R. v. Moore, (1988) 85 N.R. 195 (SCC)

• Judge: Dickson, C.J.C., McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 30, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 85 N.R. 195 (SCC);[1988] 1 SCR 1097;1980 CanLII 183 (SCC);[1988] 5 WWR 1;65 CR (3d) 1;21 BCLR 393;[1980] 1 SCR 1104;[1988] 1 SCR 1206;33 NR 306;[1988] SCJ No 104 (QL);1988 CanLII 43 (SCC);51 CCC (2d) 576;7 MVR 19;1988 CanLII 46 (SCC);29 BCLR (2d) 1

R. v. Moore (1988), 85 N.R. 195 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Her Majesty the Queen (appellant) v. Barry Graham Moore (respondent)

(18214)

Indexed As: R. v. Moore

Supreme Court of Canada

Dickson, C.J.C., McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.

June 30, 1988.

Summary:

The accused was charged with, inter alia, one count of possession of stolen property. The count was defective in that it did not aver that the accused knew the property was obtained by the commission of an indictable offence. Both counsel and the trial judge agreed the count did not disclose an offence known to law and could not be amended. The trial judge quashed the count under s. 529 of the Criminal Code and the Crown laid a new information correcting the defect. The accused pleaded autrefois acquit. The second trial judge rejected the plea on the ground that since the original count was "hopelessly bad" the accused had never been in jeopardy of being convicted. The accused was convicted and appealed.

The British Columbia Court of Appeal, Craig, J.A., dissenting, in a judgment reported [1984] 2 W.W.R. 362; 9 C.C.C. (3d) 1, allowed the appeal. The court held that the first trial judge erred in failing to amend the count; it should not have been quashed. The court held that the quashing was tantamount to an acquittal, from which the Crown had a right of appeal. Therefore, unless appealed the acquittal was final and autrefois acquit applied to preclude a trial on the corrected count in the new information. The Crown appealed.

The Supreme Court of Canada dismissed the appeal. Lamer, J. (McIntyre, Le Dain and La Forest, JJ., concurring), held that the trial judge erred in quashing, rather than amending, the defective count; it was voidable, but not a nullity. Accordingly, the accused was in jeopardy of being convicted. Where the Crown attempted to relay the same charge after the accused was acquitted, albeit by error, the Crown should have exercised its right of appeal. Until the acquittal was reversed on appeal it stood as a final disposition of the charge and supported a plea of autrefois acquit.

Dickson, C.J.C. (Wilson and L'Heureux-Dubé, JJ., concurring), dissenting, agreed that the trial judge erred in quashing rather than amending the count. Dickson, C.J.C., also agreed that the accused was in jeopardy. However, Dickson, C.J.C., held that the accused was not prejudiced by the defect and there was no final disposition of the charge, therefore autrefois acquit did not apply to preclude the laying of a new information.

Criminal Law - Topic 10.4

Acquittal defined - A trial judge erred in quashing a count in an indictment under s. 529 of the Criminal Code - The count was not a nullity and could have been amended without prejudice to the accused - The Crown, rather than appealing, chose to lay a new information correcting the defect - The accused pleaded autrefois acquit - The Supreme Court of Canada held that the accused had been in jeopardy of being convicted - The court stated that the quashing of the count, albeit by error, was tantamount to an acquittal and, unless reversed on appeal, stood as a final disposition of the charge and supported a plea of autrefois acquit.

Criminal Law - Topic 4225

Procedure - Pleas - Autrefois acquit - [See Criminal Law - Topic 10.4 above].

Criminal Law - Topic 4225

Procedure - Pleas - Autrefois acquit - The Supreme Court of Canada stated that "if the charge is a nullity, ..., 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" - See paragraph 4.

Criminal Law - Topic 4731

Procedure - Information or indictment, charge or count - Indictable offences - Form and content - Date and description of offence - The accused was charged with possession of stolen property - The indictment was defective for failing to aver that the accused knew the property was obtained by the commission of an indictable offence - The trial judge ruled that the indictment disclosed no offence known to law, was a nullity and was therefore not capable of being amended under s. 529 of the Criminal Code - The Supreme Court of Canada held that the indictment was voidable, not a nullity - The court held that the trial judge should have amended the indictment, where the defect could have been cured without injustice to the accused.

