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, thus giving him the  
possibility of a full defence and a fair trial: The Queen v Côté, [1978] 1 SCR 8 at  
13, (1977) 13 NR 271; R v Goldstein, 1986 ABCA 55 at para 9, (1986), 70 AR 324.  
Particulars also take on enhanced importance in strict liability offences because of  
the accused's burden of proving due diligence. The due diligence defence is  
specific to the prohibited act, and to be successful, it must be linked to the particular  
circumstances of the breach: Ontario (Ministry of Labour) v Wal-Mart Canada  
Corp., 2016 ONCJ 267, at paras 121 and 159, 2016 CarswellOnt 7524 (WL Can).  
As a result, the Crown cannot merely lead evidence of an incident or suggest that  
generally not all reasonable steps were taken and sit back and see what happens.  
This does not provide sufficient direction to the accused to know the case it has to  
meet. (emphasis in original)  
[92] Furthermore, Rosborough J. held at para. 55 in R. v. Rapicon Inc., [2019] A.J. No.  
541 (Alta. Prov. Ct.), that any inquiry into the legal sufficiency of the impugned  
41  
counts must commence with the wording of the counts themselves and to determine  
if the counts in the Information are (1) "in the words of the enactment that describes  
the offence" (see: s.587(1)(b) C.C.); and/or (2) refer to a "section, subsection,  
paragraph or subparagraph of the enactment that creates the offence charged [or  
duty neglected]" (see: s.581(5) C.C.). Moreover, Rosborough J. reiterated Laskin  
J.A.’s comment in Ontario (Ministry of Labour) v. Black & McDonald Ltd. and  
Thomas G. Fuller & Sons Ltd., [2011] O.J. No. 2615, 2011 ONCA 440, at para. 23,  
that "[o]ffences drafted in the words of a statute or regulations are presumed to be  
valid." [emphasis is mine below]:  
Any inquiry into the legal sufficiency of the impugned counts must commence with  
the wording of the counts themselves. It is to be noted that counts in the  
Information in this case (and at least some of the Particulars): (1) are "in the words  
of the enactment that describes the offence" (see: s.587(1)(b) C.C.); and/or (2)  
refer to a "section, subsection, paragraph or subparagraph of the enactment that  
creates the offence charged [or duty neglected]" (see: s.581(5) C.C.). These are  
important starting-points for analysis. As noted by Laskin J.A. in Fuller(at para.23):  
"Offences drafted in the words of a statute or regulations are presumed to be valid."  
(D) if a count is legally sufficient it is not a nullity  
[93] The courts have held that a count or an information may be “legally sufficient” where  
the wording of the offence in the count copies or uses the same wording of the  
offence that is set out in the section that described the offence in the enactment  
creating the offence section or that the section number describing the offence has  
been expressly referred to in the count. Where a count is “legally sufficient” by  
complying with the sufficiency requirements of a count provided for in the Criminal  
Code or Ontario’s Provincial Offences Act, the count is not a nullity or void ab initio,  
but is voidable if the count does not meet the golden rule of reasonably informing  
the accused person of the alleged transaction underlying the offence that is charged  
(“factual sufficiency”), so that the accused person could make full answer and  
defence and have fair trial.  
[94] In R. v. Canadian General Electric Co. (1974), 17 C.C.C. (3d) 433, [1994] O.J. No.  
4198 (Ont. Supreme Ct. (H.C.J.)), at paras. 25 to 30, Pennell J. applied the  
provisions contained in s. 510 [now s. 581] of the Criminal Code in determining the  
sufficiency of the statements of the offence in the counts before him on a motion to  
quash the counts and a motion in the alternative for an order to furnish particulars.  
Pennell J. emphasized that every count must contain a statement describing the  
substance of the offence, which requires more than merely classifying or  
characterizing the offence, but requires also specifying time, place and matter. Also  
in deciding whether the statements of the offence in the individual counts were  
sufficiently detailed to identify the underlying transaction of the alleged offence for  
the accused to make full answer and defence and to have a fair trial, Pennell J. held  
that the statements of the offence at issue would not contravene the general  
requirements set out in the Criminal Code for the sufficiency of a count (“legal  
42  
sufficiency”). Those legal requirements for a sufficient count are: (1) the statement  
of the offence must contain in substance a statement that the accused has  
committed an indictable offence therein specified and (2) the statement of offence  
(a) is in popular language without technical averments or allegations of matters that  
are not essential to be proved, or (b) is in the words of the enactment that describes  
the offence or declares the matters charged to be an indictable offence, or (c) is in  
words that are sufficient to give to the accused notice of the offence with which he  
is charged. In considering the sufficiency of the count provisions in the Criminal  
Code, Pennell J. held that the specific count at issue had been “legally sufficient”,  
since each count of the present indictment had charged an offence and had  
contained almost the exact words as the words set out in the enactment that  
described the offence. Accordingly, Pennell J. dismissed the motion to quash  
[emphasis is mine below]:  
The fundamental rule as to counts and indictments is laid down in Section 510 of  
the Criminal Code which reads as follows:  
"510(1) Each count in an indictment shall in general apply to a single transaction  
and shall contain and is sufficient if it contains in substance a statement  
that the accused committed an indictable offence therein specified.  
(2) The statement referred to in subsection (1) may be  
(a) in popular language without technical averments or allegations of  
matters that are not essential to be proved,  
(b) in the words of the enactment that describes the offence or declares  
the matters charged to be an indictable offence, or  
(c) in words that are sufficient to give to the accused notice of the offence  
with which he is charged.  
(3) A count shall contain sufficient detail of the circumstances of the alleged  
offence to give to the accused reasonable information with respect to the  
act or omission to be proved against him and to identify the transaction  
referred to, but otherwise the absence or insufficiency of details does not  
vitiate the count."  
From the wealth of authorities cited at the Bar, counsel for the defendants fixed  
primarily on Brodie et al. v. The King, 65 C.C.C. 289, (1936), 3 D.L.R. 81, 133  
C.C.C. 69, 38 C.R. 411. In that case Rinfret, J., who delivered the judgment of the  
Court, said (at page 189 in S.C.R.):  
"If Section 852 (now s. 510) be analyzed 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 (Compare dictum of Channel, J., in Smith v. Moody (5)), of stating the facts  
alleged to constitute the indictable offence.  
43  
The manner of stating the matter is of no absolute importance, in view of  
subsections 2 and 3. The statement may be made in popular language, without  
any technical averments or allegations; or it may be in the words of the enactment  
describing the offence or declaring the matter charged to be an indictable offence;  
but we think the latter parts of subsections 2 and 3 are indicative of the intention  
of Parliament: 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."  
I next endeavour to test the present indictment by applying those general  
requirements. The indictment here is framed in almost the exact words of the  
section creating the offence and therefore it falls within Section 510(2)(b) which  
provides that the statement of the offence may be made in the words of the  
enactment.  
If a glance be given at the indictment it will be observed as follows:  
(1) As regards the first count: it specifies the dates, places, the particular nature  
of the combine alleged, i.e., "a merger, trust or monopoly" as defined by  
Section 2(a)(vi) of the Act of 1952, and the object of the alleged combine.  
(2) As regards the second count: it specifies dates, places, the parties to and  
object of the alleged monopoly. It is really an extension of the first count, which  
extension was necessitated by the amendment in the Act of 1960. Prior to  
1960 a merger, trust or monopoly was part of the Combine section, but that  
amendment moved mergers and monopolies into a separate section, namely  
Section 33.  
(3) As regards the third count: it specifies times, places, the parties to and objects  
of the alleged conspiracy. I revert to Brodie v. The King. In that case the  
accused were charged with being parties to a seditious conspiracy in  
conspiring together with persons named and unknown. The charge was  
defective because it did not set out the conspiracy. To my mind the present  
indictment survives that test.  
I am of opinion each count of the present indictment charges an offence and  
therefore I must dismiss the motion to quash.  
[95] Furthermore, in R. v. Curragh Inc., [1993] N.S.J. No. 279 (N.S. Prov. Ct.), at paras.  
12 to 13, Curran J. explained that both the majority and minority of the Supreme  
Court of Canada in R. v. Moore, [1988] S.C.J. No. 58, relied on R. v. Major and R.  
v. Côté where counts in those two cases had described an event and included a  
reference to the correct section number, but had lacked stating some essential  
element, were nevertheless found by the Supreme Court to be sufficient. Moreover,  
Curran J. reiterated that a defective information is not automatically a nullity,  
disclosing no offence known to law. However, if the document gives fair notice of  
44  
the offence to the accused, it is not a nullity and can be amended under the broad  
powers of amendment provided for in the Criminal Code. Curran J. also reasoned  
that the cases of Moore, Major and Côté had all turned on technical error and that  
the issue in R. v. Moore had more to do with the question of “legal sufficiency” than  
with the identification of a “factual transaction”. Even after the decision in R. v.  
Moore, Curran J. surmised that it was still necessary for courts to determine whether  
a charge gives fair notice of the offence to the accused [emphasis is mine below]:  
The case made its way to The Supreme Court of Canada on the question of  
whether or not the accused was in jeopardy on the improperly worded charges. In  
the course of deciding that issue in the accused's favour, The Supreme Court dealt  
with the question of the sufficiency of the charges. Chief Justice Dickson dissented  
on the ultimate issue in the case, but his comments on the sufficiency of charges  
were adopted by Lamer J. on behalf of the majority. Relying on R. v. Major (supra)  
and R. v. Côté, supra, in both of which counts that described an event and included  
a correct section reference but lacked some essential element were found to be  
sufficient, Chief Justice Dickson wrote, at p. 297:  
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. (my underlining)  
In my view, Moore did not really change the law at all. After Moore as before, it  
was necessary to determine whether a charge "gives fair notice of the offence to  
the accused". Besides, as already pointed out, Moore had more to do with the  
question of legal sufficiency than with the identification of a factual transaction.  
Moore, as well as Major and Côté, turned on technical error.  
[96] In addition, in R. v. Leclaire, [1956] O.J. No. 162, at paras. 2 to 17, Mackay J.A. for  
the Court of Appeal for Ontario determined that the missing averment, that an  
accused had received something "on terms that require him to account for or pay it  
or the proceeds of it", is an essential ingredient in the offence created by s. 276(1)  
[now s. 330(1)] of the Criminal Code. As such, Mackay J.A. reasoned that this  
missing essential ingredient would be fatal unless reference to the section number  
of the Criminal Code in the charge could save it [emphasis is mine below]:  
There are two main grounds of appeal: (1) That the information is defective in that  
it does not contain all the ingredients mentioned in section 276(1) of the Criminal  
Code, necessary to constitute or support a charge of theft under that section, and  
that such defect is fatal, ….  
First it was argued by counsel for the appellant that the information and complaint  
did not charge a crime known to the law, because it did not contain an averment  
that the appellant held the proceeds "on terms" that required him to account for or  
pay it or the proceeds of it or a part of the proceeds to the complainant, and  
45  
fraudulently failed to account for or pay it or the proceeds of it or a part of the  
proceeds of it.  
Section 276(1) of the Criminal Code reads:  
"Every one commits theft who, having received anything from any person on  
terms that require him to account for or pay it or the proceeds of it or a part of  
the proceeds to that person or another person, fraudulently fails to account for  
or pay it or the proceeds of it or the part of the proceeds of it accordingly."  
It is, I am of opinion, clear, as stated by Masten, J.A. in Rex v. Adduono et al,  
(1940) O.R. p. 184, that sections 853 and following, and including section 908 of  
the old Code (sections 500, 501 and 510 of the new Code) set forth that the  
purpose of its provisions is to secure to an accused when preparing for trial "such  
exact and reasonable information respecting the charge against him as will enable  
him to establish fully his defence" and moreover "nullify the old procedure with the  
purpose of lessening its extreme technicality thereby facilitating the administration  
of justice in accordance with the very right of the case". In the language of section  
15 of the Interpretation Act, R.S.C. 1952, chapter 158, the sections of the Criminal  
Code should receive such fair, large and liberal construction and interpretation as  
will best ensure the attainment of both of the above mentioned purposes.  
The manner of expression in an information and complaint appears to be  
unimportant in the light of section 492(2)(a) of the Criminal Code and may be made  
in popular language without technical averments or allegations of matter that are  
not "essential to be proved". If section 492(1) be analysed, however, it will be seen  
that the imperative requirement "shall contain" establishes 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 the statement must contain the allegation of matters essential to be proved and  
must be in "words sufficient to give the accused full notice of the offence with which  
he is charged." Rex v. Brodie and Barrett, (1936) S.C.R. 188; Rex v. Buck, (1932)  
57 C.C.C. 290 and Rex v. Bainbridge, (1918) 30 C.C.C. 214.  
The information on which the appellant was convicted avers that he "at the Town  
of Renfrew in the County of Renfrew did fraudulently fail to pay to John T. Moran  
the proceeds received by him from the sale of certain cattle belonging to the said  
John T. Moran and sold by the said Fred Leclaire to William Culhane for the sum  
of $1,350.00 contrary to section 276(1) of the Criminal Code of Canada on the 16th  
day of November, 1955."  
At his trial the appellant appeared, was represented by counsel, pleaded to the  
information and gave evidence without raising any objection to the sufficiency of  
the averments or lack of averments setting forth the offence in the information.  
I am of opinion that the averment that an accused received something "on terms  
that require him to account for or pay it or the proceeds of it ... " is an essential  
ingredient in the offence created by section 276(1). This would be fatal to the  
conviction unless the reference to the section of the Code can save it or unless it  
is such an objection to the information and complaint as should have been taken  
at the trial.  
46  
In MacDonald v. The Queen, 14 C.R. 387, the indictment failed to aver that the  
accused was over the age of 18 years on a charge under section 211(1) of the old  
Code where the charge referred to the section of the Code. Clearly this is a case  
of omitting in the information an essential ingredient in the offence created by that  
section. The Court of Appeal of Nova Scotia held that the failure to aver that the  
accused was over 18 years of age was fatal to the conviction, that Court holding  
that it was not sufficient to refer to the section number of the Code which showed  
plainly that it was not an offence unless the person accused was over the age of  
18 years. Therefore, a reference to the section of the Code cannot cure the  
omission to aver an essential ingredient. The Queen v. France, 1 C.C.C. 321; Rex  
v. Henderson, ex p. Brindle 45 C.C.C. 310; Rex v. Connors, 51 N.B. Rep. 247 and  
Rex v. Ing Yick Ing, 24 O.W.N. 243.  
…
Section 510(1) of the new Code is as follows:  
" An objection to an indictment or to a count in an indictment for a defect apparent  
on the face thereof shall be taken by motion to quash the indictment or count  
before the accused has pleaded, and thereafter only by leave of the court or  
judge before whom the trial takes place, and a court or judge before whom an  
objection is taken under this section may, if it is considered necessary, order the  
indictment or count to be amended to cure the defect."  
Section 492(5) of the new Code is as follows:  
" A count may refer to any section, subsection, paragraph or subparagraph of  
the enactment that creates the offence charged, and for the purpose of  
determining whether a count is sufficient, consideration shall be given to any  
such reference."  
In the case at bar the argument that the information and complaint not containing  
an averment that the accused received the $1,350.00 "on terms" requiring him to  
account for or pay it or the proceeds of it or a part of the proceeds did not charge  
a crime known to the law, cannot prevail. This objection was raised for the first time  
in this Court - no mention having been made of it prior to the plea or during the  
course of the trial. The Court is therefore of opinion that in view of the provisions  
of the Criminal Code and especially of section 510(1) when considered with section  
492(5) an omission of this character from the averment in the information and  
complaint is an objection which should have been taken by motion to quash before  
the accused has pleaded, or in any event during the course of the trial, and cannot  
be taken in the Court of Appeal unless that Court is of the opinion that the accused  
has been in some way misled or prejudiced by the omission. It is, in the opinion of  
this Court, both unreasonable and illogical to assume that the accused could have  
been prejudiced in the slightest degree, by the omission complained of.  
(E) counts containing an imperfect averment  
instead of counts that omit an essential  
averment  
47  
[97] In R. v. Major, [1975] N.S.J. No. 317 (N.S. Supreme Ct. (Appeal Div.)), at paras. 9  
to 23, MacKeigan C.J.N.S. confirmed that the modern Criminal Code goes far "to  
nullify the old procedure with the purpose of ameliorating its extreme technicality  
and facilitating the administration of justice in accordance with the very right of the  
case. MacKeigan C.J.N.S., also held that as long as a charge meets the  
requirement of s. 510(1) [now s. 581(1)] that it contain "in substance a statement  
that the accused committed an ... offence therein specified", it is not a complete  
nullity incapable of amendment. Furthermore, MacKeigan, C.J.N.S. noted that  
other sections of the Criminal Code also protect the prosecution in summary  
conviction proceedings from quibbling objections so long as the accused is not  
misled. Furthermore, MacKeigan C.J.N.S. reasoned that the omission of even what  
used to be considered an essential averment is not now sufficient to prevent a  
charge being cured by amendment, even at the court of appeal level, so long as the  
accused is reasonably informed and not misled, and especially where the offence  
is correctly identified by section number (s.510(5)) [now s. 581(5)]. In addition,  
MacKeigan C.J.N.S. reiterated that a count which contains an imperfect averment  
instead of a fatal omission of an essential averment, the defective count with the  
imperfect averment could be amended. Furthermore, MacKeigan C.J.N.S.  
reasoned that there are 3 different kinds of flaw that may beset a charge: (1) It may  
be null ab initio and incapable of amendment if it violates s. 510(1) [now s. 581(1)]  
of the Criminal Code by not specifying an offence at all (“legally insufficient and a  
nullity that cannot be cured”) ; (2) It may satisfy s.510(1) [now s. 581(1)] and yet  
omit or defectively state an essential part of the offence; it is then voidable but may  
be amendable at trial under s. 529 [now s. 601] (“legally sufficient but curable by  
amendment or with particulars without causing prejudice or injustice”); or (3) it may  
lack "sufficient detail ... to give the accused reasonable information ... and to identify  
the transaction ..." (s.510(3)) [now s. 581(3)] (“legally sufficient but factually  
insufficient and is not a nullity but voidable if amendment or particulars would cause  
prejudice or fails to satisfy the ends of justice”) [emphasis is mine below]:  
The information did not follow s. 87 but charged the appellant merely with failure  
to report to the other driver. That wording, without more, does not sufficiently  
disclose an offence known to the law.  
The modern Code goes far, however, "to nullify the old procedure with the purpose  
of ameliorating its extreme technicality and facilitating the administration of justice  
in accordance with the very right of the case." (Ontario Court of Appeal, per  
Masten, J.A., in Rex v. Adduono et al. (1940), 73 C.C.C. 152, at p. 155).  
So long as a charge meets the requirement of s.510 (1) that it contain "in substance  
a statement that the accused committed an ... offence therein specified", it is not a  
complete nullity incapable of amendment. Other sections, such as s. 730, s.732  
and s.512 further protect the prosecution in summary conviction proceedings from  
quibbling objections so long as the accused is not misled.  
Accordingly, the omission of even what used to be considered an essential  
averment is not now sufficient to prevent a charge being cured by amendment,  
even at the court of appeal level, so long as the accused is reasonably informed  
48  
and not misled and especially where the offence is correctly identified by section  
number (s.510 (5)). …  
In Regina v. Wixalbrown and Schmidt, [1964] 1 C.C.C. 29 (B.C.C.A.), the  
supposedly vital word "therein" was omitted from a charge of breaking and entering  
premises with intent to commit an indictable offence therein. The majority of the  
Court, per Davey, J.A., held that this was "a case of an imperfect averment instead  
of a total omission of an essential averment" (p. 38) and thus could be amended  
by the court of appeal. Davey, J.A., held, alternatively, that if it should be  
considered the omission of "an essential averment required to constitute an  
offence known to the law", the defect caused no substantial wrong or miscarriage  
of justice (p. 39) and could be cured under s. 592(1)(b)(iii) (now s.613(1)(b)(iii)) of  
the Code.  
...  
Three different kinds of flaw may beset a charge. It may be null ab initio and  
incapable of amendment if it violates s.510(1) by not specifying an offence at all.  
It may satisfy s.510(1) and yet omit or defectively state an essential part of the  
offence; it is then voidable but may be amendable at trial under s.529 (indictments)  
or s.732 (summary conviction). Or, thirdly, and this does not concern us here, it  
may lack "sufficient detail ... to give the accused reasonable information ... and to  
identify the transaction ..." (s.510(3)).  
I have noted that the words used in the present charge did not by themselves  
describe an offence. I think, however, that, reinforced by the reference in the  
charge to s.87(2) of the Motor Vehicle Act, the charge as a whole contains "a  
statement that the accused committed an ... offence" (s.510(1)) and was "in words  
that are sufficient to give to the accused notice of the offence with which he is  
charged" (s.510(2)(c)).  
The charge, although thus barely sufficient to avoid being a charge of a "non-  
offence" and thus an unamendable nullity, was still seriously defective, omitting  
entirely any allegation that the appellant failed to report not only to the driver of the  
other car but also to any other occupant of the other car or to any witness. Vital  
averments were missing.  
No motion to quash was made before plea at the trial before the magistrate or  
before the trial de novo in County Court alleging a defect apparent on the face of  
the information contrary to s.732(1) of the Code. On such a motion the charge  
could have been amended as required, and, if necessary, resworn.  
The trial, and here we need concern ourselves only with the trial de novo,  
proceeded with some evidence being given respecting failure by the accused to  
report. The learned County Court judge on completion of the trial was entitled to  
amend an information which "fails to state ... anything that is requisite to constitute  
the offence" (s.732(3)(b)(i)), provided that "the matters to be alleged in the  
proposed amendment are disclosed by the evidence taken on the trial". And, if he  
considered that the defendant had been "misled or prejudiced in his defence" by  
the omission (s.732(5)(c)), he could have adjourned [*page355] the trial. No such  
amendment was made.  
49  
The conviction appealed from was accordingly made on a charge which lacked an  
essential averment. I respectfully agree with Mr. Justice Davey in Wixalbrown,  
supra, when he said [1964] 1 C.C.C. at p. 39:  
"But in my firm opinion, no person ought to stand convicted or be imprisoned on a  
charge that totally omits an essential averment required to constitute an offence  
known to the law. That in itself is a substantial wrong. I can see no difference in  
principle between a conviction for a charge that lacks one averment necessary to  
constitute a crime, and a conviction for one that is totally unknown to law."  
