1998 CarswellBC 1413, 109 B.C.A.C. 106, 177 W.A.C. 106, 126 C.C.C.

( 3d) 513

R. v. Charlie

Regina, Appellant and Carlson Campbell Charlie, Respondent

British Columbia Court of Appeal

Macfarlane, Southin, Hollinrake JJ.A.

Judgment: June 24, 1998

Heard: June 2, 1998
Docket: Victoria V03265

© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights
reserved.

Counsel: Dirk Ryneveld, Q.C. and George J. Ivanisko, for the Appellant (Crown).

Tybring M.S. Hemphill, for the Respondent.

Subject: Criminal

Criminal law --- Compelling appearance of accused — Indictment — Preferring indictment — Preferring
indictment after preliminary inquiry — Commencement by Attorney General

Accused was charged with sexual offences and elected to have preliminary inquiry — Accused was repre-
sented by duty counsel at preliminary inquiry — Preliminary inquiry judge failed to address accused as
provided by ss. 541(2) and (4) of Criminal Code — Preliminary inquiry judge committed accused for trial
— Crown preferred indictment — Accused applied to quash committal — Application was granted —
Crown preferred direct indictment by Attorney General — Accused applied for order quashing indictment
— Application was granted — Crown appealed decision quashing indictment — Attorney general had
power to prefer direct indictment under s. 577 — There was no abuse of process — Error made by prelimi-
nary inquiry judge did not prejudice accused in making full answer and defence to charges — Appeal was
allowed — Criminal Code, R.S.C. 1985, c. C-46, ss. 541(2), 541(4), 577.
Cases considered by Madam Justice Southin:

Canada (Procureur général) c. Bélair (1991), 10 C.R. (4th) 209, [1992] R.J.Q. 307 (Que. C.A.) —
considered

R. v. Liu, 67 Alta. L.R. (2d) 1, [1989] 5 W.W.R. 67, 95 A.R. 201, 70 C.R. (3d) 284 (Alta. C.A.) — con-
sidered

Statutes considered:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act, 1982 (U.K.), 1982, c. 11

s. 11(b) — referred to
Criminal Code, R.S.C. 1985, c. C-46

Generally — referred to

s. 536(2) — referred to

s. 541 [rep. & sub. 1994, c. 44, s. 54] — considered

s. 541(2) [rep. & sub. 1994, c. 44, s. 54] — referred to

s. 541(4) [rep. & sub. 1994, c. 44, s. 54] — referred to

s. 574(1) — referred to

s. 577 [rep. & sub. R.S.C. 1985, c. 27 (1st Supp.), s. 115] — considered

s. 577(a) [en. R.S.C. 1985, c. 27 (1st Supp.), s. 115] — referred to

s. 577(b) [en. R.S.C. 1985, c. 27 (1st Supp.), s. 115] — referred to

APPEAL by Crown from decision quashing indictment.

Madam Justice Southin:

1 This is an appeal from the judgment of the Honourable Mr. Justice R. D. Wilson pronounced the 23rd
April, 1998, quashing this indictment:

Direct Indictment/Acte d'Accusation

CARLSON CAMPBELL CHARLIE stands charged that/est inculpé de ce qui suit:

Count 1:

On or about the 16th day of June, 1996, at or near Port Renfrew, in the Province of British Columbia,
he did sexually assault [T.F.], contrary to Section 271 of the Criminal Code.

Count 2:

On or about the 16th day of June, 1996, at or near Port Renfrew, in the Province of British Columbia,
he did, for a sexual purpose, touch, directly or indirectly, with a part of his body, the body of [T.F.], a
person under the age of fourteen years, contrary to Section 151 of the Criminal Code.

AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY

DATED this/Fait le 2nd day of/jour de March/mars, 1998, at the City of Victoria/à la Ville de Victoria,
Province of British Columbia/Province de la Colombie-Britannique.

"Signed"

Ernie Quantz, Q.C.

 Deputy Attorney General for the Province of British Columbia/Sous-Procureur Général
pour la Province de la Colombie-Britannique

2 It is common ground that the signing of this indictment by Mr. Quantz constitutes his "personal con-
sent in writing" within those words in s. 577 of the Criminal Code and that he is, indeed, the Deputy Attor-
ney General of this Province. What led up to this direct indictment, the date of which (2nd March, 1998) is
significant, must be recounted.

