. 51].

R. v. Ladouceur (B.) (2013), 307 O.A.C. 20; 2013 ONCA 328, refd to. [para. 51].

R. v. Dudley (K.L.) (2009), 396 N.R. 299; 469 A.R. 198; 470 W.A.C. 198; 2009 SCC 58, refd to. [para. 53].

R. v. Canadian Industries Ltd. (1982), 41 N.B.R.(2d) 631; 107 A.P.R. 631 (C.A.), dist. [para. 60].

R. v. Whitmore and Carmichael (1987), 41 C.C.C.(3d) 555 (Ont. H.C.), affd. (1989), 35 O.A.C. 373; 51 C.C.C.(3d) 294 (C.A.). dist. [para. 60].

R. v. Wildefong (1970), 1 C.C.C.(2d) 45 (Sask. C.A.), dist. [para. 70].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings & Practice in Canada (2nd Ed.) (2014 Looseleaf), p. 9:12320 [para. 84].

Counsel:

William Burchell, for the appellant;

Timothy O'Leary, for the respondent.

This appeal was heard at Halifax, Nova Scotia, on October 14, 2014, by Beveridge, Bryson and Scanlan, JJ.A., of the Nova Scotia Court of Appeal. Beveridge, J.A., delivered the following reasons for judgment for the court on January 30, 2015.