Cite as: R. v. Wilson, 1990 NSCO 9 1989 C.AR. No. 02301 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN:
HER MAJESTY THE QUEEN APPELLANT - and ALEXANDER JOHN WILSON RESPONDENT HEARD: At Annapolis Royal, Nova Scotia, on the 28th day of November, A.D. 1989 BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. DECISION: The 8th day of February, A.D. 1990 CHARGE: Section 4 of the Forest Fire Regulations COUNSEL: David Acker, Esq., for the Appellant W. Bruce Gillis, Esq., Q.C., for the Respondent DEC I S ION o N APPEAL
HALIBURTON, J.C.C. This is an appeal by the Crown against the acquittal of the Accused entered by John Provincial Court, on June 20th, on the preliminary motion of Defence. following issues: 1. Did the Information establish an offence known in law? 2. Is the Information defective in that it did not refer to the statute pursuant to which the regulation was made? 3. Is the Information defective in that it did not set out with some particularity defendent had to meet? Those questions encompass the issues on the appeal according to the factum submitted by the Crown. Respondent would add the further issue: Does the Statute permit the creation of this offence by regulation? The Respondent was charged that at or near West Paradise, Annapolis County, Scotia, on 6 May 1989 at 4: 40 p.m. contravene the terms of a Section 4 of the Forest Fire Regulations. Judge Nichols, after representing the Respondent and the Crown, and after considering the preliminary motion for dismissal, comments: R. Nichols, Judge of the 1989. The charge was dismissed The Appellant raises the (Summary Offence Ticket) the offence which the To these issues, the Nova he did unlawfully burning permit contrary to hearing argument by Counsel made the following
- 2 11m prepared to dismiss it on the disclose the particular statute under which the matter is related, nor does it set out with some particularity the offence which the Information should set Section 4 of the Forest whatever it is of whatever doesn't refer to the Act Forest Act should be referred to with the in the Motor Vehicle Act Regulations on your SOT tickets. Reviewing the words dismissing the charge, I conclude reasons: One, that the offence alleged was not described with sufficient particularity so as to "reasonably inform the Accused of the nature of the offence, and to permit him an opportunity to adduce a full defence upon a fair trial"; and, secondly, that the SOT ticket utilized as the form of Information in this case failed to recite the particular statute alleged to create the offence and therefore failed to comply with the requirements of Section 581 of the Criminal Code. An Information to commence accused person must, as a requirements of the Criminal considered by the Supreme Court of Canada in R. v. Cote (1977)~ 33 C.C.C. (2d) 353. The Court's position was, perhaps, put most succinctly in the dissenting judgment of Spence, J., who said at page 354: the particular form of the information in the present appeal complied with the provi sions of s. Criminal Code in that it referred to subsection of the Criminal Code the facts .•• the accused had been reasonably informed of face, it ••. doesn't defendant must meet •••• the out that it's contrary to Regulations under Section Act that' s involved ••• it which I take it was ••• the I as they do in any offence under the used by Judge Nichols in that he did so for two a proceeding against an general rule, conform to the Code. Those requirements were 510 of the a section and and also outlined all
- the transaction alleged opportunity to adduce a full defence upon a fair trial. De Grandpre, J., in delivering the majority decision, referred to what is now s. 581(5): A count may refer to any section, subsection, paragraph or subparagraph of the enactment offence charged, and for whether a count is sufficient, consideration shall be given to any such reference. And went on to say: the golden rule is for the informed of the transaction alleged against him, giving him the possibility of a full defence and a fair trial. When, as in the present case, reci tes all the facts and relates them to offence identified by the relevant section of the Code, it is impossible for the accused to be misled. otherwise would be to technicality of the old procedure. In Nova Scotia, the simplified and streamlined method of laying an information and getting that information before Under the provisions of the investigating officer may, with issue a Summary Offence Ticket. Information and Summons, while at the same time, necessity of serving a more formal require his attendance at Court, standard form of Information to place before the Court. Among the provisions of the S.N.S., 1972, c. 18, is Section SA: 3 against him and had the that creates the the purpose of determining accused to be reasonably thus the information a definite To hold revert to the extreme Legislature has provided a the Court for adjudication. Summary Proceedings Act, the respect to certain offences, The S.O.T. serves as both obviating the summons upon the accused to and also the preparation of a Summary Proceedings Act,
