Supreme Court

R. v. Barry Roste, 2000 NWTSC 52

Date: 2000 07 28
Docket:   CR 03813

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

-and-

BARRY ROSTE

Applicant
______________________________________________________________________________
Application to quash a second indictment preferred by the prosecutor under s.574 C.C. after the accused was in jeopardy in respect of the original indictment.  Application granted.

Application Heard at Yellowknife: July 10, 2000

Reasons filed: July 28, 2000
______________________________________________________________________________

REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE J.E. RICHARD

Counsel for Her Majesty the Queen:  Mark Scrivens
Counsel for the Accused:   Alexander D. Pringle, Q.C.















Date:
Docket:


IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

-and-


BARRY ROSTE

Applicant


REASONS FOR JUDGMENT

[1] The accused s application is for an order quashing an indictment presented to the Court by the Crown on May 15, 2000.  That indictment alleges the commission of sexual assault on the young complainant, contrary to s.271 C.C.
[2] The unique circumstances leading to the present application evolve from a now acknowledged prosecutorial error in the laying of the original information.
[3] The original information, sworn May 6, 1999, alleged that the accused:
 On or between the 1st day of January 1995 and the 1st day of April 1996, at or near the Town of Fort Smith in the Northwest Territories, did, being in a position of authority towards a young person, for a sexual purpose, touch directly with his body, his hand, the body of T.A.M. contrary to s.153(1)(a) of the Criminal Code of Canada



[4] Section 153 of the Criminal Code reads:
153. (1)  Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who
(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or
(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.
      (2) In this section,  young person  means a person fourteen years of age or more but under the age of eighteen years.   (emphasis added)
[5] The accused elected trial by judge and jury.  On September 29, 1999 following a preliminary inquiry he was committed to stand trial on the charge in the information.  On October 26, 1999 the Crown preferred an indictment on the s.153 (1)(a) charge.
[6] On May 8, 2000 at Fort Smith the accused was arraigned on that indictment and pleaded not guilty.  His jury was selected and he was placed in charge of the jury.  The trial commenced.  The complainant gave her direct evidence and defence counsel s cross-examination of the complainant was only partially completed when the proceedings adjourned for the day.  During her evidence the complainant gave her date of birth as June 24, 1983.  She testified about incidents of sexual touching by the accused when she was 11 and 12 years of age.  Apparently she gave similar evidence at the preliminary inquiry.
[7] When Court re-convened on the morning of May 9, I raised with counsel a concern that in view of the complainant s evidence the accused may have been charged with the wrong offence.  It seemed the police and prosecution had overlooked subsection (2) of S.153.  Counsel agreed.  Crown counsel applied to amend the October 26, 1999 indictment to a charge under s.151.  That section reads:

151.  Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction. (emphasis added)

[8] Upon hearing submissions on the Crown s application to amend the indictment by substituting a new charge, I ruled that I was without jurisdiction to amend the indictment at trial in such a fashion.  I acknowledged the decision of the Ontario Court of Appeal in R. v. Irwin (1998) O.J. No. 627; yet even Irwin could not be applied because of the obvious prejudice to the accused by substituting a 10-year maximum offence for a 5-year maximum offence.
[9] The Crown s request for an amendment to the indictment being denied, Crown counsel directed a stay of proceedings, and the jury was discharged.  (The Crown concedes that an acquittal on the s.153 charge was inevitable).
[10] On May 15, 2000 the Crown presented a new, or second indictment.  It alleges that the accused:
 on or between the 1st day of January 1995 and the 1st day of April 1996, at or near the Town of Fort Smith in the Northwest Territories, did commit a sexual assault on T.A.M., contrary to s.271 of the Criminal Code of Canada .

[11] This document does not purport to be a  direct  indictment pursuant to s.577 C.C.  Rather, Crown counsel relies on the authority in s.574(1)(b):
574. (1) Subject to subsection (3) and section 577, the prosecutor may prefer an indictment against any person who has been ordered to stand trial in respect of
(a)  any charge on which that person was ordered to stand trial, or
(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial,
whether or not the charges were included in one information.
     (2) An indictment preferred under subsection (1) may, if the accused consents, include any charge that is not referred to in paragraph (1) (a) or (b), and the offence charged may be dealt with, tried and determined and punished in all respects as if it were an offence in respect of which the accused had been ordered to stand trial, but if the offence was committed wholly in a province other than that in which the accused is before the court, subsection 478(3) applies.
     (3) In any prosecution conducted by a prosecutor other than the Attorney General and in which the Attorney General does not intervene, an indictment shall not be preferred under subsection (1) before any court without the written order of a judge of that court.