I also respectfully agree with Mr. Justice Davey, loc. cit., that a court of appeal  
such as this Court has power to amend the information even at this stage and to  
affirm the conviction if the absence of an averment caused no substantial wrong  
or miscarriage of justice. This was done in Wixalbrown because the evidence  
clearly established all elements of the offence charged, including the matters  
covered by the missing averment and because the trial had been conducted by  
both Crown and defence as if the missing averment had been present, presenting  
evidence and argument directly bearing on it (viz., the place where the offence of  
theft had been allegedly committed).  
Reference to the evidence would thus be necessary to determine if the matters  
covered by the missing averment were in fact proved. Such reference is necessary  
in the present case not only to see if amendment should be permitted but, even  
more importantly, to see if as a matter of law the appellant should have been  
convicted at all. Omission of an averment from an information does not obviate the  
need for the Crown to prove it if it is an essential element of the offence that was  
charged and imperfectly described.  
(F) factual sufficiency of a count  
[98] A count is factually sufficient if the count applies to a single transaction and the  
transaction itself is sufficiently identified. Specifically, a count is considered to be  
“factually sufficient” when the count provides the accused with "sufficient detail of  
the circumstances or underlying transaction of the offence" in order for the accused  
to make full answer and defence and to have a fair trial. On the other hand, a count  
is factually insufficient if it fails to reasonably provide sufficient detail of the  
circumstances or underlying transaction of the offence charged.  
[99] Furthermore, courts have found counts to be legally sufficient if it complies with the  
sufficiency of count requirements set out in the Criminal Code and the Provincial  
Offences Act, but not factually sufficient if the count is lacking an essential averment  
or the essential averment is defective. If the count setting out the offence meets  
those legal requirements for sufficiency, then the count is “legally sufficient”, but not  
factually sufficient if the count contains a defective essential averment or it is  
missing an essential averment. Ergo, a legally sufficient but factually insufficient  
count is not a nullity, but a voidable count. Moreover, a legally sufficient count but  
factually insufficient count that is voidable, can be amended at any time during the  
proceedings on a motion to amend the count or information that is brought by the  
50  
prosecution, if it can be done so without prejudice to the accused and made without  
injustice being done. Or, an order for particulars that is brought by the accused  
person can be made to ensure a fair trial, unless it would fail to satisfy the ends of  
justice. However, if the count setting out an offence is legally insufficient, then the  
count is a nullity and cannot be amended.  
[100] In addition, Cooper J.A. of the Nova Scotia Court of Appeal at paras. 34 to 37, in R.  
v. Major, [1975] N.S.J. No. 317, held that the Information in question should have  
charged the essential averments that the accused had failed to disclose not only to  
the driver but also, alternatively, to the occupants of the vehicle collided with or to  
a witness, but that the lack of these essential averments did not render the  
Information a nullity incapable of amendment and that an amendment could be  
made to the Information at the appeal court stage with the omitted averments where  
the evidence at trial is sufficient to prove the offence [emphasis is mine below]:  
There are alternative means of compliance with s.87(2). Disclosure may be made  
to the person struck or to the driver or occupants of the vehicle collided with or to  
a witness. There was here no person struck so we may put aside the first of the  
alternatives. But it seems to me to have been essential to aver in the charge failure  
to comply with any of the other alternatives. The Information should have charged  
failure to disclose not only to the driver but also, alternatively, to the occupants of  
the vehicle collided with or to a witness. I agree with the Chief Justice that these  
were essential averments. I may add that as no one was injured the provision of s.  
87(2) as to rendering assistance has no application.  
I also agree that the lack of these essential averments did not render the  
Information a nullity incapable of amendment and that this Court may amend the  
Information to include the omitted averments and affirm the conviction. But we  
should not do so unless the evidence is sufficient to prove the offence. I think it is  
and this is where I respectfully disagree with the Chief Justice.  
The evidence in my opinion establishes that the appellant failed to disclose the  
required information and exhibit his driver's license not only to the driver of the  
vehicle collided with but also to the occupants of the vehicle or to a witness. The  
appellant's car after the collision proceeded on for a distance of 100 to 150 feet  
and from there the appellant disappeared. It is clear that he had no contact with  
the occupants of the Corbett vehicle. He left the scene of the accident and that is  
where witnesses are to be found. I think that the evidence admits of no other  
rational conclusion but that of failure to disclose the required information and to  
exhibit the driver's license to a witness.  
I would therefore amend the Information to include the omitted averments, affirm  
the conviction and dismiss the appeal. There should be no costs.  
[101] Moreover, in R. v. 7506406 Canada Inc. (Ornge), [2017] O.J. No. 5750 (Ont. C.J.)  
at paras. 4, 9, and 13 to 22, Duncan J. had to consider a motion brought by the  
accused corporation to quash certain counts in an information that were allegedly  
defective because they had failed to specify which of the many prescribed  
51  
regulations had not been complied with. In reply to the motion, the Crown had  
argued that the charges had provided adequate information identifying the offence,  
when considered together with the disclosure. Alternatively, the Crown had also  
requested an amendment to the charges. However, before Duncan J. could  
actually rule on the motion to quash, particulars had been provided subsequently in  
the corresponding counts that were contained in the Minister’s consent document  
to proceed with charges, which then had identified the regulation which had not  
been complied with. In considering this new event in which particulars of the  
offence had been provided in the Minister’s consent document given to the accused,  
Duncan J. had commented that he did not think that the Crown is in any way limited  
to reliance on a single regulation, although he did think it had been still necessary  
in any event to identify which regulation or regulations that the Crown was alleging  
had been breached or unfulfilled. In addition, Duncan J. reasoned that identifying  
the regulation had been necessary so that the golden rule of informing the accused  
of the charge that the accused was facing could be properly satisfied, so that the  
accused could prepare and present its defence. Furthermore, Duncan J. explained  
that even though the advent of full disclosure would diminish much of the fact-based  
objection to lack of specificity (factual insufficiency of a count), it does not do much  
to alleviate uncertainty in respect to the circumstances and details of the underlying  
transaction in regard to the legal rules that are alleged to have been breached. As  
such, Duncan J. concluded that the counts were fatally deficient of informing the  
accused of the charges that the accused faced. However, before he could proceed  
with quashing the defective counts, Duncan J. reasoned that he had been legally  
required to first consider the statutory power to amend under s. 601(4) of the  
Criminal Code, which provided the court with the widest powers of amendment that  
could be used at any stage of the proceedings, even where the count fails to state  
anything requisite to constitute an offence, as long as the amendment could be  
done without prejudice. As to the Crown’s request for an amendment to the  
charges, Duncan J. granted the request and held that there would be no prejudice  
in amending the charges, as there had been no suggestion that the defence has  
been misled, since the Crown had confirmed many times both in writing and orally  
to the defence that the counts would include an allegation that the company had  
compromised safety of its employees by eliminating the position of Base Manager  
and the supervision that position had provided. This allegation, Duncan J. found,  
had been clearly understood by defence counsel, who had thoroughly challenged it  
in cross examination of Crown witnesses [emphasis is mine below]:  
… it was argued that the counts were defective because they failed to specify which  
of the many prescribed regulations had not been complied with: R v Wis  
Developments [1984] 1 SCR 485. The Crown countered that the charges, particularly  
when considered together with the disclosure, provided adequate information  
identifying the offence. Alternatively, the Crown requested an amendment to allege a  
breach of the duty described in section 124 rather than section 125 of the Act.  
…
The parties were also in agreement that the counts in the information should be  
deemed to include the particulars in the corresponding counts in the consent and that  
52  
the defendant's liability should be limited to the conduct described by those  
particulars.  
…
Apart from that, Mr. Gover for the defendant continues to assert one of his original  
objections to these counts, that is, that based on R v Wis Developments supra, these  
counts fail to inform the defendant as to which of the many prescribed regulations it  
has allegedly breached. He points out that other reported cases of charges under this  
section specify the regulation in question.  
In my view there is merit to this argument. While I do not think that the Crown is in any  
way limited to reliance on a single regulation, I think it is necessary to identify which  
one or ones it is alleging were breached or unfulfilled in order to properly satisfy the  
golden rule of informing the accused of the charge that he faces in order that he may  
prepare and present his defence. While the advent of full disclosure has diminished  
much of the fact-based objection to lack of specificity, it does not do much to alleviate  
uncertainty as to the legal rules that are alleged to have been breached. In my view  
the counts, as they stand, are fatally deficient in this regard.  
Mr. Devlin submitted on the original motion to quash, and now renews that  
submission, that if the counts are found to be defective, they should be amended.  
However, rather than adding reference to specific regulations, he proposes re-stating  
these two counts in the wording of s 124, consistent with the other non-objectionable  
counts in the information. The defence responds that such an amendment cannot be  
made because it would not meet the tests under section 601(4) of the Criminal Code  
and, even if it did, such an amendment would amount to changing the offence  
charged, contrary to the prohibition in Falkenberg applicable to cases requiring  
consent.  
Dealing first with the statutory power to amend, section 601(4) provides the widest  
powers of amendment "at any stage of the proceedings" even if the count "fails to  
state anything requisite to constitute an offence," if amendment can be done without  
prejudice (to paraphrase). In my view there is no prejudice in this case. The factual  
basis of the allegation has always been clear. The Crown has confirmed many times  
both in writing and orally that these counts allege that the company compromised  
safety of its employees by eliminating the position of Base Manager and the  
supervision that position provided. The allegation has clearly been understood by  
defence counsel who have thoroughly challenged it in cross examination of Crown  
witnesses. There can be no suggestion that the defence has been misled. In short,  
these counts have been treated from the outset in the same way that they would have  
been if they were allegations framed in terms of section 124.  
As for the consent issue, I do not read Falkenberg or any of the other cases cited to  
me as holding that there is no power to amend in cases where consent is required --  
only that the amendment cannot amount to changing the offence charged. In this case  
the charging sections, 148(1) and (2) remain the same, though that is a small  
somewhat technical observation. More important I think is whether the same  
"transaction" is involved. The problem in Falkenberg was a change of transaction,  
from an allegedly perjurious general allegation to allegedly false specific testimony.  
Most important, I suggest, is whether the proposed amendment involves a change in  
the essential nature of what is being alleged.  
53  
The relevant sections of the CLC:  
124.  
Every employer shall ensure that the health and safety at work of every  
person employed by the employer is protected  
125(1). Without restricting the generality of section 124, every employer shall ...  
...  
q) provide in the prescribed manner, each employee with the information,  
instruction, training and supervision necessary to ensure their health  
and safety at work.  
122.  
148.  
"Prescribe" means prescribe by regulation of the Governor in Council...  
Every person who contravenes any provision of the Part is guilty of an  
offence and liable ...  
It seems to me that both sections 124 and 125 do the same thing -- impose a statutory  
duty on an employer to ensure the health and safety of employees. Section 125  
provides a number of specific examples of what an employer must do - without  
restricting the generality of the duty in 124. Section 148 creates a single offence for  
failure to fulfill that duty in either manner. In my view these sections do not describe  
two offences but rather two routes by which a single offence might be committed.  
An analogy might be drawn to examples in the criminal context. A single offence of  
assault, robbery or murder can be reached by different paths through different  
statutory provisions all terminating at the same point, without distinction as to how that  
point was reached. No particular path need be specified in the charge; paths may  
change over the course of a trial; different jurors can follow different routes. See for  
example: R v Thatcher [1987] 1 SCR 652; R v Farrant [1983] 1 SCR 124 where the  
legal basis for liability for murder changed after the defendant had testified. See also:  
R. v. Khawaja, [2010] O.J. No. 5471 (C.A.) at para 150.  
In my view the proposed amendment can and should be made. It does not amount to  
changing the offence so does not offend the Falkenberg limitation on amendment. It  
causes no prejudice to the defendant and has the advantage of clarifying and  
simplifying the case for all concerned, permitting the focus to fall and remain on the  
central issue of whether the defendant failed in its single statutory duty to ensure  
employee safety in the ways set out in the counts.  
Accordingly the counts are amended to repair the wording of the essential allegation  
and to read after the word "therefore"  
Count 10: ... the employer failed to ensure the health and safety of its  
employees, contrary to section 124 of the Canada Labour Code Part II by  
failure to provide adequate supervision for daily flight activities at  
Moosonee, by eliminating the position of Base Manager thereby committing  
an offence under Subsection 148(1) of the Canada Labour Code Part II.  
Count 11: ... the employer failed to ensure the health and safety of its  
employees, contrary to section 124 by failure to provide adequate  
supervision for daily flight activities at Moosonee, by eliminating the  
54  
position of Base Manager the direct result of which was the death of Mark  
Filliter and Jacques Dupuy thereby committing an offence under  
Subsection 148(2) of the Canada Labour Code Part II.  
[102] Ergo, in determining whether an information or count should be quashed or  
amended or cured with particulars, the courts have established the concepts of legal  
sufficiency and factual sufficiency, in which legally sufficient counts that are factually  
insufficient are not nullities or void ab initio, but are voidable and can be amended,  
as long as it can be done without prejudice to the accused and it would satisfy the  
ends of justice. Or, the defective information or count could be cured by ordering  
particulars to ensure a fair trial, unless it would fail to satisfy the ends of justice.  
(G) sufficiency of count requirements under the  
Provincial Offences Act  
[103] Section 25(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, states that  
“[e]ach offence charged in an information shall be set out in a separate count”. In  
addition, s. 25(2) states that ”[e]ach count in an information shall in general apply  
to a single transaction and shall contain and is sufficient if it contains in substance  
a statement that the defendant committed an offence therein specified”. However,  
s. 25(3) permits a count to be deemed to incorporate the “essential elements” of an  
offence by expressly making reference in the count to the statutory provision of the  
enactment which creates the offence, especially in the case where “an offence is  
identified but the count fails to set out one or more of the essential elements of the  
offence”. Furthermore, s. 25(4)(c) provides that the statement under s. 25(2) which  
asserts that defendant has committed an offence may be “in words that are  
sufficient to give to the defendant notice of the offence with which the defendant is  
charged”. As to the particulars of a count, s. 25(6) states that “[a] count shall contain  
sufficient detail of the circumstances of the alleged offence to give to the defendant  
reasonable information with respect to the act or omission to be proved against the  
defendant and to identify the transaction referred to.” And, although s. 25(6) refers  
to a requirement that a count contains sufficient detail of the circumstances of the  
alleged offence to give to the defendant reasonable information with respect to the  
act or omission to be proved and to identify the transaction referred to, s. 25(7)(f),  
on the other hand, expresses that “[n]o count in an information is insufficient by  
reason of the absence of details where” the court opines that “the count otherwise  
fulfils the requirements of this section” and, “no count in an information is insufficient  
by reason only that … it does not specify the means by which the alleged offence  
was committed“ [emphasis is mine below]:  
Counts  
25(1) Each offence charged in an information shall be set out in a separate  
count.  
55  
Allegation of offence  
(2) Each count in an information shall in general apply to a single transaction  
and shall contain and is sufficient if it contains in substance a statement  
that the defendant committed an offence therein specified.  
Reference to statutory provision  
(3) Where in a count an offence is identified but the count fails to set out one  
or more of the essential elements of the offence, a reference to the  
provision creating or defining the offence shall be deemed to incorporate  
all the essential elements of the offence.  
Idem  
(4) The statement referred to in subsection (2) may be,  
(a) in popular language without technical averments or allegations of  
matters that are not essential to be proved;  
(b) in the words of the enactment that describes the offence; or  
(c) in words that are sufficient to give to the defendant notice of the  
offence with which the defendant is charged.  
More than one count  
(5) Any number of counts for any number of offences may be joined in the  
same information.  
Particulars of count  
(6) A count shall contain sufficient detail of the circumstances of the alleged  
offence to give to the defendant reasonable information with respect to  
the act or omission to be proved against the defendant and to identify the  
transaction referred to.  
Sufficiency  
(7) No count in an information is insufficient by reason of the absence of  
details where, in the opinion of the court, the count otherwise fulfils the  
requirements of this section and, without restricting the generality of the  
foregoing, no count in an information is insufficient by reason only that,  
(a) it does not name the person affected by the offence or intended or  
attempted to be affected;  
(b) it does not name the person who owns or has a special property or  
interest in property mentioned in the count;  
56  
(c) it charges an intent in relation to another person without naming or  
describing the other person;  
(d) it does not set out any writing that is the subject of the charge;  
(e) it does not set out the words used where words that are alleged to  
have been used are the subject of the charge;  
(f) it does not specify the means by which the alleged offence was  
committed;  
(g) it does not name or describe with precision any person, place, thing  
or time; or  
(h) it does not, where the consent of a person, official or authority is  
required before proceedings may be instituted for an offence, state  
that the consent has been obtained.  
Idem  
(8) A count is not objectionable for the reason only that,  
(a) it charges in the alternative several different matters, acts or  
omissions that are stated in the alternative in an enactment that  
describes as an offence the matters, acts or omissions charged in the  
count; or  
(b) it is double or multifarious.  
Need to negative exception, etc.  
(9) No exception, exemption, proviso, excuse or qualification prescribed by  
law is required to be set out or negatived, as the case may be, in an  
information.  
Summons  
26(1) A summons issued under section 22 or 24 shall,  
(a) be directed to the defendant;  
(b) set out briefly the offence in respect of which the defendant is  
charged; and  
(c) require the defendant to attend court at a time and place stated  
therein and to attend thereafter as required by the court in order to be  
dealt with according to law.  
Service  
(2) A summons shall be served by a provincial offences officer,  
57  
(a) by delivering it personally to the person to whom it is directed or, if  
that person cannot conveniently be found, by leaving it for the person  
at the person’s last known or usual place of residence with an  
individual who appears to be at least sixteen years of age and  
resident at the same address; or  
(b) in any other manner permitted by the regulations.  
[104] Section 581 of the Criminal Code, which is the provision that sets out the legal  
requirements for the sufficiency of a count is reproduced below to provide a  
comparison with s. 25 of the governing Provincial Offences Act on the sufficiency  
of a count for a regulatory or provincial offences information. Section 581 of the  
Criminal Code and s. 25 of the Provincial Offences Act, are not too dissimilar in  
respect to the sufficiency of a count requirements. In particular, s. 581(2)(c) of the  
Criminal Code provides that the statement containing the substance of an offence  
“may be” “in words that are sufficient to give to the accused notice of the offence  
with which he is charged” (legal sufficiency requirement of a count). In addition, s.  
581(3) provides that the statement of the offence in a count “shall contain sufficient  
detail of the circumstances of the alleged offence to give to the accused reasonable  
information with respect to the act or omission to be proved against him and to  
identify the transaction referred to” (factual sufficiency requirement of a count).  
However, s. 581(3) also expressly provides that “the absence or insufficiency of  
details” of the circumstances of the alleged offence “does not vitiate the count”  
(factual insufficiency of a count). Moreover, s. 581(5) also provides that a count  
may refer to “any section, subsection, paragraph or subparagraph of the enactment  
that creates the offence charged and that “for the purpose of determining whether  
a count is sufficient, consideration shall be given to any such reference” (legal  
sufficiency of a count) [emphasis is mine below]:  
Substance of offence  
581(1) Each count in an indictment shall in general apply to a single transaction  
and shall contain in substance a statement that the accused or  
defendant committed an offence therein specified.  
Form of statement  
(2) The statement referred to in subsection (1) may be  
(a) in popular language without technical averments or allegations of  
matters that are not essential to be proved;  
(b) in the words of the enactment that describes the offence or declares  
the matters charged to be an indictable offence; or  
58  
(c) in words that are sufficient to give to the accused notice of the  
offence with which he is charged.  
Details of circumstances  
(3) A count shall contain sufficient detail of the circumstances of the alleged  
offence to give to the accused reasonable information with respect to the  
act or omission to be proved against him and to identify the transaction  
referred to, but otherwise the absence or insufficiency of details does not  
vitiate the count.  
Indictment for treason  
(4) If an accused is charged with an offence under section 47 or sections 50  
to 53, every overt act that is to be relied on shall be stated in the  
indictment.  
Reference to section  
(5) A count may refer to any section, subsection, paragraph or  
subparagraph of the enactment that creates the offence charged, and  
for the purpose of determining whether a count is sufficient,  
consideration shall be given to any such reference.  
General provisions not restricted  
(6) Nothing in this Part relating to matters that do not render a count  
insufficient shall be deemed to restrict or limit the application of this  
section.  
[105] Furthermore, both s. 581 of the Criminal Code and s. 25 of the Provincial Offences  
Act legally require that each count in an information shall contain sufficient detail of  
the circumstances of the alleged offence to give to the accused reasonable  
information with respect to the act or omission to be proved against him and to  
identify the transaction referred to (factual sufficiency of a count). On the other  
hand, both regimes also expressly state that no count in an information is  
insufficient by reason only that it does not specify the means by which the alleged  
offence was committed. Section 581(3) of the Criminal Code specifically states that  
“the absence or insufficiency of details does not vitiate the count” while s. 25(7)(f)  
of the Provincial Offences Act expressly provides that “[n]o count in an information  
is insufficient by reason only that … it does not specify the means by which the  
alleged offence was committed”.  
(H) Under the Provincial Offences Act, is a  
count invalid for omitting to state an  
essential averment?  
59  
[106] Unlike s. 581(3) of the Criminal Code which clearly states that a count in a criminal  
information that is missing a detail does not vitiate the count, a count in a regulatory  
of provincial offences information that is missing a detail is governed by s. 25(7) of  
the Provincial Offences Act, which does not clearly state whether the count is  
invalidated or not invalidated when a count fails to mention a detail. Rather, s. 25(7)  
states that “[n]o count in an information is insufficient by reason of the absence of  
details where, in the opinion of the court, the count otherwise fulfils the requirements  
of this section …”. In other words, a count in a regulatory or provincial offences  
information with a missing averment is not a deficient count if the court is of the  
opinion that the count would otherwise meet the legal requirements for the  
sufficiency of a count that are set out in s. 25. Hence, if a count meets the legal  
requirements for sufficiency in that it contains in substance a statement that the  
defendant committed an offence therein specified (under s. 25(2)) and if the  
statement of offence is in popular language without technical averments or  
allegations of matters that are not essential to be proved (under s. 25(4)(a)) or in  
the words of the enactment that describes the offence (under s. 25(4)(b)) or in words  
that are sufficient to give to the defendant notice of the offence with which the  
defendant is charged (under s. 25(4)(c)). However, where in a count an offence is  
identified but the count fails to set out one or more of the essential elements of the  
offence, a reference to the provision creating or defining the offence shall be  
deemed to incorporate all the essential elements of the offence (under s. 25(3)).  