3 On the 9th December, 1996, a peace officer presented this information:

The informant says that he has reasonable and probable grounds to believe and does believe that/Le
dénonciateur déclare qu'il a des motifs raisonnables et probables et croit effectivement que

Count 1

Carlson Campbell CHARLIE, on or about the 16th day of June, 1996, at or near Port Renfrew, in the
Province of British Columbia, did sexually assault [T.F.], contrary to Section 271 of the Criminal Code.

Count 2

Carlson Campbell CHARLIE, on or about the 16th day of June, 1996, at or near Port Renfrew, in the
Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his
body, the body of [T.F.], a person under the age of fourteen years, contrary to Section 151 of the
Criminal Code.

4 A warrant was issued for the respondent's arrest. I assume he was released on an undertaking to ap-
pear and, at some time thereafter, not only did he duly appear and make his election under s. 536(2) to have
a preliminary inquiry, but also, either by himself or by counsel, assented to the date of the 10th July, 1997,
as the hearing date.

5 On the 10th July, 1997, the preliminary inquiry came on before a judge of the Provincial Court at
Colwood, whereupon this occurred:

MS. MURRAY: This is Mr. Charlie, Your Honour. This is scheduled for preliminary inquiry today. I
have one witness; she's fourteen years old. It's an allegation of sexual touching. It's a case that we
would like to get on today.

Mr. Charlie, however, doesn't have counsel. Mr. Morino withdrew some time ago, June 23rd, and he
says that he — he says in his letter that he has advised Mr. Charlie about the preliminary hearing and
that it may proceed without him having a lawyer.

I also talked to Mr. Morino earlier this week and he told me that he talked to Mr. Charlie about a week
or two ago and again reiterated that he'd better get himself a lawyer or be prepared to go ahead to pre-
liminary hearing.

I gave my friend a copy of the report to Crown counsel yesterday just in case it happens, as it has to-
day, that Mr. Charlie shows up without counsel. So that's where we are.

I understand from my friend that Mr. Charlie is still expecting Mr. Morino, but Mr. Morino was quite
clear earlier this week that he wouldn't be here for Mr. Charlie.
6 This was followed by some discussion between the court and duty counsel as to whether some other
date might be soon found for a preliminary inquiry and the matter was stood down. When it came back on,
Crown counsel said, among other things:

I have had a chance to speak to the complainant. She is really opposed to any adjournment, and I
should add my concern with going over.

There are two concerns: First of all, if that really gives him any more opportunity to get counsel. And
secondly, that would mean that that young girl would have to go through with another prosecutor —
because we've already met a couple of times and prepared — and I am on holidays during August, so I
really have some concerns about an adjournment of the preliminary inquiry.

7 Duty counsel, Mr. Hemphill, made further submissions and the court then said:

Thank you. This is the defence application for an adjournment of a preliminary inquiry that was set for
today. This date was set on the 8th of April of this year by Mr. Morino, who was then Mr. Charlie's
counsel. I understand that Mr. Morino removed himself from the record some time ago and Mr. Charlie
is at this moment without legal counsel.

If this were a trial then there is no question I would grant an adjournment because of the seriousness of
the charges; however, this is a preliminary inquiry. This stage of the proceedings is to determine
whether or not there is sufficient evidence that this matter proceed to trial. I am not to weigh the evi-
dence today and I, therefore, am not going to adjourn the trial. This victim is fourteen years old and she
still has to go through a trial even after today's events and this preliminary will proceed.

8 The complainant was called. Her evidence in chief occupied some seven pages of transcript. She de-
scribed, to use the old fashioned term, a rape. There was no cross-examination. The court said:

This is a preliminary inquiry with respect to an indictable offence allegedly committed by Mr. Charlie.
There are two counts before the court. The first one that he did sexually assault [T.F.] on June 16th,
1996, and the second that he did for a sexual purpose touch her body on the same date at the same
time. She being under the age of fourteen.

