Date: 20000217 Docket: CAC 155725
NOVA SCOTIA COURT OF APPEAL
[Cite as: R. v Campbell, 2000 NSCA 32]
Roscoe, Bateman and Flinn, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN ) James Gumpert, Q.C. and
) Peter Rozinski
) for the appellant
Appellant )
)
- and - )
)
HUGH JAMES CAMPBELL ) Roseanne M. Skoke
) for the respondent
Respondent )
)
)
) Appeal Heard:
)
) Judgment Delivered:
)
)
THE COURT: Appeal allowed, set aside order of the summary conviction appeal court and restore the conviction and sentence imposed by the Provincial Court judge, as per reasons for judgment of Bateman, J.A., Roscoe and Flinn, JJ.A., concurring.
BATEMAN, J.A.:
[1] Mr. Campbell appealed his conviction in Provincial Court on one count of furnishing false or misleading information to an election officer contrary to s.149(f) of the Municipal Elections Act, R.S.N.S. 1989, c.300, as amended. Pursuant to s.686 of the Criminal Code his appeal was heard in the Supreme Court, Justice Douglas L. MacLellan presiding. Justice MacLellan allowed the appeal (decision reported at (1999), 174 N.S.R. (2d) 216)). The Crown now appeals that disposition in accordance with s.822 of the Code, which appeal is limited to a question of law.
BACKGROUND:
[2] In October of 1997 a municipal election was held in the Town of Westville, Nova Scotia. Ordinary polling day was October 18, 1997. There were eight candidates for the six positions on town council.
[3] Section 75 of the Municipal Elections Act allows an elector to vote by a proxy voter if he or she will be unable to vote at a polling station, inter alia, because of illness or physical disability. Mr. Campbell had been involved in municipal elections for some time and in proxy voting from 1993 onward. Known as the “fellow to see about getting proxies”, he was involved in virtually all of the proxy votes for the October election. Mr. Campbell approached several persons to suggest voting by proxy. The proxy forms in relation to three of these people, Margaret MacLaughlin, Elaine MacKay and Mary LeDrew, were the subject matter of the evidence at trial. In each case Mr. Campbell had initiated contact with the electors and the proxy form was signed in blank save for a check mark beside the statement “I am applying to vote by proxy because I cannot attend at the polling station because of illness or physical disability.” The name of the proxy voter was not designated nor did Mr. Campbell take instructions from the elector on how the proxy should vote on her behalf.
[4] Mrs. MacLaughlin testified that she was not unable to vote on election day but didn’t want to leave her husband who had emphysema. When Mr. Campbell approached her and suggested that he arrange a proxy vote, she signed the form.
[5] It was Ms. MacKay’s evidence that she had no physical disability which would prevent her from voting. She mentioned to Mr. Campbell that she planned to vote, but was concerned should she fall sick before election day. She signed the proxy form. A few days later Mrs. MacKay had second thoughts and canceled the proxy form.
[6] Mr. Campbell attended at Ms. LeDrew’s apartment on September 27, 1997. Prior to this contact she hadn’t considered voting by proxy nor did she know Mr. Campbell. Although there was no reason why she wouldn’t be able to vote on election day, Mr. Campbell stressed that a proxy would save her the inconvenience of attending at the poll. She too signed a proxy form. Mr. Campbell telephoned her on the morning of the election to tell her that he had found a proxy to vote for her, however, Ms. LeDrew did not allow the proxy vote to go ahead and voted in person that day.
[7] The trial judge preferred the evidence of Ms. MacLaughlin, Ms. LeDrew and Ms. MacKay to that of Mr. Campbell, where they differed. In finding the appellant guilty of the offence the trial judge said:
. . . Looking at the issue of physical disability regarding these three ladies, Ledrew, MacKay and MacLaughlin, I find that this statement on the proxy application was false in respect to ‘I cannot attend at the polling station because of illness or physical disability’. I am satisfied that under the circumstances, that Mr. Campbell would know that it was false and this false information was knowingly furnished through the innocent agents [the designated proxy voters] to Mr. Langille, the Returning Officer, who is also an election officer. . .