- 4 SA (1) In addition to the procedure set out Cr iminal Code (Canada) for for issuing a summons, an information may be laid and a summons issued by means of a ticket in accordance with this Section for an offence under any provision of an Act or regulation or municipal by-law designated by the regulations. SA (3) The Governor in Council may make regulations: (b) designating offences under regulations or municipal by-laws this Section; SA (7) The use on a ticket of any word or expression authorized by the regulations to designate an offence under any provision of municipal by-law designated sufficient for all purposes to designated by such word or expression. The Forests Act, S.N.S. new statute. It replaced certain provisions of the former Lands and Forests Act. The intent and purpose of the Act as outllned in Section 2 is the promotion of effective forest management of both Crown and private lands as an economic resource. provisions of the Act ,. the following sections deal with forest fire control and the setting of particular relevance in this case are the following sections: 23 (3) During the fire season no person shall ignite a fire or cause a fire to be ignited in the woods or within one thousand feet of the woods without a valid permit to burn. 23 (S) A permit to burn prescribed by the Minister conservation officer or other person authorized by the Minister. 23 (6) A person authorized to issue permits to burn may impose such additional terms and conditions or may refuse to issue permits to burn as that person necessary. in the laying an information and provisions of Acts or for the purposes of an Act or regulation or by the regulations is describe the offence 1986, c. 10, is a relatively Among the a fire in a wooded area. Of shall be in the form and may be issued by a deems
- 5 40 The Governor in Council may make regulations (b) governing the terms refusal and cancellation of permits; (h) respecting the establishment of fire seasons; (i) respecting procedures regarding fire proclamations and restrictions during such periods; (j) respecting any matter necessary or effectively carry out the intent and purpose Act. The predecessor legislation, Act, R.S.N.S., 1967, c. 163, provisions respecting fire protection. at s. 85 in that Act. I find consideration of the issues before the Court here. 96 (1) No person shall make, kindle or start a fire on land within a wood, forest or forest area or within one thousand feet of woods, a forest or forest area during the fire season unless he ranger or sub-ranger. 96 (2) It shall be the duty of such chief ranger or sub-ranger •.. to examine the intended to start the fire ..• and to refuse the request and decline to grant leave, conditions to be performed by the persons .•• 116 (1) The Governor in Council may from time to time, by Order or Orders in Council, repeal rules and regulations purpose and provisions of this Part, including matters in respect whereof no express imperfect provisions have been made. 116 (2) Any person contravening or breach of or committing any offence against any of the provisions of any rule or regulations made Part, shall be guilty of an offence against this Part. Regulation No. 1380/84 was made under the authority of s. SA (3) of the Summary Proceedings Act Royal Gazette on February 23rd, and conditions of issue, advisable to of this the Lands and Forests like the new Act, contained These provisions began s. 96 to be relevant to a has the leave of the chief place at which it is or to grant it only on make, amend, vary or for carrying out the or only partial or committing any under this and published in the 1984, Volume 8, No.3. The
- following provisions contained in that regulation are relevant to this discussion: 3 A summary offence ticket may be used for any offence contained in a statute or regulation of the Province; S In a summary offence ticket an offence may be described (a) using the words set out in Schedule 2 to Schedule 16, inclusive, opposite the subsection or regulation providing for the offence; (b) using the words of the enactment; or (c) in any concise expression describes the offence to the accused. Schedule 6 attached to this regulation provides wording to be used under paragraph S (a) against the Lands and Forests Act was alleged. equivalent to that in the case presently before the Court contemplated in that schedule, however, there are two forms wording provided under the S.C.T. regulations for a charge under s.96 (1) of the former Lands and Forests Act which was above. The operative words are set out as follows: making, kindling or starting forest or forest area during fire permit; and making, kindling or starting a fire within one thousand feet of woods, during fire season without a permit. No regulation has been matter of this charge since promulgated. Accordingly, it is charged is not "any provision of an Act or regulation designated by the regulations" [Summary Proceedings Act, s. SA(7)]. 6 number of the Section, which sufficiently the above where an offence No charge fully was of quoted a fire within a wood, season without a forest or forest area made relative to the subject the Forests Act has been apparent that the section
