CITATION: Caledon (Town) v. Eagle Demolition & Excavation Inc., 2022 ONCJ 241  
DATE: May 20, 2022  
Court File #: 0661-999-20-3574  
IN THE MATTER OF  
Town of Caledon Zoning Bylaw #2006-50  
and  
the Planning Act, R.S.O. 1990, c. P.13,  
and  
an application for a stay of proceedings  
and an order for costs under s. 24(1)  
for an infringement of s. 7 and s. 11(a) of the Charter  
Between  
The Town of Caledon  
Prosecutor (respondent)  
and  
Eagle Demolition & Excavation Inc.,  
Gurdev SIDHU,  
and  
Jaskaran SIDHU  
Defendants (applicants)  
Ontario Court of Justice  
Caledon, Ontario  
Quon J P.  
Reasons for the rulings on the Charter application  
and other “in-trial” motions  
Applications argued:  
Rulings released:  
March 22, 2022  
May 20, 2022  
Counsel:  
N. Klein, prosecutor for the Town of Caledon (respondent).  
D. Allen, legal representative for the defendants (applicants), Eagle Demolition &  
Excavation Inc., Gurdev SIDHU and Jaskaran SIDHU  
TABLE OF CONTENTS  
Page Number  
Table of Contents  
ii  
Cases Considered Or Referred To  
vi  
Statutes, Regulations, Bylaws and Rules Cited  
Order Cited  
viii  
viii  
1. INTRODUCTION  
1
2
4
5
6
6
7
7
7
8
Motion #1  
Motion for an Order for Particulars and an adjournment in the alternative  
Motion #2  
Motion #3  
(1) McNeil Disclosure  
(2) curriculum vitae of the Investigating Provincial Offences Officer  
(3) name of the Complainant  
(4) notes or transcribed recording of the Complainant’s complaint  
Adjournment of defendants’ trial to June 15, 2022  
2. BACKGROUND AND CHRONOLOGY OF THE DEFENDANTS’  
COURT APPEARANCES  
8
(a) THE CHARGES  
10  
11  
11  
11  
12  
12  
12  
12  
(b) COURT APPEARANCES PRIOR TO COMMENCEMENT OF THE TRIAL  
(1) Court Appearance on November 2, 2020 at 9:00 a.m.  
(2) Court Appearance on April 12, 2021 at 3:00 p.m.  
(3) Court Appearance on June 24, 2021 at 11:00 a.m.  
(4) Court Appearance on August 16, 2021 at 9:00 a.m.  
(5) Court Appearance on October 28, 2021 at 9:00 a.m.  
(6) Court Appearance on January 13, 2022 at 9:00 a.m.  
(c) Disclosure has been provided to the defendants and to the defendants’ legal  
representative  
13  
(d) Particulars have been provided to the defendants and to the defendants’  
legal representative  
(e) Defence Motion for a Mistrial  
13  
14  
(f) Rulings of the presiding justice at the Judicial Pre-Trial Conference are  
permitted to be considered by the trial justice  
(g) Defendants’ legal representative appears to have knowledge of the alleged  
“wrongful use” which contravenes s. 11.1 of the Zoning Bylaw  
14  
15  
15  
3. APPLICABLE LAW  
4. ANALYSIS  
22  
23  
(A) FIRST MOTION: S. 11(a) CHARTER MOTION  
(1) WHAT ARE THE PROCEDURAL STEPS OR PATHS THAT ARE AVAILABLE  
FOR DEALING WITH DEFECTIVE COUNTS OR INFORMATIONS WHICH ARE  
MISSING AN AVERMENT OF AN ESSENTIAL ELEMENT OF THE OFFENCE?  
25  
26  
(a) THE MOTION TO QUASH THE COUNT OR INFORMATION ROUTE  
(i) The Traditional Approach For Dealing With Informations or Counts  
ii  
That Were Missing An Averment Of An Essential Element Of  
The Offence  
(ii) The Days of Extreme Technicality and Formalism Have Been  
Replaced With Flexibility and Substance  
26  
29  
(iii) The Modern Approach For Dealing With Informations Or Counts  
That Are Missing An Averment Of An Essential  
Element Of The Offence  
(iv) What is required to make a count sufficient?  
(A) the test for sufficiency of a count to disclose a specific  
offence is to be applied less stringently  
32  
36  
36  
37  
(B) the test for sufficiency of an information or count under  
the modern approach  
(C) the difference between legal sufficiency and factual  
sufficiency of a count  
(D) if a count is legally sufficient it is not a nullity  
(E) counts containing an imperfect averment instead of  
counts that omit an essential averment  
38  
42  
47  
50  
(F) factual sufficiency of a count  
(G) sufficiency count requirements under the Provincial  
Offences Act  
55  
(H) Under the Provincial Offences Act, is a count invalid for  
Omitting to state an essential averment?  
(v) Motion to Quash under the Provincial Offences Act  
59  
61  
(b) THE REQUEST OR MOTION FOR PARTICULARS ROUTE  
(i) Motion for an Order for Particulars under the Provincial Offences Act  
(ii) Particulars should not be ordered if it would fetter the  
prosecution’s conduct of their trial  
61  
62  
67  
69  
(iii) Courts have relied on the Crown providing fulsome disclosure  
as reasons why particulars are not required  
(c) MOTION TO AMEND THE DEFECTIVE INFORMATION OR COUNT  
MISSING AN ESSENTIAL AVERMENT BROUGHT BY THE  
PROSECUTION ROUTE  
70  
74  
(d) MOTION FOR COSTS IF THE INFORMATION IS AMENDED OR IF  
PARTICULARS ARE ORDERED  
(e) THE RULES GOVERNING THE SUFFICIENCY OF COUNTS  
UNDER ONTARIO’S PROVINCIAL OFFENCES REGIME GOVERN  
THE DEFENDANTS’ CHARGES  
74  
74  
(f) THE APPROACH FOR DEALING WITH COUNTS OR  
INFORMATIONS FOR REGULATORY OFFENCES IN ONTARIO  
THAT ARE MISSING AN AVERMENT OF AN ESSENTIAL ELEMENT  
OF AN OFFENCE  
(i) The Criminal Code And The Provincial Offences Act Provide  
Broad Amendment And Curative Powers For A Court To Deal  
iii  
With Defective Counts Or Informations  
75  
77  
(g) THE S. 11(a) CHARTER MOTION ROUTE  
(i) Burden of proof to establish an infringement of s. 11(a) of  
the Charter  
(ii) Purpose Of The Protection Under S. 11(a)  
(iii) Infringement Of S. 11(a) Where There Is Economic Prejudice  
To An Accused Person  
(iv) How Should Notice Of The Specific Offence Be Provided To An  
Accused Person To Satisfy S. 11(a) Of The Charter?  
(A) Notice of the specific offence may be provided through  
many informal methods for the purposes of s. 11(a)  
(v) Has There Been Unreasonable Delay In The Defendants Being  
Informed Of The Specific Offence For Which They Have  
Been Charged?  
(A) When does the information in respect to the specific  
offence have to be provided by the Crown or prosecution to  
an accused person for the purposes of s. 11(a) of the Charter?  
(vi) Is A Stay Of Proceedings An Appropriate Remedy For A Breach  
Of S. 11(a)?  
78  
78  
87  
88  
88  
89  
89  
92  
92  
(A) a stay should only be granted as a last resort  
(h) HAVE THE DEFENDANTS BEEN MADE AWARE OF THE  
CIRCUMSTANCES AND DETAILS OF THE UNDERLYING  
TRANSACTION OF THE SPECIFIC OFFENCE?  
93  
(i) For The Purposes Of S. 11(a) Of The Charter Is There A  
Formal Way For An Accused Person To Be Informed Of  
The Specific Offence For Which They Are Accused Of Committing?  
(ii) What Information In Respect To The Specific Offence Has To Be  
Provided By The Crown Or Prosecution To An Accused Person?  
(iii) Can Providing The Defendants Information About The Substance  
Of The Charge Be Met Without The Prosecution Specifically  
Particularizing A Count Formally In Writing In An Information  
So As Not To Infringe S. 11(a) Of The Charter?  
93  
95  
97  
98  
(iv) Does Providing Disclosure Satisfy The Problem Of The Factual  
Insufficiency Of A Generally-Worded Count?  
(v) If The Count Is Drafted Precisely In The Wording Of The Section  
Of The Act Or Regulation Under Which It Was Laid The Count  
Is Presumed To Be Valid?  
99  
(vi) The Defendants’ Legal Representative Has Commented About  
The Substance Of The Act Or Omission That The Prosecution  
Alleges Would Contravene S. 11.1 Of The Town Of Caledon  
Bylaw #2006-50  
(vii) Amendment Of The 4 Counts Under S. 34 Of The Provincial  
Offences Act  
100  
100  
(viii) Have The Defendants Proven On A Balance Of Probabilities  
Any Prejudice To Their Ability To Make Full Answer And  
Defence Or To Have A Fair Trial?  
101  
iv  
(i) CONCLUSION ON THE S. 11(a) CHARTER MOTION  
102  
(B) DEFENDANTS’ MOTION FOR AN ORDER FOR PARTICULARS IN  
THE ALTERNATIVE  
104  
106  
(C) SECOND MOTION: MOTION TO QUASH COUNT #1 FOR BEING LAID  
OUTSIDE THE 6-MONTH LIMITATION PERIOD  
(1) During 2020 The Chief Justice Of The Ontario Court Of Justice Under  
S. 85 Of The Provincial Offences Act Extends Certain Limit Limits To  
Do Anything That Is Required For Someone To Do Under The  
Provincial Offences Act  
108  
110  
(2) Conclusion On Motion To Quash Count #1  
(D) THIRD MOTION: MOTION FOR AN ORDER FOR THE PROSECUTION  
TO PROVIDE MCNEIL DISCLOSURE IN RESPECT TO THE INVESTIGATING  
PROVINCIAL OFFENCES OFFICER, THE CURRICULUM VITAE OF THE  
INVESTIGATING PROVINCIAL OFFENCES OFFICER, THE NAME OF THE  
COMPLAINANT THAT CALLED IN THE COMPLAINT ABOUT THE  
PROPERTY IN QUESTION TO THE TOWN OF CALEDON, AND NOTES OR  
TRANSCRIBED RECORDING OF THE COMPLAINANT’S COMPLAINT BY  
TELEPHONE TO THE TOWN OF CALEDON  
112  
112  
118  
(1) Defendants’ Request for McNeil Disclosure  
(a) The Ferguson Five  
(2) Request For Curriculum Vitae Of The Investigating Provincial  
Offences Officer  
(3) Request for the name of the complainant who telephoned the Town  
of Caledon about the property in question  
118  
119  
(4) Request for the notes and transcribed recording of the complainant’s  
complaint by telephone to the Town of Caledon about the land  
in question  
122  
5. DISPOSITION OF THE DEFENDANTS’ APPLICATIONS  
(A) the defendants’ s. 11(a) Charter application  
122  
122  
(B) the defendants’ application to quash the charge in count #1 for being laid  
outside the 6-month limitation period.  
123  
(C) the defendants’ application for McNeil Disclosure, the curriculum vitae of  
the Investigating Provincial Offences Officer, the name of the complainant,  
and the notes or transcribed recording of the complainant’s compliant made  
to the Town of Caledon  
123  
123  
124  
(i) McNeil Disclosure  
(ii) the curriculum vitae of the Investigating Provincial Offences Officer  
(iii) the name of the complaint who complained to the Town of Caledon about  
the property in question  
(iv) the notes or transcribed recording of the complainant’s complaint made  
to the Town of Caledon about the property in question  
124  
124  
v
Cases Considered or Referred To:  
Bisaillon v. Keable, [1983] S.C.J. No. 65 (S.C.C.).  
Brodie v. The King, [1936] S.C.J. No. 15, 65 C.C.C. 289, 3 D.L.R. 81, 133 C.C.C. 69, 38 C.R. 411 (S.C.C.).  
Guindon v. Canada, [2015] S.C.J. No. 41 (S.C.C.).  
North Perth (Town) v. Scott, [2006] O.J. No. 2723 (Ont. C.J.), McKerlie J.  
Ontario v. Canadian Pacific Ltd., [1995] S.C.J. No. 62 (S.C.C.).  
Ontario (Ministry of Labour) v. Black & McDonald Ltd. and Thomas G. Fuller & Sons Ltd., [2011] O.J. No.  
2615, 2011 ONCA 440 (Ont. C.A.), Laskin, Rosenberg and Epstein JJ.A.  
Ontario v. Ontario Public Service Employees Union, [2012] O.J. No. 2336 (Ont. Sup. Ct. (Div. Ct.)), Aston,  
Harvison Young, and Edwards JJ.  
R. v. Precision Diversified Oilfield Services Corp., [2018] A.J. No. 1005 (Alta. C.C.).  
R. v. 7506406 Canada Inc. (Ornge), [2017] O.J. No. 5750 (Ont. C.J.), Duncan J.  
R. v. B. (G.), [1990] 2 S.C.R. 30 (S.C.C.).  
R. v. Barros, [2011] S.C.J. No. 5 (S.C.C.).  
R. v. Bekri, [2020] O.J. No. 6044 (Ont. C.J.), Bourgeois J.  
R. v. Canadian General Electric Co. [1974] O.J. No. 13, 17 C.C.C. (3d) 433 (Ont. Supreme Ct. (H.C.J.)),  
Pennell J.  
R. v. Cancor Software Corp. (1990), 74 O.R. (2d) 65 (Ont. C.A.), Blair and McKinlay JJ.A. and Craig J. (ad  
hoc), leave to appeal to S.C.C. refused, 61 C.C.C. (3d) vi).  
R. v. Carosella, [1997] S.C.J. No. 12 (S.C.C.).  
R. v. Cisar, [2014] O.J. No. 952 (Ont. C.A.), Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.  
R. v. Cooper's Crane Rental (1987) Ltd., [1990] O.J. No. 1868 (Ont. S.C.), Mandel J.  
R. v. Côté, [1978] 1 S.C.R. 8 (S.C.C.).  
R. v. Curragh Inc., [1993] N.S.J. No. 279 (N.S. Prov. Ct.), Curran J.  
R. v. Delaronde, [1996] Q.J. No. 535 (Que. C.A.), aff’d [1997] 1 S.C.R. 213 (S.C.C.).  
R. v. Dixon, [1998] 1 S.C.R. 244 (S.C.C.).  
R. v. Douglas, [1991] 1 S.C.R. 301 (S.C.C.).  
R. v. Elite Farm Services Ltd., [2021] B.C.J. No. 735 (B.C. Supreme Ct.), Crabtree J.  
R. v. F.J.H., [1993] A.J. No. 7 (Alta. C.A.).  
R. v. Fabrizi, [2007] O.J. No. 5403 (Ont. C.J.), Lampkin J.  
vi  
R. v. Gardex Chemicals Ltd., 2007 ONCJ 501 (Ont. C.J.), Kowarsky J.P.  
R. v. Heit, [1984] S.J. No. 209, 31 Sask. R. 126, 11 C.C.C. (3d) 97 (Sask. C.A.).  
R. v. Johnson, [2007] O.J. No. 2228 (Ont. C.A.), McMurtry C.J.O., O'Connor A.C.J.O. and Doherty J.A.  
R. v. Krymowski, [2005] S.C.J. No. 8, 193 C.C.C. (3d) 129 (S.C.C).  
R. v. Leclaire, [1956] O.J. No. 162 (Ont. Supreme Ct. (Ct. of Appeal)), Pickup C.J.O., Roach and Mackay  
JJ.A.  