(Emphasis added)
[8] Mr. Campbell raised eighteen grounds of appeal in the Supreme Court:
1. The Judge erred in the interpretation and application of law relevant to s. 149(f) of the Municipal Elections Act.
2. The Judge erred in finding that the facts supported a conviction pursuant to s. 149(f) of the Act, when the section of the Municipal Elections Act relevant to case at bar is s. 80 of the Municipal Elections Act relevant to proxy votes.
3. The findings of fact made by the Honourable Judge does not support a conviction pursuant to s. 149(f) of the Municipal Elections Act.
4. The Honourable Trial Judge erred in finding that the Crown has proven all the elements beyond a reasonable doubt and the conviction is unreasonable and not supported by the evidence.
5. The Trial Judge erred by failing to allow the Appellants Application to quash the information on the grounds that it failed to disclose on its face the specific essential elements of the offence of the actus reus to enable the defendant to make full answer and defence.
6. The Trial Judge erred by not allowing the Appellants motion for non-suit on the basis of Crown evidence introduced at trial.
7. The Trial Judge erred in the application and interpretation of law relevant to Municipal Elections Act and the role, responsibility of the Returning Officer James Langille with respect to proxy votes.
8. The Trial Judge erred in the interpretation and application of the law relevant to the practice and procedure and test applicable to the operation of the Municipal Elections Act in obtaining proxy votes.
9. The Trial Judge erred in the interpretation and application of the law relevant to the essential element of s. 149(f) of the mens reus [sic], and the evidence supports a finding of reasonable doubt in favour of the Appellant.
10. The Trial Judge erred by failing to consider the duty and responsibility of the citizens with a right to vote, pursuant to the Municipal Elections Act and further erred in its application and interpretation of the doctrine of innocent agent which is not supported in law or fact in the case at bar.
11. The Trial Judge erred in the application and interpretation of the due diligence Defence and failed to find on a balance of probabilities that the Appellant acted diligently and the evidence reasonably supported the finding of mistake of fact endorsed by the returning officer.
12. The Trial Judge erred in his findings of credibility.
13. The Trial Judge erred in the application and interpretation of the law to his findings of fact with respect to the issue of conspiracy as raised by the defence at trial.
14. The Trial Judge erred in failing to apply the subjective test standard to the citizen applying for proxy and further made unreasonable findings as to the standard practice and procedure not supported in law or fact.
15. The Trial Judge erred in finding that an offence occurred relevant to Mrs. MacLaughlin, and the Judge further erred by failing to apply s. 80 Municipal Elections Act and other relevant sections.
16. The Judge erred in finding that the Crown has proven an offence by attempt in the matter of Mrs. MacKay and such conviction is not supported by fact or law and further has failed to apply the law relevant to s. 80 Municipal Elections Act and other relevant sections.
17. The Judge erred in finding that the Crown has proven an offence in the matter of Mrs. LeDrew and the conviction is not supported by fact or law, and the Judge further erred by failing to apply the law relevant to s. 80 Municipal Elections Act and other relevant sections.
18. The Judge erred in determining a conviction on the basis of three specific counts, when the information related only to one general account [sic].
[9] The summary conviction appeal court judge, allowing the appeal, determined that the Information should have been quashed in the Provincial Court due to multiplicity.
GROUNDS OF APPEAL:
[10] The Crown says that the summary conviction appeal court judge erred at law in finding that the Information should be quashed.
ANALYSIS:
(i) The Information:
[11] Mr. Campbell was charged on an Information “that he did between the 23rd day of September, 1997 and the 18th day of October, 1997, at or near Westville, in the County of Pictou, Province of Nova Scotia knowingly furnish false or misleading information to James Langille, an election officer, contrary to Section 149(f) of the Municipal Elections Act.”
