IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: MacLean v. F.B., 2010 NSPC 28
Date: 2010-01-25
Docket: 2095677
2100386
2095689
2095641
2102778
2095627
Registry: Halifax
Between:
Harvey MacLean
v.
F.B.
M.B.
S.G.
M.S.O.
Judge: The Honourable Associate Chief Judge R. Brian Gibson, J.P.C.
Heard: December 11, 2009
Date of Decision: January 25, 2010
Counsel: G. Arthur Theuerkauf, Senior Crown Counsel
Harvey MacLean, in person
By the Court:
[1] Between the 9th day of September, 2009 and the 14th day of October, 2009 Harvey MacLean, herein called the Informant, laid six Informations at the Provincial Court in Dartmouth utilizing the pre-printed NS Form 7/2, herein referred to as the Informations. As such, the Informations complied with the provisions of S.506 and 788(1) of the Criminal Code.
[2] Each of the Informations constitutes a private prosecution. Therefore, the provisions of S.507.1 are applicable. Because all Informations were laid by the Informant, all Informations were scheduled before one Judge to consider whether process, contemplated by S.507.1(2), should issue compelling any of the accused to attend court. The Attorney General, as required by S.507.1, was provided with copies of the Informations and notice of the first scheduled appearance relative to the scheduling of a hearing as to whether process should issue. Notice upon the Attorney General was effected by providing the aforesaid copies and notice to the office of the Public Prosecution Service at Dartmouth.
[3] Because of the manner in which the counts set out on the Informations were prepared, the Court raised the issue of whether any of the Informations sufficiently met the requirements of S.581 of the Criminal Code to be regarded as valid. To issue process, a judge or justice must first be satisfied that there is a valid information before him or her. See R. v. Whitemore (1990) 51 C.C.C. (3d) 294 (Ont. C.A.) An information which fails to meet the requirements of S.581 is void ab initio or, as otherwise stated, a nullity. See R.v. WIS Developments Corp. Ltd. et al (1984) 12 C.C.C. (3d) 129 (S.C.C.) and Re: Buchbinder and the Queen (1985) 20 C.C.C. (3d) 481 (Ont. S.A.) as authority for that conclusion.
[4] In respect of the S.581 issue, the Court sought submissions from both the Informant and the Attorney General as represented by the Public Prosecution Service (herein referred to the Crown). The Crown has taken an active role in opposing the ultimate objective of the Informant, which is to have this Court issue process against the various accused individuals shown on the Informations.
[5] Subsections 581(1) and 581(3) which provide as follows:
“581(1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.”
“581(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count.”
[6] The Informant relies upon the words: “but otherwise the absence or sufficiency of details does not vitiate the count”, found in s.581(3) and thereby submits that the details shown on each Information and with respect to each count are sufficient to be regarded as valid relative to the S.581 requirements. I will deal with that submission later in my analysis of each Information.
[7] The Informant further submits that if insufficient detail is set out on any of the Informations, the evidence presented at the hearing conducted in accordance with S.507.1(3)(a), would be sufficient to enable the Informations to be amended by the Court. The Informant, through his written submissions, appears to have attempted to place before this Court some of that detail underlying the counts or allegations. That detail is not appropriate for consideration relative to the S.581 concerns. Firstly, it is not evidence under oath as required by S.507.1. Furthermore, even if that detail, which the Informant has apparently sought to put before the Court through his written submissions, was put before the Court as evidence under oath, it would not be appropriate to consider such evidence relative to the S.581 issue. As authority for this conclusion see Re: Buchbinder and the Queen (supra). Relative to the appropriateness of receiving evidence that might provide details of the circumstances of the alleged offences and thereby use that evidence to amend the Informations to satisfy the S.581 concerns, the Court in the Buchbinder decision stated the following at pages 490 and 491:
“With respect to the submission by counsel for Buchbinder that the justice of the peace has jurisdiction under s.455.3 to upgrade the quality of the informations after hearing evidence, it is my view that this contention cannot prevail if it means that an information which is a nullity can be converted into an effective instrument for commencing legal proceedings. This suggests that the justice of the peace can be empowered by virtue of an information which does not conform with the provisions of s.510 of the Code to embark on an inquiry in order to obtain sufficient evidence to issue a proper information. This is to give him investigative jurisdiction whereas, in my view, it is apparent that his function is a judicial one, to test the quality and sufficiency of the evidence of the complainant and satisfy himself as to whether or not there are reasonable and probable grounds to believe that a certain person or persons has committed the offence set out in the information ...If a hearing can be held on the basis of an information so defective as to fail in any way to identify the accused, it could as readily be held in the case where the information identified the accused but was entirely defective in other regards, such as the nature of the offence. If the private citizen can use the power of the justice of the peace under s.455.3 to assist in a private investigation, one has to be concerned as to how it could be used (or misused) to enlarge the investigative powers of the police.”