R. v. Leipert, [1997] 1 S.C.R. 281 (S.C.C.).  
R. v. Lucas (1983), 57 N.S.R. (2d) 159, 6 C.C.C. (3d) 147 (N.S.C.A.).  
R. v. Major, [1975] N.S.J. No. 317 (N.S. Supreme Ct. (Appeal Div.)), MacKeigan C.J.N.S., Cooper and  
Macdonald, JJ.A.  
R. v. McNeil, [2009] S.C.J. No. 3, 2009 SCC 3 (S.C.C.).  
R. v. Moore, [1988] S.C.J. No. 58 (S.C.C.).  
R. v. Morin, [1992] 1 S.C.R. 771 (S.C.C.).  
R. v. Nijhar, [1982] B.C.J. No. 823 (B.C. Co. Ct.), Perry J.  
R. v. R. (G.), [2005] S.C.J. No. 45, [2005] 2 S.C.R. 371 (S.C.C.).  
R. v. Rapicon Inc., [2019] A.J. No. 541 (Alta. Prov. Ct.), Rosborough J.  
R. v. Robinson, [2001] O.J. No. 1072 (Ont. C.A.), Rosenberg, Moldaver and Goudge JJ.A.  
R. v. Sadeghi-Jebelli, [2013] O.J. No. 5728, 2013 ONCA 747 (Ont. C.A.), Laskin, Gillese and Strathy JJ.A.  
R. v. Saunders, [1990] S.C.J. No. 22 (S.C.C.).  
R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 (S.C.C.).  
R. v. Stinchombe, [1991] 3 S.C.R. 326 (S.C.C.).  
R. v. Tohl, [2009] O.J. No. 2370, 2009 ONCA 468 (Ont. C.A.), O'Connor A.C.J.O, Sharpe and Rouleau JJ.A.  
R. v. TransCanada Pipelines Ltd., [1994] O.J. No. 4198 (Ont. C.J. (Prov. Div.)), Lebel J.  
R. v. Violette, [2008] B.C.J. No. 2776 (B.C. Supreme Ct.), Romilly J.  
R. v. Wigglesworth, [1987] S.C.J. No. 71 (S.C.C.).  
Re Warren (1983), 6 C.R.R. 82, 35 C.R. (3d) 173 (Ont. H.C.J.), Linden J.  
R. v. Webster (1993), 78 C.C.C. (3d) 302 (S.C.C.).  
Rex v. Adduono et al., [1940] O.R. 184 (Ont. C.A.), Robertson C.J.O., Masten and Gillanders JJ.A.  
vii  
Statutes, Regulations, Bylaws and Rules Cited:  
Canadian Charter of Rights and Freedoms, Part 2 of the Constitution Act, 1982, Schedule B of the Canada  
Act 1982 (U.K.), 1982, c. 11, R.S.C. 1985, App. II, ss. 7, 10(b), 11(a), and 24(1).  
Criminal Code, R.S.C. 1985, c. C-46, ss. 330(1), 505 to 514, 581, 581(1), 581(2)(c), 581(3), 581(5), 587(1)(b),  
601 and 601(4).  
Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, s. 7.1(2).  
Planning Act, R.S.O. 1990, c. P.13, s. 67, 67(1), 67(2), and 67(3).  
Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 11(1), 23(1.2), 24(6), 25, 25(1), 25(2), 25(3), 25(4)(a),  
25(4)(b), 25(4)(c), 25(6), 25(7), 25(7)(f), 34, 35, 36(2), 37, 76, 76(1), 76(2), and s. 85.  
Town of Caledon (Zoning) Bylaw #2006-50, ss. 1.3, 1.4, 3.2, 11.1, 11.2, and Table 11.1.  
Limitation Periods Regulation (Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 S.O. 2020,  
c. 17) [formerly under Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9], O. Reg. 73/20,  
ss. 1 and 2. (revoked on Sept. 14, 2020 by O. Reg. 457/20, s. 1).  
Orders Cited:  
Chief Judge’s Order pursuant to s. 85 of Provincial Offences Act, R.S.O. 1995, c. P.33, Extending Certain  
Time Periods Under The Provincial Offences Act For Proceedings In The Ontario Court Of Justice, dated  
November 25, 2020.  
viii  
1.  
INTRODUCTION  
[1]  
After arraignment and after entering not guilty pleas on their respective Town of  
Caledon Zoning Bylaw charges, Eagle Demolition & Excavation Inc., Gurdev  
SIDHU and Jaskaran SIDHU (“the defendants”) have brought “in-trial" motions  
consisting of 3 primary motions and one motion in the alternative, which will have  
to be decided before their trial can continue. For their first motion, the defendants  
contend that their s. 11(a) Charter rights to be informed of the specific offence  
without delay for all 4 counts that are set out in the information have been infringed,  
and as such, seek a remedy of a stay of proceedings and an order for costs in favor  
of the defendants and against the prosecution under ss. 7 and 24(1) of the Charter.  
The defendants also made in the alternative a Motion for an Order for Particulars  
and an adjournment if their s. 11(a) Charter motion is dismissed. For their second  
motion, the defendants submit that despite the suspension of limitation periods in  
2020 by the Ontario government due to the COVID-19 pandemic and closure of  
courtrooms for in-person appearances, count #1 in the information which was laid  
against the defendants, should nevertheless be quashed as that specific charge  
had been sworn or commenced outside the 6-month limitation period. And, for their  
third motion, the defendants seek an adjournment of the trial and an order  
compelling the prosecution to provide them with McNeil Disclosure regarding any  
misconduct or complaints of misconduct brought against the Investigating  
Provincial Offences Officer, who had investigated and charged the defendants with  
the Zoning Bylaw offences; the curriculum vitae of the Investigating Provincial  
Offences Officer; the name of the complainant who made a complaint to the Town  
of Caledon about the property in question; and the notes or transcribed recording  
of the complainant’s complaint to the Town of Caledon.  
[2]  
The information (#0661-999-20-3574) charges the defendants with committing  
municipal bylaw offences in 4 separate counts. The 4 counts allege that the  
defendants committed offences under s. 11.1 of the Town of Caledon Zoning Bylaw  
#2006-50 (“Zoning Bylaw”), thereby committing an offence under s. 67 of the  
Planning Act, R.S.O. 1990, c. P.13. Count #1 of that information refers to an offence  
that had allegedly occurred on February 25, 2020. These proceedings against the  
defendants had been commenced on September 3, 2020, when a provincial  
offences officer laid an information using the alternative procedure set out in s.  
23(1.2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, which the defendants  
contend would be 8 days outside the 6-month limitation period. Reception of that  
information was also acknowledged by the court on September 3, 2020. The court  
then issued summonses in respect to that information directing the 3 defendants to  
remotely appear by telephone conference at the Caledon Provincial Offences Court  
on November 2, 2020, to answer to their respective charges.  
[3]  
The 4 counts at issue in the s. 11(a) Charter Motion have charged Eagle Demolition  
& Excavation Inc., Gurdev SIDHU and Jaskaran SIDHU with committing the same  
municipal bylaw offence under s. 11.1 of the Town of Caledon Zoning Bylaw #2006-  
1
50 on 4 different dates: February 25, 2020, May 1, 2020, May 13, 2020, and August  
20, 2020. Specifically, a Provincial Offences Officer from the Town of Caledon had  
charged the defendants for doing something or engaging in some activity on the  
land or property, or for using the land or property located at 15961 The Gore Road,  
Caledon, Ontario, in a way which is not a permitted use for that particularly zoned  
property. Under Table 11.1 of s. 11.2 of the Zoning Bylaw, there are only 8 legally  
permitted uses for that specific property. However, the 4 counts do not specify or  
detail what that “wrongful use” of the property or land had been on those 4 offence  
dates that would contravene s. 11.1. And, because of this missing averment, the  
defendants contend their s. 11(a) Charter rights to be informed without delay of the  
specific offence that they have been charged with has been infringed. Moreover,  
the defendants also contend that the prosecution has refused to provide them with  
“particulars” in respect to the 4 charges, so as a result, the defendants claim they  
would be unable to make full answer and defence or to have a fair trial, since they  
do not know what that “wrongful use” in respect to the property had been on the 4  
alleged offence dates that allegedly contravened s. 11.1 of the Zoning Bylaw.  
However, the prosecution submits that they have provided particulars about the  
alleged “wrongful use” of the property to the defendants by several means.  
Specifically, the prosecution submits that such particulars were provided through  
information that had been provided to the defendants by the Investigating Provincial  
Offences Officer who charged the defendants, through a Certified Letter provided  
to the defendants, through information contained in the disclosure provided on 3  
occasions to the defendants and the defendants’ legal representative, and by  
particulars given and communicated orally to the defendants’ legal representative  
at the Judicial Pre-Trial Conference.  
[4]  
The prosecution also submits that the disclosure that they had provided to the  
defendants and the defendants’ legal representative is complete. However, the  
defendants disagree and submit that they need additional disclosure in order to  
make full answer and defence and to have a fair trial, which includes the prosecution  
providing them with McNeil Disclosure in respect to the Investigating Provincial  
Offences Officer, the curriculum vitae of the Investigating Provincial Offences  
Officer, the name of the complainant who complained to the Town of Caledon about  
the property in question, and the notes or a transcribed recording of the  
complainant’s complaint made to the Town of Caledon.  
Motion #1  
[5]  
The defendants’ first motion is not a motion to quash a defective count for a missing  
averment of an essential element of the offence or for an insufficiently worded  
charge, but rather an application for a stay of proceedings and an order for costs  
for an infringement of s. 11(a) of the Charter in which the defendants claim that they  
have not been promptly informed of the circumstances or details of the underlying  
transaction of the specific offence for all 4 counts in order for them to be able to  
make full answer and defence and to have a fair trial, which is based on a missing  
averment and the refusal of the prosecution to provide “formal” particulars in writing  
2
for all 4 counts to the defendants. Moreover, all 4 counts have charged the  
defendants in respect to the property at 15961 The Gore Road, Caledon, Ontario,  
with “use the land, being zoned Environment Policy Area 2 - Oak Ridges Morraine  
(EPA2-ORM), for a use other than as permitted in Table 11.1 of Subsection 11.2 of  
Town of Caledon Zoning By-law 2006-50”, contrary to Subsection 11.1 (General  
Prohibition) of Town of Caledon Zoning By-law 2006-50. However, the 4 counts did  
not expressly state what that alleged “wrongful use” had been that would infringe  
s. 11.1. On the other hand, even though the 4 counts were factually insufficient,  
they were indeed legally sufficient as the 4 counts had expressly used wording for  
the offence that is the same wording that is set out in the section or statutory  
provision creating the offence, as well the section number of the statutory provision  
creating the offence was also expressly referred to in all 4 counts, and that all 4  
counts stated an offence known to law, namely “use the land … for a use other than  
as permitted in Table 11.1 of s. 1.2”, which contravenes s. 11.1 of the Town of  
Caledon Zoning Bylaw. Therefore, because the 4 counts were legally sufficient for  
complying with the sufficiency of count requirements under s. 25 of the Provincial  
Offences Act, they were not nullities or void ab initio, but voidable counts for being  
factually insufficient. And, as a consequence of being voidable counts, then all 4  
counts, if need be, could be cured with amendments if there would be no prejudice  
to the defendants and the proposed amendments can be made without injustice  
being done; or alternatively, to ensure a fair trial the 4 counts could be cured with  
an order for particulars unless it would fail to satisfy the ends of justice.  
[6]  
But more significantly, the extreme technical and rigid formalism approach of  
yesteryear for dealing with counts with a missing averment of an essential element  
of the offence that led to the counts being automatically quashed because the  
counts did not disclose an offence known in law, has been replaced with the modern  
approach which looks at substance over form and emphasizes flexibility over  
rigidity. This modern approach is now utilized to deal justly with defective counts,  
so that quashing a defective count or information for lacking an essential averment  
or for having an insufficiently worded charge is now rare, since courts dealing with  
regulatory or provincial offences in Ontario have been provided with broad  
amendment and curative powers under the Provincial Offences Act.  
[7]  
Ergo, the determination of whether the defendants’ s. 11(a) Charter rights have  
been infringed in the present case is not simply based on a missing averment of an  
essential element of an offence or the refusal of the prosecution to provide formal  
particulars in writing as the basis of whether the defendants have been informed  
without delay of the specific offences for which they are respectively charged with  
committing. The question instead is whether in all the circumstances the  
defendants have been promptly informed of the factual circumstances or the details  
of the underlying transaction of the specific offence so as to make full answer and  
defence and to have a fair trial. This information may be provided to the defendants  
through many means and does not necessarily require the 4 counts to be formally  
particularized in writing by the prosecution.  
3
[8]  
Hence, in respect to whether there has been an infringement of s. 11(a) of the  
Charter, the defendants have not proven on a balance of probabilities that their  
ability to make full answer or defence or to have a fair trial has been prejudiced, as  
the defendants and the defendants’ legal representative are seemingly aware of the  
alleged “wrongful use” which contravenes s. 11.1 of the Zoning Bylaw and were  
informed of such without delay through the following paths: (1) the defendants had  
been informed personally by the Provincial Offences Officer who charged the  
defendants; (2) the defendants were informed by a Certificate Letter provided to  
them; (3) the defendants were informed through the information contained in the  
disclosure packages provided to the defendants on at least 2 occasions; (4) the  
defendants’ legal representative had been informed through the information  
contained in the disclosure package provided to the defendants’ legal  
representative on one occasion; (5) the prosecution provided particulars of the  
alleged offences orally to the defendants’ legal representative at the Judicial Pre-  
Trial Conference; (6) the alleged “wrongful use” had been expressly provided and  
stated in the prosecution’s reply factum to the defendants’ s. 11(a) Charter motion  
in which the prosecution refers to the “wrongful use” as a “contractor’s facility”; and  
(7) by comments made by the defendants’ legal representative, which infers that he  
is aware of the alleged “wrongful use” when he made such a reference during the  
hearing of the s. 11(a) Charter motion, about the alleged “wrongful use” being  
related to the storage or parking of construction motor vehicles on the property in  
question that would possibly contravene s. 11.1 of the Zoning Bylaw, but that the  
defendants’ also had a potential defence to that alleged “wrongful use”, in that the  
construction motor vehicles had been on the property for the purpose of  
constructing a driveway on the property.  
[9]  
Furthermore, s. 11(a) of the Charter does not set out a particular method or legal  
requirement for informing an accused of the factual circumstances or the details of  
the underlying transaction of the specific offence. And, providing formal particulars  
in writing is only one of the ways that could be used to satisfy the informational  
component of s. 11(a).  
[10] As a result, the defendants have not met their burden in proving on a balance of  
probabilities that they were not informed without delay of the specific offence for  
each of the 4 counts so as to infringe s. 11(a) of the Charter. Ergo, the defendants’  
s. 11(a) Charter motion is dismissed, as well as their motion for costs.  
Motion for an Order for Particulars and an adjournment in the alternative:  
[11] A court will order particulars to be provided by the prosecution when it is required  
for a fair trial. However, for the defendants motion in the alternative for an order for  
particulars, there is an indication that the defendants have been informed early on  
in these proceedings of the circumstances and the details of the underlying  
transaction that comprise the specific offences for which they are charged.  