[12] On application to the Provincial Court judge the appellant moved that the Information be struck for vagueness. His application was dismissed and the matter proceeded to trial.
[13] Two of the grounds of appeal before the summary conviction appeal court challenged the judge’s decision not to quash the Information:
5 The Trial Judge erred by failing to allow the Appellant's Application to quash the information on the grounds that it failed to disclose on its face the specific essential elements of the offence of the actus reus to enable the defendant to make full answer and defence.
18 The Judge erred in determining a conviction on the basis of three specific counts, when the information related only to one general account [sic].
[14] Sections 581 and 583 of the Criminal Code provide in relevant part:
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.
. . .
(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.
. . .
(5) A count may refer to any section, subsection, paragraph or subparagraph of the enactment that creates the offence charged, and for the purpose of determining whether a count is sufficient, consideration shall be given to any such reference.
(Emphasis added)
:
583 No count in an indictment is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfils the requirements of section 581 and, without restricting the generality of the foregoing, no count in an indictment is insufficient by reason only that
(a) it does not name the person injured or intended or attempted to be injured;
(b) it does not name the person who owns or has a special property or interest in property mentioned in the count;
(c) it charges an intent to defraud without naming or describing the person whom it was intended to defraud;
(d) it does not set out any writing that is the subject of the charge;
(e) it does not set out the words used where words that are alleged to have been used are the subject of the charge;
(f) it does not specify the means by which the alleged offence was committed;
(g) it does not name or describe with precision any person, place or thing; or
(h) it does not, where the consent of a person, official or authority is required before proceedings may be instituted for an offence, state that the consent has been obtained.
[15] These sections apply to an Information through s.7 of the Summary Proceedings Act, R.S.N.S. 1989 c.450 as amended, and s.795 of the Code. (See also s.789 of the Code)
[16] The question before the Provincial Court judge on the motion to quash was whether the Information was too vague. The Crown had provided substantial disclosure to the defence outlining the specifics of the alleged offence and by letter dated January 8, 1998, gave detailed particulars in relation to five electors who had provided Mr. Campbell with proxy forms. It was the Crown’s position that Mr. Campbell’s dealings with these persons constituted a “single transaction” which was the subject matter of the offence. The trial judge heard the motion to quash on January 19th, 1998. The following exchange between counsel and the court captures the substance of the arguments on this issue:
MS. SKOKE: . . . And so my position is very simple that there should be specifics, an example of it is if someone was charged with stealing, the Information just doesn't set out the theft, it says what they stole, when they stole it. If someone is charged with assault with a weapon they usually state what weapon was used and so on. What I want to know is there one charge here? Is there more than one charge? I feel the Information should contain the specifics of the offence and not just set out the creating offence Section which is Section 149(f) of the Municipal Elections Act because I'm right back where I started from. Now I realize you're not privy to the disclosure that I received but because of the reams of information I did receive, that My Learned Friend did reduce that down somewhat, but even in his reduction we're looking at, if I daresay, you know, a possibility the allegations here of at least five or more alleged offences and the question is which one of these offences is the Crown proceeding with? Are they proceeding with all of them? How can I defend this? I don't think my request is unreasonable and initially, you know, I would have no difficulty in saying that the Information should be amended, but the Crown specifically indicated to me in writing that, "no", that they're satisfied that the Information as laid is appropriate for the trier of fact to make a determination as to whether the essential elements of the offence are there and I say they're not and also for me to make a full defence and so my arguments appear on the face of it very simple, yet they go to they very basic fundamental justice and I'm asking Your Honour to consider this carefully because I note that a number of our Informations are coming forward deficient and perhaps there should be some more formal direction as to what should be contained...
. . .
