R. v. Tapaquon, (1993) 159 N.R. 321 (SCC)

• Judge: Sopinka, Gonthier, Iacobucci and Major, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday December 16, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 159 N.R. 321 (SCC);[1993] 4 SCR 535;109 DLR (4th) 637;87 CCC (3d) 1;1993 CanLII 52 (SCC);[1994] 1 WWR 641;26 CR (4th) 193;159 NR 321

R. v. Tapaquon (1993), 159 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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Darren Lyle Tapaquon (appellant) v. Her Majesty The Queen (respondent) and The Attorney General of Canada (intervenor)

(No. 22926)

Indexed As: R. v. Tapaquon

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Iacobucci and

Major, JJ.

December 16, 1993.

Summary:

An accused was charged with assault causing bodily harm. He elected to be tried by judge alone. Following a prelim­inary inquiry the Prov­incial Court judge found there was insuffi­cient evidence to warrant committal on the original charge and com­mitted the accused for trial on the lesser included offence of common assault. The prosecutor preferred an indictment against the accused on the ori­ginal charge of assault causing bodily harm. The accused moved to quash the indictment on the ground he had been dis­charged on the original charge.

The Saskatchewan Court of Queen's Bench allowed the motion and quashed the indict­ment. The Crown appealed.

The Saskatchewan Court of Appeal, in a decision reported at 97 Sask.R. 245; 12 W.A.C. 245, allowed the appeal and remitted the matter to the Court of Queen's Bench for trial on the charge of assault causing bodily harm. The accused appealed.

The Supreme Court of Canada, L'Heureux-Dubé, J., dissenting, allowed the appeal and restored the judgment of the Court of Queen's Bench quashing the indict­ment.

Criminal Law - Topic 3515

Preliminary inquiry - General principles - Disposition of charge where insufficient evidence to stand trial - The Supreme Court of Canada held that the appropriate disposition of charges for which a prelimi­nary inquiry judge finds there is insuffi­cient evidence to put the accused on trial, is discharge of the accused on those charges - See paragraph 17.

Criminal Law - Topic 3551

Preliminary inquiry - Powers of judge - General - The Supreme Court of Canada disagreed with the view that the power of a preliminary inquiry judge was limited to committal or discharge and that the specif­ication of offences was left to the prosecu­tor - The court stated that "[i]f there is only one charge, the options for the judge are to commit or discharge. If there are several charges ... the judge must specify 'the charges on which he orders the accused to stand trial'" - Further, "[i]n requiring the judge to specify the charges in respect of which the accused is ordered to stand trial, it follows that with respect to other charges in the information the dispo­sition is that the accused is discharged" - See paragraphs 16 and 17.

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of indictments - The Supreme Court of Canada held that a prosecutor in a pro­ceeding involving indictable offences and a trial without a jury had the power to prefer an indictment (1) on any charge in respect of which the accused had been ordered to stand trial; or (2) in respect of any charge founded on the facts disclosed in the evi­dence taken at the preliminary hearing, provided that it is not an offence charged and in respect of which the accused was not ordered to stand trial - See paragraph 27.

Criminal Law - Topic 4264.2

Procedure - Indictment - Preferring of indictments, on charge where committal only on included offence - An accused charged with assault causing bodily harm elected to be tried by a judge alone - Following a preliminary inquiry, the Pro­vincial Court judge found there was insuffi­cient evidence and committed the accused for trial on the lesser included offence of common assault - The prosecu­tor pre­ferred an indictment on the original charge of assault causing bodily harm - The Supreme Court of Canada held that the prosecutor could not prefer an indict­ment for the offence originally charged, because the pre­limi­nary inquiry judge's finding that there was insufficient evi­dence, amounted to a dis­charge of the accused on that charge.