Therefore, an order for the prosecution to provide formal particulars in writing is not  
required as the defendants have been provided sufficient information by other  
4
means about the circumstances and details of the underlying transaction of the  
specific offences, so as to be able to make full answer and defence and to have a  
fair trial. Moreover, for the circumstances of the present case, the prosecution’s  
ability and discretion on how they wish to prosecute and prove the 4 charges against  
the defendants should not be fettered by an order for formal particulars in writing,  
as that may cause an injustice. Accordingly, the defendants’ motion in the  
alternative for an order for particulars and an adjournment is also dismissed.  
Motion #2  
[12] Count #1 in the information refers to an offence date of February 25, 2020 where  
the information containing the 4 counts had been sworn or commenced on  
September 3, 2020, which would be a period of 6 months and 8 days. The limitation  
period for laying an information to commence a proceeding under the Town of  
Caledon Zoning Bylaw #2006-50 is governed by the general limitation period set  
out under s. 76(1) of the Provincial Offences Act, R.S.O. 1990, C. P.33, which sets  
out a limitation period of 6 months. However, limitation periods for commencing  
proceedings were suspended from March 16, 2020 to September 13, 2020 by s. 1  
of the Limitation Periods Regulation (Reopening Ontario (A Flexible Response to  
COVID-19) Act, 2020 S.O. 2020, c. 17) [formerly under Emergency Management  
and Civil Protection Act, R.S.O. 1990, c. E.9], O. Reg. 73/20. No discretion has  
been given to the courts on whether to apply or not to apply limitation periods for  
commencing proceedings under s. 1 of the Limitation Periods Regulation. On the  
other hand, s. 2 of the Limitation Periods Regulation does provide discretion to the  
court, tribunal, or decision-maker to determined whether the suspension of “any  
period of time within which any step must be taken in any proceeding” should be  
applicable for a proceeding. However, in reviewing the wording contained in both  
s. 1 and s. 2 of the Limitation Periods Regulation together, the Ontario Legislature  
did not intend to have s. 2 apply to limitation periods to commence proceedings,  
since s. 1 expressly and specifically governs “limitation periods” while s. 2 does not  
specifically or expressly state that “limitation periods” are included in s. 2. Ergo,  
there is no discretion for the courts to disregard the suspension of limitation periods  
for commencing proceedings from March 16, 2020 to September 13, 2020, as all  
limitation periods in Ontario during that period were suspended by law. Moreover,  
on account of the suspension of limitation periods from March 16, 2020 to  
September 13, 2020, the 6-month limitation period for commencing the proceeding  
in respect to Count #1 would have expired on or about February 22, 2021. Also, at  
the time the information was sworn or commenced on September 3, 2020, only 19  
days of the 6-month limitation period had elapsed due to the suspension of limitation  
periods in Ontario. As such, count #1 in the information that had been sworn or  
commenced on September 3, 2020, had not been sworn or commenced outside  
the 6-month limitation period. Accordingly, the charge in count #1 is not void or a  
nullity for being laid outside the 6-month limitation period and the defendants’  
application to quash count #1 is therefore dismissed.  
5
Motion #3  
(1) McNeil Disclosure  
[13] As for the request for “McNeil” disclosure, the prosecution has the legal obligation  
to provide such disclosure to the defendants as first party disclosure, but the  
prosecution also has discretion as the “gatekeeper” to obtain the disciplinary or  
employment records of investigators or enforcement officers, if any, and to review  
such records to determine if it could reasonably assist the defendants in making full  
answer and defence on the issues of credibility of the enforcement or investigating  
officers as a witness. And, if it could reasonably assist the defendants in making  
full answer and defence, then the disciplinary or employment records of the  
Investigating Provincial Offences Officer has to be provided to the defendants by  
the Town of Caledon prosecutors as first party disclosure. But, if these disciplinary  
or employment records would not reasonably assist the defendants in making full  
answer and defence, then those records would not have to be disclosed to the  
defendants.  
[14] Procedurally then, if there are no records that would fall under McNeil Disclosure,  
then the prosecution has to provide a letter to the accused person or to the accused  
person’s legal representative stating, ”In reply to your request for disclosure in  
accordance with requirements established in R. v. McNeil, 2009 SCC 3, I can tell  
you that no records exist concerning [name of Provincial Offences Officer].  
[15] And, in the situation where there are disciplinary or employment records of the  
investigator or enforcement officer, but these records have been reviewed by the  
prosecution as the “gatekeeper” and found not to be relevant, then the prosecution  
has to provide a letter to the accused person or to the accused person’s legal  
representative stating, ”In reply to your request for disclosure in accordance with  
requirements established in R. v. McNeil, 2009 SCC 3, the [name of the municipality  
or agency] records relating to the employment of [name of Provincial Offences  
Officer] have been independently reviewed and it has been determined that they do  
not fall within the scope of required disclosure.”  
[16] However, if there are disciplinary or employment records of the investigator or  
enforcement officer that have been determined to be relevant by the prosecution as  
the “gatekeeper”, those records have to be disclosed as first party disclosure to the  
accused person or to the accused person’s legal representative, along with a letter  
advising: “We write to fulfill the ‘prosecution disclosure’ requirements to you. A  
matter documented in the employment record of [name of Provincial Offences  
Officer] may be relevant to your proceedings.”  
[17] Therefore, if not already done so previously, then the prosecution will have to obtain  
the disciplinary or employment records of the Investigating Provincial Offences  
Officer involved in the investigation and charging of the defendants in the present  
case, if they exist, and review them as the “gatekeeper” to see if they could  
6
reasonably assist the defendants in making full answer and defence on the issues  
of credibility of the enforcement or investigating officer as a witness. And, if these  
records could reasonably assist the defendants in making full answer and defence,  
then they have to be disclosed to the defendants or the defendants’ legal  
representative as first party disclosure.  
(2) curriculum vitae of the Investigating Provincial Offences Officer  
[18] As for the request for the curriculum vitae of the Investigating Provincial Offences  
Officer, in the circumstances it would not be relevant to these proceedings, since  
there is no suggestion or indication that the Officer is being called by the prosecution  
to testify as an “expert witness” on a particular and specialized field of endeavour,  
and who would be offering scientific, technical, or other specialized knowledge that  
could assist the trier of fact. Moreover, a witness who is being offered as an expert  
must first establish their qualifications and competence in the relevant field of  
endeavour through examination of the witness’s credentials, which would also  
require the witness’s curriculum vitae being provided to both the prosecution and  
the defence. However, in the present case and also in respect to provincial offences  
officers, bylaw officers, and police officers in general, who are not being proffered  
as expert witnesses, they are usually called to testify at trials as “fact witnesses”.  
Furthermore, fact witnesses would normally testify about their personal  
observations, on what they experienced, and about their personal knowledge of the  
events in question pertaining to the accused person. In addition, the curriculum  
vitae of Provincial Offences Officers, bylaw officers, and police officers who are not  
being called to testify as an expert witness are not normally in the possession of the  
prosecution nor are they normally included in the disclosure package provided to  
an accused person as first party disclosure.  
[19] In addition, the defendants have not established the relevance of this requested  
item.  
[20] Accordingly, the prosecution does not have to request, obtain and disclose to the  
defendants the curriculum vitae of the Investigating Provincial Offences Officer who  
has charged the defendants in the present trial.  
(3) name of the Complainant  
[21] As for the request for the name of the Complainant who called the Town of Caledon  
about the property in question and which consequently caused the Town of Caledon  
to investigate the property in question, it does not have to be disclosed to the  
defendants, as the name of the complainant is privileged information falling under  
the informer privilege rule.  
(4) notes or transcribed recording of the Complainant’s complaint  
7
[22] As for the request for the notes or transcribed recording of the Complainant’s  
complaint or complaints made to the Town of Caledon, if any, it was ordered by this  
court at the March 22, 2022 hearing of the 3 motions to be disclosed by the  
prosecution to the defendants with redactions to protect the identity or name of the  
Complainant from being revealed or disclosed to the defendants. The prosecution  
stated to the court shorty after it was ordered to disclose this information about the  
notes made of the Complainant’s complaint which had been made to the Town of  
Caledon, had been indeed forwarded to the defendants’ legal representative with  
appropriate redactions to protect the name and identity of the Complainant.  
Adjournment of defendants’ trial to June 15, 2022  
[23] After hearing the defendants’ Charter application and other “in-trial” motions on  
March 22, 2022, the rulings on the 3 primary motions and the motion in the  
alternative were reserved and the continuation of the defendants’ trial was  
adjourned until June 15, 2022 for the rulings to be rendered. The rulings on the  
Charter motion and on the other “in-trial” motions will be released to both the  
defence and the prosecution prior to the continuation of the trial on June 15, 2022.  
These, therefore, are the written reasons for the rulings on the defendants’ Charter  
and other trial motions:  
2. BACKGROUND AND CHRONOLOGY OF THE DEFENDANTS’ COURT APPEARANCES  
[24] There are 3 defendants in this proceeding, namely, Eagle Demolition & Excavation  
Inc., Gurdev SIDHU and Jaskaran SIDHU. Jaskaran SIDHU informed the court on  
the March 22, 2022 appearance that he is a director of the corporation, Eagle  
Demolition & Excavation Inc. The defendants have been each charged with  
committing 4 Town of Caledon Zoning Bylaw offences on 4 separate dates for  
allegedly engaging in a use in respect to the land known municipally as 15961 The  
Gore Road, Caledon, Ontario, when that use was not legally permitted under s.  
11.1 of the Town of Caledon Zoning Bylaw #2006-50.  
[25] A contravention of s. 11.1 of the of the Town of Caledon Zoning Bylaw #2006-50,  
would be an offence under s. 67 of the Planning Act, R.S.O. 1990, C. P.13, for the  
purposes of the penalty that can be imposed against the defendants. Furthermore,  
the Planning Act is the legislation which gives the power to and authority for  
municipalities in Ontario to enact and pass municipal bylaws related to the zoning  
and permitted uses of land in these municipalities and it also sets out the penalties  
that can be imposed against offenders for the contravention of municipal zoning  
bylaws.  
[26] The 4 counts contain charges with the following offence dates:  
Count #1: February 25, 2020  
Count #2: May 1, 2020  
8
Count #3: May 13, 2020  
Count #4: August 20, 2022.  
[27] The information (#0661-999-20-3574) containing the 4 counts was commenced as  
a proceeding on September 3, 2020 after the information and a statement of  
Rebecca Gunness, a Provincial Offences Officer, under s. 23(1.2) of the Provincial  
Offences Act, R.S.O. 1990, c. P.33, was received by the court on September 3,  
2020, at 12:10 p.m. Summonses for the 3 defendants were also issued by the court  
on September 3, 2020, commanding the 3 defendants to appear remotely by  
telephone conference on November 2, 2020, at 9:00 a.m. The summonses had  
also set out the statements of the 4 offences that the defendants were alleged to  
have committed respectively.  
[28] The defendants were subsequently served the summonses after the summonses  
were issued to appear before this court on November 2nd, 2020, by telephone  
appearance.  
[29] However, because of the COVID-19 pandemic and the closure of courtrooms to the  
public during 2020 and 2021, if an accused person failed to call in for or make a  
telephone appearance, then their matters were simply adjourned to another date  
as a matter of practice and accused persons were also, as a courtesy, sent letters  
by court administration with that adjournment date and the telephone conference  
numbers and meeting codes for calling in. Or, the court would order court  
administration to send a letter to the accused persons who did not appear by  
telephone conference with the adjournment date along with the telephone  
conference numbers and meeting codes.  
[30] The defendants were respectively sent these courtesy letters from Court  
Administration on October 7, 2020, March 8, 2021, and May 14, 2021, informing  
them that their appearance had been changed to a Telephone Conference Meeting  
and they were also provided with the telephone number and a meeting code to call  
in with, for their first appearance and for the subsequent appearances and  
adjournment dates, which were for November 2, 2020, April 12, 2021, and June 24,  
2021.  
[31] These courtesy letters sent to the defendants from Court Administration, which  
advised them of the dates to make an appearance by telephone conference were  
sent to Eagle Demolition & Excavation Inc. at 3 Garny Court, Brampton, Ontario; to  
Gurdev SIDHU at 15961 The Gore Road, Caledon, Ontario; and to Jaskaran SIDHU  
at 15961 The Gore Road, Caledon, Ontario.  
[32] The defendants did not appear on November 2, 2020, but Jaskaran Sidhu did  
appear for the first time on April 12, 2021 by telephone for himself and for the other  
2 defendants. On June 24, 2021, Jaskaran Sidhu appeared again by telephone for  
himself and for the other 2 defendants  
9
[33] Douglas Allen, the defendants’ legal representative, appeared on behalf of the  
defendants on August 16, 2021.  
[34] In addition, Judicial Pre-Trial Conferences in respect to the defendants’ matters  
were scheduled and conducted on October 28, 2021 and January 13, 2022,  
between the defendants’ legal representative and the prosecutor for the Town of  
Caledon.  
[35] A one-day trial with preliminary motions was set and confirmed for March 22, 2022  
at the Judicial Pre-Trial Conference held on January 13, 2022.  
(a) THE CHARGES  
[36] The actual wording of the four counts which comprise the 12 charges laid against  
the 3 defendants that are contained in the Part III information sworn or commenced  
on September 3, 2020 (#0661-999-20-3574) are the following:  
Information #0661-999-20-3574:  
Gurdev Sidhu of 15961 The Gore Road, Caledon, ON L7E 0X3  
and  
Jaskaran Sidhu of 15961 The Gore Road, Caledon, ON L7E 0X3  
and  
Eagle Demolition & Excavation Inc. of 3 Garny Court, Brampton, ON L6Y 4M7  
on or about the 25th day of February, 2020,  
At 15961 The Gore Road, legally described as Part of Lot 20, Concession  
4 (Albion) designated as Part 1 on 43R-11663; Town of Caledon; Regional  
Municipality of Peel  
did commit the offence of  
1. contrary to Subsection 11.1 (General Prohibition) of Town of Caledon  
Zoning By-law 2006-50, as amended, use the land, being zoned  
Environment Policy Area 2 - Oak Ridges Morraine (EPA2-ORM), for a  
use other than as permitted in Table 11.1 of Subsection 11.2 of Town  
of Caledon Zoning By-law 2006-50, as amended, contrary to Section  
67 of the Planning Act  
2. and further, on or about the 1st day of May, 2020, Gurdev Sidhu,  
Jaskaran Sidhu and Eagle Demolition & Excavation Inc., at 15961 The  
Gore Road, legally described as Part of Lot 20, Concession 4 (Albion)  
designated as Part 1 on 43R-11663; Town of Caledon; Regional  
Municipality of Peel, did commit the offence of, contrary to Subsection  
11.1 (General Prohibition) of Town of Caledon Zoning By-law 2006-50,  
as amended, use the land, being zoned Environment Policy Area 2 -  
Oak Ridges Morraine (EPA2-ORM), for a use other than as permitted  
10  
in Table 11.1 of Subsection 11.2 of Town of Caledon Zoning By-law  
2006-50, as amended, contrary to Section 67 of the Planning Act  
3. and further, on or about the 13th day of May, 2020, Gurdev Sidhu,  
Jaskaran Sidhu and Eagle Demolition & Excavation Inc., at 15961 The  
Gore Road, legally described as Part of Lot 20, Concession 4 (Albion)  
designated as Part 1 on 43R-11663; Town of Caledon; Regional  
Municipality of Peel, did commit the offence of, contrary to Subsection  
11.1 (General Prohibition) of Town of Caledon Zoning By-law 2006-50,  
as amended, use the land, being zoned Environment Policy Area 2 -  
Oak Ridges Morraine (EPA2-ORM), for a use other than as permitted  
in Table 11.1 of Subsection 11.2 of Town of Caledon Zoning By-law  
2006-50, as amended, contrary to Section 67 of the Planning Act  
4. and further, on or about the 20th day of August, 2020, Gurdev Sidhu,  
Jaskaran Sidhu and Eagle Demolition & Excavation Inc., at 15961 The  
Gore Road, legally described as Part of Lot 20, Concession 4 (Albion)  
designated as Part 1 on 43R-11663; Town of Caledon; Regional  
Municipality of Peel, did commit the offence of, contrary to Subsection  
11.1 (General Prohibition) of Town of Caledon Zoning By-law 2006-50,  
as amended, use the land, being zoned Environment Policy Area 2 -  
Oak Ridges Morraine (EPA2-ORM), for a use other than as permitted  
in Table 11.1 of Subsection 11.2 of Town of Caledon Zoning By-law  
2006-50, as amended, contrary to Section 67 of the Planning Act  
(b) COURT APPEARANCES PRIOR TO THE COMMENCEMENT OF THE TRIAL  
[37] The following is a chronological summary of the dates in which the defendants were  
required to appear virtually or to call in by telephone and whether the defendants  
had appeared virtually or by telephone. And, although no transcripts were provided  
in respect to the defendants’ appearances, the reasons for adjournments were  
provided by the prosecution and the defendants:  
(1) Court Appearance on November 2, 2020 at 9:00 a.m.:  
[38] None of the 3 defendants appeared or called in on November 2, 2021 for their first  
appearance by telephone conference. The court then adjourned the defendants’  
matters until April 12, 2021 at 3:00 p.m. to be spoken to. For the November 2, 2020  
date, the defendants were sent individual letters by Court Administration on October  
7, 2020 informing them that their November 2, 2020 appearance date was no longer  
in person but to appear by telephone conference and to telephone a specific  
telephone number at a certain time and to use a specific meeting number that had  
been provided in the letter in order to make their appearance.  