MR. MACDONALD: Yes Your Honour. Well there's sort of two aspects to it. One aspect and probably the more important one for Ms. Skoke's client is that the Crown has deliberately attempted to keep this to one count because this is [sic] offence for which there is a minimum $500 penalty and there are in fact, as Ms. Skoke eluded, more than one allegation and if we charged each separately it could certainly multiply. Um, it's our position that it is sufficient, the information that has been provided in the Information, that is, the document itself, and it does provide the, during the period of time, the times are more specifically set out in the disclosure. It does provide the place where it occurred and the place is more particularly set out in the disclosure and it does provide the actus reus and that is a furnished false or misleading information. If the Court gives direction we will of course provide exactly what information was provided to Mr. Langille. It will become somewhat lengthy but we can do that. I have no difficulty, I take my directions from the Court. It's our contention, however, that the disclosure in this case is sufficient to allow Ms. Skoke and her client know the case that needs to be met and the Information itself...
(Emphasis added)
[17] Pursuant to s.587 of the Criminal Code and the case law that has developed therefrom, particulars supplied by the Crown in relation to a count, form part of the Information. Particulars having been provided, the Provincial Court judge correctly refused the appellant’s motion to quash the Information for vagueness.
[18] In considering the appeal on the Provincial Court judge’s refusal to quash the Information, after quoting at length from Brodie et al v. The King (1936), 65 C.C.C. 289 (S.C.C.) and R. v. Curragh (1993), 124 N.S.R. (2d) 59 (Prov.Ct.), Justice MacLellan said:
In R v. Rafael (1972), 7 C.C.C. (2d) 325, the Ontario Court of Appeal quashed a conviction against the accused for the offence of fraud. The headnote to that case properly describes the factual situation and the result.
In this case, the learned trial judge did not address the issue of whether the evidence before him could be considered a single transaction and allowable under Section 581(l) of the Code. He was at a disadvantage because the argument on that point was made before the evidence was before him. However, counsel for both the accused and the Crown were obviously aware of the proposed evidence.
I find it is appropriate on appeal to deal with the issue (See R v. Barnes (1975), 11 N.S.R. (2d) 272).
The trial judge's decision makes it clear to me that here the evidence offered did not relate to a single transaction, but three different transactions. The best evidence of that is that the trial judge found that clearly one had been proven, that another had been proven as an attempt, and it is not clear what his finding was in regard to Mrs. Ledrew.
Applying the principles as set out in the case law, I find that in fact the information sworn against the appellant here dealt with more than one transaction, and therefore violated Section 581(l) of the Criminal Code. Because of that the conviction entered against the appellant will be quashed.
[19] That the count was multifarious was not the focus of the challenge to the Information in the Provincial Court. Nor is it clear from the record that counsel for the appellant raised before MacLellan, J. any issue under s.581(1). Justice MacLellan apparently found that this was a live issue on the appeal, citing Barnes, supra. In this regard Cooper, J.A., for the Court, wrote in Barnes, at page 286, para 31:
No objection was made at the trial, before or after plea, to the indictment on the ground that it was duplicitous or multifarious, as is also the situation in the instant case. Arnup J.A. said, nevertheless, that if the indictment was in law bad for duplicity the objection might be made on appeal and referred to R. v. Brunet, [1968] 2 C.C.C. 74, reversed on other grounds [1968] S.C.R. 713. I mention this point merely to express my respectful agreement, and similarly if the charge in the case before us is bad for duplicity the appellant nevertheless was entitled to raise this objection before us.
[20] Accepting, without deciding that the question of multifariousness was properly before him, I am satisfied that Justice MacLellan erred in his application of the law on this issue.
[21] In Barnes, supra, a doctor was charged in a single count of fraud with making seventy claims to Maritime Medical Care over a six month period. The judge found that, in respect of nine of the claims, the doctor had not performed the services claimed. A conviction was entered. In holding that the charge was not void for multifariousness, duplicity or uncertainty the Court recognized that “a number of occurrences or acts taking place over a period of time may properly be charged in one count as one continuing offence or transaction.” (at p.281).