[107] Ergo, according to s. 25 of the Provincial Offences Act a count would only be invalid  
or a nullity if it does not fulfill the legal requirements that are set out in that section  
for the sufficiency of a count. On the other hand if a count is factually insufficient  
the defective count could still be cured with an amendment or an order for  
particulars unless there is prejudice or injustice.  
[108] In the specific situation where a count is missing an essential averment, such as  
identifying the “wrongful use” which would contravene s. 11.1 of the Town of  
Caledon Zoning Bylaw, s. 25(7)(f) of the Provincial Offences Act states that “no  
count in an information is insufficient by reason only that, … it does not specify the  
means by which the alleged offence was committed …” as long as, “in the opinion  
of the court, the count otherwise fulfils the requirements of … “ s. 25.  
[109] Therefore, the 4 counts at issue are not legally insufficient as the counts expressly  
state that the defendants committed a particular offence known in law, expressly  
state the section number and the name of the bylaw which sets out the offence that  
has been contravened, and the statements of the 4 offences are in the words of the  
enactment that describes the offence, which would fulfill the legal requirements for  
the sufficiency of a count under s. 25. However, the 4 counts in question only omit  
to state the means by which the 4 alleged offences were committed, but s. 25(7)(f)  
states that “no count in an information is insufficient by reason only that, … it does  
not specify the means by which the alleged offence was committed …”. Ergo, the  
60  
missing detail of the alleged “wrongful use” in respect to the property at issue had  
not been essential to the validity of the 4 counts.  
[110] Accordingly, the 4 counts in question are not invalid for omitting to state the means  
by which the 4 alleged offences were committed or for failing to expressly state the  
alleged “wrongful use” which would contravene s. 11.1 of the Zoning Bylaw in the 4  
counts. Furthermore, the 4 counts could still be amended at any time during the  
trial if there is no prejudice to the defendants and it can be made without injustice.  
As well, in order to ensure a fair trial, particulars could be ordered to cure the  
defective counts, unless it would fail to satisfy the ends of justice.  
(v) Motion to Quash under the Provincial Offences Act  
[111] To reiterate, under the traditional approach of yesteryear, if a count or information  
is defective for a missing averment of an essential element of the offence, the count  
or information was considered to be a nullity, since the charge did not contain an  
offence known to law, and on an objection to the insufficiently worded charge by an  
accused person, the charge would be quashed. However, similar to provisions  
contained in the Criminal Code, the modern approach of flexibility and substance in  
dealing with defective informations or counts is also reflected in provisions  
contained in Ontario’s Provincial Offences Act which governs the prosecution of  
regulatory and provincial offences in Ontario. For instance, under s. 36(2) of the  
Provincial Offences Act, R.S.O. 1990, c. P.33, a court is directed to amend or order  
particulars before quashing an information or certificate, unless amending the  
information or certificate or an order for particulars would fail to satisfy the ends of  
justice:  
36(1) An objection to an information or certificate for a defect apparent on its face  
shall be taken by motion to quash the information or certificate before the  
defendant has pleaded, and thereafter only by leave of the court. R.S.O.  
1990, c. P.33, s. 36 (1); 2020, c. 18, Sched. 18, s. 15.  
Grounds for quashing  
(2) The court shall not quash an information or certificate unless an amendment  
or particulars under section 33, 34 or 35 would fail to satisfy the ends of  
justice.  
(b) THE REQUEST OR MOTION FOR PARTICULARS ROUTE  
[112] Also, in the case of a missing averment of an essential element of the offence, an  
accused person may make a request to the Crown or prosecution for particulars or  
make an application to the trial justice for an order for particulars to be provided by  
the prosecution. The Crown or prosecution in providing particulars may provide  
61  
formal particulars by requesting that an information or count be amended to  
particularize an offence, or they may provide written or oral particulars to the  
accused person or to the accused person’s legal representative.  
[113] An order for particulars is also one of the curative powers contained in the Criminal  
Code and Provincial Offences Act that a trial justice can utilize to cure a defective  
information or count that is missing an averment of an essential element of an  
offence. However, a trial justice will not make an order for particulars to ensure a  
fair trial if it would fetter the Crown or prosecution’s discretion on prosecuting the  
charges or it would fail to satisfy the ends of justice.  
(i) Motion for Particulars under the Provincial Offences Act  
[114] By virtue of s. 35 of the Provincial Offences Act, R.S.O. 1990, c. P.33, a court may,  
before or during trial of a regulatory or provincial offence, order that a particular,  
further describing any matter relevant to the proceeding, be furnished to the  
accused person if it is satisfied that it is necessary for a fair trial:  
Particulars  
35 The court may, before or during trial, if it is satisfied that it is necessary for a  
fair trial, order that a particular, further describing any matter relevant to the  
proceeding, be furnished to the defendant.  
[115] In R. v. Saunders, [1990] S.C.J. No. 22 (QL) (S.C.C.), at para. 5, McLachlin J. (as  
she was then), writing for the Supreme Court of Canada, held that it is a  
fundamental principle of criminal law that the offence as particularized must be  
proved and that the purpose of providing particulars is to permit the accused to be  
reasonably informed of the transaction alleged against them, so to give them the  
possibility of a full defence and a fair trial [emphasis is mine below]:  
It is a fundamental principle of criminal law that the offence, as particularized in  
the charge, must be proved. ... The Crown chose to particularize the offence in  
this case ... Having done so, it was obliged to prove the offence thus particularized.  
To permit the Crown to prove some other offence characterized by different  
particulars would be to undermine the purpose of providing particulars, which is to  
permit "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": R. v. Côté,  
[1978] 1 S.C.R. 8, at p. 13.  
[116] Furthermore, in R. v. Sadeghi-Jebelli, 2013 ONCA 747, [2013] O.J. No. 5728, at  
pars. 23 to 24, the Court of Appeal for Ontario reiterated that when the Crown  
charges an accused with an offence and particularizes the way the offence was  
committed, it must prove the offence as particularized in the charge. The Court of  
62  
Appeal for Ontario also noted that particulars permit the accused to be reasonably  
informed of the transaction alleged against him, thus giving him the possibility of a  
full defence and fair trial [emphasis is mine below]:  
When the Crown charges an accused with an offence, and particularizes the way  
the offence was committed, it must prove the offence as particularized in the  
charge. The Supreme Court of Canada affirmed this principle in R. v. Saunders,  
[1990] 1 SCR 1020 at 1023. McLachlin J. said: "It is a fundamental principle of  
criminal law, that the offence, as particularized in the charge, must be proved". So,  
for example, if the Crown charges an accused with trafficking in heroin, it cannot,  
without an amendment to the charge, obtain a conviction for trafficking in cocaine.  
This principle is grounded in fairness. Particulars permit "the accused to be  
reasonably informed of the transaction alleged against him, thus giving him the  
possibility of a full defence and fair trial". See R. v. Côté, [1978] 1 SCR 8 at 13.  
This principle is subject to an exception for "mere surplusage", or information in  
the indictment that is not essential to the offence, but that exception does not apply  
here. See R. v. Vézina, [1986] 1 SCR 2 at para. 49.  
[117] Also, in R. v. TransCanada Pipelines Ltd., [1994] O.J. No. 4198 (Ont. C.J. (Prov.  
Div.)), at paras. 9 to 16, Lebel J. in considering a motion for particulars in a  
regulatory offence prosecution found that an order for particulars to particularize the  
exact and precise time when the alleged discharges took place, and the exact and  
precise times they allegedly impaired the quality of the natural environment and of  
the water, would seriously impede the Crown in its prosecution of the charges.  
Furthermore, Lebel J. had noted that the defence had received voluminous  
disclosure of the Crown's case. In addition, Lebel J. adopted the reasoning in R. v.  
Canadian General Electric Co. (1974), 17 C.C.C. (2d) 433, that the function of  
particulars in a criminal trial is twofold: primarily their function is to give such exact  
and reasonable information to the accused respecting the charge against him, as  
will enable him to establish fully his defence, and that the second purpose is to  
facilitate the administration of justice [emphasis is mine below]:  
This is an Application for Particulars as to counts 1 to 18 on information 930270.  
The statutory basis relied upon by the defendants on this Motion is s. 36(2) of the  
Provincial Offences Act, R.S.O. 1990, c. P.33:  
The court shall not quash an information or certificate unless an amendment or  
particulars under section 33, 34 or 35 would fail to satisfy the ends of justice.  
The Motion record (Exhibit 1) discloses the demand for particulars on the Crown  
(Tab 7) and Crown's response (Tab 8). Suffice it to say that the Crown refuses to  
provide the particulars sought.  
The expanded version of the particulars being sought can be found in Exhibit 2. At  
the outset, counsel for the defendants conceded that counts 1 to 18 are "facially  
valid in a legal sense."  
63  
In other words, this is not a Motion to quash. The issue raised is whether or not the  
counts are "facially valid in a factual sense." It is argued that the manner in which  
the counts are drafted fails to provide the defendants with reasonable notice of the  
specific offences with which they are charged and therefore, unless the court  
orders the particulars sought, the defendants will be deprived of a fair trial.  
The list of particulars contained in Exhibit 2 are very specific and narrow in their  
scope. The Crown argues that they are not warranted given the extensive and  
thorough disclosure to the defendants and to order such particulars would unduly  
tie the Crown's hands in the prosecution of its case.  
The defence concedes that it has indeed received voluminous disclosure of the  
Crown's case, however, it is argued that there is a very different conceptual  
difference between disclosure and particulars. Having reviewed the authorities  
cited to me by counsel, I have very little difficulty in accepting that proposition.  
I agree with Mr. Justice Pennell in R. v. Canadian General Electric Co. (1974), 17  
C.C.C. (2d) 433, when he stated at p. 443:  
The function of particulars in a criminal trial is twofold. Primarily their function is to  
give such exact and reasonable information to the accused respecting the charge  
against him as will enable him to establish fully his defence. The second purpose  
is to facilitate the administration of justice.  
and at p. 444:  
In my view, the Crown should not be encumbered with an order to particularize the  
precise dates the alleged combine, monopoly and conspiracy became criminal  
offences. This possibility of a criminal offence, if admitted for the sake of argument,  
may have occurred at certain stages: a thing of this kind is an evolution. That is a  
matter of fact to be judged by the Court, not a matter of particulars. To a lesser  
degree, the like is true of the precise times when the defendants were parties or  
privies to or knowingly assisted in the formation and operation of a combine,  
monopoly or conspiracy.  
In my view to order the Crown to particularize the exact and precise time when the  
alleged discharges took place, and the exact and precise times they allegedly  
impaired the quality of the natural environment and of the water, would seriously  
impede the Crown in its prosecution of the charges. Those facts shall be  
determined by the court.  
[118] Moreover, in R. v. Violette, [2008] B.C.J. No. 2776 (B.C. Supreme Ct.), Romilly J.  
at paras. 30 to 35, reviewed the function of particulars and concluded that the true  
function of particulars is to give further information to the accused of what is  
intended to be proved against them, so that he or she may have a fair trial. Romilly  
J. also referred to the principle that the Crown's theory can be distinguished from  
the particulars and that the Crown is bound to prove only the essential elements of  
the indictment (including particulars, if provided), but that the Crown is not bound to  
prove its theory [emphasis is mine below]:  
64  
The true function of particulars has been expressed in several cases. In R. v. Buck  
(1932), 57 C.C.C. 290, [1932] 3 D.L.R. 97 (Ont. C.A.) [cited to C.C.C.] at 293,  
Mulock C.J.O. stated that the true function of particulars is to give further  
information to the accused of what is intended to be proved against them, so that  
he or she may have a fair trial. The Ontario High Court in R. v. Canadian General  
Electric Co. Ltd. et al (No.1) (1974), 17 C.C.C. (2d) 433, 16 C.P.R. (2d) 175, (Ont.  
H.C.J.) [cited to C.C.C.] at 443, added the following:  
Primarily their function is to give such exact and reasonable information to the  
accused respecting the charge against him as will enable him to establish fully his  
defence. The second purpose is to facilitate the administration of justice.  
The court further explained:  
When a conspiracy count involves an alleged widespread complicated conspiracy  
for the accomplishment of a purpose going beyond the performance of individual  
acts, the particulars furnished will assist the Judge in ruling on the relevancy of the  
evidence. To adopt a homely form of words, a trial circumscribed by particulars will  
not wander all over the shop and will foreclose an unreal controversy.  
An information only states the legal character of the offence. In R. v. Colgan (1986),  
30 C.C.C. (3d) 183, 54 C.R. (3d) 167 (Man. C.A.) [cited to C.C.C.] at 188; aff'd  
[1987] 2 S.C.R. 686, Monnin C.J.M. stated:  
In fact and in practice an information or an indictment only states the legal  
character of the offence and does not supply the details or the particulars of that  
offence. If details or particulars are requested, the Crown will have to provide them.  
In R. v. Govedarov (1974), 3 O.R. (2d) 23, 16 C.C.C. (2d) 238 (C.A.) [cited to  
C.C.C.], Martin J.A. made it clear that the Crown's theory can be distinguished  
from the particulars and that the Crown is bound to prove only the essential  
elements of the indictment (including particulars, if provided). The Crown is not  
bound to prove its theory. He stated at pp. 269-70:  
Clearly, the purpose of the application for particulars was not to require the  
prosecution to provide the accused with additional details with respect to matters  
referred to in the indictment in order that the accused might be more fully informed  
of the act or omission charged against them but was to restrict the prosecution to  
reliance on a part only of the definition of murder contained in the Criminal Code.  
In Govedarov, counsel for the accused had moved for particulars at the opening  
of the trial and requested to know, specifically, which offence under s. 213 the  
Crown intended to rely upon. After some oral discussion, the Crown conceded that  
it would be relying on the burglary portion of the section. Martin J.A. reaffirmed that  
while oral particulars may also be binding on the Crown, particulars must be  
viewed in light of their purpose in the trial process: that being to provide the  
accused with reasonable information to enable a full and fair defence. In reaching  
the conclusion that the Crown was not bound to prove burglary, Martin J.A. stated  
at p. 271:  
The accused in the instant case were charged with murder. The crown was entitled  
to rely upon any part or parts of the definition of murder which were applicable to  
65  
the facts which it was open to the jury to find were proved. The statement of Crown  
counsel that he relied on the provisions of s. 213 with respect to burglary was, at  
most, merely an announcement of the theory upon which he intended to proceed  
and did not constitute the furnishing of particulars having the effect of limiting the  
charge contained in the indictment. Moreover, it does not appear that the accused  
were in any relevant sense misled or prejudiced by the enlargement of that theory  
to include the offence of robbery if there was evidence to support an application of  
ss. 213 and 21(2) to that offence.  
…
While the Crown may be bound to prove formal particulars (subject to the  
surplusage rule), it is not obliged to prove a specific theory of its case: Groot.  
…
In R. v. A.D., the information in question alleged that the accused "did, using a  
firearm, commit robbery". It was held that the charge did not particularize a specific  
mode of robbery. The proof of the use of a firearm is not an essential element of  
the offence of robbery. The court also found that the accused had sufficient  
knowledge of the circumstances of the offence alleged in the charge and that there  
was no prejudice to the accused.  
…
In R. v. Winters (1989), [1989] B.C.J. No. 491, Vancouver CA008462 (B.C.C.A.),  
Seaton J.A. pointed out that several cases had stated that:  
... knowledge of the evidence the Crown proposes to call is of consequence in  
determining whether an accused was prejudiced by an indictment that seemed on  
its face to be too broad.  
[119] Furthermore, in R. v. Fabrizi, [2007] O.J. No. 5403 (Ont. C.J.), an accused had  
appealed a conviction for storing construction material on land that was zoned  
agricultural. The by-law governing zoning in that case had referred to a prohibition  
against leaving goods on the land for a period of more than 72 hours. However,  
the charge had only stated a period of one day and the investigator had testified  
that he had only been concerned with the one day. Under that particular zoning by-  
law, the charge should have been for a period in excess of 72 hours. At paras. 25  
and 26 of R. v. Fabrizi, Lampkin J. reiterated the rule for particulars as had been  
decided by the Supreme Court of Canada in R. v. Saunders (1990) 56 C.C.C. (3d)  
220, in which the Crown is obliged to prove a criminal charge as particularized.  
However, Lampkin J. also concluded that there was no reason why the rule for  
particulars for criminal charges should also not apply to regulatory offences. In  
addition, Lampkin J. noted that Crown counsel in the Fabrizi case was bound by  
the date of the offence alleged on the information and by the evidence of his witness  
and that an amendment of the information had not been sought nor so ordered by  
the trial court [emphasis is mine below]:  
It is clearly the rule that a prosecution is bound by the particulars it provides to the  
court. In R. v. Saunders, (1990) 56 C.C.C. (3d) 220 (S.C.C.), the question was  
whether the trial judge erred in instructing the jury on a charge of conspiracy to  
66  
import heroin that they might convict if they were satisfied beyond a reasonable  
doubt that the accused had conspired to import any narcotic prohibited under the  
Narcotic Control Act. The accused were convicted. The British Columbia Court of  
Appeal set aside the convictions and directed a new trial on the ground that the  
Crown, having charged the accused with conspiracy to import heroin, must prove  
that the conspiracy in fact related to heroin and no other drug.  
The Crown appealed. In delivering judgment dismissing the appeal, Madam  
Justice McLachlin, as she then was, speaking for the Supreme Court of Canada,  
said at page 223:  
It is a fundamental principle of criminal law that: the offence, as particularized in  
the charge, must be proved. In Morozuk v. The Queen, (1986), 24 C.C.C (3d) 257  
at p. 262, [1986] 1 S.C.R. 31, at p. 7, this Court decided that once the Crown has  
particularized the narcotic in a charge, the accused cannot be convicted if a  
narcotic other than the one specified is proved. The Crown chose to particularize  
the offence in this case as a conspiracy to import heroin. Having done so, it was  
obliged to prove the offence thus particularized. To permit the Crown to prove  
some other offence characterized by different particulars would be to undermine  
the purpose of providing particulars, which is to permit "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": R. v. Cote, (1977), 33 C.C.C. (2d) 353  
at p. 357, [1978] 1 S.C.R. 8, at p. 13  
There is no reason why this principle that applies in criminal law should not apply  
in quasi-criminal proceedings, into which category these proceedings fall. In the  
case at bar the Crown chose to charge the Appellants with having committed a  
particular offence on a particular day. Their witness proceeded to prove that the  
offence was indeed committed on that day and that was his only complaint. As it  
turns out the offence is not a 'one day' offence but proof must be led that it was  
committed over a period in excess of 72 hours. There was no amendment of the  
information. There was no amendment of the information. Indeed Mr. Kinsella  
appearing for the prosecution, most likely realized that he could not seek an  
amendment. To seek an amendment to change the date of the offence would have  
meant attacking the credibility of his own witness. He was bound by the date of the  
offence alleged on the information and by the evidence of his witness. The learned  
Justice of the Peace never made any order to amend the information. She  
purported to do so in her judgement without having given the Defence an  
opportunity to argue against the amendment. There was no endorsement of any  
amendment on the information pursuant to Section 34(6) of the Act which  
mandates that any amendment must be endorsed on the information as part of the  
record and the trial proceed as if the information had been originally laid as  
amended.  
(ii) Particulars should not be ordered if it would fetter the  
prosecution’s conduct of their trial  
[120] In R. v. Cooper's Crane Rental (1987) Ltd., [1990] O.J. No. 1868 (Ont. S.C.),  
Mandel J. reiterated the principle that particulars should be ordered to give such  
information as is sufficient to enable the defendant fairly to defend himself when in  
67  
Court; but on the other hand, it should not order particulars if they are not necessary  
for a fair trial, as it would fetter the prosecutor in the conduct of their case and it  
would create an injustice by preventing the prosecution from establishing proof of  
an offence. Specifically, Mandel J. reiterated that particulars when given by the  
prosecution or ordered by the Court is a material part of the charge against the  
accused and if the charge as particularized not proved by the prosecution, the case  
would fail for want of proof [emphasis is mine below]:  
On April 26th, 1990 the matter again came before Judge Coulson. This time  
counsel appeared both for the prosecution and the defence. The defence renewed  
its demand for particulars and in addition requested "a stay of proceedings based  
on an abuse of process". The grounds for the latter request was that the  
prosecution undertook in open court to provide particulars and has refused to do  
so. The Provincial Judge ruled on the requests for particulars as follows:  
"THE COURT: The Statute makes it an offence to overload a crane, and the  
information appears to me to clearly indicate that a crane was overloaded,  
indicates sufficient information to identify the site, and indicates a date on which  
the crane is said to have been overloaded. I think that's sufficient evidence that I  
will not order the Information quashed of lack of particulars, nor order further  
particulars to be produced. The issue of abuse of process, that's another issue."  
He then ruled on the request for the stay as follows:  
"THE COURT: I've now had the opportunity to review the Information on file, I have  
already ruled that the information as laid discloses a valid charge, that the  
particulars are sufficient. I've been advised that the full and complete disclosure  
was made, it may have been a too free use of the words, disclosure, and  
particulars, but in my view though I have the authority to grant relief by way of a  
stay of proceedings, I should only do so in truly abusive circumstances. This case  
is not nearly in the same league as an undertaking not to prosecute, and l'm  
satisfied, and take the word of Counsel that complete disclosure has been made  
and that all of the evidence need not be pleaded and if, indeed, the disclosure has  
misled in some way then I'm prepared to hear about that later, but dismiss the  
Motion to quash the information for lack of particulars, to order further particulars,  
and to stay the proceedings."  
From the foregoing rulings Cooper's has brought the matter before me to stay the  
proceedings or in the alternative for particulars. During submissions counsel for  
Cooper’s submitted that in respect of his alternative claim he would be content if  
the particulars ordered was the conclusion contained in the last page of the  
engineer's report (a copy of which was given by the Ministry to him as aforesaid)  
viz. the crane having a 120 foot long boom with a 30 foot long jib was overloaded  
by a factor of 16,860/12,000 = 1.40 which is 40%.  
Leaving aside for the moment what was stated by Mr. Archambault before the  
Justice of the Peace as aforesaid, the question arises as to whether particulars  
should have been ordered. The principle governing the granting of particulars was  
stated by Coleridge J. as follows in R. v. Staplyton et al. (1857) 8 Cox C.C. 69 at  
72 :  
68  
"The general principle applies only to this extent, to give such information as is  
sufficient to enable the defendant fairly to defend himself when in Court; but on the  
other hand, not to fetter the prosecutor in the conduct of his case."  