Criminal Law - Topic 4274

Procedure - Indictment - Amendment, adding counts disclosed by evidence taken at a preliminary inquiry - Section 574(1)(b) of the Criminal Code provided that a prosecutor could prefer an indict­ment against any person who had been ordered to stand trial, in respect of "any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial" - The Supreme Court of Canada held that the words "in addition or in substitution for any charge" did not extend to permit the addition or substitution of a charge for which the accused was not committed to stand trial because there was insufficient evidence - See paragraphs 25 and 26.

Statutes - Topic 2603

Interpretation - Interpretation by context - Intention from whole of section or statute - The Supreme Court of Canada, per So­pin­ka, J., stated that "[i]t is a funda­mental rule of statutory construction that the provisions of a statute should be inter­preted not in isola­tion but by reference to the statute as a whole. An interpretation should be adopted that as far as possible harmonizes provisions that bear on the same subject matter" - See paragraph 22.

Cases Noticed:

R. v. Hampton (1990), 69 Man.R.(2d) 293 (C.A.), leave to appeal denied [1991] 1 S.C.R. viii; 131 N.R. 399; 75 Man.R.(2d) 240, consd. [para. 5].

R. v. D.K.H. - see R. v. Hampton.

R. v. Hill (1987), 57 Sask.R. 234 (Q.B.), refd to. [para. 5].

R. v. Myers (D.J.) (1991), 91 Nfld. & P.E.I.R. 37; 286 A.P.R. 37; 65 C.C.C.(3d) 135 (Nfld. C.A.), refd to. [para. 5].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 34 C.R.N.S. 207; 70 D.L.R.(3d) 136; 30 C.C.C.(2d) 424, consd. [para. 12].

R. v. Miller, [1970] 3 C.C.C. 89 (Ont. H.C.), consd. [para. 18].

St. Jean v. R. (1978), 7 C.R.(3d) 14 (Que. C.A.), refd to. [para. 18].

R. v. McKibbon, [1984] 1 S.C.R. 131; 52 N.R. 81; 3 O.A.C. 85, consd. [para. 18].

R. v. Chabot, [1980] 2 S.C.R. 985; 34 N.R. 361; 55 C.C.C.(3d) 385; 18 C.R.(3d) 258; 22 C.R.(3d) 350; 117 D.L.R.(3d) 527, refd to. [para. 18].

Canada (Procureur général) v. Bélair (1991), 10 C.R.(4th) 209 (Que. C.A.), refd to. [para. 20].

Compagnie Immobilière BCN Ltée v. Minister of National Revenue, [1979] 1 S.C.R. 865; 25 N.R. 361, refd to. [para. 22].

R. v. Hamm, [1984] 5 W.W.R. 696; 34 Sask.R. 241 (C.A.), refd to. [para. 28].

R. v. Barbeau, [1992] 2 S.C.R. 845; 140 N.R. 211; 49 Q.A.C. 220, refd to. [para. 38].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 548 [paras. 11, 33, 39]; sect. 566 [paras. 7, 33]; sect. 574(1) [paras. 8, 33, 42]; sect. 574(3) [paras. 33, 42]; sect. 576(1) [paras. 8, 33]; sect. 577 [paras. 9, 33].

Counsel:

Norman H. Bercovich, for the appellant;

Michael M. Vass, for the respondent;

Bernard Laprade and Peter Lamont, for the intervenor.

Solicitors of Record:

Ryan, MacIsaac & Associates, Regina, Saskatchewan, for the appellant;

Attorney General of Saskatchewan, Regina, Saskatchewan, for the respon­dent;

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the intervenor.

This appeal was heard on May 25, 1993, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Iacobucci and Major, JJ., of the Supreme Court of Canada.

The decision of the court was delivered in both official languages on December 16, 1993, and the following opinions were filed:

Sopinka, J. (Lamer, C.J.C., La Forest, Gonthier, Iacobucci and Major, JJ., con­curring) - see paragraphs 1 to 29;

L'Heureux-Dubé, J., dissenting - see paragraphs 30 to 70.