[8] Should the Court decide that any of the Informations or counts thereon are valid, the Informant will have the opportunity to present evidence under oath in accordance with the provisions of S.507.1(3)(a) to establish whether there are sufficient grounds for the issuance of process.
[9] The Informant further submits that through the process of laying the Informations, which involved the Informant appearing before a Justice of the Peace who completed the jurat and received the Information, the Informations were thereby validated. I reject that submission. Once again I rely upon the decisions in R. v. WIS Developments Corp. Ltd. et al (supra) and Re: Buchbinder and the Queen (supra). In both of those cases, the Information upon which process was sought to be issued had been laid and thereby received by the Court. Nevertheless, in both cases the Informations were subsequently found to be vitiated ab initio, or otherwise stated, a nullity.
[10] At page 486, the Court in the Re: Buchbinder decision stated:
“In my opinion, the Information which the Justice “receives” is a pre-condition to the exercise of his powers under S.455.3 and must be an Information complying with ss.455 and 510.” (Emphasis added).
Sections 507 and 507.1 are the current equivalents to Section 455.3. Sections 504 and 581 are the current equivalents to Sections 455 and 510 found in the Criminal Code.
[11] The Court in Re: Buchbinder further stated at page 486:
“The sufficiency of an Information was considered in the Supreme Court of Canada in R. v. WIS Developments Corp. Ltd. et al (1984) 12 C.C.C. (3d) 129, where it was held that the Information in question was vitiated ab initio for want of sufficient details as required under S.510(3).”
[12] Furthermore, the Informations herein were laid under the provisions of S.504 which states in part:
“Anyone who, on reasonable grounds, believes that a person has committed an indictable offence, may lay an Information in writing and under oath before a Justice, and the Justice shall receive the Information...”. (Emphasis added).
[13] Receiving an Information is primarily an administrative act. (See Re: Buchbinder and the Queen supra). The words “shall receive the Information” found in S.504 of the Criminal Code mandates that the Justice of the Peace must receive an Information if it discloses an offence known to law; if it alleges a summary conviction offence, the alleged offence was committed within the limitation period; and if the criteria of S.504(a) to (d) are satisfied. The S.504 provisions require a very limited assessment as a pre-condition to receiving an Information and as made clear in the Re: Buchbinder and WIS Developments Corp. Ltd. decisions, an assessment of the factors set out in S.504, which result in the receipt of an Information by a Justice of the Peace is not determinative as to whether the Information is valid.
[14] In the course of assessing the Informations herein relative to the requirements of S.581, I was mindful of the provisions of subsection 581(2) which prescribes as follows:
“The statement referred to in subsection (1) may be
(a) in popular language without technical averments, or allegations of matters that are not essential to be proved;
(b) in the words of the enactment that describes the offence or declares the mattesr charged to be an indictable offence; or
(c) in words that are sufficient to give to the accused notice of the offence with which he is charged.”
[15] Regardless of which of the aforesaid different forms of statement or combinations thereof that might be employed to meet the statement requirements set out s.s. 581(1) and 581(3), the test, as confirmed by the Supreme Court of Canada in the R. v. WIS Developments Corp. Ltd. decision and reiterated in the decision of R. v. Ryan (1985) 23 C.C.C. 1 (Ont. C.A.), at page six is:
“whether the Information contains sufficient detail to give to the accused reasonable information with respect to the charge and to identify the transaction referred to therein”.