(underlining is mine)  
Similarly in R. v. Lukich (1946) 87 C.C.C. 83 where Justices ordered the Crown to  
give particular one of the kinds of gaming house described in the Code as that  
under which it would proceed where the charge referred only to a gaming house,  
the Court of Appeal in finding that particulars were not necessary stated at page  
85:  
"Particulars are only for the purpose of seeing that Justice is done and to give an  
opportunity to the accused to make a proper defence, but they should not be  
required when the result would be an injustice in preventing the prosecution from  
establishing proof of an offence."  
(Both the above cases were cited by Martin J.A. in Ontario Court of Appeal,  
decision of R. v. Govedarov (1974) 16 C.C.C. 238 at 270-271).  
The prosecution has given the defence all the information that it has. However  
disclosure is not equivalent to particulars. One major difference between the two  
is that particulars when given by the prosecution or ordered by the Court is a  
material part of the charge against the accused and if not proved by the  
prosecution, the case would fail for want of proof. (See R. v. Austin 113 C.C.C.  
95). It is thus seen that where particulars are not necessary, to order them is to  
"fetter" the prosecution (R. v. Staplyton supra) and to create an "injustice" (R. v.  
Lukich supra).  
I then come back to the question posed viz. aside from what was stated by Mr.  
Archambault, should particulars have been ordered? The test is found in the British  
Columbia Court of Appeal decision of R. v. Fox 50 C.R. (3d) 370 leave to appeal  
to Supreme Court of Canada refused 50 C.R. (3d) XXVN and in the Ontario Court  
of Appeal decision of R. v. Milberg 35 C.C.C. (3d) 45, leave to appeal to Supreme  
Court of Canada refused ibid at 45. After stating that many offences charged in the  
words of the Statute are capable of being committed in more ways than one the  
Court in R. v. Milberg at p. 49 sets out that "the charge here is easily understood  
and conceptually uncomplicated. While it may be perpetrated in a number of  
different ways, they cannot be said to be diverse or unrelated". Similarly in the case  
at bar, although one may overload a crane "in a number of different ways, they  
cannot be said to be diverse or unrelated"  
It is then clear that aside from what was stated by Mr. Archambault before the  
Justice of the Peace, particulars should not be ordered and to do so would only  
fetter the Crown and result in injustice. (R. v. Staplyton and R. v. Lukich supra).p.  
13.  
[121] Ergo, if particulars are not necessary to ensure the defendant receives a fair trial,  
they should not be ordered, since to do so would fetter the prosecution in the  
conduct of their case and lead to an injustice being done.  
69  
(iii) Courts have relied on the Crown providing fulsome  
disclosure as reasons why particulars are not required  
[122] In R. v. Elite Farm Services Ltd., [2021] B.C.J. No. 735 (B.C. Supreme Ct.),  
Crabtree J. at para. 17 and 44, noted that disclosure is not a substitute for  
particulars, but that courts have nevertheless relied on the Crown providing fulsome  
disclosure as a reason why particulars are not required. Crabtree J. also concluded  
that particulars take on a greater significance in strict liability offences, especially  
where a general offence is charged. However, in considering the large amount of  
documents and video clips that had been provided to the defence, Crabtree J. held  
that the accused have been reasonably informed as to the transaction which is the  
focus of the offence charged [emphasis is mine below]:  
Disclosure is not a substitute for particulars, however courts have relied on the  
Crown providing fulsome disclosure as a reasons why particulars are not required.  
In the course of the steps leading up to the commencement of the trial, the accused  
have been provided with significant disclosure comprising:  
1. in excess of 3,000 pages of disclosure;  
2. 240 video clips related to the 12 counts of the indictment and, during  
the course of the argument, the Crown attached a schedule to their  
argument linking the date, offence, and location to the specific video  
clips that they intend to rely upon at trial; and,  
3. a report of the Crown veterinary expert.  
…
I accept the particulars take on a greater significance in strict liability offences,  
particularly where a general offence is charged. However, in this case, I am  
satisfied that the accused have been reasonably informed as to the transaction  
which is the focus of the offence charged.  
(c) MOTION TO AMEND THE DEFECTIVE INFORMATION OR  
COUNT MISSING AN ESSENTIAL AVERMENT BROUGHT BY  
THE PROSECUTION ROUTE  
[123] Similar to the broad amendment powers set out in the Criminal Code to cure a  
defective count lacking an essential averment, s. 34 of the Provincial Offences Act,  
R.S.O. 1990, c. P.33, also provides that a court may at any time during the trial or  
even at the appeal stage amend a defective information or count if evidence  
supporting that amendment is proffered during the trial. Usually, the request or  
motion for an amendment is brought by the prosecution when an accused person  
moves to quash the defective information or count for being an insufficiently worded  
charge. Ergo, under the broad amendment powers available under the Provincial  
Offences Act, a trial justice may amend a defective information or count that fails to  
state or states defectively anything that is requisite to charge the offence at any  
time of the proceedings if there is evidence proffered during the trial that supports  
70  
that amendment and as long as the proposed amendment can made where an  
accused person has not been misled or that it can be made without prejudice to the  
accused person, or where the accused person had a fair trial, or where there is no  
injustice [emphasis is mine below]:  
Amendment of information or certificate  
34(1) The court may, at any stage of the proceeding, amend the information or  
certificate as may be necessary if it appears that the information or  
certificate,  
(a) fails to state or states defectively anything that is requisite to charge  
the offence;  
(b) does not negative an exception that should be negatived; or  
(c) is in any way defective in substance or in form.  
Idem  
(2) The court may, during the trial, amend the information or certificate as may  
be necessary if the matters to be alleged in the proposed amendment are  
disclosed by the evidence taken at the trial.  
Variances between charge and evidence  
(3) A variance between the information or certificate and the evidence taken  
on the trial is not material with respect to,  
(a) the time when the offence is alleged to have been committed, if it is  
proved that the information was laid or certificate issued within the  
prescribed period of limitation; or  
(b) the place where the subject-matter of the proceeding is alleged to have  
arisen, except in an issue as to the jurisdiction of the court.  
Considerations on amendment  
(4) The court shall, in considering whether or not an amendment should be  
made, consider,  
(a) the evidence taken on the trial, if any;  
(b) the circumstances of the case;  
(c) whether the defendant has been misled or prejudiced in the defendant’s  
defence by a variance, error or omission; and  
(d) whether, having regard to the merits of the case, the proposed  
amendment can be made without injustice being done.  
71  
Amendment, question of law  
(5) The question whether an order to amend an information or certificate should  
be granted or refused is a question of law.  
Endorsement of order to amend  
(6) An order to amend an information or certificate shall be endorsed on the  
information or certificate as part of the record and the trial shall proceed as  
if the information or certificate had been originally laid as amended.  
[124] In R. v. Moore, [1988] S.C.J. No. 58, Lamer J., writing for the majority of the  
Supreme Court, at paras. 58 to 61, had noted that there did not appear to be any  
disagreement, either between the justices of the Supreme Court or with the judges  
below, that acting under s. 529 [now s. 601] of the Criminal Code the first trial judge  
had erred in quashing the first information since that information had not been a  
nullity, but only a voidable information. But more importantly, Lamer J. noted that  
since 1892 there has been, through case law and punctual amendments to s. 529  
[now s. 601] and its predecessor sections, a gradual shift from requiring judges to  
quash to requiring them to amend in the stead; in fact, there remains little discretion  
to quash. However, Lamer J. also agreed with Dickson C.J that if 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, since even the omission  
of an essential averment can be cured. In other words, Lamer J. confirmed that a  
defective charge would be voidable, but amendable. And, only when the charge is  
an absolute nullity, Lamer J. concluded, then there would be no available cure, as  
the matter would invariably go to the very jurisdiction of the trial judge. Lamer J.  
also concluded that absent absolute nullity, the trial judge has very wide powers to  
cure any defect in a charge by amending it. However, Lamer J. then said that if the  
mischief to be cured by amendment has misled or prejudiced the accused in his  
defence, the trial judge is then required to determine whether the misleading or  
prejudice may be removed by an adjournment. If so, Lamer J. then concluded that  
the trial judge must amend, adjourn and thereafter proceed. However, Lamer J.  
also held that if the required amendment cannot be made without injustice being  
done, then and only then is the trial judge required to quash. Therefore, Lamer J.  
concluded that a trial judge must not quash a charge, and it is reversible error of  
law if he does, unless the trial judge has come to the conclusion that "the proposed  
amendment" cannot "be made without injustice being done [emphasis is mine  
below]:  
Since the enactment of our Code in 1892 there has been, through case law and  
punctual amendments to s. 529 and its predecessor sections, a gradual shift from  
requiring judges to quash to requiring them to amend in the stead; in fact, there  
remains little discretion to quash. Of course, if the charge is an absolute nullity, an  
occurrence the conditions of which the Chief Justice has set out clearly in his  
reasons, no cure is available as the matter goes to the very jurisdiction of the judge.  
72  
In such a case, the doctrine of autrefois acquit is never a bar to the relaying of the  
charge because the accused was never in jeopardy and the disposition of the  
charge through quashing was for lack of jurisdiction. Also, if and when a charge is  
laid before that or another judge, it will be the first time the accused is in jeopardy  
before a judge having jurisdiction on the accused and the subject matter. There  
was nothing to be acquitted of, and for this reason, there is no "autrefois", as there  
was no offence, and no "acquit" as there was no jurisdiction to acquit or convict.  
But, if the charge is only voidable, the judge has jurisdiction to amend. Even failure  
to state something that is an essential ingredient of the offence (and I am referring  
to s. 529(3)(b)(i)) is not fatal; in fact, it is far from being fatal, as the section  
commands that the judge "shall" amend.  
My understanding of s. 529, when read in its entirety, is that it commands the  
following to the trial judge: absent absolute nullity and subject to certain limits set  
out in subs. (9), the judge has very wide powers to cure any defect in a charge by  
amending it; if the mischief to be cured by amendment has misled or prejudiced  
the accused in his defence, the judge must then determine whether the misleading  
or prejudice may be removed by an adjournment. If so, he must amend, adjourn  
and thereafter proceed. But, if the required amendment [page1129] cannot be  
made without injustice being done, then and only then the judge is to quash.  
Therefore, a judge must not quash a charge, and it is reversible error of law if he  
does, unless he has come to that conclusion, namely that "the proposed  
amendment" cannot "be made without injustice being done". However if having  
determined, as a matter of law (see subs. (6)), that an amendment cannot be made  
without causing irreparable prejudice, his quashing of the charge at the trial is then,  
in my view, tantamount to an acquittal. This is equally true whether, to terminate  
the proceedings under s. 529, the judge uses the word "quash", "dismiss",  
"discharge" or "acquit". With respect, this to me is obvious, because relaying before  
another judge an amended charge would be no less prejudicial to the accused  
than the amendment of the first one by the previous judge. Sections 529(4) and  
(5) would then be a useless exercise of judgment.  
It has been suggested that the factors, other than those related to prejudice, to be  
considered by the trial judge under s. 529(4) are indicative of the fact that  
irreparable prejudice is not necessarily the ultimate factor to determine whether to  
amend or quash. This with respect is to read s. 529 with an "all-or-nothing"  
approach, that is, that the judge must either amend or quash. The factors listed  
under s. 529(4) are, as the opening words of the subsection indicate, relevant to  
determine whether there should be an amendment, and not whether the judge  
should amend or quash. Quashing will occur only if there is irreparable prejudice.  
A judge may well come to the conclusion that there is no need to quash because  
there is no prejudice to the accused, without necessarily concluding that there  
need be an amendment. Such could be the case where the defect is one of pure  
form as contemplated by s. 529(3)(c). If there is irreparable prejudice, there is no  
amendment available. A contrario, however, there need not always be an  
amendment. In other words, the question whether one quashes or not is not on all  
fours with whether one, absent irreparable prejudice, amends or not.  
What is misleading here is that it is clear to us, as it was to the Court of Appeal,  
that the judge quashed when he clearly should not have, as an amendment would  
not have caused any prejudice to the accused. However, this is no reason to allow  
73  
the Crown to lay an amended charge once the accused has been acquitted, albeit  
by error. The trial judge's decision is open to appeal. Assuming error is found, the  
Court of Appeal will direct him to amend and hear the case, or will amend the  
charge itself and then return the file to the judge for trial on the amended charge.  
The fact that this will result in the accused being tried on the amended charge in  
any event, is no reason for downgrading the "quashing" so as to permit the Crown  
to relay an amended charge without facing a special plea. When a judge quashes  
under s. 529, that decision is deemed without error until reversed by a Court of  
Appeal. Otherwise the second judge, ordinarily of the same jurisdiction, when  
assessing whether the "quashing" is or is not tantamount to an acquittal for the  
purpose of determining whether there is autrefois acquit, would have to determine  
whether his colleague was or was not in error in deciding to quash.  
(d) MOTION FOR COSTS IF THE INFORMATION IS AMENDED OR IF  
PARTICULARS ARE ORDERED  
[125] In addition, the court may also make an order under section 37 of the Provincial  
Offences Act, R.S.O. 1990, c. P.33, for costs in favour of an accused person on  
account of a necessary adjournment where the information or certificate has been  
amended or particulars have been ordered:  
Costs on amendment or particulars  
37 Where the information or certificate is amended or particulars are ordered and  
an adjournment is necessary as a result thereof, the court may make an order  
under section 60 for costs resulting from the adjournment.  
(e) THE RULES GOVERNING THE SUFFICIENCY OF COUNTS UNDER  
ONTARIO’S PROVINCIAL OFFENCES REGIME GOVERN THE  
DEFENDANTS’ CHARGES  
[126] In their argument that the counts in the charging document contravene s. 11(a) of  
the Charter by not informing the defendants what offence they had specifically  
committed, the defendants refer to s. 581 of the Criminal Code in respect to the  
sufficiency of a count or charge in a provincial offences information. However, s.  
25 of the Provincial Offences Act, R.S.O. 1990, c. P.33, is the governing statutory  
provision for the sufficiency of count requirements for a regulatory or provincial  
offences information, and only when the Provincial Offences Act is silent, then will  
the Criminal Code be referred to for guidance on the issue of the sufficiency of  
counts in a provincial offences information.  
(f) THE APPROACH FOR DEALING WITH COUNTS OR  
INFORMATIONS FOR REGULATORY OFFENCES IN ONTARIO  
74  
THAT ARE MISSING AN AVERMENT OF AN ESSENTIAL ELEMENT  
OF AN OFFENCE  
[127] Similar to the modern approach for dealing with Criminal Code counts or  
informations that are missing an averment of an essential element of an offence,  
and the broad amendment and curation powers provided to courts in the Criminal  
Code, Ontario’s Provincial Offences Act, which governs the prosecution of  
regulatory and provincial offences informations, also contains broad amendment  
and curative powers for courts to deal with and correct defective counts or  
informations without having to quash them, so long as a charge contains in  
substance an allegation that an offence has been committed, then it is not a nullity.  
And, provided that the accused has not been misled by the error, even the omission  
of an essential averment can be cured.  
(i) The Criminal Code And The Provincial Offences Act Provide  
Broad Amendment And Curative Powers For A Court To  
Deal With Defective Counts Or Informations  
[128] Under both the Criminal Code and the Provincial Offences Act, informations or  
counts that are missing an averment require a court to first amend the information  
or to order particulars to ensure a fair trial if it can be done without prejudice to an  
accused person and without injustice being done. Furthermore, the power to  
amend can be exercised by a court at any stage of the trial or at the appeal stage  
where there is evidence proffered at trial supporting the proposed amendment.  
Additionally, a court is also required to consider ordering particulars to cure  
defective informations or counts before considering quashing a defective  
information or count.  
[129] In addition, s. 25 of the Provincial Offences Act which contains the sufficiency of  
count requirements also reflects a move away from the technical rigidity and  
inflexibility of the common law in respect to defective informations or counts which  
could not be amended and had to be quashed. Under the modern approach, if an  
offence is identified in a count but fails to set out one or more of the essential  
elements of the offence, and the count refers to the provision creating or defining  
the offence, then the express mention of that section of the statutory provision in  
that count according to s. 25(3) of the Provincial Offences Act deems that the count  
has incorporated all the essential elements of the offence and the count would not  
have to be quashed because of a missing essential element for the offence.  
Moreover, under s. 25(4)(b), a statement in a count which states that the defendant  
has committed an offence specified in that count may use popular language, in the  
same words of the enactment that describes the offence, or in words that are  
sufficient to give to the defendant notice of the offence with which the defendant is  
charged. In addition, s. 25(7)(f) states that no count in an information is insufficient  
by reason only that “it does not specify the means by which the alleged offence was  
committed” [emphasis is mine below]:  
75  
Counts  
25(1) Each offence charged in an information shall be set out in a separate count.  
Allegation of offence  
(2) Each count in an information shall in general apply to a single transaction  
and shall contain and is sufficient if it contains in substance a statement  
that the defendant committed an offence therein specified.  
Counts  
25(1) Each offence charged in an information shall be set out in a separate count.  
Allegation of offence  
(2) Each count in an information shall in general apply to a single transaction  
and shall contain and is sufficient if it contains in substance a statement  
that the defendant committed an offence therein specified.  
Reference to statutory provision  
(3) Where in a count an offence is identified but the count fails to set out one  
or more of the essential elements of the offence, a reference to the  
provision creating or defining the offence shall be deemed to incorporate  
all the essential elements of the offence.  
Idem  
(4) The statement referred to in subsection (2) may be,  
(a) in popular language without technical averments or allegations of  
matters that are not essential to be proved;  
(b) in the words of the enactment that describes the offence; or  
(c) in words that are sufficient to give to the defendant notice of the offence  
with which the defendant is charged.  
More than one count  
(5) Any number of counts for any number of offences may be joined in the  
same information.  
Particulars of count  
(6) A count shall contain sufficient detail of the circumstances of the alleged  
offence to give to the defendant reasonable information with respect to the  
act or omission to be proved against the defendant and to identify the  
transaction referred to.  
76  
Sufficiency  
(7) No count in an information is insufficient by reason of the absence of details  
where, in the opinion of the court, the count otherwise fulfils the  
requirements of this section and, without restricting the generality of the  
foregoing, no count in an information is insufficient by reason only that,  
(a) it does not name the person affected by the offence or intended or  
attempted to be affected;  
(b) it does not name the person who owns or has a special property or  
interest in property mentioned in the count;  
(c) it charges an intent in relation to another person without naming or  
describing the other person;  
(d) it does not set out any writing that is the subject of the charge;  
(e) it does not set out the words used where words that are alleged to have  
been used are the subject of the charge;  
(f) it does not specify the means by which the alleged offence was  
committed;  
(g) it does not name or describe with precision any person, place, thing or  
time; or  
(h) it does not, where the consent of a person, official or authority is  
required before proceedings may be instituted for an offence, state that  
the consent has been obtained.  
(g) THE S. 11(a) CHARTER MOTION ROUTE  
[130] Also for counts or informations with a missing averment of an essential element of  
an offence, an accused person may also bring a Charter motion contending that  
their right to be informed without delay of the specific offence they have been  
charged with under s. 11(a) has been infringed. If the trial justice finds that the  
accused person has established an infringement of their s. 11(a) right on a balance  
of probabilities, then the accused person can seek a remedy under s. 24(1) of the  
Charter. Usually, the remedy granted for a s. 11(a) infringement is an amendment  
to the information or count or an order for particulars with an adjournment of the trial  
and potentially an order for costs for the accused person. A stay of proceedings as  
a remedy for a s. 11(a) infringement would be rare and an exceptional remedy.  
[131] Although such motions to quash an information or count are rarely brought today  
by accused persons for a missing averment of an essential element of the offence,  
since there are broad powers of amendment or curative powers contained in both  
the Criminal Code and Provincial Offences Act to deal with defective informations  
77  
or counts which are missing an essential averment. Nevertheless, a motion to  
quash may be still brought by an accused and granted by the trial justice if proposed  
amendments would not remedy any prejudice or be made without injustice being  
done or an order for particulars to ensure affair trial would not satisfy the ends of  
justice.  
(i) Burden of proof to establish an infringement of s. 11(a) of  
the Charter  
[132] The defendants have the legal burden of proof on a balance of probabilities to  
establish that their right to be informed without delay of the specific offence that  
they have been charged with, as guaranteed under s. 11(a) of the Charter, has  
been infringed. If they fail to do so, then their motion will be dismissed as well as  
their motion for costs.  
(ii) Purpose Of The Protection Under S. 11(a)  
[133] Section 11(a) of the Charter provides that any person charged with an offence has  
the right to be informed without unreasonable delay of the specific offence:  
Proceedings in criminal and penal matters  
11. Any person charged with an offence has the right  
...  
(a) to be informed without unreasonable delay of the specific offence;  
[134] In R. v. Heit, [1984] S.J. No. 209, 31 Sask. R. 126, 11 C.C.C. (3d) 97, at para. 6,  
the Saskatchewan Court of Appeal reiterated that a proper accusation is an  
important protection to an accused. Moreover, the Saskatchewan Court of Appeal  
also indicated that a specific accusation presupposes a specific offence in law, so  
it would provide an opportunity at the outset for the accused to challenge the  
authority of the officials of the state to subject him to the criminal process. However,  
the Saskatchewan Court of Appeal reasoned that if no offence exists in law, then  
the accusation can be attacked and quashed, thereby terminating the proceeding.  
Moreover, the Saskatchewan Court of Appeal explained that it is important to  
specify the exact conduct which is said to constitute the offence, so that the accused  
would be aware of such details as the specific time and place, when and where the  
offence occurred, the manner in which it is alleged to have been committed and the  
identity of the victim, if any, so that he may prepare his defence. In addition, the  
Saskatchewan Court of Appeal held that the accusation provides another important  
protection to the accused by defining the scope of the proceedings against him  
[emphasis is mine below]:  
78  
In my opinion, the purpose behind section 11(a) of the Charter is admirably and  
succinctly summed up by Professor E. Ratushny in his article "The Role of the  
Accused in the Criminal Process" found in Canadian Charter of Rights and  
Freedoms (Tarnopolsky and Beaudoin) at pp. 351-352:  
Section 11(a) of the Charter also contains a specific right to a proper accusation:  
Any person charged with an offence has the right  
(a) to be informed without reasonable delay of the specific offence;  
The absence of any such protection in either the Canadian Bill of Rights or Bill C-  
60, had elicited the following comment:  
"However, there is no provision for protection with respect to a specific accusation. It is  
an extremely important protection to an accused in our legal system that he know the  
exact charge he is facing -- a specific accusation; otherwise you could have a fishing  
expedition -- people could be called before the court and an exploration could be made  
about general past conduct and a general inquisition into any aspect of the person's  
life. The specific accusation is what defines the range of relevance in a criminal  
proceeding and it tells the person what that person has to defend against. A historical  
analysis, which is provided in the material which I gave to you, indicates that the  
accusation is fundamental; it has been a part of the common law procedure in criminal  
law for a thousand years, whereas the right against self-incrimination is a relatively  
young child."  
