R. v. Cheechuk (L.S.), 2011 ABPC 70

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 14, 2010
• Citations: 2011 ABPC 70;(2011), 508 A.R. 121 (QB)

R. v. Cheechuk (L.S.) (2011), 508 A.R. 121 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.024

Her Majesty the Queen (respondent) v. Larry Samuel Cheechuk (applicant)

(090469396P1; 2011 ABPC 70)

Indexed As: R. v. Cheechuk (L.S.)

Alberta Provincial Court

Rosborough, P.C.J.

February 10, 2011.

Summary:

An information was sworn on April 17, 2009, alleging that the accused had committed offences in the Criminal Code and the Traffic Safety Act. The accused appeared in court on May 14, 2009. On September 3, 2009, he pled not guilty. The summary conviction trial was adjourned once and then commenced on January 11, 2010, but was adjourned. The accused brought a motion to quash the information on the basis that the jurat appeared on a page that was separate from the charges and the two pages were not stapled together or otherwise connected. Under s. 601(1) of the Criminal Code, the accused required the court's leave to object.

The Alberta Provincial Court denied leave to object. The court also indicated that the motion to quash would have been denied on its merits.

Criminal Law - Topic 7265

Summary conviction proceedings - Informations - Whether accused was prejudiced by defective information - [See Criminal Law - Topic 7268 ].

Criminal Law - Topic 7267

Summary conviction proceedings - Informations - Objections - Procedure - An information was sworn on April 17, 2009, alleging that the accused had committed offences in the Criminal Code and the Traffic Safety Act - The accused appeared in court on May 14, 2009 - On September 3, 2009, he pled not guilty - The summary conviction trial was adjourned once and then commenced on January 11, 2010, but was adjourned - The accused brought a motion to quash the information on the basis that the jurat appeared on a page that was separate from the charges and the two pages were not stapled together or otherwise connected - Under s. 601(1) of the Criminal Code, the accused required the court's leave to object - The Alberta Provincial Court indicated that the leave requirement in s. 601(1) served two purposes: first, to ensure that objections were made promptly and, second, to screen unmeritorious applications - In considering whether to grant leave to object to a facial defect after plea, a court should consider (a) the timing of the objection, (b) the reason for any delay in raising the objection, (c) whether the defect was obvious or more subtle, (d) whether the defect related to substance or form and (e) whether the defect was important, prejudicial or technical in nature - Here, leave was denied - See paragraphs 15 to 20.

Criminal Law - Topic 7268

Summary conviction proceedings - Informations - Objections - Time for - An information was sworn on April 17, 2009, alleging that the accused had committed offences in the Criminal Code and the Traffic Safety Act - The accused appeared in court on May 14, 2009 - On September 3, 2009, he pled not guilty - The summary conviction trial was adjourned once and then commenced on January 11, 2010, but was adjourned - The accused brought a motion to quash the information on the basis that the jurat appeared on a page that was separate from the charges and the two pages were not stapled together or otherwise connected - Under s. 601(1) of the Criminal Code, the accused required the court's leave to object - The Alberta Provincial Court denied leave - There was no reason for the five month delay in raising an objection to the facial defect - If the reason was mere inadvertence, this militated against granting leave - The alleged defect was one of form, not of substance - It was unimportant or technical in nature - The accused was not prejudiced by the defect, which had not affected his ability to make full answer and defence - See paragraphs 21 to 26.

Criminal Law - Topic 7283

Summary conviction proceedings - Informations - Defects - Curing of - [See Criminal Law - Topic 7285 ].

Criminal Law - Topic 7285

Summary conviction proceedings - Informations - Form and content (incl. sufficiency of charge and jurat) - An information was sworn on April 17, 2009, alleging that the accused had committed offences in the Criminal Code and the Traffic Safety Act - The accused appeared in court on May 14, 2009 - On September 3, 2009, he pled not guilty - The summary conviction trial was adjourned once and then commenced on January 11, 2010, but was adjourned - The accused brought a motion to quash the information on the basis that the jurat appeared on a page that was separate from the charges and the two pages were not stapled together or otherwise connected - Under s. 601(1) of the Criminal Code, the accused required the court's leave to object - The Alberta Provincial Court, having denied leave, also indicated that the motion to quash would have been denied on its merits - There was no technical requirement that a jurat appear on each page of a multi-page information or that the pages be linked one to another in any form - The absence of a physical or written link between the pages was insignificant - Even if that defect was important, under s. 601(3)(c) of the Code, the court was obligated to amend the information to cure the defect - This was done by ordering that the pages of the information were to be stapled together and the docket number appearing on page one was to be endorsed on page two - However, with or without the amendment, the accused would have received a fair trial - See paragraphs 27 to 34.

Cases Noticed:

R. v. Mah (J.) et al. (2001), 288 A.R. 166; 2001 ABQB 321, refd to. [para. 24].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 29].

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, refd to. [para. 34].

R. v. Buick (1991), 1 B.C.A.C. 30; 1 W.A.C. 30 (C.A.), refd to. [para. 34].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 601(1) [para. 11].

Counsel:

D. Beaton, for the respondent;

K. Sockett, Q.C., for the applicant.

This motion was heard on October 14, 2010, by Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision on February 10, 2011.