2008 BCSC 561 HMTQ v. Harris

Before: The Honourable Mr. Justice Curtis

Reasons for Judgment

Counsel for the Appellant	Sandra K. Dhillon & Robin Baird
Counsel for the Respondent	Mayland McKimm, Q.C. & Susan Wishart
Date and Place of Hearing:	December 10,19 and 21, 2007, January 7, 10 & March 12 and 13, 2008
	Victoria, B.C.

[1] On March 12, 2008, I allowed the Crown appeal in this case and dealt with the application. My reasons for allowing the Crown appeal are as follows. The Crown appealed the dismissal of an application it made against Tyler Harris under s. 810.(1) of the Criminal Code of Canada. That section provides:

810. (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.

(2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division.

(3) The justice or the summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for his or her fears,

(a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or

(b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance.

[2] In dismissing the application, the learned Provincial Court Judge ruled as follows:

This is a very unfortunate situation. I regret having to make the ruling that I have to make. The allegation before me is incomplete. There is no reference in the allegation against Mr. Harris to a location anywhere in the Province of British Columbia, or any reference to the Province of British Columbia, for that matter.

In my view, this is not a trial, it is not a preliminary inquiry. Section 601 of the Criminal Code, in my view, therefore does not apply to a hearing under s. 810.1 of the Code. The summary conviction rules do apply, and on a summary conviction matter, a count may be amended. However, in my view, this is not a summary conviction matter, because there can be no conviction.

Therefore, because the count cannot be amended, in my view -- the allegation in other words cannot be amended -- according to the sections to which I have been referred, I have to dismiss the count or the allegation against Mr. Harris, for lack of jurisdiction.

[3] The information laid against Tyler Harris reads:

This is the information of Constable K. Laidman, a Peace Officer (the “informant”) of Victoria, British Columbia.

The informant says that the informant has reasonable grounds to fear and does fear that

Count 1

Tyler Matthew HARRIS will commit an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171 or 172.1, subsection 173(2) or section 271, 272 or 273 of the Criminal Code in respect of one or more persons who are under the age of fourteen years, having regard to incidents that occurred on or between the 8^th day of June, 2006 and the 22^nd day of May, 2007, inclusive, pursuant to Section 810.1(1) of the Criminal Code.

[4] The information does not contain an allegation that the informant’s fear is that Mr. Harris will commit an offence in British Columbia. I understand from Crown Counsel the information is drawn according to the Crown’s standard practice, which does not include an allegation that the offence will be committed in the Province. Evidence was presented in this matter during two days of hearing. Mr. Harris lives in British Columbia and it is clear from the evidence that if there is any ground to fear he would commit an offence, it would be that he would commit an offence against persons here in British Columbia where he lives.

[5] The learned Provincial Court judge concluded that she did not have jurisdiction because in her opinion the allegation against Mr. Harris was incomplete because there was no reference to a location in the Province of British Columbia. The concern expressed was not that the allegation lacked the sufficiency to allow Mr. Harris to respond but that it did not allege a basis for jurisdiction.

[6] Section 810.(1) of the Criminal Code specifically empowers a provincial court judge to receive an information under that section and to conduct a hearing. The information was laid by Constable K. Laidman stated to be “a Peace Officer de Victoria, British Columbia.” Constable Laidman swore that she had reasonable grounds to fear that Mr. Harris would commit one of the offences listed in the section. Mr. Harris appeared on the information. As the evidence at the hearing revealed, the person alleging the fear resided in British Columbia as did Mr. Harris. No objection was taken to the allegation before the hearing commenced. The evidence clearly established that the provincial court of British Columbia had jurisdiction in the case in that Mr. Harris resided in the Province. At the conclusion of the hearing, the jurisdiction of the court does not turn upon the allegations, but upon the facts established at the hearing.

[7] Should it be necessary to include in the information an allegation establishing a basis for the Provincial Court of British Columbia having jurisdiction, the court has the power to make the necessary amendment. The Criminal Code of Canada enacts:

601. …

(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and

(a) a count in the indictment as preferred; or

(b) a count in the indictment

(i) as amended, or

(ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to section 587.

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears

(a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament;

(b) that the indictment or a count thereof

(i) fails to state or states defectively anything that is requisite to constitute the offence,

(ii) does not negative an exception that should be negatived,

(iii) is in any way defective in substance,

and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or

(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider

(a) the matters disclosed by the evidence taken on the preliminary inquiry;

(b) the evidence taken on the trial, if any;

(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and

(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to

(a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or

(b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

[8] In this case, it was the position of both counsel at the hearing that the count could properly be amended, however the court found that there was no provision in the Code which permits that.

[9] Section 601 of the Code is contained in Part XX. Section 795 of Part XXVII of the Criminal Code which deals with summary convictions states that “the provisions of Part XX … in so far as they are not inconsistent with this Part, apply with such modifications as the circumstances require, to proceedings under this Part.

[10] Section 785 of the Criminal Code defines an information as follows:

"information" includes

(a) a count in an information, and

(b) a complaint in respect of which a justice is authorized by an Act of Parliament or an enactment made thereunder to make an order;

which a justice is authorized by an Act of Parliament or an enactment made thereunder to make an order.

[11] The word “proceedings” is defined to include “(b) proceedings where a justice is authorized by an Act of Parliament or an enactment made thereunder to make an order.”

[12] Reading section 601 in light of these provisions, I interpret that section to permit an information seeking a remedy under s. 810. 1 to be amended to allege a fear that Mr. Harris will commit an offence in British Columbia. The decision of the learned Provincial Court Judge that the count could not be amended was not correct.

[13] Section 683 of the Criminal Code states:

683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

…

(g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.

[14] Section 822.(1) of the Criminal Code provides that 683.(1) applies with such modification as the circumstances require to summary conviction appeals.

[15] The appeal is allowed, and the Crown’s application to amend the information to allege fear that Mr. Harris will commit an offence in the Province of British Columbia is allowed.

“V.R. Curtis J.”

Citation:	*HMTQ v. Harris,*
	2008 BCSC 561