(2) Court Appearance on April 12, 2021 at 3:00 p.m.:  
11  
[39] On April 12, 2021, one of the defendants, Jaskaran SIDHU, appeared for himself  
and the other 2 defendants by telephone conference. This was the first time any of  
the 3 defendants had appeared. The court then adjourned the defendants’ matters  
until June 24, 2021 at 11:00 a.m. to be spoken to. The defendants were sent  
individual letters by Court Administration on March 8, 2021 informing them of April  
12, 2021, as a date to appear by telephone conference and to telephone a specific  
telephone number at a certain time and to use a specific meeting number that had  
been provided in the letter in order to make their appearance  
(3) Court Appearance on June 24, 2021 at 11:00 a.m.:  
[40] On June 24, 2021, Jaskaran SIDHU, appeared again for himself and the other 2  
defendants by telephone conference. The defendants’ matters were then  
adjourned until August 16, 2021 at 9:00 a.m. to be spoken to. The defendants were  
sent individual letters by Court Administration on May 14, 2021 informing them of  
June 24, 2021, as a date to appear by telephone conference and to telephone a  
specific telephone number at a certain time and to use a specific meeting number  
that had been provided in the letter in order to make their appearance  
(4) Court Appearance on August 16, 2021 at 9:00 a.m.:  
[41] On August 16, 2021, Douglas Allen, the defendants’ legal representative, appeared  
for the defendants. The defendants’ matters were then adjourned for a Judicial Pre-  
Trial Conference to be conducted on October 28, 2021 at 9:00 a.m.  
(5) Court Appearance on October 28, 2021 at 9:00 a.m.:  
[42] On October 28, 2021, the Judicial Pre-Trial Conference was commenced with  
Douglas Allen, the defendants’ legal representative and with Naomi Klein, the  
prosecutor for the Town of Caledon. An “all day” trial date was selected and set for  
March 22, 2022. In addition, the continuation of the Judicial Pre-Trial Conference  
was also scheduled for January 13, 2022. The prosecution submits that various  
issues were discussed at the judicial pre-trial, with one of the those being the  
requirement for the prosecutor to provide the defendants with details of the alleged  
offence, known as "particulars". The judicial pre-trial was then adjourned to January  
13, 2022.  
(6) Court Appearance on January 13, 2022 at 9:00 a.m.:  
[43] On January 13, 2022, the Judicial Pre-Trial Conference was continued with Douglas  
Allen, the defendants’ legal representative, and with Naomi Klein, the prosecutor  
for the Town of Caledon. The trial date of March 22, 2022 for preliminary motions  
and a one-day trial was also confirmed by both parties. The prosecution also  
submits that particulars were provided orally to the defendants’ legal representative  
during the Judicial Pre-Trial Conference. However, the defendants’ legal  
representative contends that the prosecution had refused to provide the  
12  
“particulars” that had been requested by the defendants at the Judicial Pre-Trial  
Conference and that the defendants’ matters had been scheduled for trial despite  
the defendants’ objections.  
(c) Disclosure has been provided to the defendants and to the defendants’ legal  
representative  
[44] The prosecution submits that on or about December 9, 2020, the prosecution had  
provided the defendants with a disclosure package that contains the evidence the  
prosecutor would rely on in to prove the charges against the defendants.  
[45] Moreover, the prosecution submits that they have provided disclosure of the  
prosecution’s evidence on 3 separate occasions – on two occasions to the  
defendants and one occasion to the defendant’s legal representative. The  
prosecution also submits that the defendants’ legal representative, Douglas Allen,  
also confirmed receipt of his copy of the disclosure that had been resent by the  
prosecution in January of 2022.  
(d) Particulars have been provided to the defendants and to the defendants’  
legal representative  
[46] The defendants contend that the prosecution did not respond to their request for  
particulars nor has the prosecution provided any particularization of the  
circumstances of the alleged offences, as required by the Provincial Offences Act  
and the Charter. In reply, the prosecution acknowledge that on January 10, 2022,  
the defendants’ legal representative had written to the prosecution requesting the  
particulars that had been discussed at the Judicial Pre-Trial Conference held on  
October 28, 2021. However, the prosecution submits that they had provided  
particulars of the offences to the defendants’ legal representative at the Judicial  
Pre-Trial Conference, namely, particulars about the circumstances which would  
comprise the offence for all 4 counts set out in the charging document. Moreover,  
the prosecution submits that it was on January 13, 2022, at the continuation of the  
Judicial Pre-Trial Conference that they had “verbally” provided particulars to the  
defendants’ legal representative.  
[47] In addition, during the hearing of the defendants’ s. 11(a) Charter motion on March  
22, 2022, the prosecution also submitted that the justice of the peace presiding at  
the Judicial Pre-Trial Conference did not order that the information be formally  
particularized.  
[48] Furthermore, prior to the arraignment of the defendants on March 22, 2022, the  
prosecution did not request that the 4 counts or the information be amended by  
formally adding written “particulars” to the 4 counts in respect to the request made  
by the defendants’ legal representative for formal particulars.  
13  
[49] Moreover, in their “Reply to the Defendants’ Factum”, the prosecution had stated  
that the charge as indicated on the face of the Information alleges that the defendant  
had used the land that was zoned EPA2-ORM for a use other than as permitted in  
the Zoning Bylaw, and that the specific “wrongful use” being alleged in the  
defendants’ case was set out in the disclosure and that the defendants were using  
the land in question as a “contractor's facility”, which the prosecution submits is not  
a permitted use under the relevant tables of the Zoning Bylaw.  
[50] Furthermore, the prosecution also submits that the Town of Caledon Zoning Bylaw  
#2006-50 and all its appendixes are readily available to all individuals both online  
and in hard copy upon request of the Town of Caledon.  
(e) Defence Motion for a Mistrial  
[51] When the prosecution had informed this court during the hearing of the defendants’  
s. 11(a) Charter motion on March 22, 2022, about rulings that the justice of the  
peace presiding at the Judicial Pre-Trial Conference had made, the defendants’  
legal representative immediately objected to this court being told by the prosecution  
about those rulings made by the justice of the peace at the Judicial Pre-Trial  
Conference, and then immediately moved for a mistrial, arguing that such rulings  
made within the Judicial Pre-Trial Conference were supposed to be confidential and  
not disclosed to the trial court and that nothing said in the Judicial Pre-Trial  
Conference can be revealed to the trial justice.  
[52] After hearing submissions, this court dismissed the defendants’ motion for a  
mistrial, as this court is required to consider prior judicial rulings in determining  
various applications or motions and for resolving any issues between the parties.  
Furthermore, the trial court needs to be informed of those prior judicial rulings in  
order to hold parties accountable to decisions made and agreed to during the  
Judicial Pre-Trial Conference. In addition, hearing information about prior judicial  
rulings or orders does not have the same potential prejudicial effect as hearing  
information or evidence that potentially reveals proof of the guilt of an accused  
person. Moreover, evidence which only goes to the determination of procedural  
questions or issues, which is not evidence that reveals proof of the guilt of an  
accused person, may generally be divulged to the trial court for challenging a  
misrepresentation made by one of the parties at an earlier court appearance or at  
the Judicial Pre-Trial Conference. But more important, this is not a trial before a  
jury and this court can disabuse its mind of information which had been revealed  
during the Judicial Pre-Trial Conference that has been subsequently disclosed  
during argument or submissions made in the present Charter and other “in-trial”  
motions, which may or may not be relevant to any legal or factual issues that have  
to be decided in the trial proper.  
(f) Rulings of the presiding justice at the Judicial Pre-trial Conference are  
permitted to be considered by the trial justice  
14  
[53] The defendants had brought a motion for a mistrial which had been subsequently  
dismissed by this court that had been based on the notion that communications,  
discussions, or statements made by the parties in the Judicial Pre-trial Conference  
prosecution are privileged and confidential and cannot be disclosed or used during  
the trial. The motion for a mistrial was brought after the prosecution had provided  
information on what the presiding justice of the peace at the Judicial Pre-trial  
Conference had ruled or decided in respect to the defendants’ request for  
particulars. The Judicial Pre-trial Conference justice of the peace had also ruled  
that an Order for Particulars would not be granted and that the issue of a defence  
request for the prosecution to disclose McNeil disclosure, the curriculum vitae of  
the Investigating Provincial Offences Officer, the name of the complainant who  
telephoned the Town of Caledon complaining about the land in question, and the  
notes or transcribed recording of the complainants’ telephone call or calls to the  
Town of Caledon could be raised at trial.  
[54] Rulings made by the presiding justice of the peace at the Judicial Pre-trial  
Conference are not privileged or confidential and may be used and considered at  
trial, as those rulings are about ensuring proper use of available time in the trial  
courts, to keep proceedings moving forward efficiently, for enforcing deadlines to  
provide documents, and for keeping the parties accountable for any agreements  
that are made by the parties at the Judicial Pre-trial Conference. However, any  
information provided by the parties in discussions for resolving charges would be  
privileged and can not be used subsequently at trial to prove the charges against  
the defendants.  
(g) Defendants’ legal representative appears to have knowledge of the alleged  
“wrongful use” which contravenes s. 11.1 of the Zoning Bylaw  
[55] In respect to the defendants’ contention that they are not able to make full answer  
and defence, as they do not know the circumstances of the specific offence because  
of the lack of particulars from the prosecution and that the 4 counts do not state  
what the alleged wrongful use is that contravenes s. 11.1 of the Zoning Bylaw, the  
defendants’ legal representative nevertheless had commented during the hearing  
of the s. 11(a) Charter motion on March 22, 2022, that the alleged “wrongful use”  
which contravenes s. 11.1 had been for storing or parking construction vehicles on  
the land in question and that the defendants would, in any event, raise the defence  
that the construction vehicles were not being stored or parked on the land, but were  
present on the land, as they were being used for constructing a driveway on the  
property.  
3.  
APPLICABLE LAW  
[56] In all 4 counts, the defendants have been charged with contravening s. 11.1 of the  
Town of Caledon Zoning Bylaw #2006-50, which provides that “No personal shall,  
15  
within any Environmental Policy Area Zone, use any land, or erect, alter, enlarge,  
use or maintain any building or structure for any use other than as permitted in  
Table 11.1 of Subsection 11.2”. In particular, Table 11.1 in s. 11.2 sets out 8 uses  
that are legally permitted uses for land that is zoned “Environment Policy Area 2 -  
Oak Ridges Morraine (EPA2-ORM), which is the zoning classification for the land  
in question as stated in the 4 counts. The 8 permitted uses for this particular zoned  
area (EPA2-ORM) are [emphasis is mine below]:  
(1) Agricultural Uses, Existing (ORM);  
(2) Dwelling, Detached;  
(3) Environmental Management;  
(4) Forest Management;  
(5) Home Business (ORM);  
(6) Low-Intensity Recreational Uses (ORM); and  
(7) Transportation, Infrastructure and Utilities with the exception of  
stormwater management ponds  
SECTION 11 ENVIRONMENTAL POLICY AREA ZONES  
11.1 GENERAL PROHIBITION  
No personal shall, within any Environmental Policy Area Zone, use any land, or erect, alter, enlarge,  
use or maintain any building or structure for any use other than as permitted in Table 11.1 of  
Subsection 11.2 and in accordance with the standards contained in Table 11.2 of Subsection 11.3,  
the General Provisions contained in Section 4 and the Parking, Loading & Delivery Standards  
contained in Section 5.  
11.2 PERMITTED USES  
Uses permitted in an Environmental Policy Area Zone are noted by the symbol ‘’ in the column  
applicable to that Zone and corresponding with the row for a specific permitted use in Table 11.1.  
A number(s) following the symbol ‘’, zone heading or identified permitted use, indicates that one  
or more conditions apply to the use noted or, in some cases, to the entire Zone. Conditions are  
listed below the Permitted Use Table, Table 11.1.  
The Environmental Policy Area Zones established by this By-law are as follows:  
.
.
.
EPA1 Environmental Policy Area 1  
EPA2 Environmental Policy Area 2  
EPA1-ORM Environmental Policy Area 1 – Oak Ridges Moraine  
EPA2-ORM Environmental Policy Area 2 – Oak Ridges Moraine  
The Environmental Policy Area Zone – Oak Ridges Moraine represents lands within the Oak Ridges  
Moraine Conservation Plan Area that are located in a Key Natural Heritage Feature, or a  
Hydrologically Sensitive Feature and/or the feature’s associated minimum vegetation protection  
zone.  
16  
TABLE 11.1  
ZONES  
EPA1-ORM  
USE  
EPA1  
EPA2  
EPA2-ORM  
Agricultural Uses, Existing (ORM)  
Apartment, Accessory  
Dwelling, Detached  
(3)  
Environmental Management  
Farm, Existing  
Forest Management  
Home Business (ORM)  
Home Occupation  
(4)  
(1) (2)  
Low-Intensity Recreational Uses (ORM)  
Recreation, Non-Intensive  
Transportation, Infrastructure and  
Utilities with the exception of  
stormwater management ponds  
Footnotes for Table 11.1  
(1) No more than 6 students are permitted in any one lesson for a home occupation involving the  
instruction of a craft or skill.  
(2) Permitted in a detached or semi-detached dwelling only.  
(3) Permitted only on a vacant lot of record where a single detached dwelling would have been permitted  
as of November 15, 2001 and accessory uses thereto.  
(4) Permitted in a detached dwelling only.  