[22] As to Raphael, relied upon by MacLellan, J. in the above quoted passage, the Court said in Barnes, at p.287:
The charge on its face is not, in my opinion, void for duplicity, multifariousness or uncertainty. It alleges one continuous offence and comes within the requirement of s.510(1) of the Criminal Code that: "Each count in an indictment shall in general apply to a single transaction". Acts or occurrences extending over a period of time may be charged in one count. The authorities to which I have referred I regard as being decisive on this point and I particularly refer to the Michaud and Flynn cases. I do not regard the Rafael case, supra, as impairing the general rule. There were several circumstances in that case which distinguish it from what we have here. The dates of the acts or occurrences there extended over a period of five years, which can be contrasted with the six‑month period alleged in the instant case. The offences took place at different localities and involved "quite different representations to the individuals who were called as witnesses". Here the offences were alleged to be against one body, Maritime Medical Care Incorporated, and the representation in each instance was the same, namely, that services had been performed when in fact they had not. It is significant also that the particulars furnished by the Crown in Rafael resulted in the indictment becoming one in which 24 persons were alleged to have been defrauded. (Emphasis added)
[23] Here, it was the evidence at trial that the appellant had been involved in proxy votes from 1993 to the date of the alleged offence. “Mr. Campbell, by his own admission was involved in virtually all the proxy votes in the October the 18th, 1997, Westville Municipal election regarding counsellors.” (per Macdonald, P.C.J. at trial) The alleged acts occurred over a relatively short time frame (less than a month); involved a single election process; were a part of the total of the only proxy votes arranged, all by Mr. Campbell; involved the submission of virtually the same false information (that the voter was unable to vote due to illness or disability); to the same Returning Officer (James Langille); at the same place (the Town Hall in Westville); and in all cases Mr. Campbell initiated the contact with the elector. Contrary to the statement of MacLellan, J., above, the validity of the charge is not affected by the fact that ultimately the Crown succeeded in proving only some of the acts alleged (see Barnes, supra). An application of the law to the facts here does not support the summary conviction appeal court judge’s conclusion that the Information was multifarious.
(ii) The Other Issues:
[24] Although concluding that the Information should have been quashed the summary conviction appeal court judge wrote in part:
The trial judge found that clearly in the case of Mrs. MacLaughlin there was evidence which he accepted that the appellant was aware that she could vote on election day but that she simply wanted to stay at home with her sick husband. Therefore, when the appellant arranged to have her sign a declaration saying that she couldn't vote because of illness or disability he knew that information was false and arranging to have that information subsequently presented to the Returning Officer through an agent would constitute knowingly providing false or misleading information to an election official.
. . .
Conclusion
I find that in light of the findings made by the trial judge in regard to Mrs. MacLaughlin these findings could form the basis of a conviction, however, in light of my findings earlier in regard to the information I would allow the appeal and quash the conviction.
[25] The respondent argues that, notwithstanding Justice MacLellan’s conclusion, a reading of his full decision reveals that he agreed that the summary conviction appeal had merit and should succeed on grounds other than those related to the Information. I disagree. The Provincial Court judge had found that the evidence on both the MacLaughlin and MacKay occurrences was sufficient to support a conviction. It is not clear what his conclusion was on the LeDrew evidence. While Justice MacLellan took some issue with the Provincial Court judge’s assessment of credibility of some of the witnesses, it is clear that he accepted that his findings were not unreasonable and thus supported the conviction - specifically the MacLaughlin evidence. Had Justice MacLellan not quashed the Information, he would have dismissed the appeal and upheld the conviction.
Disposition:
[26] I would allow the appeal, set aside the order of the summary conviction appeal court and restore the conviction and sentence imposed by the Provincial Court judge.
Bateman, J.A.
Concurred in:
Roscoe, J.A.
Flinn, J.A.