The Court in R. v. Ryan went on to further state at page six that:
“The kind of information that will be necessary to satisfy this test will vary depending upon the nature of the offence charged.”
[16] The Court in the WIS Developments decision determined that the flaw in the 32 count Information, which the Court found sufficient to conclude the Information to be vitiated ab initio, was a failure to identify the particular activities involved in the operation of a commercial air service which were alleged to have constituted the breaches of the Aeronautics Act or of the Regulations thereunder. The operation of a commercial air service could relate to a multitude of activities or usages of aircraft in Canada. The Court concluded that S.510(3), which is now S.581(3), required sufficient detail of those activities to constitute the “sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to” as set out in S.510(3).
[17] When the WIS Developments and Re: Buchbinder decisions were rendered, S.510(3) contained the same proviso as found in S.581(3) being the following:
“But otherwise the absence or sufficiency of details does not vitiate the count.”
I therefore have concluded that these words are only applicable provided the threshold requirements set out in S.581(3) of “sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to” are met. Absence of detail beyond these threshold requirements does not vitiate a count or information. In situations where the requirements of S.581(3) are met, but more detail is required to make full answer and defence, the accused can seek particulars pursuant to S.587. Similarly where the S.581(3) requirements may appear to be met, an objection to an indictment or count may still be brought, or an amendment made pursuant to s.601. However, I conclude that S.587 and S.601 are not intended to deal with informations that fail to meet the S.581(3) detail requirements because such informations are vitiated ab initio or otherwise stated, a nullity.
[18] I will now turn to an assessment of the Informations. I concluded that in so doing it may be helpful to set out the details, of what I characterize as the “alleged” offences, shown on each of the Informations. In so doing I propose to identify the Informations as Informations “A”, “B”, “C”, “D”, “E”, and “F” respectively.
[19] Information “A” appears to set out ten counts wherein the Informant states: “that he has reasonable grounds to believe and does believe that F.B., between July 18, 2002 and Sept. 9, 2009 at or near Halifax and area, Nova Scotia, did:
“contrary to Section 21(1) of the criminal code commit aiding abetting
contrary to Section 21(2) of the criminal code common intention
contrary to Section 22(1) of the criminal code counseling
contrary to Section 122 of the criminal code breach of trust
contrary to Section 139(2) of the criminal code obstruction of justice
contrary to Section 358 of the criminal code have in possession
contrary to Section 380(1) of the criminal code defrauded
contrary to Section 430(1) of the criminal code mischief
contrary to Section 464 of the criminal code counseling offences not committed
contrary to Section 465(1) of the criminal code conspired.”
[20] Information “B” appears to set out five counts wherein the Informant states: “that he has reasonable grounds to believe and does believe that M.B., between March 17, 2009 and May 29, 2009 at or near Halifax, Nova Scotia did:
contrary to Section 21(1) of the criminal code commit aiding abetting
contrary to Section 21(2) of the criminal code common intention
contrary to Section 336 of the criminal code breach of trust
contrary to Section 431(1) of the criminal code mischief
contrary to Section 465(1) of the criminal code conspired”
[21] Information “C” appears to set out 17 counts wherein the Informant states: “that he has reasonable grounds to believe and does believe that S.G. between July 12, 2002 and Sept. 9, 2009 at or near Halifax and area, Windsor, Wolfville, Nova Scotia, Moncton, New Brunswick did:
contrary to Section 21(1) of the criminal code commit aiding abetting
contrary to Section 21(2) of the criminal code common intention
contrary to Section 22(1) of the criminal code counselling
contrary to Section 122 of the criminal code breach of trust by public officer
contrary to Section 139(2) of the criminal code obstruction justice
contrary to Section 184 of the criminal code intercept communications
contrary to Section 191 of the criminal code possession of electro-magnetic mechanical or other device useful for surreptitious interception of private communication
contrary to Section 264(1) of the criminal code criminal harassment
contrary to Section 264(2) of the criminal code criminal harassment
contrary to Section 269.1(1) of the criminal code torture
contrary to Section 358 of the criminal code have in possession
contrary to Section 372 of the criminal code false messages indecent telephone calls repeated telephone calls
contrary to Section 380 of the criminal code defraud
contrary to Section 430(1) of the criminal code mischief
contrary to Section 430(1.1) of the criminal code mischief
contrary to Section 464 of the criminal code counseling offences not committed
contrary to Section 465(1) of the criminal code conspired”
[22] Information “D” appears to set out four counts wherein the Informant states: “that he has reasonable grounds to believe and does believe that M.S.O. between April 18, 2009 and May 29, 2009 at or near Halifax, did:
contrary to Section 21(1) of the criminal code commit aiding abetting
contrary to Section 21(2) of the criminal code common intention
contrary to Section 430(1) of the criminal code mischief
contrary to Section 465(1) of the criminal code conspired.”