- 7 ISSUES From the foregoing discussion, it will be evident that in my view, the decision of the Trial conclusions with respect to those numbered 2 and 3 in the appeal. with those issues as two aspects of the basic question agreed upon by Counsel as being: whether reasonably disclosed the offence charged. In his decision, the Trial alleged offence was not related to section thereof and therefore failed to give required notice to the Accused. The Appellant argues it is well established that such a reference is not essential to a valid Information. Appellant is clearly correct in that assertion. the Trial Judge relied on that proposition in dismissing charge is less clear. As noted above, R. v. Cote 33 C.C.C. 353 establishes that the golden rule is ,for the informed of the transaction alleged against him. The Appellant has further cited R. Paper Co. 20 C.C.C. (2d) 26, a Ct. J., and cites the following quotation: The respondent contended at the outset that the first information is a nullity because it does not refer to the enactment which creates therein. There is considerable establishing the fact that any surplusage provided there is a general allegation that the facts alleged are contrary to law. Judge flowed from his questions raised in Issues I find it appropriate to deal or not the information Judge observed that the a specific statute and a The Whether or not the (2d) accused to be reasonably v. Canadian International case decided by Chartrand, Co. the offence alleged jurisprudence such reference is mere (My emphasis)
- 8 The law is surely that the Accused be reasonably informed of the allegation which constitutes an that Information may be assisted by a reference to the statute and section number which is alleged to have been offended. wording used need not be technical and, indeed, would preferably be simple and clear to the layman. Summary Proceedings Act are, in my view, intended to promote the use of such wording in the laying however, does not in any way Crown and the right of the Accused to have a succinct allegation of the facts incorporated in allegation that those facts are unlawful or contrary to law. these allegations are imperfectly reference to the statute and section contravened will aid the prosecution in persuading that the Accused has been sufficiently informed of the charge against him, answer and defence. Wi thout statute, the Information and the allegations contained in it must be full and complete within themselves. In this case, the charge does not allege the actions of the Accused were contrary to law. statute under which an offence was said to have been committed and, indeed, it does not use regulations. The statutory reference is therefore not of assistance in establishing what offence is alleged against the Accused. The offence alleged is unlawfully "contravening terms of burning permit". This wording offence. The sufficiency of The The provisions of the of informations. That, diminish the obligation of the the charge with the further If stated, then a correct so that he may make a full the appropriate reference to Nor does it refer to the the correct name of the any is clearly inadequate to
- 9 convey any appreciation to a bystander as to what taken by the Accused which is alleged to be an offence. burning after dark? Was he using the fire in a locality from which he was restricted? may be the case, after reading the Information, clearly not informed as to the nature of the offending action. In an unreported decision, C.D. #2318, where a Charter argument was raised with respect to the sufficiency of the Information, It is clear that the "charge" is not required to be in technical language, and may language, whether or not in accordance with the wording set forth in the schedule to the Act regulations, but that in any event, it is required: "that every material fact and essential element of the offence be charged with precision and certainty in the indictment or information. to be informed by the indictment" of that with which he is charged. For further authority, see R. v. Lucas 57 N.S.C.A. Accordingly, I conclude that the Trial Judge committed no error in law in dismissing the charge upon a finding that the Information was defective in that the information in the form of a SOT ticket failed to recite the particular statute and that its failure to do so, coupled particulars sufficient to give the Accused notice of the offence wi th which he was charged, resulted in the prosecution had failed to comply with the requirements of s. 581 of the Criminal Code. Alternatively, it might said that the averments contained in the comply with the "golden rule" that action was Was he a flammable substance? Was Whatever' the reader is R. v. Mark Louis Thibault I said the following: preferably be in simple Summary Proceedings He has a substantive right (2d) 159. with its failure to disclose a circumstance whereby simply be Information do not lithe accused be reasonably
- informed of the transaction alleged against therefore, dismiss the appeal. While it is obviously unnecessary to deal remaining issues to dispose of this matter, Counsel have raised interesting points with respect Summary Convictions Act. I consider those issues useful. ISSUE NO.1 The first issue raised by the Appellant relates to the conclusion of the Trial Judge establish an offence known in law. that the Forests Act, s. 40(b) Council to make regulations governing the terms of issue, refusal and cancellation of permits; and s. 40(3) 40(j) authorize the making of regulations "respecting any matter necessary or advisable to effectively carry out the intent and purpose of this Act". He argues this section is authority for the creation of an offence by way of the Forest Fire Protection Regulations. It is s. 4 of these regulations which makes it an offence to "fail to comply with contained in a permit". Finally, he argues that the penalty is ascertainable by reference to s. 36 of the Act which imports the general penalty section from the Summary Proceedings Act. The Respondent, on the other hand, argues on the basis of the general law relating to the interpretation of statutes that the authority of the Governor 10 him". I would, with the to the Forests Act and the a further discussion of that the Information did not The Appellant/Crown argues authorizes the Governor in and conditions and the terms and conditions' in Council to make