[12] On this application the accused takes the position that the preferring of this second indictment is not a valid exercise of the prosecutor s authority under s.574(1)(b), and ought to be quashed.  The foundation of the accused s argument is that there is, necessarily , a time limit or other limit, on the authority granted to the prosecutor in s.574, i.e., the authority does not exist for an indefinite time or for an indefinite series of indictments.
[13] I find merit in this submission.  Logically, the extent of the prosecutor s authority to prefer an indictment based on the preliminary inquiry evidence must be finite - it cannot be engaged and re-engaged continuously.  In my respectful view the prosecutor s authority to prefer an indictment under s.574 ends upon the accused being arraigned on a charge in an indictment and entering a plea, thus putting himself in jeopardy.  Thereafter, it is not open for the prosecutor to exercise his s.574 authority by preferring a new or different indictment.
[14] There is some support for this proposition in the case authorities cited by counsel.  In R. v. Garcia (1990) 75 C.R. (3d) 250 (B.C.C.A.) the accused was charged with kidnapping.  He was committed for trial on that charge at the preliminary inquiry.  The day before trial the Crown added a second count in the indictment (theft).  There was evidence of the theft at the preliminary.  The accused objected to the late addition of the second count.  The trial judge dismissed the objection, and this ruling was upheld on appeal.  On dismissing the accused s appeal, Toy J.A.stated, at p.253-254:
 The right belatedly exercised by Crown counsel on the day set for the appellant s trial is provided for in s.574(1)(b) of the Criminal Code...
In my judgment that right may be exercised at any time from the day after committal at the conclusion of the preliminary inquiry until the time when the accused is called upon to plead to the preferred indictment on the day that the trial commences.

[15] In R. v. Shank [1999] O.J. No. 2695 (Ont. Sup. Ct.) the accused was charged with manslaughter.  He was committed to stand trial on that charge.  The Crown preferred an indictment with that charge.  At trial, the jury was unable to reach a verdict, and the trial judge declared a mistrial.  Before the commencement of the second trial, the Crown preferred a fresh indictment with two counts: (1) manslaughter, and (2) criminal negligence causing death.  On the accused s application the court quashed the new indictment.  The Court held, citing R. v. Chabot (1980) 55 C.C.C. (2d) 385 (S.C.C.) that the original indictment is the effective foundation on which further proceedings must be based, and that the accused was still in jeopardy on that original indictment.  The Court followed Garcia in stating that there is a restriction on the Crown s preferment of a new indictment under s.574, i.e.  such preferment must be done prior to the point that the accused has been called upon to plead at the start of the trial .
[16] In R. v. Barbeau (1992) 75 C.C.C. (3d) 129 (S.C.C.) the accused was initially charged with the wrong offence, as here.  The Crown had put the wrong charge in the original indictment, as here.  The error was detected at the beginning of the trial but before plea.  The Crown was allowed to prefer a second indictment pursuant to s.574(1)(b).  In my view, however, Barbeau is distinguishable as the accused there had not yet entered his plea, was not yet in jeopardy.  In the present case, Mr. Roste has entered a plea of not guilty to the original indictment and is in jeopardy with respect to that indictment.
[17] Accordingly, I find that the preferment of the new indictment on May 15, 2000 is not a proper exercise of the prosecutor s authority under s.574 (1) (b) C.C., and I grant the accused s application and hereby quash the May 15, 2000 indictment.
[18] Before concluding, I refer briefly to an additional application made on behalf of the accused.  On this application the accused seeks an order in the nature of certiorari quashing the accused s committal for trial on October 26, 1999 on the s.153 charge, on grounds that there was no evidence before the prelimninary inquiry judge of any events which occurred when the complainant was between the ages of 14 and 18 (an essential element of the s.153 offence).
[19] I understand this application to be in the alternative to that seeking to quash the second indictment.  The accused being successful on his primary application, I need not deal with the merits of the request for certiorari.  That said, I wish to state that in my view the application for certiorari quashing the committal for trial is out of time in any event.
[20] Rule 96 of the Criminal Procedures Rules requires such an application to be filed and served within six months of the order of committal for trial.  Although an extension of time may be granted, at the Court s discretion, under Rule 132, there is no satisfactory evidence here to justify an extension of time.
[21] Further, on the authority of Chabot, the original indictment became the operative document in these proceedings on May 8, 2000 when the accused was arraigned, and thereafter the accused was precluded from attacking the regularity of his committal for final.

J.E. Richard,  J.S.C.


Dated at Yellowknife , NT this
 10 day of July 2000.



Counsel for the Respondent:  Mark Scrivens
Counsel for the Applicant:  Alexander D. Pringle, Q.C.