Looking to the test set out in U.S. and Sheppard, I am satisfied that there is sufficient evidence that a
trial judge hearing this evidence could — there could be sufficient evidence to convict and I am send-
ing this on to trial on both counts.

9 By s. 541 of the Criminal Code:

541. (1) When the evidence of the witnesses called on the part of the prosecution has been taken down
and, where required by this Part, has been read, the justice shall, subject to this section, hear the wit-
nesses called by the accused.

(2) Before hearing any witness called by an accused who is not represented by counsel, the justice shall
address the accused as follows or to the like effect:

Do you wish to say anything in answer to these charges or to any other charges which might have
arisen from the evidence led by the prosecution? You are not obliged to say anything, but whatever
you do say may be given in evidence against you at your trial. You should not make any confes-
sion or admission of guilt because of any promise or threat made to you but if you do make any
statement it may be given in evidence against you at your trial in spite of the promise or threat.
 (3) Where the accused who is not represented by counsel says anything in answer to the address made
by the justice pursuant to subsection (2), the answer shall be taken down in writing and shall be signed
by the justice and kept with the evidence of the witnesses and dealt with in accordance with this Part.

(4) Where an accused is not represented by counsel, the justice shall ask the accused if he or she
wishes to call any witnesses after subsections (2) and (3) have been complied with.

(5) The justice shall hear each witness called by the accused who testifies to any matter relevant to the
inquiry, and for the purposes of this subsection, section 540 applies with such modifications as the cir-
cumstances require.

10 The learned judge did not address the respondent in the terms of subsections 541(2) and (4).

11 For the purposes of the issue here, I proceed on the footing that although the respondent had the
assistance of Mr. Hemphill, he was not "represented by counsel" within the meaning of s. 541.

12 I digress to say that I can well understand how a busy Provincial Court judge could overlook the
requirements of this section. It is almost unheard of nowadays for an accused to want to call evidence at a
preliminary inquiry or indeed to say anything at all.

13 On the 23rd July, 1997, pursuant to s. 574(1) of the Criminal Code, counsel for the Attorney Gen-
eral preferred an indictment, which I need not quote.

14 The respondent duly appeared for the fixing of a trial date and the date of the 2nd March, 1998, was
fixed. Near the end of February 1998, a petition was launched, returnable the 26th or 27th February, to
quash the committal. It was partly heard.

15 On the 2nd March, a jury panel having been summoned and the complainant being present and
ready to testify, Mr. Justice Hutchison acceded to the petition. He said this:

The long and the short of it was that the learned trial judge, having decided to proceed at the prelimi-
nary with Mr. Charlie not being represented, failed to appreciate her obligations under Section 541 of
the Criminal Code, which specifically provides before hearing any witnesses called by an accused,
who is not represented by counsel, the justice shall address the accused as follows, and the usual words
that were mandatory for all persons at a preliminary up until fairly recently, must be read to the ac-
cused. The words of the section specifically says that:

Before hearing any witness called by an accused who is not represented by counsel, the justice
shall address the accused as follows, or to the like effect.

[6] Mr. Hickford relies on the words "or to like effect," suggesting that the learned provincial court
judge made it very clear to this accused that he had the right to ask questions of the witness or any
other witnesses and so on. Basically it is argued that compliance was made with the section through
what the learned judge said. What the transcript reveals is that the learned provincial court judge said
as follows:

THE COURT: Mr. Charlie, do you have any questions of this witness?

THE ACCUSED: Well —

THE COURT: You will have to stand.

MS. MURRAY: You'll have to stand up, sir.

 THE ACCUSED: Yeah, I'm sorry. I do have a lot of questions about that but not when I talk with-
out getting counsel here to represent me.

THE COURT: All right, so you're not intending to ask any questions at this time; is that correct?

THE ACCUSED: Not at this time, thank you.

THE COURT: You are free to go.

[7] Well, then he was committed and he was never given an opportunity to call witnesses. The tran-
script reveals that there was a witness that the Crown chose not to call who apparently had entered the
room at the critical time of the offence charged and had observed what is alleged to be, in good old-
fashioned terms, a rape.

.....

[9] In those circumstances it seems to me that the failure to comply does require this court to enter into
its discretionary right to quash by way of certiorari. In my view, this is an appropriate case to quash
the committal.