[57] Furthermore, s. 1.3 of Zoning Bylaw #2006-50, states that “No land, building or  
structure may be used, erected or altered except in accordance with the provisions  
of this By-law”. In addition, for the purpose of Zoning Bylaw #2006-50, “provisions  
shall include both Permitted Uses as well as Zone Standards” [emphasis is mine  
below]:  
1.3 CONFORMITY AND COMPLIANCE WITH BY-LAW  
17  
No land, building or structure may be used, erected or altered except in  
accordance with the provisions of this By-law. For the purpose of this By-law,  
provisions shall include both Permitted Uses as well as Zone Standards  
No land, building or structure may be located or used such that the uses,  
buildings or structures on other lands would no longer comply with the  
provisions of this By-law.  
[58] In addition, s. 1.4 of Zoning Bylaw #2006-50, states that “Where a () symbol  
appears in a table it shall mean, when used in a Use Table, that the use is permitted  
in that Zone” [emphasis is mine below]:  
1.4 INTERPRETATION  
The zone standards of this By-law are the minimum requirements except where  
a maximum requirement applies.  
Where a () symbol appears in a table it shall mean, when used in a Use  
Table, that the use is permitted in that Zone. When used in a Zone Standards  
Table, it shall mean that the regulation applies to the specific Zone.  
Nothing in this By-law shall serve to relieve any person from any obligation to  
comply with the requirements of any other By-law of the Town of Caledon or  
any requirement of the Region of Peel, the Province of Ontario, an agency  
established by the Province of Ontario, or the Government of Canada that may  
affect the use of lands, buildings or structures in the Municipality.  
[59] Moreover, s. 3.2 of Zoning Bylaw #2006-50, contains definitions of words and terms  
that apply to the Zoning Bylaw, which may be relevant to the determination of the  
Charter application and other “in-trial” motions:  
3.2 DEFINITIONS  
The following definitions apply to all the lands within the limits of the Town of  
Caledon, excepting those lands and areas listed in Section 1.1 of this By-law.  
…
Existing means lawfully existing as of the effective date of this By-law, unless as  
otherwise specified in this By-law. In the case of the Oak Ridges Moraine  
Conservation Plan Area as shown on Schedule A to this By-law, existing shall  
mean lawfully existing on or before November 15,2001, and for greater certainty  
does not include a use, building or structure that is in existence on that date without  
being lawful.  
…
Home Business (ORM) applies only to lands within the Oak Ridges Moraine  
Conservation Plan Area and means an occupation that:  
18  
a) involves providing personal or professional services or producing custom or  
artisanal products,  
b) is carried on as a small-scale accessory use within a single detached dwelling  
by one or more of its residents, and  
c) does not include uses such as an auto repair or paint shop or furniture stripping.  
…
Home Industry (ORM) applies only to lands within the Oak Ridges Moraine  
Conservation Plan Area and means a business that:  
a) is carried on as a small-scale use that is accessory to an agricultural  
operation,  
b) provides a service such as carpentry, metalworking, welding, electrical work  
or blacksmithing, primarily to the farming community,  
c) may be carried on in whole or in part in an accessory building, and  
d) does not include uses such as an auto repair or paint shop or any use that  
involves furniture stripping.  
Home Occupation means an occupation or business which is conducted entirely  
within a dwelling unit and which is clearly subordinate or incidental to the principal  
use of the dwelling unit for residential purposes.  
…
Loading/Delivery Space means an unobstructed area of land which is used for the  
temporary parking of one or more commercial motor vehicles while merchandise  
or materials are being loaded or unloaded from such vehicle.  
…
Motor Vehicle means an automobile, truck, motorcycle, and any other vehicle  
propelled or driven otherwise than by muscular power, but does not include the  
cars of electric or steam railways, or other motor vehicles running only upon rails,  
or a trailer, tourist vehicle, bus, all-terrain vehicle, motorized snow vehicle, traction  
engine, farm tractor, self-propelled implement of husbandry or road building  
machine within the meaning of The Highway Traffic Act.  
…
Motor Vehicle Compound means a lot containing a building or portion of a lot  
containing a building, which premises are used for the temporary storage and  
impounding of motor vehicles taken from a collision scene or otherwise towed or  
conveyed and awaiting repair or demolition, retrieval, or disposal.  
…
Non-Complying means a lot, building or structure which is permitted by this By-law  
and lawfully existed as of the effective date of this By-law, but which does not  
comply with the standards of the zone in which it is located.  
Non-Conforming means a use which lawfully existed as of the effective date of this  
By-law, but is not a permitted use for the zone in which it is located.  
…
Oak Ridges Moraine Conservation Plan Area means the area as shown on the  
Schedules to this By-law and as described in Section 2 of the Oak Ridges Moraine  
Conservation Plan.  
…
Open Storage Area, Accessory means land used for the outside storage of  
equipment, goods or materials accessory to a permitted non-residential use. This  
19  
definition shall not include a parking area, a delivery space or a loading space or  
any use otherwise defined in this By-law.  
…
Park means an open space area, owned, operated or maintained in whole or in  
part, by a public authority as a recreational area for public use, including intensive  
recreation and non-intensive recreation.  
Park, Private means an open space area not under public jurisdiction used for  
intensive recreation and non-intensive recreation.  
Parking Area means an open area of land, accessory to a permitted use, not  
located on a public street, private street or lane which is used for the parking of  
motor vehicles, but shall not include any area where motor vehicles for sale or  
repair are kept or stored.  
Parking Area Setback means the least horizontal distance permitted between a  
parking area and an adjacent lot line.  
Parking Garage means a building or part thereof, used for the storage or parking  
of motor vehicles.  
Parking Lot, Commercial means an area of land used for the parking of motor  
vehicles, other than commercial motor vehicles with a gross registered vehicle  
weight of more than 2000 kilograms, for a fee, with such use forming the principal  
land use of a lot.  
Parking Lot, Municipal means an area of land used for the parking of motor  
vehicles that is owned and/or controlled by a public authority.  
Parking Space means an unobstructed space for the parking of a motor vehicle.  
…
Person means any human being, association, firm, partnership, incorporated  
company, corporation, agent or trustee, and the heirs, executor or other legal  
representatives of a person to whom the context can apply.  
…
Recreational Uses, Low-Intensity (ORM) applies only to lands within the Oak  
Ridges Moraine Conservation Plan Area and means recreational uses that have  
minimal impact on the natural environment, and require very little terrain or  
vegetation modification, and few, if any, buildings or structures, including but not  
limited to the following:  
non-motorized trail uses,  
natural heritage appreciation,  
accessory uses.  
Region means The Regional Municipality of Peel.  
…
Transportation Depot means a lot used principally for the storage, servicing, hiring,  
loading or unloading of trucks, buses or other fleet vehicles and must include a  
building containing a use directly related to the parking, storing, servicing, hiring,  
20  
loading or unloading of such fleet vehicles. This may include the temporary storage  
of goods or wares prior to shipment.  
…
Use means the purpose for which any portion of a lot, building or structure is  
designed, arranged, intended, occupied or maintained. Unless otherwise  
specified, this definition shall not include private septic sewage disposal systems.  
Use, Accessory means a use which is clearly incidental, subordinate in size and  
exclusively devoted to a main building or main use and located on the same lot  
therewith.  
…
[60] For the purposes of penalty, a contravention of s. 11.1 of the Town of Caledon  
Zoning Bylaw #2006-50 is governed by the penalties contained in s. 67 of the  
Planning Act, R.S.O. 1990, c. P.13. Under s. 67(1)(a), the maximum fine that a  
court can impose on a person or a director of a corporation convicted of  
contravening s. 11.1 is the maximum fine of $25,000 on a first conviction. For a  
corporation convicted of contravening s. 11.1 the maximum fine that could be  
imposed according to s. 67(2) would be a fine of $50,000 on a first conviction. In  
addition, under s. 67(3) the sentencing justice on conviction of the defendants may  
also make an order prohibiting the continuation or repetition of the offence by the  
person convicted [emphasis is mine below]:  
Penalty  
67(1) Every person who contravenes section 41, section 46, subsection 49 (4) or  
section 52 or who contravenes a by-law passed under section 34 or 38 or  
an order made under section 47 and, if the person is a corporation, every  
director or officer of the corporation who knowingly concurs in the  
contravention, is guilty of an offence and on conviction is liable,  
(a) on a first conviction to a fine of not more than $25,000; and  
(b) on a subsequent conviction to a fine of not more than $10,000 for each  
day or part thereof upon which the contravention has continued after  
the day on which the person was first convicted.  
Corporation  
(2) Where a corporation is convicted under subsection (1), the maximum  
penalty that may be imposed is,  
(a) on a first conviction a fine of not more than $50,000; and  
(b) on a subsequent conviction a fine of not more than $25,000 for each  
day or part thereof upon which the contravention has continued after  
the day on which the corporation was first convicted, and not as  
provided in subsection (1).  
21  
Order of prohibition  
(3) Where a conviction is entered under subsection (1), in addition to any other  
remedy or any penalty provided by law, the court in which the conviction  
has been entered, and any court of competent jurisdiction thereafter, may  
make an order prohibiting the continuation or repetition of the offence by  
the person convicted.  
4.  
ANALYSIS  
[61] The defendants’ have brought 3 distinct primary motions and one motion in the  
alternative in these “in-trial” applications. For their first motion, they contend that  
their s. 11(a) Charter right to be promptly informed of the specific offence without  
delay has been infringed since the 4 counts set out in the charging document are  
lacking an essential averment and the prosecution refuses to provide formal  
particulars in respect to the 4 counts, and therefore the defendants seek a remedy  
of a stay of proceedings and costs under s. 7 and s. 24(1) of the Charter, since the  
defendants will be unable to make full answer and defence or to have a fair trial.  
The defendants also brought in the alternative a motion for an order for particulars  
and an adjournment if their s. 11(a) Charter motion is dismissed. In their second  
motion, they contend that the charge in count #1 has been laid outside the limitation  
period of 6 months, and as such, they seek an order quashing count #1 for being  
an invalid charge ab initio. For their third motion, they seek an adjournment and an  
order compelling the prosecution to disclose to them the following items: (1) McNeil  
disclosure pertaining to the Investigating Provincial Offences Officer, (2) the  
curriculum vitae of the Investigating Provincial Offences Officer, (3) the name of the  
complainant who called the Town of Caledon and made a complaint about the  
property in question, and (4) the notes or the transcribed recording of the  
complainant’s telephone call or calls of complaint to the Town of Caledon about the  
property in question.  
[62] For the three primary motions and the motion in the alternative, the s. 11(a) Charter  
motion will be decided first in these written reasons. If the defendants’ rights under  
s. 11(a) have been infringed, then it will have to be determined what the appropriate  
remedy should be under s. 24(1) of the Charter, including whether an order for costs  
should be made against the prosecution. If it is decided that the defendants’ s.  
11(a) rights have not been infringed then the defendants’ motion will be dismissed,  
as well as the motion for costs. Next, the motion in the alternative for an order for  
particulars and an adjournment will be considered and may be granted if it is  
necessary to ensure a fair trial, unless it would fail to satisfy the ends of justice.  
[63] Following consideration of the defendants’ motion in the alternative, the second  
motion will then have to be determined on whether count #1 should be quashed for  
being void on account of being laid outside the limitation period of 6 months.  
[64] Finally, the third motion will then be decided on whether an adjournment should be  
granted and the prosecution ordered to produce or provide the defendants with  
22  
McNeil Disclosure pertaining to the Investigating Provincial Offences Officer, the  
curriculum vitae of the Investigating Provincial Offences Officer, the name of the  
complainant who made a complaint to the Town of Caledon about the property in  
question, and the notes or transcribed recording of the complainant’s call or calls  
made to the Town of Caledon about the property in question.  
(A) FIRST MOTION: S. 11(a) CHARTER MOTION  
[65] In the s. 11(a) Charter application, the defendants contend that they have not been  
informed of the substance of their 4 charges without delay as the 4 counts in the  
charging document do not describe in sufficient detail what the defendants have  
allegedly done wrong to contravene s. 11.1 of Zoning Bylaw #2006-50. In addition,  
the defendants submit that they had requested particulars from the prosecution in  
respect to the 4 counts, but that the prosecution had refused to provide particulars  
for the offences set out in the 4 counts, so as a consequence the defendants  
contend that they would not be able to properly make full answer and defence or to  
have a fair trial.. Furthermore, the defendants submit that the 4 counts in the  
information only state that they have contravened s. 11.1 of the Town of Caledon  
Zoning Bylaw #2006-50 on 4 separate dates by engaging in a use in respect to the  
property located at 15961 The Gore Road, in the Town of Caledon, which is not  
permitted as a use for that specifically zoned land, but that the statement of offence  
in the 4 counts do not expressly state what that “wrongful use” had been.  
[66] In addition, the defendants’ legal representative submits that he had made a  
request to the prosecution to provide him with specific details about the charges  
laid against the defendants. However, the defendants’ legal representative  
contends that the prosecution did not respond to his request for specific details, nor  
has the prosecution provided any details of the circumstances of the alleged  
offences as required or provide any particularization of the circumstances of the  
alleged offences as required by the Provincial Offences Act and the Charter.  
[67] And, because the prosecution will not formally particularize the counts contained in  
the charging document, the defendants contend that their s. 11(a) Charter rights of  
being informed of the specific offence without unreasonable delay have been  
infringed. Specifically, the defendants argue that their s. 11(a) rights have been  
violated because the counts on the charging document are silent as to what event  
or set of circumstances would supposedly be in violation of s. 11.1. And, because  
the 4 counts have not been formally particularized, the defendants contend that  
they cannot properly prepare for trial nor be able to make full answer and defence,  
and as such, submit that their fair trial interests have been violated.  
[68] And, as a consequence of this alleged s. 11(a) Charter violation, the defendants  
seek a remedy under s. 7 and s. 24(1) of the Charter for a stay of proceedings, or  
alternatively, an Order for particulars and an adjournment. The defendants also  
23  
seek an Order for costs in favor of the defendant and against the prosecution as a  
remedy under s. 24(1).  
[69] In response to the defendants’ claim that their s. 11(a) Charter rights have been  
violated, the prosecution submits that they have properly informed the defendants  
of the substance and nature of the wrongful event in respect to the defendants’  
charges, and this information about the nature and circumstances of the wrongful  
event had also been provided by the Provincial Offences Officer to the defendants,  
and that the particulars of the s. 11.1 Zoning Bylaw offences had also been  
communicated and provided orally to the defendants’ legal representative during  
the Judicial Pretrial Conference. Furthermore, the prosecution submits this  
information had been also contained in the disclosure package that had been  
provided both to the defendants and to the defendants’ legal representative.  
Accordingly, the prosecution submits that the 4 counts set out in the information do  
not have to be formally particularized.  
[70] Furthermore, the prosecution submits that the defendants' Charter rights have been  
respected at all times and that the extreme remedy of a stay of proceedings is not  
warranted. In addition, the prosecution maintains that the defendants have not  
demonstrated prejudice to their ability to make full answer and defence. However,  
relying on R. v. Dixon, [1998] 1 S.C.R. 244, at paras. 31-33, the prosecution submits  
that if the defendants do demonstrate that their disclosure rights have been violated,  
then the appropriate remedy would be an order for production or an adjournment of  
the trial. Moreover, the prosecution also purports that the defendants have been  
provided with complete particulars of the charges against them. Specifically, the  
prosecution submits that each count on the information provides clear and sufficient  
detail of the circumstances of the alleged offences by the defendants, as well as  
providing reasonable information with respect to the act or omission to be proven  
by the prosecution, and in identifying the actions referred to. In addition, the  
prosecution intimates that the Town of Caledon Zoning Bylaw #2006-50 and all its  
appendixes are public documents that are available to all individuals to review for  
clarification and that it is not the role of the prosecution to explain the bylaw or its  
definitions and schedules to the defendants’ legal counsel or representative.  