[23] Information “E” appears to set out four counts wherein the Informant states: “that he has reasonable grounds to believe and does believe that M.B. between March 17, 2009 and May 29, 2009 at or near Halifax, Nova Scotia, did:
contrary to section 21(1) of the criminal code commit aiding abetting contrary to section 264 of the criminal code criminal harassment
contrary to Section 21(1) of the criminal code common intention contrary to Section 264 of the criminal code criminal harassment
contrary to Section 264(1) of the criminal code criminal harassment
contrary to Section 465(1) of the criminal code conspired contrary to Section 264 of the criminal code criminal harassment.”
[24] Information “F” appears to set out four counts wherein the Informant states: “that he has reasonable grounds to believe and does believe that M.S.O. between April 18, 2009 and Sept. 11, 2009 at or near Halifax, Nova Scotia, did:
contrary to Section 21(1) of the criminal code commit aiding abetting contrary to Section 264 of the criminal code criminal harassment
contrary to Section 21(2) of the criminal code common intention contrary to Section 264 of the criminal code criminal harassment
contrary to Section 264(1) of the criminal code criminal harassment
contrary to Section 465(1) of the criminal code conspired contrary to Section 264 of the criminal code criminal harassment.”
[25] All counts on all Informations are almost entirely lacking in detail regarding the circumstances of the alleged offences. As such they do not provide reasonable information with respect to the acts or omissions to be proved against the four accused individuals nor do they identify the transaction or transactions referred to. I therefore conclude that each Information is void ab initio for want of sufficient details required by S.581(3). I include the following specific observations relative to each of the six Informations, hoping that these comments will help to particularize some of the concerns pertaining to each Information and thereby perhaps provide some guidance.
[26] Counts one, two and three of Information A appear to respectively set out as separate offences: aiding and abetting contrary to Section 21(1), common intention contrary to Section 26(2) and counselling of an offence contrary to Section 22(2). These sections do not, in isolation, create an offence. They simply describe the manner in which an individual can incur criminal liability for a particular offence. That manner of incurring liability pursuant to SS.21(1), 26(2) or 22(2) must be tied to a particular offence by a statement containing sufficient detail as to what an accused did or failed to do. Furthermore, such alleged positive act or failure to act would have to pertain to an offence known at law.
[27] The foregoing comments are equally applicable to counts one and two of Information B, counts one and two of Information C and counts one and two of Information D.
[28] Count four of Information A, which alleges an offence contrary to Section 122, fails to specify the office held by the accused or the transaction which constituted the specific breach of trust that was allegedly committed in connection with the duties of the office held. The foregoing comments are equally applicable to count four of Information C which alleges an offence contrary to Section 122 of the Criminal Code.
[29] Count five of Information A, alleging an offence contrary to Section 139(2) fails to identify any act that was either attempted or completed that would allegedly constitute the offence of obstruction of justice. The foregoing comments are equally applicable to count five of Information C which alleges an offence contrary to Section 139(2) of the Criminal Code.
[30] Count six of Information A alleges an offence contrary to Section 358. However, Section 358 is merely a definitional section, describing how offences can be committed which allegedly violate Section 342, dealing with credit cards and their data, allegedly violate Section 354 dealing with property obtained by crime or allegedly violate Section 356 which deals with mail. No details are provided as to the items that were allegedly possessed which would inform the accused whether offences are alleged under the provisions of Sections 342, 354 or 356. Furthermore, count six fails to specify the value of items or whether they were stolen. These observations are equally applicable to Count 12 of Information C.