.....

[14] Accordingly, I told the Crown that I would quash the committal order by an order of certiorari and
that I would give reasons a few minutes later. These are those reasons. I therefore quash the committal,
or I make an order to quash the committal order, because the writ no longer issues. It is by an order of
the court, I think, pursuant to the Rule 4 of the ... Criminal Court Rule.

[17] I think it follows that the matter should be set again for preliminary hearing, and that is all I have
to say on the matter. [Emphasis mine.]

16 No order has been drawn up. Counsel for the respondent takes the position that by the emphasized
words the learned judge was ordering the Crown to proceed with a new preliminary inquiry and that, for the
Crown to adopt the route of a direct indictment instead of going to a new preliminary inquiry, was an abuse
of process. I shall address later other aspects of the assertion of abuse of process. Suffice it to say, at this
point, that, even assuming the learned judge had the power to make such an order — a proposition which I
doubt — I do not think the words bear that meaning. I take the learned judge to be saying that the Crown
may do it again, which is not the same as saying that the Crown must do it again.

17 On that day, before Mr. Justice Hutchison, the Crown had indicated that if the committal were
quashed, it might well proceed by direct indictment.

18 As to that, the learned judge said:

[19] THE COURT: Yes, that is right. Well, I think you should go before Judge Melvin with your direct
indictment and say that we want to select a jury. Mr. Charlie is represented here. Judge Melvin may
well say, "I'm not going to do that, I'll adjourn it," but he may.

[20] You know, there may well be an appropriate application here by Mr. Hemphill to quash the direct
indictment on the basis that it is an abuse of process, but I think that argument should go before Mr.
Justice Melvin, not before me. I mean, you have to produce the indictment. You go in front of Judge
Melvin, and Mr. Hemphill can make his argument and see what will happen.
19 As I have already indicated, the direct indictment was indeed preferred that day and an application
was thereupon made to quash it. That application caused an adjournment of the trial.

20 In granting the order sought, Wilson J. adopted the reasoning of Harradence J.A. in R. v. Liu (1989),
70 C.R. (3d) 284 (Alta. C.A.):

[7] I adopt that reasoning in this case and apply them in coming to the decision that I did. I have con-
sidered Mr. Hickford's submission, that the consequence of the Order of Mr. Justice Hutchison, quash-
ing the Order to stand trial, had the effect in law of creating a circumstance in which there was no pre-
liminary inquiry conducted. While that is a charming argument, I think it is a triumph of form over
substance, if I accede to it. The fact of the matter is, there was a hearing before the inferior tribunal.
The results of that hearing were declared void by this court. I agree with Mr. Justice Harradence's rea-
soning, that Parliament has given the executive branch of government no authority to interfere with the
process of the superior court in these circumstances.

21 What counsel had argued before him was that there was "no authority in the Criminal Code of Can-
ada for the Attorney General to prefer such an indictment in the circumstances of this case" and alterna-
tively he had argued "this is an abuse of process and the proceeding under the direct indictment should be
stayed because the result of this conduct by the Crown is to deny Mr. Charlie his right to make full answer
and defence to the counts in the indictment".

22 The learned judge declined to deal with the second argument.

23 Thus, there is no finding before us of an abuse of process by the Crown.

24 By s. 577 of the Criminal Code:

577. In any prosecution,

(a) where a preliminary inquiry has not been held, an indictment shall not be preferred, or

(b) where a preliminary inquiry has been held and the accused has been discharged, an indictment
shall not be preferred or a new information shall not be laid

before any court without,

(c) where the prosecution is conducted by the Attorney General or the Attorney General intervenes
in the prosecution, the personal consent in writing of the Attorney General or Deputy Attorney
General, or

(d) where the prosecution is conducted by a prosecutor other than the Attorney General and the
Attorney General does not intervene in the prosecution, the written order of a judge of that court.

25 Before us, counsel for the Crown asserts that under s. 577 the Attorney General or his Deputy may
prefer a direct indictment in all cases, although, of course, there would be no purpose in doing so where an
accused has been committed for trial.