[71] In addition, based on R. v. Carosella, [1997] 1 S.C.R. 80 at para. 130, R. v. Tohl,  
2009, ONCA 468 at para. 2, and R. v. Dixon, [1998] 1 S.C.R 244 at para. 35, the  
prosecution submits that the disclosure that has been provided to both the  
defendants and to their legal representative has been provided to them on three  
different occasions and is complete, and that this disclosure provides a fulsome  
outline of the charges, chronology, and evidence to be used by the prosecution to  
prove the charges. In addition, the prosecution argues that a stay of proceedings  
under s. 24(1) is a remedy of last resort and that stays should only be granted in  
the "clearest of cases" where the prejudice suffered is irreparable and where no  
other remedy will suffice. Moreover, the prosecution submits that this principle also  
applies when a stay is being sought for an alleged breach of s. 7 disclosure rights.  
24  
To support their argument, the prosecution relies on Justice Cory’s holding that he  
wrote on behalf of a unanimous court in R. v. Dixon:  
[A]n accused who seeks the extraordinary remedy of a stay of proceedings must  
not only establish, on a balance of probabilities, that the right to make a full answer  
and defence was impaired, but must also demonstrate irreparable prejudice to that  
right. [Emphasis Added]  
[72] Moreover, the prosecution argues that even if this court were to conclude that there  
has been a breach of the defendants’ disclosure rights under s. 7 and their rights  
to be promptly informed of the specific offence under s. 11(a) of the Charter, the  
present case is not one of the "clearest cases" for a stay of proceedings, since any  
prejudice to the defendant that arises would not be irreparable. In addition, the  
prosecution further submits that the present case is not one where no remedy other  
than a stay will suffice, as the requested documents sought by the defendants to  
be disclosed are not relevant to the proceeding herein. In addition, adjournments  
as a remedy, submit the prosecution, have been found to be adequate in remedying  
any perceived prejudice to the defendants’ ability to make full answer and defence  
and to have a fair trial. Hence, the prosecution in relying on R. v. Johnson, [2007]  
O.J. 2228 (Ont. C.A.), submits that the drastic remedy of a stay is not appropriate  
in this case.  
[73] But more importantly, the prosecution submits that neither the defendants nor their  
legal representative has presented any evidence to establish a breach of any  
Charter rights.  
[74] Therefore, based on the wording of the 4 charges and the amount and nature of the  
information provided to the defendants and to the defendants’ legal representative  
about the circumstances and details of the transaction underlying the specific  
offences that the defendants have been charged with, have the defendants’ ability  
to make full answer and defence and to have a fair trial been irreparably prejudiced?  
(1) WHAT ARE THE PROCEDURAL STEPS OR PATHS THAT ARE  
AVAILABLE FOR DEALING WITH DEFECTIVE COUNTS OR  
INFORMATIONS WHICH ARE MISSING AN AVERMENT OF AN  
ESSENTIAL ELEMENT OF THE OFFENCE?  
[75] Before actually considering the s. 11(a) Charter motion, a review should be  
undertaken of the different procedural steps or routes that could be used for dealing  
with a defective count or information that is lacking an averment of an essential  
element of the offence.  
[76] In general, there are several procedural steps or routes that may be utilized to deal  
with counts that contain an insufficiently worded charge or a defective count in an  
information. These routes include: (1) a Motion to Quash the information or count  
that is brought by the accused person; (2) a Motion to Amend the count or  
25  
information that is brought by the prosecution; or (3) a Motion for an Order for  
Particulars that is brought by the accused person.  
(a) THE MOTION TO QUASH THE COUNT OR INFORMATION  
ROUTE  
[77] Although motions to quash a count or information for a missing averment of an  
essential element of the offence, or for lack of specificity in the wording of a charge,  
are rarely brought today by accused persons since there are broad powers of  
amendment or curative powers contained in both the Criminal Code and the  
Provincial Offences Act to deal with defective counts or informations. Nevertheless,  
a motion to quash may be still brought by an accused person and granted by the  
trial justice if the proposed amendment would not remedy any prejudice or that it  
cannot be made without injustice being done, or that an order for particulars for  
ensuring a fair trial would fail to satisfy the ends of justice.  
(i) The Traditional Approach For Dealing With  
Informations Or Counts That Were Missing An  
Averment Of An Essential Element Of The Offence  
[78] The traditional approach by courts of yesteryear in dealing with informations or  
counts that were missing an averment of an essential element of the offence was  
based on extreme technicality and rigid formalism. Normally, when there was an  
objection to an insufficiently worded charge or to a count lacking an averment of an  
essential element of the offence, the courts would simply quash that defective count  
or information for the reason it did not state an offence known to law.  
[79] In R. v. R. (G.), [2005] S.C.J. No. 45 (S.C.C.), at paras. 58 to 61, Abella J., in writing  
the dissent on whether sexual assault was an included offence of the principal  
offence of incest, also reviewed the traditional approach for determining the  
sufficiency of a charge to properly inform an accused of the specific offence they  
had been charged with. For the traditional approach, Abella J. explained that at  
common law, and particularly by the beginning of the 19th century, the indictment  
had become in that era a highly technical document where proper language had  
been required strictly when framing the charges against an accused, and that all  
the facts and circumstances of the offence, including the intent, were required to be  
set out in great detail in the indictment and with meticulous certainty; otherwise, the  
information would be quashed. However, Abella J. confirmed that since Brodie v.  
The King, [1936] S.C.R. 188 (S.C.C.), there has been an increased tendency for  
Canadian courts to reject such arguments on the basis that, in the words of Wilson  
J. in R. v. B. (G.), [1990] 2 S.C.R. 30, "they are overly technical and an unnecessary  
holdover from earlier times". But more significantly, Abella J. noted that the  
Supreme Court has distanced itself from this type of approach where even the  
slightest defect made an indictment a nullity. She also reiterated Dickson J.’s  
comment in R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, that Parliament has  
26  
since made it abundantly clear in those sections of the Criminal Code dealing with  
the form of indictments and informations, that the punctilio of an earlier age is no  
longer to bind us and that the courts must look for substance and not petty  
formalities [emphasis is mine below]:  
As with included offences, the fundamental principle which governs the  
interpretation of the information or indictment is that the accused must be provided  
with enough information to make full answer and defence. At common law, and  
particularly by the beginning of the 19th century, the indictment had become a  
highly technical document. Strictly proper language was required when framing the  
charges against an accused and all the facts and circumstances of the offence,  
including the intent, were required to be set out in the indictment in great detail and  
with meticulous certainty (see E. G. Ewaschuk, Criminal Pleadings & Practice in  
Canada (2nd ed. (loose-leaf)), vol. 1, at p. 9-5; R. E. Salhany, Canadian Criminal  
Procedure (6th ed. (loose-leaf)), at paras. 6.800 to 6.840). There are examples of  
cases from this period where the failure to include the age of the complainant, or  
even of the accused, was considered fatal (see, e.g., R. v. Connolly (1867), 26  
U.C.R. 317; R. v. Loftus (1926), 45 C.C.C. 390 (Ont. S.C., App. Div.); R. v.  
MacDonald (1952), 102 C.C.C. 337 (N.S.S.C.)).  
The classic statement of the standard against which the sufficiency of the indictment  
was to be measured was articulated by this Court in Brodie v. The King, [1936]  
S.C.R. 188. Rinfret J., writing for the Court, discussed the requirements of then s.  
852 of the Code as follows:  
If section 852 be analysed, it will be noticed the imperative requirement ("shall  
contain") is that there must be a statement that the accused has committed an  
indictable offence; and such offence must be "specified." It will be sufficient if the  
substance of the offence is stated; but every count must contain such statement  
"in substance." In our view, this does not mean merely classifying or characterizing  
the offence; it calls for the necessity of specifying time, place and matter ... of  
stating the facts alleged to constitute the indictable offence. [p. 193]  
He outlined the justification for this degree of required particularity as follows:  
... the statement must contain the allegations of matter "essential to be proved,"  
and must be in "words sufficient to give the accused notice of the offence with  
which he is charged." Those are the very words of the section; and they were put  
there to embody the spirit of the legislation, one of its main objects being that the  
accused may have a fair trial and consequently that the indictment shall, in itself,  
identify with reasonable precision the act or acts with which he is charged, in order  
that he may be advised of the particular offence alleged against him and prepare  
his defence accordingly. [p. 194]  
Since Brodie, however, there has been an increased tendency for Canadian courts  
to reject such arguments on the basis that, in the words of Wilson J. in R. v. B. (G.),  
[1990] 2 S.C.R. 30, "they are overly technical and an unnecessary holdover from  
earlier times" (p. 42). In R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, this  
Court distanced itself from an approach whereby even the slightest defect made an  
indictment a nullity. Writing for the Court, Dickson J. stated that "Parliament has  
made it abundantly clear in those sections of the Criminal Code having to do with  
27  
the form of indictments and informations that the punctilio of an earlier age is no  
longer to bind us. We must look for substance and not petty formalities" (p. 1307).  
[80] Furthermore, in R. v. Violette, [2008] B.C.J. No. 2776 (B.C. Supreme Ct.), Romilly  
J., at paras. 24 and 29, summarized the difference between the traditional approach  
and the modern approach in dealing with insufficiently worded charges or charges  
missing an essential averment. For the traditional approach, Romilly J. noted that  
informations were more often struck down by Canadian courts for failing to provide  
the accused with reasonable information to identify the transaction alleged to  
constitute the criminal offence. As for the modern approach in dealing with  
defective indictments, Romilly J. reiterated that putting or giving too much weight to  
technical matters is to be avoided, and instead, courts should allow an amendment  
whenever substantial compliance is present. This approach, Romilly J. concluded,  
is supported by the broad powers of amendment at either the trial or the appeal  
stage provided for in s. 601 of the Criminal Code. However, Romilly J. did note that  
a material defect in an information or indictment could still result in an incurable  
nullity [emphasis is mine below]:  
The sufficiency argument in relation to the wording of criminal charges has  
considerable jurisprudential history. Prior to the 1985 Criminal Code amendments,  
which included the present day s. 581, informations were more often struck down  
by Canadian courts for failing to provide the accused with reasonable information  
to identify the transaction alleged to constitute the criminal offence. The classic  
statement of law was set out by the Supreme Court of Canada in 1936 in Brodie  
v. The King, [1936] S.C.R. 188 at 196-198, where Rinfret J., delivering the reasons  
for the court, said:  
It must contain, in substance, a statement of the specific act which is charged,  
although it is not necessary that it should "specify the means" by which the act was  
committed, or that it should name, or describe, "with precision" any person, place  
or thing.  
...  
Applying the above principles to the present appeal, it follows that the indictment  
must be found insufficient. It is not the case where an offence is imperfectly stated;  
it is a case where essential averments were wholly omitted. The so-called  
indictment contains defects in matters of substance. To use the apt words of  
counsel for the appellants: "it does not describe the offence in such a way as to lift  
it from the general to the particular".  
[Emphasis added]  
In interpreting s. 581 of the Criminal Code it is sufficient to refer to the decision of  
the Supreme Court of Canada in R. v. Douglas, [1991] 1 S.C.R. 301, for a summary  
of the current approach. In Douglas, Cory J., delivering the judgment of the Court,  
stated at p. 312:  
Thus, the Code provides that the indictment must contain sufficient details of the  
circumstances of the alleged offence to give the accused reasonable information  
with respect to the act or omission to be proved against him and to identify the  
transaction referred to. In cases where confusion exists as to the indictment, a  
28  
provision is made for the accused person to obtain particulars. The indictment can  
and should be expressed in clear and simple language.  
After reviewing a number of cases Cory J. continued at p. 314:  
From these cases it can be seen that an indictment is adequate if it contains  
sufficient details to give the accused reasonable information with respect to the  
charge and to enable the accused to identify the transaction so as to permit the  
adequate preparation of the defence. Whether an indictment is sufficient will  
depend on the offence charged and the facts of the case.  
The legal requirements for proper criminal pleadings are set out in s. 581 of the  
Criminal Code. Each count in an indictment must meet the requirements of s. 581  
to be legally sufficient: See, David Watt & Michelle Fuerst, The 2004 Annotated  
Tremeear's Criminal Code (Toronto: Carswell, 2003) at 1014, and E.G. Ewaschuk,  
Criminal Pleadings and Practice in Canada, looseleaf, 2nd ed., Vol. 1 (Aurora,  
Ont.: Canada Law Book Inc., 2004) at para. 9:1220. The modern approach to  
defective indictments is to avoid giving too much weight to technical matters and  
to allow an amendment whenever substantial compliance is present. See R. v.  
Clunas, [1992] 1 S.C.R. 595.  
The broad powers of amendment at either the trial or the appeal stage provided  
for in s. 601 of the Criminal Code support this approach (see R. v. Callocchia  
(2000), 149 C.C.C. (3d) 215, 39 C.R. (5th) 374, (Que. C.A.)). However, this  
approach does not foreclose a finding of nullity in appropriate cases. A material  
defect in an information or indictment may still result in an incurable nullity. See,  
Ewaschuk at para. 9:1235.  
The Golden Rule  
The information must give the accused fair notice of the offence. In R. v. Coté,  
[1978] 1 S.C.R. 8 at 13, de Grandpré J. said:  
I agree with that submission; the golden rule is for the accused to be reasonably  
informed of the transaction alleged against him, thus giving him the possibility of a  
full defence and a fair trial. When as in the present case, the information recites all  
the facts and relates to a definite offence identified by the relevant section of the  
Code, it is impossible for the accused to be misled. To hold otherwise would be to  
revert to the extreme technicality of the old procedure.  
In R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371, Binnie J., for the majority, wrote  
at paras. 11-12:  
An important function of an indictment is to put the accused on formal notice of his  
or her potential legal jeopardy. It is equally important, of course, that if the Crown  
can establish some but not all of the facts described in the indictment or set out in  
the statutory definition of the offence, and such partial proof satisfies the  
constituent elements of a lesser and included offence, that the result be not an  
acquittal but a conviction on the included offence. As Professor Glanville Williams  
wrote, "an included offence is one that is made out of bits of the offence charged"  
("Included Offences" (1991), 55 J. Crim. L. 234, at p. 234). Any other outcome  
would result in a waste of the resources expended on the trial.  
29  
The Crown's argument in this appeal triggers the notice issue. An accused is  
entitled to be properly apprised of the charge or charges he or she is required to  
meet: R. v. Guérin, [1996] Q.J. No. 3746 (QL) (C.A.), at para. 36 ....  
(ii) The Days Of Extreme Technicality And Formalism  
Have Been Replaced With Flexibility And Substance  
[81] In Rex v. Adduono et al., [1940] O.R. 184, Masten J.A., for the Court of Appeal for  
Ontario, had recognized a change in the Criminal Code and move away from the  
old procedure of extreme technicality and formalism in dealing with defective counts  
or informations to a more flexible approach based on substance and which  
facilitates the administration of justice in accordance with the very right of the case.  