The preamble to the statute abolishing the Star Chamber contains a specific  
reference to the failure of that body to provide this basic protection to the persons  
who came before it.  
It is easy to see why the requirement of a proper accusation is an important  
protection to an accused. A specific accusation presupposes a specific offence in  
law. It, therefore, provides an opportunity at the outset for the accused to challenge  
the authority of the officials of the state to subject him to the criminal process. If no  
offence exists in law, the accusation can be attacked and quashed, thereby  
terminating the proceeding.  
It is also important in specifying the exact conduct which is said to constitute the  
offence. The accused must be aware of such details as the specific time and place,  
when and where the offence occurred, the manner in which it is alleged to have  
been committed and the identity of the victim, if any, so that he may prepare his  
defence. It could be argued that s. 11(a) requires only that the "offence" be  
specified (for example, rape, robbery, etc.) since it makes no reference to  
identifying the details of the act or transaction. However, once again, to take such  
a narrow interpretation would render the protection a sham.  
The accused should also know his accuser so that he might be aware of any  
improper motives and bring legal action against that accuser if the prosecution is  
malicious.  
The accusation provides another important protection to the accused. It defines  
the scope of the proceedings against him. The evidence and argument must relate  
to the specific charge. It is generally not permissible, for example, to bring in  
evidence of other unlawful or immoral conduct on the part of the accused which  
does not relate to the accusation which he is facing. The accused is to be tried with  
respect to specific alleged misconduct and not for the kind of person he is.  
79  
[135] Furthermore, the Court of Appeal for Ontario held in R. v. Cisar, [2014] O.J. No 952,  
at paras. 11 to 15, that the analysis for "unreasonable delay" under s. 11(a) of the  
Charter is similar to the analysis used for s. 11(b) infringement claims, and should  
therefore consider the (1) length of the delay, (2) waiver of time periods, (3) the  
reasons for the delay and (4) prejudice to the accused, and where there is a lengthy  
delay, prejudice to fair trial rights may be presumed or inferred from the delay. In  
addition, the Court of Appeal held that s. 11(a) provides two forms of constitutional  
protection: the primary protection of s. 11(a) is notice of the specific offence while  
the second right protected by s. 11(a) is the right to be informed without  
unreasonable delay. In respect to the primary protection of s. 11(a), the Court of  
Appeal of Ontario explained that without notice of the specific offence an accused  
may be deprived of the ability to make full answer and defence, since an accused  
has to make decisions about their defence, assemble evidence and prepare to meet  
the prosecution case. As for the second form of protection under s. 11(a), the Court  
of Appeal explained that the object of the protection against unreasonable delay is  
also primarily to protect the right to make full answer and defence. Moreover, the  
Court of Appeal held that until an accused has been informed of the charge, it is  
only the right to a fair trial that is impacted by delay, and that the right to a fair trial  
is protected by attempting to ensure that proceedings take place while evidence is  
available and fresh. In addition, the Court of Appeal for Ontario also recognized  
that s. 11(a) supports the important element of the rule of law that an accused can  
only be charged with an offence known to law [emphasis is mine below]:  
Section 11(a) of the Charter guarantees a person charged with an offence the  
right "to be informed without unreasonable delay of the specific offence". The  
provision thus provides two forms of constitutional protection. The primary  
protection is notice of the specific offence. Without notice of the specific offence  
an accused may be deprived of the ability to make full answer and defence.  
Accused have the right to know with what they are charged so they can make  
decisions about their defence, assemble evidence and prepare to meet the  
prosecution case. This element of s. 11(a) is largely codified in s. 581 of the  
Criminal Code, which sets out the minimum requirements for sufficiency of an  
information: R. v. Cancor Software Corp. (1990), 74 O.R. (2d) 65 (C.A.) and R. v.  
Lucas (1983), 57 N.S.R. (2d) 159 (S.C. App. Div.). In the latter case, Jones J.A.  
referred to this court's pre-Charter decision in R. v. Toth, [1959] O.R. 137 (C.A.),  
which described as a "fundamental principle of our law that an indictment must  
charge an offence in such a manner as clearly to bring home to an accused an  
accurate knowledge of the offence with which he is charged". In Cancor, this court  
also referred to an article by E. Ratushny -- "The Role of the Accused in the  
Criminal Process" -- in W.S. Tarnopolsky & G.A. Beaudoin, eds., The Canadian  
Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982), at 352,  
which identifies another reason for this s. 11(a) guarantee. It supports the  
important element of the rule of law that an accused can only be charged with an  
offence known to law:  
A specific accusation presupposes a specific offence in law. It, therefore, provides  
an opportunity at the outset for the accused to challenge the authority of the  
officials of the state to subject him to the criminal process. If no offence exists in  
80  
law, the accusation can be attacked and quashed, thereby terminating the  
proceeding.  
The second right protected by s. 11(a) and the right in issue in this appeal is the  
right to be informed without unreasonable d delay. The content of this right must  
be considered in the context in which it is found. In my view, like the right to be  
informed of the specific offence, the object of the protection against unreasonable  
delay is also primarily to protect the right to make full answer and defence. This  
understanding of the objective of s. 11(a) is also consistent with the context  
provided by other parts of s. 11 of the Charter, particularly the related right to trial  
within a reasonable time in s. 11(b). The extensive case law considering s. 11(b)  
has identified the rights protected by that provision as (1) the right to security of  
the person; (2) the right to liberty, and (3) the right to a fair trial. In R. v. Morin,  
[1992] 1 S.C.R. 771, at p. 786, the court explained how those rights are protected:  
The right to security of the person is protected in s. 11(b) by seeking to minimize  
the anxiety, concern and stigma of exposure to criminal proceedings. The right to  
liberty is protected by seeking to minimize exposure to the restrictions on liberty  
which result from pre-trial incarceration and restrictive bail conditions. The right to  
a fair trial is protected by attempting to ensure that proceedings take place while  
evidence is available and fresh.  
Until an accused has been informed of the charge, it is only the right to a fair trial  
that is impacted by delay. If accused are not aware of the charge, they are not  
subject to the anxiety, concern and stigma of exposure to criminal proceedings  
and their liberty is not impacted.  
[136] In addition, prior to the Jordan analysis that is now used for s. 11(a) unreasonable  
delay Charter motions, the Supreme Court of Canada in R. v. Delaronde, [1997] 1  
S.C.R. 213, appears to have also approved of a form of analysis of s. 11(a) that is  
similar to the R. v. Morin, [1992] 1 S.C.R. 771 analysis for s. 11(b) infringement  
claims. The Delaronde case was an appeal from a decision of the Quebec Court  
of Appeal reported at (1996),115 C.C.C. (3d) 355. The Supreme Court in oral  
reasons had dismissed the accused's appeal based on the reasons of Otis J.A. at  
the Court of Appeal. However, Lamer C.J.C. subsequently issued a short  
addendum and left open the possibility that s. 11(a) may also protect against  
prejudice to economic interests for which s. 24(1) might provide remedies.  
Moreover, Lamer C.J.C. indicated at para. 5 of his addendum that, "Having charges  
pending against one can affect decisions one must make in one's life that are  
unrelated to the preparation of a defence."  
[137] This aspect of s. 11(a) is not an issue in the case at bar, but may be a factor that  
could be taken into consideration at the sentencing stage.  
[138] Moreover, in her reasons in Delaronde, Otis J.A. of the Quebec Court of Appeal  
held that delay under s. 11(a) should be analyzed using the same factors as under  
s. 11(b), namely: the length of the delay, waiver of time periods, the reasons for the  
delay and prejudice to the accused. Otis J.A. also indicated that the delay runs  
81  
from the date the charge was laid until the appellant was arrested and informed of  
the charge.  
[139] Furthermore, in R. v. Cancor Software Corp., (1990), 74 O.R. (2d) 65, the Court of  
Appeal for Ontario held that s. 11(a) of the Charter does not require that an  
individual be charged with an offence within a reasonable time of the Crown's  
having knowledge of the offence, but does require that once a charge is laid, the  
accused must be provided without unreasonable delay with the information  
necessary to enable the accused to proceed appropriately with their defence. In  
addition, the Ontario Court of Appeal held that once charges have been laid, the  
Crown can lay additional related charges at a later date without offending s. 11(a)  
[emphasis is mine below]:  
It is clear on the facts of this case that sufficient details were included both in the  
indictments under the I.T.A. and in the draft indictments under the Criminal Code  
to satisfy the provisions of s. 11(a) of the Charter. The real question in this case  
is whether or not once charges are laid with respect to a series of transactions,  
additional charges can be laid at a substantially later time, based on the same  
series of transactions, without offending the "unreasonable delay" provision in s.  
11(a) of the Charter.  
It is my opinion that the simple answer to that question is that s. 11(a) does not  
require that an individual be charged with an offence within a reasonable time of  
the Crown's having knowledge of the offence. It merely requires that once a  
charge is laid, the accused must be provided without unreasonable delay with the  
information necessary to enable him to proceed appropriately with his defence. In  
this case, there is no suggestion that such knowledge was not provided to the  
accused at the time they were made aware that Criminal Code charges were to  
be pursued against them.  
[140] Also, in R. v. Lucas (1983), 57 N.S.R. (2d) 159, 6 C.C.C. (3d) 147, at paras. 14 to  
22, the Nova Scotia Court of Appeal reiterated that s. 11(a) enshrines the  
fundamental principle of law that an indictment must charge an offence “in such a  
manner as to clearly bring home to the accused an accurate knowledge of the  
offence” with which he or she is charged. The Nova Scotia Court of Appeal also  
noted that s. 11(a) enshrines the rights contained in s. 510 [now s. 581] of the  
Criminal Code. Furthermore, in their analysis of s. 11(a), the Nova Scotia Court of  
Appeal considered the meaning of the word “specific” and the reasoning developed  
under the American Bill of Rights in which an accused person has the right "to be  
informed of the nature and cause of the accusation [emphasis is mine below]:  
Section 11(a) of the Charter goes on to require that the person charged has the  
right to be informed of the "specific offence". The reference is not simply to the  
"charge" but to the "specific offence". The word "specific" is defined in the Concise  
Oxford Dictionary (6th Ed.), as  
"Definite, distinctly formulated."  
82  
In Webster's New International Dictionary (2nd Ed.), as:  
"Precisely formulated or restricted, specifying; definite or making  
definite; explicit; of an exact or particular nature; as a specific  
statement."  
In Black's Law Dictionary (4th Ed. Rev.), the word is defined as  
"Precisely formulated or restricted; definite; explicit; of an exact or  
particular nature."  
Section 11(a) must be interpreted in the light of the law as it existed when the  
Charter was proclaimed. On April 17, 1982, when the Charter came into force, s.  
510(3) of the Code provided:  
"A count shall contain sufficient detail of the circumstances of the alleged offence  
to give to the accused reasonable information with respect to the act or omission  
to be proved against him and to identify the transaction referred to, but otherwise  
the absence or insufficiency of details does not vitiate the count."  
In R. v. Toth (1959), 29 C.R. 371, Schroeder, J.A., in delivering the judgment of  
the Ontario Court of Appeal, stated at p. 377:  
". . . It has always been a fundamental principle of our law that an indictment must  
charge an offence in such a manner as clearly to bring home to an accused an  
accurate knowledge of the offence with which he is charged. It has been  
recognized from the earliest times that an indictment or a count in an indictment  
should charge no more than one offence. In Rex v. Desjardins (1919), 45 C.C.C.  
100 at 101; 13 Can. Abr. 1189, reference is made to the remarks attributed to the  
late Taschereau, J., by way of comment upon the so-called curative sections of  
the Criminal Code. The words quoted are these:  
'Such are the rules that have heretofore been recognized in the framing of  
indictments. How far this Code alters them remains to be settled by the  
jurisprudence. But it must not be lost sight of that it is technical objections only that  
the Imperial Commissioners report as being put an end to by the Code. That every  
indictment must charge an offence and that every accused person is entitled to  
know what he is accused of, still remains the law, it must be assumed. . . .  
Parliament has undoubtedly the right to decree that such shall not be the law any  
longer but when they come to that determination the courts of the country will  
probably require that such determination be expressed in clear and unequivocal  
terms.'  
This fundamental right has been preserved in our criminal law as clearly appears  
from the wording of s. 492(1) (now s. 510(1)) of the Code, which provides that:  
'Each count in an indictment shall in general apply to a single transaction. . . .'"  
In R. v. Coté (1977), 13 N.R. 271; 33 C.C.C.(2d) 353, de Grandpré, J., in delivering  
the judgment of the majority in the Supreme Court of Canada, stated at p. 357, in  
referring to s. 510 of the Code:  
". . . I agree with the 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 fair trial."  
83  
It seems to me that it was precisely this right which Parliament intended to protect  
in the enactment of s. 11(a) of the Charter. In an article, Legal Rights under the  
Charter, 24 C.L.Q. 430, Professor Friedland, in referring to s. 11(a) states at p.  
442:  
"This requires the type of specific charge that criminal lawyers are familiar with,  
unlike the general information that must be conveyed to the person detained under  
s. 10."  
Under the American Bill of Rights an accused has the right "to be informed of the  
nature and cause of the accusation". The following passages from 41 Am Jur 2d  
summarize the American decisions:  
"69 It is the constitutional right of the accused, under the organic law of the nation  
and of the several states, 'to be informed of the nature and cause of the accusation'  
against him, and under these provisions, the accused is entitled to a plain  
statement of the charge against him.  
78 The constitutional right of the accused to be informed of the nature and cause  
of the accusation against him requires that every material fact and essential  
element of the offence be charged with precision and certainty in the indictment or  
information. He has a substantive right to be informed by the indictment or  
information in simple understandable language of the crime he is charged with and  
the acts constituting the crime, in sufficient detail to enable him to prepare his  
defence and to be protected in the event of double jeopardy."  
The following passage is from Vol. 1 of the text, How to Try a Federal Criminal  
Case, Mathews, Par. 214:  
"In U.S. v. Cruikshank (92 U.S. 542, 557, 558, 23 L ed 588) the Supreme Court  
said 'In criminal cases, prosecuted under the laws of the United States, the  
accused has the constitutional right 'to be informed of the nature and cause of the  
accusation'. Amend. Vl. In U.S. v. Mills, 7 Pet 142, this was construed to mean,  
that the indictment must set forth the offence 'with clearness and all necessary  
certainty, to apprise the accused of the crime with which he stands charged'; and  
in U.S. v. Cook, 17 Wall 174, that 'every ingredient of which the offence is  
composed must be accurately and clearly alleged'."  
The following passage is from 42 Corpus Juris Secundum 960:  
"Subject to the limitation that the legislature cannot qualify or amend constitutional  
requirements, such as that accused must be informed of the nature and cause of  
the accusation against him, it may prescribe the manner and form of stating the  
offense with which accused is charged; and in doing so it may dispense with  
technical formalities, abolish the [*page171] technical forms and verbiage of the  
ancient law, determine what information must be included in the written charge  
sufficiently to advise accused of the nature of the offense he must answer, and  
authorize the omission of averments regarded as necessary at common law. It  
cannot, however, provide such an abbreviated form as omits the character of the  
specific crime intended to be charged, or, it has been held, dispense with the  
necessity of placing therein a distinct presentation of the offense containing  
allegations of all its essential elements, although in some jurisdictions statutes  
expressly providing that specified essential elements of the offense charged need  
not be alleged have been held valid."  
84  
It should be noted that s. 11(a) of the Charter is more specific than the provision  
of the American Bill of Rights. The Charter has expressed in language what the  
American provision has come to mean through interpretation by the courts over  
many years.  
[141] Moreover, in R. v. Cancor Software Corp. (1990), 74 O.R. (2d) 65 (leave to appeal  
to S.C.C. refused, 61 C.C.C. (3d) vi), the Court of Appeal for Ontario, considered  
the right guarantee under s. 11(a) of the Charter and held that once a charge is laid,  
the accused must be provided without unreasonable delay with the information  
necessary to enable him to proceed appropriately with his defence. Moreover, the  
Court of Appeal also stated that in specifying the exact conduct which is said to  
constitute the offence, the accused must be made of aware of such details as the  
specific time and place, when and where the offence occurred, the manner in which  
it is alleged to have been committed and the identity of the victim, if any, so that he  
may prepare his defence. The Court of Appeal also agreed that accused persons  
must be informed promptly and in detail in a language which they understand of the  
nature and cause of the charge against them. Furthermore, the Court of Appeal  
also agreed with the words of Linden J. in the case of Re Warren (1983), 6 C.R.R.  
82, 35 C.R. (3d) 173 (Ont. H.C.J.), at pp. 176-77 C.R., in which Linden J. had  
commented that the words "nature and cause of the charge" do not include the  
mode of procedure to be employed in prosecuting the offence and that the right to  
be informed of the "specific offence" means the right to be informed of the  
substantive offence and the acts or conduct which allegedly form the basis of that  
charge, but that the right does not give an accused the right to be informed of how  
the Crown will exercise its discretion with respect to the manner of prosecution.  
Furthermore, the Court of Appeal also held that s. 11(a) does not require that an  
individual be charged with an offence within a reasonable time of the Crown's  
having knowledge of the offence [emphasis is mine below]:  
Counsel for the appellants submits that s. 11(a), by its terms, "demands both  
temporal and procedural fairness to the accused once he has been charged with  
a criminal offence" and "requires the prosecutor to draft the information and  
indictment in such a way to convey to the accused both the substantive offence  
with which he is charged and the actual conduct which is complained of". In support  
of this contention he cites Re Warren (1983), 6 C.R.R. 82, 35 C.R. (3d) 173 (Ont.  
H.C.J.), at pp. 176-77 C.R.  
In that case, Linden J. quotes from an article by Ed Ratushny, "The Role of the  
Accused in the Criminal Process (ss. 10(a) and (b), 11(a), (c) and (d), and 13)",  
chapter 11, pp. 335-66 in The Canadian Charter of Rights and Freedoms:  
Commentary (Toronto: Carswell, 1982), edited by Walter S. Tarnopolsky and  
Gerald-A. Beaudoin, and he also quotes the International Covenant on Civil and  
Political Rights, 999 U.N.T.S. 171 (1966), Article 14(3) [1 C.R.R. 19 at p. 24]. Those  
quotations bear repetition. Professor Ratushny states at p. 352:  
It is easy to see why the requirement of a proper accusation is an important  
protection to an accused. A specific accusation presupposes a specific offence in  
85  
law. It, therefore, provides an opportunity at the outset for the accused to challenge  
the authority of the officials of the state to subject him to the criminal process. If no  
offence exists in law, the accusation can be attacked and quashed, thereby  
terminating the proceeding.  
It is also important in specifying the exact conduct which is said to constitute the  
offence. The accused must be aware of such details as the specific time and place,  
when and where the offence occurred, the manner in which it is alleged to have  
been committed and the identity of the victim, if any, so that he may prepare his  
defence. It could be argued that s. 11(a) requires only that the "offence" be  
specified (for example, rape, robbery, etc.) since it makes no reference to  
identifying the details of the act or transaction. However, once again, to take such  
a narrow interpretation would render the protection a sham.  
The accused should also know his accuser so that he might be aware of any  
improper motives and bring legal action against the accuser if the prosecution is  
malicious.  
The accusation provides another important protection to the accused. It defines  
the scope of the proceedings against him. The evidence and argument must relate  
to the specific charge. It is generally not permissible, for example, to bring in  
evidence of other unlawful or immoral conduct on the part of the accused which  
does not relate to the accusation which he is facing. The accused is to be tried with  
respect to specific alleged misconduct and not for the kind of person he is.  
Article 14(3) of the International Covenant on Civil and Political Rights reads in  
part:  
3. In the determination of any criminal charge against him, everyone shall be  
entitled to the following minimum guarantees, in full equality:  
(a) To be informed promptly and in detail in a language which he  
understands of the nature and cause of the charge against him ...  
Justice Linden states [in Warren], at p. 86 C.R.R., p. 177 C.R.:  
Surely the words "nature and cause of the charge" do not include the mode of  
procedure to be employed in prosecuting the offence. Since the Parliament of  
Canada is presumed not to act in violation of its international obligations, s. 11(a)  
of the Charter should be construed in a manner consistent with art. 14 of the  
Covenant. As a result, I must conclude that the right to be informed of the "specific  
offence" means the right to be informed of the substantive offence and the acts or  
conduct which allegedly form the basis of that charge. It does not give an accused  
the right to be informed of how the Crown will exercise its discretion with respect  
to the manner of prosecution.  
I agree with the words quoted above from submissions of counsel for the appellants  
and from the words of Linden J. in the Warren case. However, that takes us no  
further than finding that s. 11(a) of the Charter requires what is also required by s.  
581 [am. R.S.C. 1985, c. 27 (1st Supp.), s. 118] of the Criminal Code and its  
predecessor sections which were in place prior to the coming into force of the  
Charter. Many provisions in the Charter are merely confirmatory of rights which  
86  
already existed in the laws of this country. Whether s. 11(a) of the Charter goes  
further in requiring additional information such as the name of the accuser, as  
suggested by Professor Ratushny in his article, it is not necessary to decide in this  
case as it is obvious, given the nature of the charges under both the I.T.A. and the  
Criminal Code that the Crown is the accuser in this case.  
…
It is my opinion that the simple answer to that question is that s. 11(a) does not  
require that an individual be charged with an offence within a reasonable time of  
the Crown's having knowledge of the offence. It merely requires that once a charge  
is laid, the accused must be provided without unreasonable delay with the  
information necessary to enable him to proceed appropriately with his defence. In  
this case, there is no suggestion that such knowledge was not provided to the  
accused at the time they were made aware that Criminal Code charges were to be  
pursued against them.  