[31] Count seven of Information A which alleges an offence contrary to Section 380(1) of the Criminal Code fails to specify who was defrauded; what was defrauded, by failing to specify property, money, valuable security or service; the value of what was defrauded and the means by which the alleged fraud occurred. These observations are equally applicable to Count 14 of Information C.
[32] Count eight of Information A which alleged an offence contrary Section 430(1) of the Criminal Code fails to specify how the mischief was allegedly committed, the property involved, the value of the property or its owner. The foregoing comments are also equally applicable to Counts 15 and 16 of Information C and to Count three of Information D which alleges offences contrary to Section 430(1) and Section 430(1.1).
[33] Count nine of Information A which alleges an offence contrary to Section 464 of the Criminal Code fails to specify who was counselled and what offence was counselled. This observation is equally applicable to Count 17 of Information C.
[34] Count ten of Information A which alleges an offence of conspiracy contrary to Section 465(1) of the Criminal Code fails to specify what offence of conspiracy was involved, the individuals with whom the accused conspired or the agreement that was allegedly made. These comments are equally applicable to Count 18 of Information C, to Count five of Information B, and Count four of Information D, all of which allege the offence of conspiracy.
[35] Count three of Information B which alleges an offence contrary to Section 336 of the Criminal Code fails to specify any details of the trust such as identifying for whom the accused was allegedly a trustee and whether the trust was for a private, public or charitable purpose, nor how the trust was defrauded, contravened or converted to an unauthorized use.
[36] Count four of Information B which alleges an offence contrary to Section 431(1) of the Criminal Code enumerates a subsection which does not exist. If the informant intended to refer to Section 431 of the Criminal Code, the alleged offence fails to provide any detail of the violent attack and whether such attack was upon official premises, private accommodation or means of transport and fails to identify the individual who would be an internationally protected person whose life or liberty was endangered. Perhaps the Informant intended to refer to S.430(1), however due to the absence of sufficient details, such a conclusion would be based upon conjecture.
[37] Count six of Information C which alleges an offence contrary to Section 184 fails to identify whether the alleged intercept of communication was by means of an electromagnetic, acoustic, mechanical or some other form of device, whether the intercepted communications were private communications carried out by telephone, radio telephone or orally and between whom the intercepted communications were being made.
[38] Count seven of Information C which alleges an offence contrary to Section 191 of the Criminal Code fails to allege whether the possession of “electromagnetic, mechanical or other device useful for surreptitious interception of private communication” was unlawful by being possessed by someone who either is not exempted under the provisions of Section 191(2) or who failed to know that its primary use was surreptitious interception of private communications. This charge also fails to identify the specific device allegedly used.
[39] Count 11 of Information C which alleges the offence of torture, contrary to Section 269.1 fails to specify whether the accused is an official and what office is held, whether the accused acted at the instigation of or with the consent of an official, the specific act or omission thereof committed, whether it was intentional, whether pain or suffering was inflicted, whether it was physical or emotional pain, the purpose of the torture as specified in S.269.1(2)(a) and whether or not it was an act or omission arising only from inherent in or incidental to lawful actions.
[40] Count 12 of Information C fails to specify that there was an intent to injure, alarm, annoy or harass and to specify that the information was known to be false.
[41] There are jurisdictional concerns arising from the inclusion of Moncton, New Brunswick on Information C as the place where some or all of the alleged activity took place. The significance of the lack of detail relative to these 17 counts set out on Information C is further amplified by the wide scope of time alleged, being between July 12, 2002 and September 9, 2009 which applies to all counts.
[42] With respect to Information E, the comments made above with respect to offences contrary to Sections 21(1), 21(2), and 465(1) on Information A are equally applicable to counts one, two and four of Information E.
[43] Count three of Information E which alleges an offence contrary to Section 264(1) of the Criminal Code, does not specify the individual who was harassed, whether the person allegedly harassed feared for their safety nor is the formal harassment specified as repeatedly following, repeatedly communicating with, besetting, watching or engaging in threatening conduct. These comments are equally applicable to the offence of criminal harassment contrary to Section 264 as specified in Counts 9 and 10 of Information C and as specified in Counts one, two and four of Information E.