Furthermore, Masten J.A. noted that the Criminal Code requires first, that the  
indictment shall contain as much detail of the circumstances of the alleged offence  
as is sufficient to give the accused reasonable information as to the act or omission  
to be proved against him; and second, that the Crown shall reasonably identify the  
transaction referred to. Specifically, Masten J.A. emphasized that the substance of  
the offence should be stated in the indictment. On the other hand, Masten J.A.  
emphasized that a count should not be vitiated if the count is absent or insufficient  
in detail of the offence to be proven. Then, in reviewing the deficient count at issue,  
Masten J.A. held that count 3 did state the substance of the offence, namely, a  
conspiracy to defraud the Crown of certain moneys. However, Masten J.A.  
reasoned that, even though the means by which the conspiracy was to be put in  
execution had not been stated in the indictment, it was a detail that was not  
essential to the validity of the indictment. Moreover, Masten J.A. also emphasized  
that the Criminal Code specifies that, “No count shall be deemed objectionable or  
insufficient for the reason only … that it does not specify the means by which the  
offence was committed”. On the other hand, Masten J.A. noted that if the Court on  
application had deemed it desirable to ensure a fair trial, then such detail should be  
supplied, and that could be done by the court ordering particulars to be provided to  
an accused [emphasis is mine below]:  
My study of the existing provisions of the Code (secs. 853 and following, and  
including sec. 908) leads me to the view that their spirit and purpose is to secure  
to the accused, when preparing for trial, such exact and reasonable information  
respecting the charge against him as will enable him to establish fully his defence.  
At the same time these sections are directed to a second purpose, namely, to  
nullify the old procedure with the purpose of ameliorating its extreme technically  
and facilitating the administration of justice in accordance with the very right of the  
case. In that aspect they ought to receive "such fair, large and liberal construction  
and interpretation as will best secure the attainment of both of the two purposes  
above noted."  
…
Sec. 853 of the Code requires two things: first, that the indictment shall contain so  
much detail of the circumstances of the alleged offence as is sufficient to give the  
30  
accused reasonable information as to the act or omission to be proved against  
him; second, that the Crown shall reasonably identify the transaction referred to.  
Then follows this rider: "that the absence or insufficiency of such details shall not  
vitiate the count." This is discussed and explained in the Brodie case at p. 195,  
where it is said: "It should be noticed, however, that the proviso as well as the  
section itself relates only to the 'absence or insufficiency of details.' It does not  
detract from the obligation resulting from sec. 852 that the substance of the offence  
should be stated in the indictment."  
I think that in count 3 there is stated the substance of the offence, namely, a  
conspiracy to defraud the Crown of certain moneys. The means by which the  
conspiracy was to be put in execution is a detail not essential to the validity of the  
indictment. If the Court on application deemed it desirable, in order to insure a fair  
trial, that such detail should be supplied, particulars can be ordered, but none  
appears to have been asked for.  
Supplementing the provision that "the absence or insufficiency of such details shall  
not vitiate the count" we find two provisions of the Code which I think apply  
specifically to this count. Sec. 855(f) provides: "No count shall be deemed  
objectionable or insufficient for the reason only (f) that it does not specify the  
means by which the offence was committed."  
In the present case the means by which the Crown was to be defrauded was the  
manufacture and sale of alcohol without paying a license fee and without paying  
the excise duty, and the statute provides that the omission to specify the "means"  
does not vitiate the count.  
We find, however, a further provision under the Code which in terms applies to this  
count. Sec. 863 provides that "no count which charges ... any fraud or any attempt  
or conspiracy by fraudulent means shall be deemed insufficient because it does  
not set out in detail in what ... the fraud or fraudulent means consisted." This  
provision was not applicable in the Brodie case.  
This leads me to the conclusion that the material allegation of the count, namely,  
"a conspiracy to defraud the Crown of certain moneys", contains all the material  
averments of matter as well as of time, place and person, constituting the  
fundamental ingredients of the particular crime which is charged in such a way as  
to specify the transaction intended to be brought against the accused, and that any  
further statement of details or means is unnecessary under the provisions of the  
Code.  
In considering the position of the trial Judge when ruling as to whether this count  
does provide the accused with reasonable information as to the act or omission to  
be proved against them, and as to "whether the alleged defect in the indictment is  
material to the substantial justice of the case," the Court may under sec. 860,  
subsec. 2, have regard to the surrounding circumstances disclosed by the  
depositions on the preliminary hearing before the Magistrate. These depositions  
are not in the papers before this Court, and it is not clear whether the trial Judge  
relied upon them in reaching his conclusion. The only reference to them which I  
have found appears at the top of p. 18 of the evidence, where counsel for the  
31  
Crown arguendo, says: "There was a very full and complete inquiry at which my  
learned friend, Mr. Slaght, was also present, and there were sixty pages of  
depositions taken at that time, and therefore I feel that the particulars were all in  
the hands of the accused."  
There can be no doubt that under the circumstances of the arrest the indictment  
as drawn conveyed to the accused not only information that they were charged  
under sec. 444 of the Code, but also that the charge related to their manufacture  
and sale of alcohol without paying to the Government of Canada a license fee and  
without paying the excise duty due by law to the Crown, and thus they had  
reasonable information as to the act or omission to be proved against them.  
The second requirement of sec. 853 of the Code is that the count shall "identify  
the transaction referred to." So far as this requirement relates to the adequacy of  
the notice afforded to the accused by count 3, it is met by what I have said above,  
but there still remains the question whether the indictment affords sufficient  
identification of the transaction referred to in case of a plea of autrefois acquit or  
autrefois convict is raised in answer to a subsequent prosecution.  
(iii) The Modern Approach For Dealing With Informations  
Or Counts That Are Missing An Averment Of An  
Essential Element Of The Offence  
[82] Similar to our system of justice which had transitioned from form to substance and  
from rigidity to flexibility, so has the court’s treatment of objections to the sufficiency  
of a count to inform an accused person of the specific offence for which they are  
charged. The traditional approach in respect to dealing with informations lacking  
an averment of an essential element of an offence had been to simply quash the  
information for the reason that there was no offence known in law. Furthermore, a  
trial judge at common law had no power to amend even a trifling error in the  
indictment. However, the technical requirements of yesteryear that led to the  
automatic quashing of informations have now been replaced with a more flexible  
approach that requires a court to first look to amending or curing the defective count,  
and only quashing the count or information if the count or information cannot be  
amended without causing prejudice or injustice, or that an order for particulars for  
ensuring a fair trial would not satisfy the ends of justice.  
[83] Ergo, in the modern approach of dealing with informations lacking an averment of  
an essential element of an offence, the Supreme Court of Canada has emphasized  
that quashing a Criminal Code information for a defect was now less prevalent  
because of the broad amendment and curative powers provided for in the Criminal  
Code. This modern approach was recognized by the Supreme Court in R. v. Moore,  
[1988] S.C.J. No. 58, where there had been an issue about a Criminal Code  
information that had had lacked the averment of an essential element of the offence,  
namely that Moore knew that the property had been obtained from the commission  
in Canada of an indictable offence. At Moore’s trial, the trial judge had pointed out  
the defect of the missing averment and had asked defence counsel if he had a  
32  
motion to quash under s. 529 [now s. 601] of the Criminal Code. Defence counsel  
then brought a motion to quash the defective counts and argued that those counts  
had disclosed no offence known to law, which both the trial judge and Crown  
counsel had agreed with the defence submission. However, in reply to the defence  
motion to quash, Crown counsel then moved that the pleas be struck in order to  
permit the Crown to amend the information pursuant to s. 529 [now s. 601] of the  
Criminal Code. The trial judge then asked if it was indeed possible to strike the  
pleas and Crown counsel agreed that the court could not. Defence counsel then  
argued that it was not possible at all to amend the defective counts where the  
defective counts had simply failed to allege an offence, rather than alleging one  
improperly. The trial judge and Crown counsel had also agreed with the defence’s  
argument that counts which had failed to allege an offence could not be amended,  
so the trial judge then quashed the defective counts.  
[84] Subsequently, a new information containing the necessary words that had been  
omitted from the defective counts in the earlier information was then sworn. At the  
trial of that second information, Moore had entered pleas of autrefois acquit on  
those counts that had been found to be defective in the first information. However,  
the second trial judge refused the special pleas of autrefois acquit because he had  
accepted the Crown's submission that the counts in the first information had been  
"hopelessly bad". The second trial judge also ruled that because there had never  
been any allegation of criminal misconduct, Moore had never been in peril of  
conviction, since the first requirement for a special plea of autrefois acquit had not  
been present, so the special plea would therefore not be available. As a result,  
Moore then entered pleas of not guilty to those two charges and was subsequently  
convicted on one of the counts in which he had originally pled autrefois acquit.  
Moore then appealed to the British Columbia Court of Appeal, where the Court of  
Appeal disagreed with the first trial judge and held that the first trial judge had erred  
in law in quashing the defective counts, since the first trial judge could have simply  
amended them. The Court of Appeal also held that unamended counts were not  
nullities. Moore then appealed to the Supreme Court of Canada.  
[85] At Moore’s appeal at the Supreme Court, Dickson C.J. in writing the dissent on the  
issue of jeopardy in R. v. Moore, [1988] S.C.J. No. 58 (S.C.C.), at paras. 10 to 12,  
14 to 17, and 19 to 21, had to consider the issue of whether quashing an  
information, after plea, for failure to allege a material averment constitutes a verdict  
of acquittal for the purpose of pleading autrefois acquit to a new information. In  
Dickson C.J.’s reasoning on how to deal with informations which are missing an  
averment of an essential element of an offence, the majority of the Supreme Court  
had also concurred with Dickson C.J.’s reasoning. In that respect, Dickson C.J. first  
noted that a trial judge traditionally at common law had no power to amend even a  
trifling error in the indictment without the agreement of the grand jury that presented  
it. This inability to amend coupled with extremely technical pleadings of yesteryear,  
Dickson C.J. noted, had meant that a defective indictment was a nullity. However,  
he also said that this nullity did not bar subsequent proceedings; otherwise, he  
emphasized, criminal charges would sometimes be determined solely by  
procedural questions. Furthermore, Dickson C.J. found that the modern approach  
33  
for dealing with technical defects is more flexible than the traditional approach and  
is demonstrated in the two recent Supreme Court judgments of R. v. Major, [1977]  
1 S.C.R. 826, and R. v. Côté, [1978] 1 S.C.R. 8. In referring to these two cases,  
Dickson C.J. indicated that under the modern approach it is no longer possible to  
say that a defective information is automatically a nullity disclosing no offence  
known to law. He also pointed out that if the document gives fair notice of the  
offence to the accused it is not a nullity and can be amended under the broad  
powers of amendment that s. 529 [now s. 601] of the Criminal Code gives to the  
courts. On the other hand, Dickson C.J. emphasized that only when a charge is so  
badly drawn up as to fail even to give the accused notice of the charge then it will  
fail the minimum test required by s. 510(2)(c) [now s. 581(2(c)] of the Criminal Code.  
In that case, Dickson C.J. said a charge that is this defective would then have to be  
quashed. In addition, Dickson C.J. also found that the cases of Major and Côté had  
established that a conviction is still possible on a defective information and that the  
conviction would be upheld on appeal. Furthermore, Dickson C.J. also indicated  
that either side can point out defects in process to the trial judge and where there  
is no motion to quash or to amend and a defence is tendered, then there would no  
need to amend the information. Dickson C.J. also reasoned that as long as the  
defect does not prejudice the accused and the Crown actually proves all the  
elements of the offence, a conviction will be valid. But more importantly, Dickson  
C.J. concluded that defects in form do not defeat what is valid in substance  
[emphasis is mine below]:  
The first question in this appeal is whether Moore was in jeopardy at the first  
hearing. If not, autrefois acquit was not available at the second hearing and he  
would have been properly convicted. This was the position of the second trial  
judge. The judge stated that the first information was a nullity disclosing no charge  
known to law; since Moore could not have been convicted on that information, he  
was never in jeopardy and could not plead autrefois acquit. This decision is  
consistent with the traditional common law approach to defective indictments. At  
common law, a trial judge had no power to amend even a trifling error in the  
indictment without the agreement of the grand jury that presented it. This inability  
coupled with extremely technical pleadings meant that a defective indictment was  
a nullity that did not bar subsequent proceedings; otherwise, criminal charges  
would sometimes be determined solely by procedural questions. (Friedland,  
Double Jeopardy, at p. 65.)  
There is a great deal to be said for the common law rule that a disposition on a  
technical defect in the charge will not bar subsequent proceedings. However, that  
result can no longer be justified on the basis that the accused was never in  
jeopardy. Two relatively recent judgments of this Court, R. v. Major, [1977] 1  
S.C.R. 826, and R. v. Côté, [1978] 1 S.C.R. 8, demonstrate that the modern  
approach to technical defects is more flexible. At issue in both cases was the  
validity of a conviction based on a defective information. The Court upheld both  
convictions.  
In R. v. Major, the accused was involved in a traffic accident and was charged with  
failure to report his license number and vehicle registration to someone at the  
scene, as required by the Nova Scotia Motor Vehicle Act. The charge stated only  
34  
that the accused had not informed the other driver. The Nova Scotia Supreme  
Court, Appeal Division, held that a proper statement of the offence required an  
allegation of a failure to report to the other driver, to a passenger in the other car,  
or to a witness (R. v. Major (1975), 10 N.S.R. (2d) 348). Since the information failed  
to mention the last two elements, it was seriously defective and did not disclose an  
offence known to law. The Appeal Division then went on to consider whether a  
conviction on a defective information could be upheld and concluded that it could,  
based on s. 510 of the Criminal Code. That provision provides that so long as a  
charge contains in substance an allegation that an offence has been committed, it  
is not a nullity. Provided that the accused has not been misled by the error, even  
the omission of an essential averment can be cured. The defective charge is  
voidable but amendable under ss. 529 or 732. There is one other factor: the  
omission of an essential averment does not free the Crown of its obligation to prove  
all the elements of an offence. For an appeal court to uphold a conviction, the  
Crown must have led some evidence at trial to prove all the elements of the  
offence. In other words, if the Crown proves the substance of the offence it does  
not matter that the process was defective, provided the accused was not misled or  
prejudiced by the defect.  
…
This Court examined the same issue in greater depth in Côté. In that case, the  
accused was charged with refusal to give a breath sample, but the information did  
not allege "without reasonable excuse". Nevertheless, the accused advanced a  
defence of reasonable excuse at trial, at trial de novo, and on appeal, without any  
challenge to the information. The Saskatchewan Court of Appeal raised the issue  
of the defective information ex proprio motu and quashed the information. This  
Court allowed the appeal and restored the conviction.  
Justice de Grandpré for the majority held there was no defect, since the information  
referred to the correct section number. That, together with the facts set out in the  
information, gave the accused full notice of the offence charged. de Grandpré J.  
went on to consider Major and decided that it applied. He interpreted Major to say  
that if the defect caused no substantial wrong or miscarriage of justice, and if the  
Crown had actually proved all the elements of the offence, then the conviction  
should be affirmed. Although s. 732 could have been used to amend the  
information, the conviction could be upheld on appeal without an amendment.  
Justice Spence for the minority, concurring in the result, held that the information  
was not defective because it referred to the Code section.  
The result of these two cases is that it is no longer possible to say that a defective  
information is automatically a nullity disclosing no offence known to law. If the  
document gives fair notice of the offence to the accused, it is not a nullity and can  
be amended under the broad powers of amendment s. 529 gives to the courts.  