(iii) Infringement Of S. 11(a) Where There Is Economic  
Prejudice To An Accused Person  
[142] In R. v. Delaronde, [1997] 1 S.C.R. 213 (S.C.C.), at paras. 1-3, and 5, Lamer, C.J.  
emphasized that the Supreme Court had fully agreed with the decision of the  
Quebec Court of Appeal in [1996] Q.J. No. 535 (Que. C.A.) in regard to s. 11(a) of  
the Charter, but he had also wanted to add an addendum to the Supreme Court’s  
oral decision that had upheld the Quebec Court of Appeal’s decision. In his  
addendum, Lamer C.J. opined that s. 11(a) could still be infringed even if an  
accused’s fair trial interest and ability to make full answer and defence had not been  
breached, if the accused could prove economic prejudice as a direct result of the  
unreasonable delay in being informed of the specific offence for which they are  
charged. Moreover, Lamer C.J. noted that for economic prejudice it should be open  
to an accused person to rely on the infringement of the right protected by s. 11(a)  
of the Charter and to apply to the appropriate court for a remedy under s. 24(1).  
Furthermore, Lamer C.J. also opined that the remedies available under s. 24(1) of  
the Charter for an infringement of the right guaranteed by s. 11(a) should not be  
limited to prejudice resulting from a breach of the right to a fair trial, since accused  
persons have the right to be informed rapidly of the charges against them so that  
they can make important decisions relating to, among other things, their  
professional or family life [emphasis is mine below]:  
The purpose of my addendum is to leave open the possibility of finding an  
infringement of s. 11(a) of the Charter for prejudice other than that resulting from a  
breach of the right to make full answer and defence, thus making certain remedies  
available under s. 24(1) of the Charter.  
The Court concurred with the Court of Appeal’s decision ([1996] R.J.Q. 591) in the  
present case. While I am in complete agreement with that decision, I wish to add  
a comment to Otis J.A.’s decision in order to ensure that a person alleging an  
infringement of his or her right protected by s. 11(a) of the Charter on the basis of  
economic prejudice will not be limited in the choice of remedies under s. 24(1). I  
87  
point out that Mr. Delaronde’s claim for a s. 24(1) remedy was based exclusively  
on a breach of his right to a fair trial.  
Otis J.A. held that the sole purpose of s. 11(a) of the Charter is to protect the right  
of a person charged with an offence to a fair trial. On the basis of her reasoning,  
persons charged with an offence who fail to show that their ability to prepare a  
defence has been prejudiced as a result of the length of the delay in informing them  
of the specific offence will be denied a remedy under s. 24(1) of the Charter.  
However, I believe that apart from any breach of the right to a fair trial, a person  
charged with an offence could rely on an infringement of his or her s. 11(a) right  
where economic prejudice is proven. With respect, I do not think an infringement  
of s. 11(a) of the Charter is limited solely to a breach of the right to a fair  
trial. Accused persons have the right to be informed rapidly of the charges against  
them so that they can make important decisions relating to, among other things,  
their professional or family life. If such decisions lead to economic prejudice as a  
direct result of unreasonable delay in informing them of the specific offence with  
which they are charged, it should be open to them to rely on the infringement of  
the right protected by s. 11(a) of the Charter and to apply to the appropriate court  
for a remedy under s. 24(1).  
…
In writing this addendum, I wished to present my view that the remedies available  
under s. 24(1) of the Charter for an infringement of the right guaranteed by s. 11(a)  
should not be limited to prejudice resulting from a breach of the right to a fair trial.  
Having charges pending against one can affect decisions one must make in one’s  
life that are unrelated to the preparation of a defence.  
(iv) How Should Notice Of The Specific Offence Be Provided To  
An Accused Person To Satisfy S. 11(a) Of The Charter?  
[143] The defendants contend that they cannot receive a fair trial or be able to make full  
answer and defence because the prosecution has failed to provide particulars of  
the specific offence or has refused to provide the requested particulars to them. On  
the other hand, the prosecution submits that they have provided particulars orally  
to the defendants’ legal representative during the Judicial Pre-Trial Conference and  
that the details and circumstances of the specific offence have been provided to the  
defendants through the Provincial Offences Officer and through the fulsome  
disclosure provided to the defendants on 2 occasions and in the Certificate Letter  
provide to the defendants.  
(A) Notice of the specific offence may be provided  
through many informal methods for the purposes of  
s. 11(a)  
[144] The right to be informed under s. 11(a) only arises once a person has been charged  
with an offence: R. v. Heit, [1984] S.J. No. 209 (Sask. C.A.); R. v. Cancor Software  
Corp., [1990] O.J. No. 1287 (Ont. C.A.). More importantly, service of a summons,  
88  
information notice or execution of an arrest warrant will meet the notification  
requirement in s. 11(a). Furthermore, the notification requirement does not require  
a formal information process, and that informal methods such as communication by  
fax or telephone will also suffice, so long as it is established that the information  
was properly received: R. v. Delaronde, [1996] Q.J. No. 535 (Que. C.A.), aff'd [1997]  
S.C.J. No. 8. In other words, satisfying the notice requirement for s. 11(a) does not  
require formal particulars in writing. Providing written particulars is only one method  
to provide the details and circumstances of a specific offence to an accused person.  
(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 for the purposes of s. 11(a)  
of the Charter?  
[145] Section 11(a) of the Charter requires that an accused person be informed of the  
specific offence without delay for which they are charged upon being charged with  
an offence.  
[146] The right under s. 11(a) of the Charter states that the information about the specific  
offence has to be provided to the accused person without delay upon the accused  
person being charged. The Supreme Court of Canada has accepted Otis J.A.’s  
reasoning in R. v. Delaronde, [1996] Q.J. No. 535 (Que. C.A.), aff’d [1997] 1 S.C.R.  
213 (S.C.C.), that the analysis for determining whether the delay in informing the  
accused of the specific offence is unreasonable is similar to the s. 11(b) analysis  
for unreasonable delay developed by the Supreme Court of Canada in R. v. Morin,  
[1992] 1 S.C.R. 771.  
[147] Furthermore, the calculation of time to determine if a delay is unreasonable for the  
purposes of s. 11(a) begins at the time the charge is laid and ends at the time the  
person is informed of the offence: R. v. F.J.H., [1993] A.J. No. 7 (Alta. C.A.).  
Moreover, delay must be assessed according to the circumstances of each case.  
In particular, the delay may be so short that it is manifest that s. 11(a) was not  
infringed, or conversely, it may be manifest that s. 11(a) was infringed in cases of  
egregious delay: R. v. Delaronde, [1996] Q.J. No. 535 (Que. C.A.), aff'd [1997]  
S.C.J. No. 8.  
[148] Therefore, as confirmed by the Court of Appeal of Ontario in R. v. Cisar, [2014] O.J.  
No 952, the delay runs from the date the charges were laid until the accused is  
informed of the charges.  
89  
[149] For the defendants’ case there is no evidence that would support a finding of actual  
or inferred prejudice due to any unreasonable delay for the defendants to be  
informed of the 4 charges that would impact on the defendant's right to a fair trial  
on account of evidence being available and fresh, on account of witness credibility,  
or on account of the defendant's ability to cross-examine witnesses. The  
prosecution also submitted that the defendants were informed of the circumstances  
of the wrongful event which comprises the 4 charges by the Investigating Provincial  
Offences Officer, through the Certificate Letter and through the disclosure that had  
been provided on or about December 9, 2020 to the defendants prior to the  
defendants making their first appearance on April 12, 2021  
[150] In R. v. Cisar, [2014] O.J. No. 952, at pars. 11 to 16, Rosenberg J.A. for the Court  
of Appeal for Ontario held that s. 11(a) of the Charter provides two forms of  
constitutional protection. For the primary protection, Rosenberg J.A. noted that s.  
11(a) provides an accused with notice of the specific offence. He emphasized that  
without notice of the specific offence an accused may be deprived of the ability to  
make full answer and defence. Moreover, Rosenberg J.A. reasoned that accused  
persons have the right to know what they are charged with so that they can make  
decisions about their defence, assemble evidence and prepare to meet the  
prosecution’s case. For the second right protected by s. 11(a), Rosenberg J.A.  
noted that an accused person has the right to be informed of the specific offence  
without delay, where unreasonable delay would prejudice the accused person’s  
right to a fair trial. Furthermore, Rosenberg J.A. held that the content of this right  
must be considered in the context in which it is found and like the right to be  
informed of the specific offence, the object of the protection against unreasonable  
delay is also primarily to protect the right to make full answer and defence. In  
addition, Rosenberg J.A. had also noted that the Supreme Court of Canada in R. v.  
Delaronde had appeared to have approved of a form of analysis of s. 11(a) that is  
similar to s. 11(b) analysis for determining the second right protected by s. 11(a)  
[emphasis is mine below]:  
Section 11(a) of the Charter guarantees a person charged with an offence the right  
"to be informed without unreasonable delay of the specific offence". The provision  
thus provides two forms of constitutional protection. The primary protection is  
notice of the specific offence. Without notice of the specific offence an accused  
may be deprived of the ability to make full answer and defence. Accused have the  
right to know with what they are charged so they can make decisions about their  
defence, assemble evidence and prepare to meet the prosecution case. This  
element of s. 11(a) is largely codified in s. 581 of the Criminal Code, which sets out  
the minimum requirements for sufficiency of an information: R. v. Cancor Software  
Corp. (1990), 74 O.R. (2d) 65 (C.A.) and R. v. Lucas (1983), 57 N.S.R. (2d) 159  
(S.C. App. Div.). In the latter case, Jones J.A. referred to this court's pre-Charter  
decision in R. v. Toth, [1959] O.R. 137 (C.A.), which described as a "fundamental  
principle of our law that an indictment must charge an offence in such a manner as  
clearly to bring home to an accused an accurate knowledge of the offence with  
which he is charged". In Cancor, this court also referred to an article by E. Ratushny  
-- "The Role of the Accused in the Criminal Process" -- in W.S. Tarnopolsky & G.A.  
90  
Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary  
(Toronto: Carswell, 1982), at 352, which identifies another reason for this s. 11(a)  
guarantee. It supports the important element of the rule of law that an accused can  
only be charged with an offence known to law:  
A specific accusation presupposes a specific offence in law. It, therefore, provides an  
opportunity at the outset for the accused to challenge the authority of the officials of the  
state to subject him to the criminal process. If no offence exists in law, the accusation  
can be attacked and quashed, thereby terminating the proceeding.  
The second right protected by s. 11(a) and the right in issue in this appeal is the  
right to be informed without unreasonable delay. The content of this right must be  
considered in the context in which it is found. In my view, like the right to be  
informed of the specific offence, the object of the protection against unreasonable  
delay is also primarily to protect the right to make full answer and defence. This  
understanding of the objective of s. 11(a) is also consistent with the context  
provided by other parts of s. 11 of the Charter, particularly the related right to trial  
within a reasonable time in s. 11(b). The extensive case law considering s. 11(b)  
has identified the rights protected by that provision as (1) the right to security of the  
person; (2) the right to liberty, and (3) the right to a fair trial. In R. v. Morin, [1992]  
1 S.C.R. 771, at p. 786, the court explained how those rights are protected:  
The right to security of the person is protected in s. 11(b) by seeking to minimize the  
anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is  
protected by seeking to minimize exposure to the restrictions on liberty which result from  
pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected  
by attempting to ensure that proceedings take place while evidence is available and  
fresh.  
Until an accused has been informed of the charge, it is only the right to a fair trial  
that is impacted by delay. If accused are not aware of the charge, they are not  
subject to the anxiety, concern and stigma of exposure to criminal proceedings and  
their liberty is not impacted.  
The Supreme Court of Canada in R. v. Delaronde, [1997] 1 S.C.R. 213, appears  
to have approved of a form of analysis of s. 11(a) that is similar to s. 11(b) analysis.  
Delaronde was an appeal from a decision of the Quebec Court of Appeal reported  
at [1996] R.J.Q. 591. An English translation of the Court of Appeal's decision is  
reported at 115 C.C.C. (3d) 355. The Supreme Court of Canada in oral reasons  
dismissed the accused's appeal for the reasons of Otis J.A. in the Court of Appeal.  
Later, Lamer C.J.C. in a short addendum left open the possibility that s. 11(a) may  
also protect against prejudice to economic interests for which s. 24(1) might  
provide remedies. As he said at para. 5: "Having charges pending against one can  
affect decisions one must make in one's life that are unrelated to the preparation  
of a defence." This aspect of s. 11(a) is not an issue in this case, except as a factor  
the trial judge took into consideration at sentencing.  
In her reasons in Delaronde, Otis J.A. held that delay under s. 11(a) should be  
analyzed using the same factors as under s. 11(b), namely: the length of the delay,  
waiver of time periods, the reasons for the delay and prejudice to the accused. The  
findings of fact by the trial judge in this case have simplified the analysis. The delay  
runs from the date the charge was laid until the appellant was arrested and  
91  
informed of the charge; that is, from April 30, 1999 to August 24, 2007, over eight  
years. …  
The significant issue in this case is whether the appellant was prejudiced by the  
delay. In my view, prejudice in this respect relates to prejudice to the right to a fair  
trial. A subsidiary issue is whether there must be actual prejudice or whether  
prejudice can be inferred. This second issue is important in this case because the  
trial judge found that there was no actual prejudice. I will briefly consider the  
question of actual prejudice and then turn to the question of inferred prejudice.  
(vi) Is A Stay Of Proceedings An Appropriate Remedy For A  
Breach Of S. 11(a)?  
[151] The defendants are seeking under s. 24(1) of the Charter a stay of proceedings and  
an order for costs in favor of the defendants and against the Crown, if the  
defendants’ s. 11(a) rights have been infringed. However, since a stay of  
proceedings should only be granted in the clearest of cases, are there lesser  
remedies that are available for a breach of s. 11(a), such as an order for particulars  
along with an adjournment and an order for costs?  
(A) a stay should only be granted as a last resort  
[152] In R. v. Tohl, [2009] O.J. No. 2370, 2009 ONCA 468, at para. 2, the Court of Appeal  
for Ontario confirmed the principle that a stay should only be granted as a last resort  
where there is no other adequate remedy or where there is irreparable prejudice.  
Furthermore, the Court of Appeal indicated that in some cases prejudice can be  
remedied by either an adjournment or declaration of a mistrial [emphasis is mine  
below]:  
It is well-established that a stay should only be granted as a last resort where there  
is no other adequate remedy or irreparable prejudice. In the circumstances of this  
case, there was no evidence of prejudice that could not be remedied by either an  
adjournment or declaration of mistrial. Trial counsel did not indicate to the trial  
judge that the admission made by the appellant would not have been made had  
there been timely disclosure of the telewarrant documents. Moreover, even if that  
were the case, any prejudice resulting there from could have been met by allowing  
the appellant to withdraw the admissions and proceed, either with the trial that had  
started or with a new trial after declaration of a mistrial.  
[153] Furthermore, in R. v. Johnson, [2007] O.J. No. 2228, at paras. 10 to 13, the Court  
of Appeal for Ontario confirmed that the onus to prove irremediable prejudice in  
order for a stay of proceedings to be granted is on the party seeking the stay of  
proceedings [emphasis is mine below]:  
While the trial judge had the discretion to decide a motion such as this before trial,  
he was required to exercise that discretion in accordance with the appropriate  
principles. Professor David Paciocco in his work entitled "The Stay of Proceedings  
92  
as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept" (1991)  
15 Crim. L.J. 315 at 340-41 sets out two criteria relating to prejudice that should  
be fulfilled in order for a stay of proceedings to be granted:  
1. the prejudice caused by the abuse in question will be manifested,  
perpetuated or aggravated through the conduct of the trial, or by its  
outcome; and  
2. no other remedy is reasonably capable of removing that prejudice.  
These criteria were adopted by the Supreme Court of Canada in R. v. O'Connor,  
[1995] 4 S.C.R. 411 at para. 75.  
The onus was on the respondent to establish prejudice. On the record before the  
trial judge, it was not shown that the prejudice was manifest or aggravated. The  
evidence of prejudice was almost entirely speculative. It was impossible to know  
whether Kevin Dickie, if interviewed further or called as a witness, could have  
provided details of the phone calls that would have assisted the defence. The  
police interview was not thorough enough to canvass his memory so as to provide  
any certainty in this regard.  
Moreover, there was no reason for the trial judge to order a stay of proceedings at  
the outset of the trial, rather than allowing it to proceed and assessing the issue of  
possible prejudice at its conclusion. Indeed, the cases point out that the remedy of  
a stay for an abuse of process should be exercised only rarely. It is clearly  
desirable that cases be decided on their merits, if possible.  
Thus, in our view, the trial judge should not have stayed the charges upon the  
record before him.  
(h) HAVE THE DEFENDANTS BEEN MADE AWARE OF THE  
CIRCUMSTANCES AND DETAILS OF THE UNDERLYING  
TRANSACTION OF THE SPECIFIC OFFENCE?  
[154] The defendants contend that they do not know the specific event or circumstances  
of the offences that they allegedly committed, as the 4 counts in the information do  
not state what is the “wrongful use” that is not permitted on the land in question that  
they had supposedly engaged in on the dates of the alleged 4 offences, which would  
contravene s. 11.1 of the Zoning Bylaw #2006-50. In other words, the defendants  
contend the 4 counts are missing an averment of an essential element of the  
offence.  
[155] On the other hand, the prosecution contends that the defendants have been  
informed of the substance and circumstances of the act or omission or event that  
would contravene s. 11.1 of the Zoning Bylaw by the bylaw officer, by the  
information contained in the disclosure provided to the defendants and the  
defendants’ legal representative, and by the particulars that the prosecution had  
93  
provided orally to the defendants’ legal representative during the Judicial Pre-Trial  
Conference.  
(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?  
[156] In R. v. Delaronde, [1996] Q.J. No. 535 (Que. C.A.), which was upheld by the  
Supreme Court of Canada, Otis J.A. for the Quebec Court of Appeal held at paras.  
32 to 33, that the Crown’s obligation under s. 11(a) to inform an accused of the  
offence for which they are charged could be met by the execution of an arrest  
warrant or other modes for commencing legal action that are set out in ss. 504 to  
514 of the Criminal Code, such as a summons issued by the court or an appearance  
notice or an undertaking issued by a police officer. In addition, Otis J.A., found that  
the Crown’s obligation to inform could be met by other means of communication as  
well, since 11(a) of the Charter does not impose any particular formality on how the  
information is to be communicated or provided to an accused person. As an  
example of these other means, Otis J.A., suggested that remote communication  
(telephone or fax) methods could even be used in informing an accused of the  
offence, but only as long as evidence that the information was received by the  
accused person is provided by the Crown [emphasis is mine below]:  
Section 11(a) of the Charter enshrines the right of an accused to be "informed" of  
the offence of which he or she is accused. The execution of the arrest warrant  
certainly meets the obligation of the Crown, in an optimum way. However, that  
obligation could be met by means other than the modes for commencing legal  
action as set out in Criminal Code ss. 504 to 514.  
Section 11(a) of the Charter does not impose any particular formality on how the  
information is provided: it simply requires that the accused be informed of the  
specific offence. Remote communication (telephone or fax) methods could even  
be used, but only as long as evidence that the information was received by the  
accused is provided by the Crown. The considerable reduction in the resources  
available to the administrative authorities, plus the increase in the volume of  
criminal transactions, make the use of these remote communication methods  
justifiable.  
[157] There is indeed no formal way or a statutory provision which directs how the details  
of the circumstances or underlying transaction of a specific offence is to be  
communicated to the accused person charged with an offence for the purposes of  
satisfying the informational component of s. 11(a) of the Charter, as s. 11(a) does  
not set out a specific method for conveying information about the specific offence  
to an accused person upon being charged with an offence to satisfy s. 11(a). Thus,  
any reasonable manner to convey the required notification of the specific offence to  
the accused person would satisfy the notification requirement of s. 11(a), as long  
94  
as the Crown or prosecution demonstrate that such notification of the required  
information has been fulfilled without delay.  
[158] Accordingly, there is no formal way for the Crown or prosecution to fulfill their  
obligation to inform an accused person of the specific offence for which they are  
charged for the purposes of s. 11(a) of the Charter. Ergo, the notification  
requirement can be accomplished by executing an arrest warrant and then  
informing the accused person of the specific offence or the accused person can be  
served personally with an offence notice or summons or the information about the  
circumstances or details of the underlying transaction of the specific offence can be  
communicated or provided to an accused person in writing, or by telephone, email,  
or fax, or communicated orally, which is followed by proof that such notice of the  
information had been given to the accused person.  
(ii) What Information In Respect To The Specific Offence  
Has To Be Provided By The Crown Or Prosecution To  
An Accused Person?  
[159] For a regulatory or provincial offences in Ontario, the general legal requirements of  
what is to be included in a count and what makes a count legally sufficient is  
governed by s. 25 of the Provincial Offences Act, R.S.O. 1990, c. P.33. First, s.  
25(2) indicates that a count is legally sufficient if it contains in substance a statement  
that the defendant committed an offence therein specified. However, s. 25(3) also  
provides that where in a count an offence is identified, but the count fails to set out  
one or more of the essential elements of the offence, then an expressed reference  
to the provision creating or defining the offence shall be deemed to incorporate all  
the essential elements of the offence. Moreover, the statement setting out the  
offence in a count may be in popular language without technical averments or  
allegations of matters that are not essential to be proved; in the words of the  
enactment that describes the offence; or in words that are sufficient to give to the  
defendant notice of the offence with which the defendant is charged. Despite the  
lessening of the requirement for a count to strictly include all essential elements of  
an offence in the statement of offence under the statutory provisions of s. 25 that  
would have invalidated a count in the past, s. 25(6) still requires that a count shall  
contain sufficient detail of the circumstances of the alleged offence to give to the  
defendant reasonable information with respect to the act or omission to be proved  
against the defendant and to identify the transaction referred to. But, under s. 25(7)  
there is a list of details or essential elements that will not make a count legally  
insufficient by reason of the absence of those details. In particular, s. 25(7)(f) states  
that no count in an information is legally insufficient by reason of the absence of  
details where, in the opinion of the court, the count otherwise fulfils the requirements  
of s. 25 and that no count in an information is legally insufficient by reason only that  
it does not specify the means by which the alleged offence was committed  
[emphasis is mine below]:  
Counts  
95  
25(1) Each offence charged in an information shall be set out in a separate count.  
Allegation of offence  
(2) Each count in an information shall in general apply to a single transaction  
and shall contain and is sufficient if it contains in substance a statement  
that the defendant committed an offence therein specified.  
(3) Where in a count an offence is identified but the count fails to set out one  
or more of the essential elements of the offence, a reference to the  
provision creating or defining the offence shall be deemed to incorporate  
all the essential elements of the offence.  