Criminal Law - Topic 4735.1

Procedure - Information or indictment, charge or count - Indictable offences - Form and content - Defects - Effect of - Section 529 of the Criminal Code provided for the amendment of defective indictments or counts - The Supreme Court of Canada stated that "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 is the judge 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'".

Criminal Law - Topic 4737

Procedure - Information or indictment, charge or count - Indictable offences - Amendment of - Before trial - [See Criminal Law - Topic 4731 above].

Cases Noticed:

R. v. Petersen, [1982] 2 S.C.R. 493; 44 N.R. 92; 18 Sask.R. 162, refd to. [para. 8].

R. v. Doyle, [1977] 1 S.C.R. 597; 9 N.R. 285, refd to. [para. 8].

R. v. Riddle, [1980] 1 S.C.R. 380; 29 N.R. 91; 18 A.R. 525, refd to. [para. 15].

R. v. Sheets, [1971] S.C.R. 614, refd to. [para. 16].

R. v. Beason (1983), 36 C.R.(3d) 73 (Ont. C.A.), refd to. [para. 16].

R. v. Major, [1977] 1 S.C.R. 826; 8 N.R. 210, refd to. [para. 19].

R. v. Cote, [1978] 1 S.C.R. 8; 13 N.R. 271, refd to. [para. 19].

R. v. Major (1975), 10 N.S.R.(2d) 348; 2 A.P.R. 348 (C.A.), refd to. [para. 20].

R. v. Hunt, Nadeau and Paquette (1974), 16 C.C.C.(2d) 382 (B.C.C.A.), refd to. [para. 24].

R. v. Morozuk, [1986] 1 S.C.R. 31; 64 N.R. 189; 68 A.R. 241, refd to. [para. 26].

R. v. Stewart (1980), 7 C.R.(3d) 165 (B.C.C.A.), refd to. [para. 27].

Re R. and Henyu (1980), 48 C.C.C.(2d) 471 (B.C.C.A.), refd to. [para. 27].

R. v. Charlesworth (1861), 1 B. & S. 460; 121 E.R. 786, refd to. [para. 32].

R. v. Rinnie, [1970] 3 C.C.C. 218 (Alta. C.A.), refd to. [para. 35].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 35].

R. v. Ko and Yip, [1977] 3 W.W.R. 447 (B.C.C.A.), refd to. [para. 36].

R. v. Tateham (1981), 63 C.C.C.(2d) 25 (B.C. Co. Ct.), refd to. [para. 37].

R. v. Plank (1986), 15 O.A.C. 21; 28 C.C.C.(3d) 386 (C.A.), refd to. [para. 38].

R. v. Lattoni and Corbo, [1958] S.C.R. 603, refd to. [para. 45].

Thompson v. Cheyenne Realty Ltd., [1975] 1 S.C.R. 87; 1 N.R. 273, refd to. [para. 45].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 45].

Kipp v. Attorney General for Ontario, [1965] S.C.R. 57, refd to. [para. 47].

R. v. Tonner (1971), 3 C.C.C.(2d) 132 (Ont. C.A.), refd to. [para. 47].

R. v. G. & P. International News Ltd. and Judd (1973), 12 C.C.C.(2d) 169 (B.C.C.A.), refd to. [para. 47].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481; 2 C.R.R. 76, refd to. [para. 56].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 312(1) [para. 10]; sect. 529 [paras. 3, 17]; sect. 535(1), sect. 535(3), sect. 535(4), sect. 535(5), sect. 537(1) [para. 17].

Criminal Law Amendment Act, S.C. 1985, c. 19, sect. 137 [para. 55].

Authors and Works Noticed:

Friedland, M.L., Double Jeopardy (1969), pp. 21-26 [para. 32]; 65 [paras. 18, 33].

Counsel:

William Ehrcke, for the appellant;

Peter Messner, for the respondent.

Solicitors of Record:

Ministry of the Attorney General of British Columbia, Vancouver, British Columbia, for the appellant;

Foster & Stevens, 100 Mile House, for the respondent.

This appeal was heard on October 7, 1987, before Dickson, C.J.C., McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada.

On June 30, 1988, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Lamer, J., (McIntyre, Le Dain and La Forest, JJ., concurring) - see paragraphs 1 to 8;

Dickson, C.J.C., (Wilson and L'Heureux-Dubé, JJ., concurring), dissenting - see paragraphs 9 to 62.