- regulations under s. 40 does not creating an offence. Rather, which the Governor in Council is specifically authorized to make regulations and thereby restricts such regulations to those in the same class or category "expressio unius exclusio alterious". It is a curious facet of the Forests Act that it does not include a general provision contravene any section of the similar to that contained in s. 116 Forests Act. (See text above.) The granting of a permit attached is specifically provided in the statute and not in the regulations. One would naturally expect to find the creation of any related offence in the statute as well. created. Indeed, it is unclear in my view whether the Governor in Council would, in fact, have authority under the provisions of s. 40 (b) to establish a set of conditions for·the issue of a burning permit when the statute itself gives that authority to a conservation off icer. The contemplated in the main, as described in the section 40, are very broad and regulate such things as spraying practices, agreements, and the operation of the Timber Loan Board. I agree with Counsel creation of offences does not appear to be in keeping with the general intent of that regulation making authority. 11 include any author i ty for it lists a number of areas in making it an offence to Act. There is no provision (2) of the former Lands and to burn with conditions No such offence is nature of the regulations subsections to' are obviously intended to forest management for the Respondent that the I find the
- 12 offence alleged, or the creation powers of the Governor in Council offence known in law. ISSUE NO.4 It is not my intention to respond raised by the fourth issue, that is, the creation of this offence by observe that the drafting of the statute very obviously makes this an open question. The predecessor statute under s. 116(2) left no doubt that the contravention of any rule or regulation would be an offence. There appears to be no similar provision in the new Forests Act and, while created by the statute itself in relation to various matters, there is no specific authority whereby it is made an offence to contravene the conditions of a burning permit. CONCLUSION I cannot conclude without making a general comment on the use of Summary Offence Tickets. of Summary Offence Tickets, convenient process, constitute an exception to the general rule. Whether or not the procedure may properly be used on any summary conviction is not a matter which dispose of this case. The considerations determining this appeal have reservations about the effic.acy of s. of it, is ultra vires the and therefore is not an to the question "Does the statute permit regulation?" I would only there are certain offences As noted earlier, the use their abbreviated style and needs to be adjudicated to I have, however, in caused me to have serious 3 of regulation 1380/84
- 13 made under the provisions of the Summary Proceedings Act much as it purports to provide that a S.O.T. may be used for any offence. That provision appears to be in direct contradiction of s. SA (1) of the statute which restricts their use designated by the regulations. that Informations in relation to offences against any statute or regulation of the Province might be proceeded with by way of S.O.T., the Legislature would provision in the Act. This regulation appears to be anticipatory in nature, only existing statutes and regulations, but those to be passed or promulgated in future. The appeal herein will be dismissed and the Respondent will have his costs in the amount Dollars. DATED at Digby, Nova Scotia, this 8th day of February, A.D. 1990. TO: Mrs. Patricia Connell Clerk of the County Court P.O. Box 129 Annapolis Royal, Nova Scotia BOS lAO in as to acts Had the Legislature intended a surely have included such a is particularly so where the embracing not of Four Hundred ($400.00) -
- 14 AND TO: Mr. David E. Acker
Crown Prosecutor
P.O. Box 1270
Middleton, Nova Scotia
BOS 1PO
Solicitor for the Appellant
Mr. W. Bruce Gillis, Q.C.
Barrister & Solicitor
P.O. Box 700
Middleton, Nova Scotia
BOS 1PO
Solicitor for the Respondent
CASES AND STATUTES CITED: R. v. Cote (1977), 33 C.C.C. (2d) 353 Summary Proceedings Act, S.N.S., 1972, c. 18 Forests Act, S.N.S. 1986, c. 10 Lands and Forests Act, R.S.N.S., 1967, c.163 R. v. Canadian International Paper Co. 20 C.C.C. (2d) 26 R. v. Mark Louis Thibault C.D. #2318 (unreported) 1989 C.AR. No. 02301
CAN A D A PROVINCE OF NOVA SCOTIA COUNTY OF ANNAPOLIS IN THE COUNTY COURT OF DISTRICT NUMBER THREE
ON APPEAL FROM
THE PROVINCIAL COURT
BETWEEN: HER MAJESTY THE QUEEN
-and-
ALEXANDER JOHN WILSON
HEARD BEFORE: His Honour Judge John R. Nichols, J.P.C. PLACE HEARD: Middleton, Nova Scotia DATE HEARD: June 20, 1989 CHARGE: That he on or about the 6th day of May, 1989, at West Paradise, Annapolis County, Nova Scotia, did unlawfully commit the offence of contravening terms of burning permit, contrary to Section 4 of the Forest Fire Regulations. COUNSEL: C. Lloyd Tancock, Esq., for the Prosecution w. Bruce Gillis, Esq., Q.C., for the Defence CASE OR APPEAL
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.