(4) The statement referred to in subsection (2) may be,  
(a) in popular language without technical averments or allegations of  
matters that are not essential to be proved;  
(b) in the words of the enactment that describes the offence; or  
(c) in words that are sufficient to give to the defendant notice of the  
offence with which the defendant is charged.  
…
Particulars of count  
(6) A count shall contain sufficient detail of the circumstances of the alleged  
offence to give to the defendant reasonable information with respect to the  
act or omission to be proved against the defendant and to identify the  
transaction referred to.  
Sufficiency  
(7) No count in an information is insufficient by reason of the absence of details  
where, in the opinion of the court, the count otherwise fulfils the  
requirements of this section and, without restricting the generality of the  
foregoing, no count in an information is insufficient by reason only that,  
(a) it does not name the person affected by the offence or intended or  
attempted to be affected;  
(b) it does not name the person who owns or has a special property or  
interest in property mentioned in the count;  
(c) it charges an intent in relation to another person without naming or  
describing the other person;  
(d) it does not set out any writing that is the subject of the charge;  
(e) it does not set out the words used where words that are alleged to  
have been used are the subject of the charge;  
96  
(f) it does not specify the means by which the alleged offence was  
committed;  
(g) it does not name or describe with precision any person, place, thing  
or time; or  
(h) it does not, where the consent of a person, official or authority is  
required before proceedings may be instituted for an offence, state  
that the consent has been obtained.  
[160] Ergo, if a count is found to be legally sufficient by virtue of s. 25, it is not a nullity or  
void ab initio. However, if the count is factually insufficient by failing to provide  
sufficient detail of the alleged specific offence to give to the accused person  
reasonable information with respect to the act or omission to be proved against the  
accused person and to identify the transaction referred to, then it is a voidable count  
which can be amended or cured with particulars if there is no prejudice to the  
accused person and it would satisfy the ends of justice.  
(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?  
[161] Abella J. in R. v. R. (G.), [2005] S.C.J. No. 45, [2005] 2 S.C.R. 371 (S.C.C.), at  
paras. 62 to 64, emphasized that the ability of an accused to make full answer and  
defence depends not only on the wording of the indictment, but also on the  
information indisputably known to the accused. Abella J. further indicated that the  
current state of the law with respect to the sufficiency of an indictment or information  
was articulated by Cory J. in R. v. Douglas, [1991] 1 S.C.R. 301, in which Cory J.  
concluded that the sufficiency of notice would be based on the particular accused  
and circumstances, and 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. Moreover, Abella J. reasoned that whether an indictment is sufficient  
will depend on the offence charged and the facts of the case. [emphasis is mine  
below]:  
The current state of the law with respect to the sufficiency of an indictment or  
information was articulated by Cory J. in R. v. Douglas, [1991] 1 S.C.R. 301. It  
confirms that the sufficiency of notice is examined based on the particular accused  
and circumstances:  
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 [page398] and to enable the accused to identify the transaction so as to  
permit the adequate preparation of the defence. Whether an indictment is sufficient  
97  
will depend on the offence charged and the facts of the case. [Emphasis added; p.  
314.]  
He cited with approval, at pp. 313-14, the decision of Krever J.A. in Re Regina and  
R.I.C. (1986), 32 C.C.C. (3d) 399 (Ont. C.A.), at p. 403, adopting R. E. Salhany,  
Canadian Criminal Procedure (4th ed. 1984), at p. 214:  
Whether or not the charge contains sufficient details to give the accused  
reasonable information and to identify the transaction referred to will depend upon  
the facts of each case and the nature of the charge.  
Krever J.A. had held that "[t]he information possessed by the accused otherwise  
than through the language of the count in question was also relevant" (p. 404). The  
ability of an accused to make full answer and defence, in other words, depends not  
only on the wording of the indictment, but on the information indisputably known to  
the accused.  
[162] Therefore, the ability of an accused to make full answer and defence will depend  
not only on the wording of the indictment or charging document, but also on the  
information indisputably known to the accused.  
(iv) Does Providing Disclosure Satisfy The Problem Of The  
Factual Insufficiency Of A Generally-Worded Count?  
[163] The prosecution submits that one of the ways that the defendants were informed of  
the factual transaction that amounts to the alleged wrongdoing that contravenes s.  
11.1 of the Zoning Bylaw had been through information contained in the disclosure  
package provided to the defendants. In that respect, does information provided in  
the disclosure package provided to an accused satisfy the informational component  
of the right protected under s. 11(a) of the Charter?  
[164] In R. v. Robinson, [2001] O.J. No. 1072, at para. 23, the Court of Appeal for Ontario  
in considering the sufficiency of the wording of the charges in an indictment as  
legally required by s. 581(3) of the Criminal Code, explained that whether an  
indictment or a count in an indictment meets the sufficiency requirement of s. 581(3)  
depends on the facts and circumstances of each case. In determining whether the  
transaction has been sufficiently identified the court will look not just at the wording  
of the indictment, but also at the other material in the possession of the accused,  
such as Crown disclosure and the evidence called at the preliminary inquiry, if there  
was one [emphasis is mine below]:  
Whether an indictment or a count in an indictment meets the sufficiency  
requirement in this subsection depends on the facts and circumstances of each  
case. In determining whether the transaction has been sufficiently identified the  
court will look not just at the wording of the indictment but also at the other material  
in the possession of the accused such as Crown disclosure and the evidence  
called at the preliminary inquiry, if there was one: Re Regina and R.I.C. (1986), 32  
98  
C.C.C. (3d) 399 (Ont. C.A.); R. v. Ryan (1985), 23 C.C.C. (3d) 1 (Ont. C.A.). The  
problem in this case is that with all the material in his possession, the appellant  
could not know which of the various alleged criminal acts related to which counts  
in the indictment. The complainant alleged many acts capable of constituting  
assault, sexual assault and unlawful confinement that occurred at different times  
and in different places.  
[165] Furthermore, in R. v. Violette, [2008] B.C.J. No. 2776 (B.C. Supreme Ct.), Romilly  
J. at paras. 50 to 51, in considering a motion for an order for particulars brought by  
the accused person, found that the indictment had contained sufficient detail of the  
circumstances of the alleged offences to identify the transactions referred to, and  
as such, the provisions of s. 581(3) of the Criminal Code had been satisfied. And,  
in respect to the particulars requested by the accused, Romilly J. held that the  
defence had already received these particulars in the massive, organized  
“disclosure” that has already been made by the Crown, and as such, the fairness  
of the trial and the ability to mount a proper defence are not in any way at stake in  
this application. As a result, Romilly J. dismissed the defence application for  
particulars [emphasis is mine below]:  
After reviewing the law as enunciated above, I am satisfied that the indictment  
contains sufficient detail of the circumstances of the alleged offences to identify  
the transactions referred to, and as such, the provisions of s. 581(3) are satisfied.  
As for the particulars requested, I am satisfied that the defence has already  
received these particulars in the massive organized disclosure that has already  
been made by the Crown in this case. Thus, the fairness of the trial and the ability  
to mount a proper defence are not in any way at stake in this application.  
The defence application for particulars is dismissed.  
[166] Consequently, in determining whether the defendants have been or not been  
informed of the circumstances and details of the underlying transaction of the  
specific offence without delay, so as to make full answer and defence and to have  
a fair trial, courts will look not just at the sufficiency of the wording of the counts or  
information, but will also consider the other material in the possession of the  
accused, such as Crown disclosure.  
(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?  
[167] In Ontario (Ministry of Labour) v. Black & McDonald Ltd. and Thomas G. Fuller &  
Sons Ltd., [2011] O.J. No. 2615, 2011 ONCA 440, which is a case governed by  
Ontario’s Provincial Offences Act, Laskin J.A. writing for the Court of Appeal for  
Ontario, at paras. 23 to 25, held that the counts in questioned had disclosed an  
offence in clear terms and with sufficient particulars, as each count had been drafted  
99  
precisely in the wording of the relevant sections of the Act and of the Regulation.  
He then concluded as a matter of principle that offences drafted in the words of a  
statute or a regulation are presumed to be valid [emphasis is mine below]:  
The trial judge was obviously concerned, from the way the charges were drafted,  
that Fuller and Black & McDonald would not know the case against them.  
However, each count is drafted precisely in the wording of the relevant sections  
of the Act and s. 31(1)(a) of the Regulation. Offences drafted in the words of a  
statute or a regulation are presumed to be valid. For example, in R. v. Rowley,  
[1972] O.J. No. 409, 7 C.C.C. (2d) 230 (C.A.), at p. 231 C.C.C., a majority of this  
court upheld the validity of an information "[h]aving regard . . . to the fact that the  
information does charge an offence and charges that offence in the exact  
wording of the section of the Criminal Code under which it was laid". See, also,  
R. v. Milberg, [1987] O.J. No. 353, 35 C.C.C. (3d) 45 (C.A.), at pp. 49-50 C.C.C.  
A defendant is entitled to sufficient particulars of each charge. Section 25(6) of  
the Provincial Offences Act states:  
25(6) A count shall contain sufficient detail of the circumstances of the alleged  
offence to give to the defendant reasonable information with respect to  
the act or omission to be proved against the defendant and to identify  
the transaction referred to.  
The five counts in the information complied with s. 25(6). Some particulars were  
given. Neither Fuller nor Black & McDonald asked for more particulars. Neither  
claimed that it did not know what it was charged with or that any of the charges  
failed to disclose an offence. The trial judge dismissed counts 1, 2 and 4 on his  
own initiative, and he was wrong to do so.  
(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  
[168] During submissions and argument by the defendants’ legal representative during  
the hearing of the s. 11(a) Charter motion, the defendants’ legal representative  
commented that the “wrongful use” in respect to the specific offence charged under  
s. 11.1 of the Zoning Bylaw #2006-50 was in respect to the storage or parking of  
construction motor vehicles on the property in question, but that the defendants  
would nevertheless have a potential defence to that wrongful use, in that the  
construction vehicles were not stored or parked on the property, as they were on  
the property for the purpose of constructing a driveway on the property.  
(vii) Amendment Of The 4 Counts Under S. 34 Of The Provincial  
Offences Act  
[169] Presently, there has been no motion brought to amend the information or the 4  
counts under s. 34 of the Provincial Offences Act, R.S.O. 1990, c. P.33. However,  
100  
under s. 34, a motion to amend the information may be brought at any time during  
the proceeding or trial.  
(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?  
[170] The defendants submit that the are unable to make full answer and defence or to  
have a fair trial as they are not aware of the details or circumstances of the specific  
offence that they have been charged with, since the prosecution refuses to provide  
them with formal particulars on the 4 counts, and since there could be hundreds of  
uses of or on the land in question which would not be permitted under s. 11.1 of the  
Town of Caledon Zoning Bylaw. However, the prosecution submits it has provided  
information of the specific offence and what the alleged “wrongful use” that was not  
permitted on the land in question to the defendants. Specifically, the prosecution  
submits that this information about the specific offence and the alleged “wrongful  
use” had been provided by the bylaw officer verbally and personally to the  
defendants; that this information about the specific offence and the alleged  
“wrongful use” was also provided and contained in the disclosure that had been  
provided on 3 occasions to both the defendants and the defendants’ legal  
representative; that this information about the specific offence and the alleged  
“wrongful use” was contained and provided by the Certified Letter given to the  
defendants; and that this information about the specific offence and the alleged  
“wrongful use” had also been provided and orally communicated by the prosecution  
to the defendants’ legal representative at the Judicial Pre-trial Conference when the  
issue had been raised and a request for particulars was made.  
[171] But more significantly, the defendants’ legal representative during hearing of the s.  
11(a) Charter motion had made mention about the possibility that the “wrongful  
use”, which was not a permitted use on the land in question, had been the storage  
or parking of construction motor vehicles on the land and that the defendants’  
potential defence to those alleged construction motor vehicles was that they were  
actually there to construct a driveway on the land in question. This in itself shows  
that the defendants were seemingly aware of the circumstances and details of the  
underlying transaction of the specific offence that they have to make full answer  
and defence to, even though the 4 counts do not contain the averment of what the  
alleged “wrongful use” had been that was not a permitted use that would contravene  
s. 11.1 of the Town of Caledon Zoning Bylaw.  
[172] Ergo, the defendants have not proven on a balance of probabilities that the 4  
counts, in not expressly specifying what the alleged “wrongful use” of the land had  
been, would prejudice the defendants’ ability to make full answer and defence or to  
have a fair trial, since it appears they are or have been made aware of the alleged  
“wrongful use" and that they also have a potential defence to that alleged “wrongful  
use”.  
101  
(i) CONCLUSION ON THE S. 11(A) CHARTER MOTION.  
[173] All 4 counts in question are legally sufficient, since the wording used in all 4 counts  
have substantially copied the wording of s. 11.1 of the Town of Caledon Zoning  
Bylaw #2006-50, which describes the offence; as well as expressly stating in the 4  
counts the section number of the enactment creating the offence; and the 4 counts  
also expressly state the name of the enactment describing the offence; and all 4  
counts describe an offence known in law, namely, that the defendants were alleged  
on 4 separate dates to have been using the land in a way that is not a legally  
permitted use for that particularly zoned land. And because all 4 counts are legally  
sufficient for complying with the sufficiency of count requirements under s. 25 of the  
Provincial Offences Act, R.S.O. 1990, C. P.33, then the 4 counts are not absolute  
nullities or void ab initio, but amendable or curable counts if the 4 counts fail to state  
an essential averment.  
[174] And, although all 4 counts do not specify what the “wrongful use” that had not been  
permitted on the land in question, the 4 counts were not so defective that they  
should be quashed. And, before this court could even quash the 4 counts a  
determination would have to be undertaken on whether the counts could be  
amended or cured with an order for particulars, as long as there would be no  
prejudice to the defendants’ ability to make full answer or defence or to have a fair  
trial, or as long as there would not be an injustice to either the defendants or the  
prosecution. However, the defendants did not make a motion to quash the 4 counts  
before plea, but instead claimed an infringement of their s. 11(a) Charter rights for  
not being promptly informed of the circumstances or details of the underlying  
transaction of the specific offence that they have been charged with in the 4 counts.  
On the other hand, even if the defendants would have brought a motion to quash  
the 4 counts on account of the missing averment under s. 36 of the Provincial  
Offences Act, the prosecution could still bring a motion at any time during the trial  
to amend the 4 counts under s. 34 of the Provincial Offences Act, to add the missing  
averment if the evidence at trial discloses the missing averment and if there is no  
prejudice or injustice.  
[175] However, as the determination for the s. 11(a) inquiry is whether the defendants  
right to be informed without delay about the circumstances or details of the  
underlying transaction of the specific offence, based on the 4 counts lacking an  
essential averment, would prejudice the defendants’ ability to make full answer and  
defence or to have a fair trial. In making that determination, the wording contained  
in the 4 counts is only one factor to consider since the extreme technicality and rigid  
approach of yesteryear on the sufficiency of counts has been replaced by the  
modern approach of flexibility and substance, which requires a court not to quash  
a defective count if it can be cured by amendment or by an order for particulars.  
102  
[176] Moreover, the prosecution has submitted that the defendants have been made  
aware of the circumstances of the specific offence in all 4 counts through  
information provided by the bylaw officer, through the Certified Letter provided to  
the defendants, through the disclosure provided to the defendants on 2 separate  
occasion and the disclosure provided to the defendants’ legal representative, and  
by the particulars provided by the prosecution orally to the defendants’ legal  
representative at the Judicial Pre-Trial Conference.  
[177] Furthermore, it also appears that the defendants and the defendants’ legal  
representative have been made aware of the circumstances and substance of the  
wrongful act or omission on which the prosecution would rely on to prove the s. 11.1  
charges against the defendants. The defendants have seeming been informed of  
the substance of the wrongful act or omission which would comprise the offence  
under s. 11.1 of Town of Caledon Zoning Bylaw #2006-50 on several occasions by  
bylaw officers and through the disclosure provided by the prosecution. And  
although the prosecution did not formally particularize the 4 counts on the  
information by the prosecution requesting an amendment to the 4 counts contained  
in the information, the prosecution has submitted that they have provided particulars  
of the 4 counts of the specific wrongful act or omission which would contravene s.  
11.1 orally to the defendants’ legal representative at the Judicial Pre-Trial  
Conference and in pre-trial discussions between the defendants’ legal  
representative and the prosecution.  
[178] Moreover, the defendants’ legal representative during the hearing of the s. 11(a)  
Charter motion on March 22, 2022, had made a reference to the alleged “wrongful  
use” which would contravene s. 11.1 of the Zoning Bylaw being the “storage or  
parking of construction motor vehicles on the property in question”, but that the  
defendants would have a potential defence to that alleged wrongful use, in that the  
construction motor vehicles were not stored or parked on the property, but were  
there for the purpose of constructing a driveway on the property.  
[179] Furthermore, considering that the s. 11(a) Charter motion is concerned about the  
defendants being provided sufficient details of the circumstances and underlying  
transaction of the specific offence in order to make full answer and defence and to  
have a fair trial, there is no evidence that the 4 counts in not expressly specifying  
what the alleged “wrongful use” of the land had been would prejudice the  
defendants’ ability to make full answer and defence or to have a fair trial, since it  
appears the defendants and the defendants’ legal representative are aware of the  
alleged “wrongful use” and that they also have a potential defence to that alleged  
wrongful use.  
[180] Accordingly, the defendants’ ability to make full answer and defence and their fair  
trial interests have not been prejudiced by the missing averment in the 4 counts.  
103  
[181] Ergo, the defendants have not met their burden on a balance of probablities that  
their Charter rights under s. 11(a) to be informed of the specific offence without  
delay has been infringed. The defendants’ application under s. 11(a) and s. 24(1)  
are therefore dismissed. In addition, the defendants’ request for costs under s.  
24(1) is also dismissed.  
(B) DEFENDANTS’ MOTION FOR AN ORDER FOR PARTICULARS IN THE  
ALTERNATIVE  
[182] In the alternative, the defendants move for an order for particulars since the  
defendants contend that they do not know the details of the circumstances or  
underlying transaction of the offences set out the 4 counts. In short, they submit  
that they do not know what the alleged “wrongful use” of the land is, which would  
contravene s. 11.1 of the Zoning Bylaw. And, they further contend that when the  
defendants’ legal representative had asked the prosecution for particulars the  
prosecution had been silent or had refused to provide them with particulars for the  
4 counts. In response to the defendants’ motion for an order for particulars in the  
alternative, the prosecution submits that it has provided particulars of the specific  
offences to the defendants through the disclosure provided and that particulars of  
the offences were also provided orally to the defendants’ legal representative at the  
Judicial Pre-Trial Conference.  
[183] Section 35 of the Provincial Offences Act, R.S.O. 1990, c. P.33, indicates that a  
court may, before or during trial, if it is satisfied that it is necessary for a fair trial,  
order that a particular, further describing any matter relevant to the proceeding, be  
furnished to the defendant:  
Particulars  
35 The court may, before or during trial, if it is satisfied that it is necessary for a  
fair trial, order that a particular, further describing any matter relevant to the  
proceeding, be furnished to the defendant.  
[184] However, particulars do not necessarily have to be provided in written form and can  
be provided orally. Moreover, formal particulars may be provided in writing to the  
accused person or the prosecution may provide particulars of an offence orally to  
an accused person without formally requesting a count or the information be  
amended with written particulars.  
[185] In addition, there is conceptually a different legal consequence that can result from  
the prosecution providing “formal” particulars by requesting a written amendment to  
the information with providing particulars to the defendants by a communication in  
writing or orally about a specific offence without making a written amendment to the  
information or count. Although in both circumstances the prosecution is still  
obligated to prove the specific particularization of the charge beyond a reasonable  
104  
doubt, an order to amend the information with written particulars may fetter the  
prosecution’s ability to prosecute the charges or prove the charges beyond a  
reasonable doubt, which would then cause injustice.  
[186] However, for the purpose of satisfying the informational component of s. 11(a) of  
the Charter, if the circumstances or details of the underlying transaction of the  
specific offence have been provided to the defendants or the defendants’ legal  
representative through other means then by the prosecution providing formal  
particulars in writing, and this information has not misled the defendants or prejudice  
their ability to make full answer or defence or to have a fair trial, then an order for  
particulars would not be warranted since an order for particulars may fetter the  
prosecution’s discretion in prosecuting the charges against the defendants and their  
ability to prove the 4 charges beyond a reasonable doubt.  
[187] Moreover, for the present case the prosecution is still required to prove the charges  
which the prosecution had particularize orally to the defendants’ legal  
representative.  
[188] But more importantly, an order for particulars is not required where there is evidence  
that the defendants have knowledge about the information pertaining to the missing  
averment for the 4 counts. On that issue, it appears the defendants and the  
defendants’ legal representative have been made aware of the alleged “wrongful  
use” of the land which allegedly contravenes s. 11.1 of the Town of Caledon Zoning  
Bylaw #2006-50, since the defendants’ legal representative had indicated in the  
defendants’ s. 11(a) Charter application that the “wrongful use” was the storing or  
parking of construction motor vehicles on the property, but the defendants have a  
possible defence to that wrongful use, in the construction vehicles were not stored  
or parked there but were there for the purpose of constructing a driveway on the  
property.  
[189] Therefore, based on information provided by the Investigating Provincial Offences  
Officer to the defendants, the information contained in the disclosure provided to  
the defendants and the defendants’ legal representative, the information in the  
Certificate Letter, particulars provided orally by the prosecution to the defendants  
legal representative during the Judicial Pre-Trial Conference, and the statement of  
the alleged wrongful use in the Reply Factum of the Prosecution provided to the  
defendants’ legal representative, the defendants and the defendants’ legal  
representative seemingly have been made aware of the details of the  
circumstances and underlying transaction of the specific offence for the 4 counts  
and the substance of the wrongful act or omission on which the prosecution will rely  
on to prove the s. 11.1 charges against the defendants.  
[190] In addition, an order for particulars will also not be made, since it could fetter the  
prosecution’s discretion in prosecuting the charges against the defendants and their  
ability to prove the 4 charges beyond a reasonable doubt, and which could then  
result in an injustice to the prosecution.  
105  
[191] Accordingly, the defendants’ motion in the alternative for an order for particulars  
and an adjournment is also dismissed.  
(C) SECOND MOTION: MOTION TO QUASH COUNT #1 FOR BEING LAID  
OUTSIDE THE 6-MONTH LIMITATION PERIOD  
[192] In respect to the second motion, the defendants contend that Count #1 refers to an  
offence that had allegedly occurred on February 25, 2020, and that the information  
containing the 4 counts had not been laid until September 3, 2020, which they argue  
was laid outside the 6-month limitation period by 8 days. And, although the  
operation of the 6-month limitation period under s. 76(1) of the Provincial Offences  
Act, R.S.O. 1990, c. P.33, was suspended 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, due to the COVID-19 pandemic which caused  
the closing of courtrooms for in-person attendance by the public, the defendants  
submit that count #1 should still be quashed as it been laid outside the 6-month  
limitation period and that the court’s discretion in accepting the validity of count #1  
should not be exercised.  