[44] As to Information F which lists the same four counts as found in Information E, but in respect of a different accused, the foregoing comments which respect to Information E are equally applicable to all counts listed in Information F.
[45] The submission made by the Informant would suggest that the Court may have some responsibility to assist him in these proceedings due to the fact that he is self-represented. With the greatest respect, I disagree. A self-represented Informant who initiates criminal proceedings is not in a position analogous to the self-represented accused. There is ample case authority, which sets out the responsibility of Courts and judges to assist self-represented accused. That responsibility, which I need not comment further upon, flows from the right of an individual to make full answer and defence and to receive a fair trial.
[46] There is no obligation upon the Courts to assist in the prosecution of criminal charges. To do so would be contrary to the obligation of the Courts to remain and appear to remain impartial. Commencing and prosecuting criminal proceedings is a very serious matter. As made clear in the Buchbinder decision (supra) on pages 490 and 491 cited above, the same obligations which apply to the State, when it commences criminal proceedings, also apply to a private individual who commences criminal proceedings. The Informant indicates that he has not sought legal advice. Whether or not he seeks such advice is for the Informant to determine, but it appears beyond doubt that such advice would be beneficial to him before attempting to initiate criminal proceedings in the future..
[47] As indicated above, the Informant made written submission to the Court after the Court raised the S.581 issue. They were dated December 9, 14 and 30 and were addressed above in a limited fashion relative to the S.581 issue. However, beyond the question of relevance to the S.581 issue, the content of those written submissions appear to suggest that the criminal proceedings, sought to be initiated by laying the Informations herein, may have been vexatious, frivolous or malicious. Nevertheless, whatever the nature of the proceedings sought to be initiated by the Informant, such a determination was considered to be irrelevant to either a determination of the S.581(3) issue or the finding relative to the validity of the Informations. This Court therefore made no determination as to the nature of the criminal proceedings sought to be initiated by the Informant.
[48] However, had this Court determined that the Informations were valid and thereby proceeded to conduct the S.507.1 hearing, the Court, upon hearing the evidence and submissions during that hearing, would have been in a position to assess the nature of the proceedings. If the Court determined, after considering the evidence and submissions presented during the S.507.1 hearing, that the criminal proceedings were vexatious, frivolous or malicious, such a finding would have been sufficient reason not to issue process compelling the named accused on the Informations to appear in Court.
[49] I have raised the nature of the proceedings issue to ensure that it is understood by the Informant, should he lay Informations in the future which comply with S.581(3), that the Court, during the S.507.1 hearing, must not only insure that there is some evidence of all essential elements of the offence to determine that there is a prima facie case upon which to issue process but is also required to consider the nature of the proceedings when determining if process should issue compelling the named accused to attend court.
[50] There are two further issues I wish to address. The first concerns the courthouse where Informations are to be laid. The second concerns the identity of the accused shown on the Informations.
[51] The Informant alleges on all Informations that the location of the alleged offences was Halifax. The Informant submitted that upon attempting to lay the six Informations at the Spring Garden Road Courthouse he was advised that the Court at that location would not receive the Informations and further advised to take the Informations to the Dartmouth Courthouse to be laid thereat. It is not clear why such direction was given, however, based upon the indicated place of the alleged offences as Halifax, any Information that the Informant seeks to lay in the future, where the named placed for any alleged offences is Halifax, should be laid at the Spring Garden Road Courthouse.
[52] The accused individuals have been referred to by their initials herein. Proceedings under S.507.1 are ex-parte and held in camera. See Southam Inc. v. Coulter (1990) 60 C.C.C. (3d) 267 (Ont. C.A.). Section 507.1(5) does not deem an Information to have been laid until such time as a judge or
designated justice has issued process. Therefore, it is inappropriate to reveal the identity of the named accused individuals until a decision has been made to issue process.
____________________________________
R. Brian Gibson, J.P.C.
Associate Chief Judge