26 For his part, counsel for the respondent asserts that:

1. A preliminary inquiry was "held" and the accused was not "discharged" and, therefore, there is no
power in the Attorney General to prefer this indictment. In other words, he says that s. 577 does not
encompass a case in which, for whatever reason, a preliminary inquiry has proved abortive.
 2. Preferring an indictment in the circumstances is an abuse of power. The community sense of fair
play and decency would be offended by:

(a) the Crown using this process against an accused who has succeeded in obtaining an order to
quash founded on an error by the learned Provincial Court judge;

(b) Crown counsel telling the court upon the hearing of the application for certiorari that he in-
tended to seek a direct indictment if an order to quash was made.

27 The learned judge accepted the proposition that a preliminary inquiry had been "held" despite the
committal being quashed for non-observance of s. 541.

28 The question whether an accused is "discharged" within the meaning of s. 577(b) when a committal
is quashed by a superior court has been considered in R. v. Liu, supra, Canada (Procureur général) c. Bé-
lair (1991), 10 C.R. (4th) 209 (Que. C.A.), and other cases. The authorities are in conflict. In the view I
take of this case, it is not necessary for me to enter that debate. My reasons will focus on the meaning of s.
577(a).

29 What the argument of counsel for the respondent means, and what the reasons of the learned judge
mean, is that, although a direct indictment can be preferred if no preliminary inquiry has ever been em-
barked upon, and although such an indictment can be preferred when, at the conclusion of the preliminary
inquiry, the preliminary inquiry judge discharges the accused, such an indictment can never be preferred if,
something having gone wrong in the preliminary inquiry, the committal is quashed by a higher court.

30 In addressing the submissions on the meaning of s. 577, one must first ask, what is its object or pur-
pose?

31 In my opinion, Parliament intended, by this section, to confer upon the Attorney General or his
Deputy the power to override the preliminary inquiry process. It is a special power not to be exercised by
Crown counsel generally but only on the personal consideration of the chief law officer of the Crown and
his or her deputy.

32 Such a power is a recognition of the ultimate constitutional responsibility of Attorneys General to

ensure that those who ought to be brought to trial are brought to trial. There are many reasons why an At-
torney General or a Deputy Attorney General might consider a direct indictment in the interests of the
proper administration of criminal justice. Witnesses may have been threatened or may be in precarious
health; there may have been some delay in carrying a prosecution forward and, thus, a risk of running afoul
of s. 11(b) of the Charter; a preliminary inquiry, in, for instance, cases essentially founded on wire tap evi-
dence, may be considered by the Attorney General to be expensive and time consuming for no purpose.
These are simply illustrations. It is neither wise nor possible to circumscribe the power of the Attorney
General under this section.

33 The words "not been held" are capable in this context of two meanings. They may mean, as counsel
for the respondent asserts, "not taken place" or they may mean "not been legally concluded". I am of the
opinion that they mean the latter. Therefore, the Attorney General, in circumstances such as these, may pre-
fer a direct indictment.

34 To sum up, I am satisfied that Parliament did not intend any gap in the power of the Attorney Gen-
eral such as that propounded by the respondent.

35 I turn, then, to the submission of the respondent on abuse of process.

36 I see no such abuse. As to the first particular, one's sense of fair play could only be offended if one
believed that criminal prosecutions are a game. They are not. Indeed, if anyone was playing a game in this
case, it was the respondent, who waited until the very last moment before bringing his application for an
order to quash the committal. Furthermore, and, more importantly, there is no basis for holding that the
error made by the learned preliminary inquiry judge has in any way prejudiced the respondent in making
full answer and defence to the charge against him.

37 As to the second particular, when Crown counsel informed Mr. Justice Hutchison that he would
seek a direct indictment, he was simply stating a fact of importance to the court in the management of its
business. A direct indictment meant that the trial for which a jury had been summoned and the chief witness
for the Crown was present could proceed upon the day which had been appointed some eight months be-
fore. The suggestion that to so inform the court had some in terrorem aspect is without merit.

38 For these reasons, I would allow the appeal and set aside the order quashing the indictment.

Mr. Justice Macfarlane:

I AGREE.

Mr. Justice Hollinrake:

I AGREE.

Appeal allowed.

END OF DOCUMENT