Only if a charge is so badly drawn up as to fail even to give the accused notice of  
the charge will it fail the minimum test required by s. 510(2)(c). A charge that is this  
defective would have to be quashed. R. v. Hunt, Nadeau, and Paquette (1974), 16  
C.C.C. (2d) 382 (B.C.C.A.) provides an example of a defective charge of this sort.  
The accused was apparently charged with intimidation by blocking a highway, but  
it was not clear from the information who was alleged to have blocked the highway  
nor did the charge refer to a Code section. The Court of Appeal held that the charge  
was so defective it could not be amended.  
35  
Major and Côté also establish that a conviction is possible on a defective  
information and that the conviction will be upheld on appeal. Both sides can point  
out defects in process to the trial judge. If there is no motion to quash or to amend  
and a defence is tendered, there is no need to amend the information (Côté, at p.  
15). So long as the defect does not prejudice the accused and the Crown actually  
proves all the elements of the offence, a conviction will be valid. Defects in form  
do not defeat what is valid in substance.  
…
The British Columbia Court of Appeal applied Major and Côté in two cases, R. v.  
Stewart (1979), 7 C.R. (3d) 165 and Re Regina and Henyu (1979), 48 C.C.C. (2d)  
471. Henyu held that defective informations are not nullities and can be amended  
at trial (at pp. 474-75). Stewart held that if the defect is not noticed at trial, the  
conviction will be upheld if there is no prejudice, injustice, or substantial wrong to  
the accused (at p. 174).  
In the case at bar, the first information was clearly not a nullity. The accused knew  
that he faced a charge of possession of stolen goods. Neither Crown nor defence  
counsel even noticed the missing averment until the judge pointed it out. It is  
difficult to argue the accused was prejudiced by the missing averment. It is also  
fairly clear that the Crown would have led evidence to show that the accused had  
stolen the property in question, as the accused was also charged with theft. This  
evidence, if believed, would have supported the conclusion that the accused knew  
the property was obtained from the commission of an indictable offence in Canada,  
the missing averment from the possession charge. The Crown would therefore  
have led evidence to prove all the elements of the offence.  
In these circumstances, it is very difficult as a practical matter to argue that the  
appellant was not in peril of conviction. Defence counsel, Crown counsel, and the  
judge all knew that Moore was charged with possession of stolen property,  
whatever the precise defect in the information. If the first trial judge had not noticed  
the defect and the accused had been convicted, the conviction would have been  
upheld on appeal under the principles set out in Major and Cote. From this it follows  
that the accused was truly in jeopardy at the first hearing, and the first requirement  
for a successful plea of autrefois acquit has been met.  
[86] In short, the rigid and formalistic approach of dealing with informations or counts  
that were missing an averment of an essential element of the offence has now been  
replaced with an approach that is based on flexibility and substance to ensure just  
results, so that quashing informations or counts that were missing an essential  
averment is now rarely done because of the broad amendment and curative powers  
contained in both the Criminal Code and the Provincial Offences Act.  
(iv)  
What is required to make a count sufficient?  
36  
(A) the test for sufficiency of a count to  
disclose a specific offence is to be applied  
less stringently  
[87] Curran J., at paras. 14 to 17, in R. v. Curragh Inc. [1993] N.S.J. No. 279 (N.S. Prov.  
Ct.), also explained that Lamer C.J. of the Supreme Court had applied R. v. Moore  
in R. v. Webster (1993), 78 C.C.C. (3d) 302, in which the Webster information had  
been to some extent insufficient. However, Lamer C.J. in Webster held that the  
information was not "so badly drawn up as 'to fail even to give the accused notice  
of the charge'". But more importantly, Lamer J. noted in Webster that it would only  
be in "rare circumstances" that a charge would be an absolute nullity. In addition,  
Curran J. noted that it has long been recognized that imprecision with respect to  
time and place in a charge is not usually material as long as no limitation period is  
breached and the place is within the court's jurisdiction. In addition, Curran J.  
emphasized that the Supreme Court of Canada has directed that the test for  
sufficiency of a statement of offence in a count is to be applied less stringently than  
had been in the past, but that the test for sufficiency is still whether a count gives  
the accused notice of the charge [emphasis is mine below]:  
Moore has, however, been applied in later Supreme Court of Canada decisions as  
if it had dealt with the question of factual sufficiency. The most recent and notable  
of those decisions was R. v. Webster (1993), 78 C.C.C. (3d) 302 (S.C.C.).  
Webster was alleged to have committed 12 sexual offences with a named victim  
over periods from one to nine years "at or near Charlottetown and at or near  
Sherwood, County of Queens, and other places in the province of Prince Edward  
Island". Prior to election, Webster moved to quash the information on the basis  
that it failed to comply with s. 581(3) of The Criminal Code. The provincial court  
judge dismissed the application. That decision was upheld in the provincial  
Supreme Court and Court of Appeal and eventually in The Supreme Court of  
Canada. Speaking on behalf of the court, Chief Justice Lamer made no mention  
of his decision in WIS, supra, but did rely on Moore. At p. 307, he agreed with the  
provincial court judge that the information was to some extent insufficient, but that  
it was not "so badly drawn up as 'to fail even to give the accused notice of the  
charge'". He said, on p. 308, that it would only be in "rare circumstances" that a  
charge would be an absolute nullity.  
Although Chief Justice Lamer's words must be given effect, I think it is of some  
significance that the charges in Webster described the kinds of offences alleged,  
named a victim and said that the offence occurred within the jurisdictional area of  
the court. It has long been recognized that imprecision with respect to time and  
place in a charge is not usually material as long as no limitation period is breached  
and the place is within the court's jurisdiction. In other words, although Webster,  
relying on Moore, seems to narrow the test of sufficiency, it was not necessary for  
the court to do so in order to reach the decision that it did.  
Even after Moore and Webster, the question that still remains is whether a count  
gives the accused notice of the charge. The Supreme Court of Canada has  
37  
directed that the test for sufficiency be applied less stringently than in the past, but  
it has left the same test in place.  
(B) the test for sufficiency of an information or  
count under the modern approach  
[88] To reiterate, the test for sufficiency of a count or an information was established by  
the Supreme Court of Canada in R. v. Douglas, [1991] 1 S.C.R. 301. The Supreme  
Court held that an indictment is adequate if it contains sufficient details to give the  
accused reasonable information with respect to the charge and to enable the  
accused to identify the transaction so as to permit the adequate preparation of the  
defence. Furthermore, whether an indictment is sufficient will depend on the  
offence charged and the facts of the case. Moreover, time is not required to be  
stated with exact precision unless it is an essential part of the offence charged and  
the accused is not misled or prejudiced by any variation in time that arises  
[emphasis is mine below]:  
From these cases it can be seen that an indictment is adequate if it contains  
sufficient details to give the accused reasonable information with respect to the  
charge and to enable the accused to identify the transaction so as to permit the  
adequate preparation of the defence. Whether an indictment is sufficient will  
depend on the offence charged and the facts of the case. Time is not required to  
be stated with exact precision unless it is an essential part of the offence charged  
and the accused is not misled or prejudiced by any variation in time that arises.  
[89] Furthermore, Binnie J. for the majority of the Supreme Court, at para. 15 in R. v. R.  
(G.), [2005] 2 S.C.R. 371, also noted that since Brodie v. the King, [1936] S.C.R.  
188 (S.C.C.), the courts have taken a broader view of sufficiency and of the exercise  
of the courts’ powers of amendment, but that such a relaxation had nothing to do  
with the fundamental requirement that the accused be able clearly to ascertain from  
the offence charged, as described in the enactment creating it or as charged in the  
count or as expressly stated to be an included offence in the Criminal Code itself,  
the charges for which he or she risks conviction. In short, Binnie J. concluded the  
question is whether the underlying circumstances or transaction of the offence  
charged was identified in sufficient detail to permit a full answer and defence  
[emphasis is mine below]:  
… Since Brodie, the courts, encouraged by amendments to the Criminal Code,  
have taken a broader view of sufficiency and of the exercise of the courts' powers  
of amendment, but such a relaxation has nothing to do with the fundamental  
requirement that the accused be able clearly to ascertain from the offence charged  
(as described in the enactment creating it or as charged in the count or as  
expressly stated to be an included offence in the Criminal Code itself), the charges  
for which he or she risks conviction. In the more recent case of R. v. Douglas,  
[1991] 1 S.C.R. 301, for example, there was no question but that the charge was  
specified in the indictment. The question was whether the underlying transaction  
38  
was identified in sufficient detail to permit a full answer and defence. In my view, it  
is important to keep separate and distinct the different issues of the offence(s)  
charged and the sufficiency of notice of the underlying circumstances or  
transaction to which the charge(s) relate. …  
(C) the difference between legal sufficiency and  
factual sufficiency of a count  
[90] In R. v. Rapicon Inc., [2019] A.J. No. 541 (Alta. Prov. Ct.), at paras. 42 to 50,  
Rosborough J. explained that each count in the charging document must satisfy  
two notice requirements: first, the count must provide the accused with "sufficient  
detail of the circumstances of the offence" which is referred to as 'factual sufficiency'  
and second, the count must provide the accused with "reasonable information with  
respect to the act or omission to be proved" which is referred to as 'legal sufficiency'.  
In addition, Rosborough J. reiterated that the “legal sufficiency” of a count ensures  
that the accused has prior knowledge of the legal elements of the offence while  
“factual sufficiency” of a count ensures that the accused has sufficient notice of the  
alleged facts undergirding the legal elements of the offence charged [emphasis is  
mine below]:  
The Applicants submit that the offences alleged in the Information together with  
the Particulars fail to comply with the provisions of s.581 C.C. The relevant parts  
of that provision state:  
(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 indictable offence therein specified.  
...  
(3) A count shall contain sufficient detail of the circumstances of the alleged  
offence to give the accused reasonable information with respect to the act or  
omission to be proved against him and identify the transaction referred to, but  
otherwise the absence of sufficiency of details does not vitiate the count.  
These provisions have given rise to a 'golden rule' described by the court in R v  
Côté, [1978] 1 SCR 8 in the following terms:  
... the golden rule is for the accused to be reasonably informed of the transaction  
alleged against him, thus giving him the possibility of a full defence and a fair trial.  
When, as in the present case, the information recites all the facts and relates them  
to a definite offence identified by the relevant section of the Code, it is impossible  
for the accused to be misled. To hold otherwise would be to revert to the extreme  
technicality of the old procedure.  
Section 581 C.C. requires that each count in an Information satisfy two notice  
requirements. Each count must provide the accused with "sufficient detail of the  
circumstances of the offence" as well as "reasonable information with respect to  
the act or omission to be proved". These 'notice' requirements have come to be  
referred to as 'factual sufficiency' and 'legal sufficiency'. Penney helpfully describes  
those requirements in the following terms (at pp.645-6):  
39  
As the Supreme Court of Canada emphasized in R v R (G), [[2005] 2 SCR 371 at  
para 15] these provisions [s.581(1) to (3) C.C.] impose two distinct notice  
requirements: first, the charging document must properly "specify the charge"; and  
second, it must provide "Sufficient supporting detail of the underlying transaction  
or circumstances." Like many other jurists, we refer to these requirements as "legal  
sufficiency" and "factual sufficiency", respectively. As we explain in the sections  
that follow, legal sufficiency ensures that the accused has prior knowledge of the  
legal elements of the offence. Legal sufficiency, in our view, should also be  
understood to include the "rule against duplicity", which forbids prejudicial  
characterization of a charge as encompassing multiple offences with different legal  
elements. Factual sufficiency ensures that the accused has sufficient notice of the  
alleged facts undergirding the legal elements of the offence charged. In brief, the  
requirements of legal and factual sufficiency ensure that the accused is able to  
prepare adequately for trial.  
Steven Penney, et al, Criminal Procedure in Canada, 2nd ed., LexisNexis 2018  
Both s.581 C.C. and the 'golden rule' make reference to a single 'transaction'. The  
term 'transaction' is something different than the incident, occurrence or even the  
particularized offences. It refers to the factual underpinnings or circumstances  
which give rise to or set the context for the offence(s).  
In R v C.K. (1999), 127 O.A.C. 261, the Ontario Court of Appeal made reference  
to the word 'transaction' in these terms (at para.7):  
A "single transaction" is not synonymous with a single incident, occurrence or  
offence: R v Selles (1997), 34 O.R. (3d) 332 (C.A.). The mere fact that a count in  
an indictment refers to several acts, each of which may constitute a separate  
offence, does not necessarily violate the single transaction rule: R v Hulan, [1969]  
2 O.R. 283 (C.A.).  
A transaction may include a pattern of conduct involving multiple incidents, multiple  
victims and a variety of acts. For example, criminal driving conduct before and after  
a collision can be considered all part of a single transaction. See: R v Trakas, 233  
C.C.C. (3d) 172 (Ont.C.A.). Multiple failings in the duty to ensure the safety of a  
worker can arise from a single transaction.  
In this case, the offences alleged and the entities named are intimately related in  
a single transaction. All offences are alleged to have occurred on the same day  
and in the same jurisdiction. Although the roles played by the Applicants are  
variously described as "employer", "contractor" or "worker", each count addresses  
some aspect of the dismantling of a tower crane at a worksite. The Particulars  
detail what reasonably practicable steps could have been taken to ensure  
Ponech's safety. In short, each count applies to a single transaction and the  
transaction itself is sufficiently identified; the counts are factually sufficient.  
Wording of the Counts: Legal Sufficiency  
The Information was sworn on March 22nd, 2018. The judgment of the court  
in Precision was released on August 22nd, 2018. The CMJ's direction for  
particulars was made in September of 2018 during the course of a PTC. The  
40  
parties are ad idem that it was the ruling in Precision that precipitated the order for  
particulars in this case.  
At issue in Precision was, "... whether the expression 'as far as it is reasonably  
practicable for the employer to do so' is part of the actus reus of s.2(1) OHSA" (at  
para.4). The court found that it was. The court went on to describe the effect of its  
decision in these terms (at paras.55-58):  
Any suggestion that this interpretation somehow equates with requiring the Crown  
to prove negligence must fail for two reasons. First, the framework essentially  
requires the Crown to provide and prove particulars of what the Crown alleged the  
employer failed to do. Particulars, in and of themselves, do not establish  
negligence. Second, the framework does not impose an impossible obligation on  
the Crown or result in the Crown negating the due diligence defence.  
The Crown is no stranger to providing and proving particulars. Section 581(3) of  
the Criminal Code requires the Crown to provide in the charge sufficient detail of  
the circumstances of an alleged offence to give to the accused reasonable  
information with respect to the act or omission to be proven against him and to  
identify the transaction referred to. Where the Crown charges both specific and  
general offences for the same incident, as was the case here, the Crown can use  
the particulars provided in the specific offence as a guide.  
[91] Rosborough J. also referred to the Alberta Court of Appeal decision in R. v.  
Precision Diversified Oilfield Services Corp., [2018] A.J. No. 1005 in R. v. Rapicon  
Inc. at para. 50 and reiterated that particulars are consistent with the golden rule  
that the accused is to be reasonably informed of the transaction alleged against  
him, thus giving him the possibility of a full defence and a fair trial. In addition,  
Rosborough J. reiterated that particulars also take on enhanced importance in strict  
liability offences because of the accused's burden of proving due diligence  
[emphasis is mine below]:  
Particulars are also consistent with the golden rule; that is for the accused to be  
reasonably informed of the transaction alleged against him, th