[193] Count #1 expressly describes an offence that had occurred allegedly on February  
25, 2020. The information containing count # 1 was then sworn according to s. 11.1  
of the Provincial Offences Act, R.S.O. 1990, c. P.33, on September 3, 2020, which  
would be at first glance to be 8 days outside the 6-month limitation period. However,  
on September 3, 2020, 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 was still in effect. Section 1 of that Limitation Periods Regulation had  
suspended the operation of any limitation periods established under any statute,  
regulation, rule, by-law or order of the Government of Ontario, which was retroactive  
to Monday, March 16, 2020. As such, the operation of limitation periods were in  
effect suspended from March 16, 2020 to September 14, 2020, when the Limitation  
Periods Regulation was revoked by s. 1 of O. Reg. 457/20.  
[194] Furthermore, between March 16, 2020 and September 13, 2020 limitation periods  
for commencing proceedings in Ontario were suspended by law. The suspension  
of limitation periods in Ontario during that period in 2020 was legislated by the  
Ontario Government on March 20, 2020, which enacted the Limitation Periods  
Regulation, O. Reg. 73/20 under s. 7.1 (2) of the Emergency Management and Civil  
Protection Act and made it retroactive to March 16, 2020. The regulation that  
suspended the operation of limitation periods was subsequently revoked on  
September 14, 2020, by s. 1 of O. Reg. 457/20 (Reopening Ontario (A Flexible  
Response To Covid-19) Act, 2020, S.O. 2020, c. 17).  
106  
[195] Also, according to s. 76(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, a  
proceeding shall not be commenced after the expiration of any limitation period  
prescribed by or under any Act for the offence or in the case where no limitation  
period is prescribed then the limitation period of 6 months would apply:  
Limitation  
76(1) A proceeding shall not be commenced after the expiration of any limitation  
period prescribed by or under any Act for the offence or, where no limitation  
period is prescribed, after six months after the date on which the offence was,  
or is alleged to have been, committed.  
Extension  
(2) A limitation period may be extended by a justice with the consent of the  
defendant.  
[196] During 2020, the Ontario Government enacted the Limitation Period Regulation, O.  
Reg. 73/20, under the Reopening Ontario (A Flexible Response to COVID-19) Act,  
2020 [formerly under Emergency Management and Civil Protection Act], which  
suspended the application of limitation periods from Monday, March 16, 2020 to  
September 13, 2020. The Limitation Period Regulation was revoked on September  
14, 2020 by s. 1 of O. Reg. 457/20:  
Limitation periods  
1. Any provision of any statute, regulation, rule, by-law or order of the  
Government of Ontario establishing any limitation period shall be  
suspended, and the suspension shall be retroactive to Monday, March 16,  
2020. O. Reg. 73/20, s. 1; O. Reg. 258/20, s. 1.  
Period of time, steps in a proceeding  
2. Any provision of any statute, regulation, rule, by-law or order of the  
Government of Ontario establishing any period of time within which any  
step must be taken in any proceeding in Ontario, including any intended  
proceeding, shall, subject to the discretion of the court, tribunal or other  
decision-maker responsible for the proceeding, be suspended, and the  
suspension shall be retroactive to Monday, March 16, 2020. O. Reg. 73/20,  
s. 2; O. Reg. 258/20, s. 2.  
[197] The issue concerning the 6-month limitation period that was raised is whether the  
court has any discretion in respect to whether the 6 month limitation period applies  
legally to the laying of the charge set out in count #1, or whether that applicability  
of the suspension of the operation of the 6-month limitation period is at the  
discretion of the court as provided for under s. 2 of the Limitation Periods  
Regulation. Section 2 of the Limitation Periods Regulation provides for a discretion  
107  
for the court to treat a period of time for a procedural step to be taken to be  
suspended from March 16, 2020 to September 14, 2020 or for the court to  
stringently apply the period of time for a step to be taken. However, the wording of  
s. 2 refers to “any period of time within which any step must be taken in any  
proceeding in Ontario, including any intended proceeding”. On the other hand, s. 1  
of the Limitation Periods Regulation refers specifically to “any limitation period”.  
Moreover, s. 2 does not expressly state that s. 2 of the Limitation Periods Regulation  
applies to s. 1, nor does it specifically refer to or mention “limitation periods” as  
something that falls within “any period of time”. Hence, s. 1 is a specific provision  
that applies to a specific event, while s. 2 is a general provision that applies to “any  
period of time within which any step must be taken”. Section 2 also provides for the  
suspension of a period in time within which any step must be taken in a proceeding  
or intended proceeding that would be subject to the discretion of the court.  
[198] Ergo, as the Town of Caledon Zoning Bylaw #2006-50 is silent in respect to  
limitation period to commence a proceeding, then the 6-month limitation period  
under s. 76(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, would apply to  
charges laid under the Town of Caledon Zoning Bylaw #2006-50.  
[199] In general, a charge has to be commenced by laying a charge within the applicable  
limitation period and a charge that is laid after the limitation period would be void  
ab initio, unless an accused consents to the limitation period being extended by the  
court. For the present case, the Town of Caledon Zoning Bylaw #2006-50 is silent  
on limitation periods for laying charges under that specific bylaw, so s. 76 of the  
Provincial Offences Act, R.S.O. 1990, c. P.33, would apply to the laying of charges  
under Bylaw #2006-50, which sets the limitation period of 6 months for laying a  
charge:  
(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  
[200] In addition, there was another statutory provision that had also been applicable to  
the extension of specific time requirements. Specifically, for time limits prescribed  
in Ontario’s Provincial Offences Act that are not limitation periods for commencing  
or recommencing a proceeding, the court under s. 85 of the Provincial Offences  
Act, R.S.O. 1990, c. P.33, may extend the time limits for doing anything, whether or  
not the time had already expired:  
Extension of time  
85(1) Subject to this section, the court may extend any time fixed by this Act, by  
the regulations made under this Act or the rules of court for doing any thing  
other than commencing or recommencing a proceeding, whether or not the  
time has expired.  
108  
[201] Section 85 of the Provincial Offences Act was used after the Limitation Periods  
Regulation that suspended limitation periods for commencing proceedings and  
other time requirements was revoked on September 14, 2020. During the later part  
of 2020 and after the Information charging the defendants had been laid on  
September 3, 2020, the Chief Justice of the Ontario Court of Justice on November  
25, 2020, had also issued an order under s. 85 of the Provincial Offences Act that  
extended time limits for certain proceedings in the Ontario Court of Justice that are  
prescribed under the Provincial Offences Act, and under the Rules of the Ontario  
Court (General Division) and the Ontario Court (Provincial Division) in Appeals  
Under Section 116 of the Provincial Offences Act until February 26, 2021:  
ONTARIO COURT OF JUSTICE  
)
THE HONOURABLE CHIEF JUSTICE  
LISE MAISONNEUVE  
)
)
)
)
WEDNESDAY, 25th  
OF NOVEMBER, 2020.  
__________________________________________________________  
ORDER  
PURSUANT TO SECTION 85 OF THE PROVINCIAL OFFENCES ACT  
EXTENDING CERTAIN TIME PERIODS UNDER THE PROVINCIAL OFFENCES  
ACT FOR PROCEEDINGS IN THE ONTARIO COURT OF JUSTICE  
WHEREAS, public health officials have recommended that measures be taken to  
reduce the amount of time individuals spend in large crowds or in crowded spaces to  
help reduce the transmission of COVID-19 in a community.  
AND WHEREAS, the COVID-19 pandemic is disrupting the ability of defendants to  
attend court and the availability of Provincial Offences Act court services.  
AND WHEREAS, the Government of Ontario’s order made pursuant to Ontario  
Regulation 73/20 under the Emergency Management and Civil Protection Act and  
the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 suspending  
time limitations expired September 13, 2020.  
AND WHEREAS, Provincial Offences Act proceedings and court services continue  
to be disrupted by the COVID-19 pandemic.  
AND WHEREAS, this Order is necessary to prevent prejudice to parties in Provincial  
Offences Act matters due to the limited availability of Provincial Offences Act court  
services.  
109  
AND WHEREAS, it would be impractical to require each affected party to request an  
extension of time under the Provincial Offences Act individually.  
THIS COURT ORDERS that, pursuant to section 85 of the Provincial Offences Act,  
the time limits for proceedings in the Ontario Court of Justice prescribed under  
Provincial Offences Act in sections 5(6), 5.1(2), 5.1(12), 9(1)(a), 11(1), 11(4), 17(4.1),  
17.1(6.1), 18.1(5), 18.2(1), 18.3(1), 19(1), 19(4), 66(1), 69(1), 116(2)(a), 116(3) and  
135(2) of the Provincial Offences Act, and under sections 5(2) and 5(3) of the Rules  
of the Ontario Court (General Division) and the Ontario Court (Provincial Division) in  
Appeals Under Section 116 of the Provincial Offences Act, O. Reg. 723/94, are  
extended until February 26 , 2021.  
THE COURT ALSO ORDERS any order previously given extending a time period in  
a matter beyond February 26th, 2021 is still in effect.  
FOR GREATER CLARITY this order supersedes the Order made on March 15,  
2020 extending timelines under the Provincial Offences Act until April 23, 2020 and  
the Order made on September 10, 2020 extending timelines under the Provincial  
Offences Act until December 1, 2020.  
THIS COURT FURTHER ORDERS that this Order be posted in a visible place in all  
court offices dealing with Provincial Offences Act matters in the province of Ontario  
as soon as practicable.  
Lise Maisonneuve  
Chief Justice of the Ontario Court of Justice  
[202] Limitation periods for commencing or recommencing a proceeding, however, were  
specifically and expressly excluded by s. 85 itself and therefore was not contained  
in the Chief Justice’s order that had extended time limits during 2020. An example  
of a time limit that was extended by the Chief Justice under s. 85 is the time limit  
under s. 11(1) of the Provincial Offences Act, which required a defendant who fails  
to appear for trial and who was convicted to apply to a justice to strike out the  
conviction within 15 days of becoming aware of the conviction. This 15 day time  
limit to apply for a reopening of the case and for the conviction to be struck would  
then be extended until February 26, 2021, by virtue of the Chief Justice’s Order  
dated November 25, 2020:  
Reopening  
Application to strike out conviction  
11(1) A defendant who was convicted without a hearing may, within 15 days of  
becoming aware of the conviction, apply to a justice to strike out the  
conviction.  
(2) Conclusion On Motion To Quash Count #1  
110  
[203] But for the suspension of limitation periods in Ontario in 2020, the charge set out in  
count #1 would have been laid outside the statutory limitation period of 6 months  
as provided for by s. 76(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33.  
Specifically, the offence set out in count #1 was alleged to have been committed by  
the defendants on February 25, 2020 and the information containing count #1 had  
been sworn on September 3, 2020. Therefore, the period between February 25,  
2020 and September 3, 2020 is 6 months and 8 days, which would exceed the 6-  
month limitation period to commence proceedings by 8 days, and count #1 would  
have been normally void ab initio for being laid outside the limitation period unless  
the defendants had consented to extending the limitation period under s. 76(2) of  
the Provincial Offences Act.  
[204] However, as a result of the COVID-19 pandemic and the closing of courthouses for  
the most part to the public, the Ontario Legislature enacted a regulation that  
suspended limitation periods in Ontario from March 16, 2020 to September 14,  
2020. Section 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, provided that “Any provision of any statute, regulation, rule, by-law or order  
of the Government of Ontario establishing any limitation period shall be suspended,  
and the suspension shall be retroactive to Monday, March 16, 2020.”  
[205] Ergo, since count #1 was contained in an information that was sworn on between  
March 16, 2020 and September 14, 2020, the application of the 6-month limitation  
period to count #1 was suspended at the time the information was sworn on  
September 3, 2020. As such, the charge set out in count #1 is not an invalid charge.  
Moreover, s. 1 of the Limitation Periods Regulation is not specifically mentioned in  
s. 2 of the Limitation Periods Regulation nor is the expression “limitation period”  
expressly mentioned in s. 2. Section 2 of the Limitation Periods Regulation provides  
that “any period of time within which any step must be taken in any proceeding in  
Ontario, including any intended proceeding, shall, subject to the discretion of the  
court, tribunal or other decision-maker responsible for the proceeding, be  
suspended, and the suspension shall be retroactive to Monday, March 16, 2020.”  
And, although s. 2 also suspends the application of a time period for a step to be  
taken in any proceeding or intended proceeding that is subject to the discretion of  
the court, tribunal or decision-maker, s. 2 does not apply specifically to limitation  
periods to commence proceedings, since s. 1 was specifically enacted to deal with  
limitation periods while s. 2 refers to any time periods where a step has to be taken  
in a proceeding or intended proceeding that is established in a statute, regulation,  
or rules of a court, for a step to be taken but does not specifically state that s. 2  
applies to s.1 not does it expressly state that “any time periods” includes limitation  
periods (usually these time periods also provided for discretion of a court to extend  
the period of time). Moreover. s. 1 does not expressly make the suspension of  
limitation periods subject to the discretion of the court, tribunal or other decision-  
maker responsible for the proceeding. Ergo, this court does not have any discretion  
111  
in respect to the application and suspension of the 6-month limitation period over  
count #1. The 6-month limitation clock stopped running from March 16, 2020 to  
September 13, 2020. Therefore, the charge set out in count #1 is not void for being  
laid outside the 6-month limitation period.  
(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  
[206] The defendants seek an order compelling the prosecution to provide McNeil  
Disclosure in respect to any complaints or disciplinary actions brought against the  
Investigating Provincial Offence Officer who has charged the defendants with  
committing the 4 offences, the curriculum vitae of the Investigating Provincial  
Offence Officer, the name of the complainant who called the Town of Caledon to  
complain about the property in question; and the notes or transcribed recording of  
the complainant’s complaint or complaints made to the Town of Caledon.  
[207] The prosecution submits that the defendants’ matter had been judicially pre-tried  
on October 28, 2021 and January 13, 2022. Furthermore, the prosecution submits  
that the "particulars" requested by the defendants were items confidential in nature,  
such as informant names, or other irrelevant information. Moreover, the  
prosecution submits that informant information will not be disclosed under the legal  
principle of informer privilege. In addition, the Prosecution submits it is not intending  
on calling this person as a witness as they have no evidence to offer on the charges  
before the court. Additionally, the prosecution argues that informer privilege is an  
ancient and hallowed protection which plays a vital role in law enforcement and is  
premised on the duty of all citizens to aid in enforcing the law. And, the discharge  
of this duty, the prosecution submits, carries with it the risk of retribution from those  
involved in both regulatory and criminal offences, so the rule of informer privilege  
was developed to protect citizens who assist in law enforcement and to encourage  
others to do the same.  
[208] Furthermore, the prosecution submits that the other items of "disclosure" being  
requested by the defendants’ legal representative, namely McNeil Disclosure, the  
Curriculum Vitae for the investigating officer, etc. are being opposed by the  
prosecution, and were ruled by the Justice of the Peace presiding at the Judicial  
Pre-Trial Conference to be issues that ought to be addressed by the trier of fact and  
to be argued as to relevancy on the trial date.  
(1) Defendants’ Request for McNeil Disclosure  
112  
[209] In Ontario v. Ontario Public Service Employees Union, [2012] O.J. No. 2336 (Ont.  
Sup. Ct. (Div. Ct.)), at paras. 18, 25, and 27 to 29, Aston J. for the Divisional Court,  
concluded that for the purposes of the Crown providing McNeil Disclosure in regard  
to an inspector investigating regulatory or provincial offences, there is no reason to  
think an inspector's criminal record will have less bearing on the right to make full  
answer and defence in a regulatory proceeding than a police officer's record in a  
criminal prosecution. In addition, Aston J. held that a comparison of the role of the  
investigator in an OHSA prosecution with that of a police officer in prosecutions  
under the Criminal Code or Controlled Drug and Substances Act does not provide  
a sufficient basis upon which to differentiate the inspector from the police officer.  
Furthermore, Aston J. also noted that even though the powers of police officers are  
broader, the essence of McNeil focuses on the role of police as investigator,  
accuser and witness, which Aston J. concluded that an OHSA inspector would have  
the same role [emphasis is mine below]:  
The 2009 decision of the Supreme Court of Canada in R. v. McNeil established  
that the Crown and police have first party disclosure obligations in criminal cases  
concerning serious misconduct by investigating officers. The obligation, stemming  
from the constitutional right of an accused to make full answer and defence,  
requires disclosure of Criminal Code convictions recorded in CPIC records where  
that information could reasonably impact on a criminal prosecution. Subsequent to  
the release of the Supreme Court's decision in McNeil, Crowns in Ontario  
conducting regulatory offence prosecutions under the OHSA and the ESA  
established a process to ensure compliance with what the Crown understood its  
disclosure obligation to be. The Crown initiated a CPIC check of the relevant  
inspector with the Toronto Police Service (i) if there was a disclosure request from  
defence counsel, (ii) when a matter was set down for trial, or (iii) if the Crown had  
information suggesting possible misconduct by the investigator/inspector. If there  
was a "positive" CPIC result the particular inspector was informed about it and  
follow up inquiries were made to obtain further details. Following that, if the Crown  
concluded that the prosecution would continue, the information was disclosed to  
the accused on condition that (i) the information was to be used only to make full  
answer and defence to the charges before the Court; and (ii) the information was  
not to be disseminated for any other purpose.  
..  
Prior to McNeil, any records of police misconduct that might be material to a  
criminal case were obtained by way of an O'Connor application. The accused was  
faced with a fundamental threshold problem. Unless the accused had some reason  
to think the officer's history or file included instances of relevant misconduct, an  
O'Connor application would appear, on its face, to be nothing more than a fishing  
expedition and would fail. McNeil served to bridge the gap by holding that the  
Crown has a duty to make reasonable inquiries of the police in relation to the  
officer's prior misconduct and the police have a duty to disclose this material to the  
Crown. The production of such information or documentation was essentially  
converted from a third party obligation to a first party obligation. In other words,  
though the police officer's CPIC record was not in the actual possession of the  
113  
Crown, the Crown's disclosure obligation as laid out in Stinchcombe was extended  
to such records.  
…
A comparison of the role of the investigator in an OHSA prosecution with that of a  
police officer in prosecutions under the Criminal Code or Controlled Drug and  
Substances Act does not provide a sufficient basis upon which to differentiate the  
inspector from the police officer. Though the powers of police officers are broader,  
the essence of McNeil focuses on the role of police as investigator, accuser and  
witness. An OHSA inspector has the same role. Furthermore, these regulatory  
offences can engage severe penal consequences for an accused.  
The Crown must exercise its own discretion in deciding what information falls  
within the parameters of McNeil and what does not, but in the first instance the  
Crown is obliged to at least obtain the information. Not all police records are  
relevant to the credibility or reliability of the inspector's evidence and therefore  
relevant to the accused's rights to make full answer and defence. However, there  
is no reason to think an inspector's criminal record will have less bearing on the  
right to make full answer and defence in a regulatory proceeding than a police  
officer's record in a criminal prosecution.  
I agree with the Crown that McNeil does not just establish a conduit for the  
disclosure by the police through the Crown's office; rather it establishes an  
obligation on the Crown to solicit readily obtainable information, like a CPIC record,  
or an internal record of misconduct in employment records. The obligation to  
disclose what is in the "possession and control" of the prosecution is not limited to  
what it has in its physical possession but also includes readily obtainable  
information or documents.  
[210] Ergo, based on Ontario v. Ontario Public Service Employees Union, the obligation  
of the prosecution to disclose a McNeil Report in respect to any disciplinary or  
misconduct records of a police officers as first party disclosure would also apply  
equally to bylaw and provincial offences enforcement officials.  
[211] In R. v. McNeil, [2009] S.C.J. No. 3, at paras. 15, 18 to 20, 53 to 54, and 57 to 60,  
the Supreme Court of Canada had to considered the appeal on the production of  
third party police disciplinary records and criminal investigation files relating to the  
Crown’s main police witness in a drug prosecution. It their decision, the Supreme  
Court bridged the gap between first party disclosure and third party disclosure in  
respect to material in respect to disciplinary or misconduct records of police officers  
involved in the investigation of the accused and held that the police and other  
investigating agencies must disclose to the prosecuting Crown, as first party  
disclosure material, findings of serious misconduct by police officers involved in the  
investigation of the accused since this information may be relevant to the police  
officers’ credibility and reliability. However, the Supreme Court also held that not  
all information in these disciplinary or misconduct records or material will  
necessarily be given to the defence and that Crown counsel must perform a  
gatekeeper role in reviewing this material and withholding or redacting information  
that is irrelevant or privileged. In fulfilling that gatekeeper function, the Crown is  
114  
required to conduct a “studied analysis” of the material to determine relevance.  
And, if the material has no realistic bearing on the credibility or reliability of the  
person involved in the investigation, the Supreme Court held that it should not be  
disclosed to the defence. On the other hand, the Supreme Court noted that if the  
information about an officer's misconduct is not obtained or disclosed by the Crown  
to the defence for being irrelevant, the defence still retains the ability to seek the  
information from a third party through an O'Connor application. Moreover, the  
Supreme Court emphasized that where Crown counsel is put on notice or informed  
of the existence of information potentially relevant to an accused’s case that is held  
by a Crown entity or other third party, then Crown counsel has an obligation and  
duty to inquire and obtain the information if it is reasonably feasible to do so.  
However, the Supreme Court also acknowledged that Crown counsel is not obliged  
to make such inquiries if the notice appears unfounded [emphasis is mine below]:  
As I will explain, records relating to findings of serious misconduct by police officers  
involved in the investigation against the accused properly fall within the scope of  
the "first party" disclosure package due to the Crown, where the police misconduct  
is either related to the investigation, or the finding of misconduct could reasonably  
impact on the case against the accused. The Crown, in turn, must provide  
disclosure to the accused in accordance with its obligations under Stinchcombe.  
Production of disciplinary records and criminal investigation files in the possession  
of the police that do not fall within the scope of this first party disclosure package  
is governed by the O'Connor regime for third party production.  
…
While the Stinchcombe automatic disclosure obligation is not absolute, it admits of  
few exceptions. Unless the information is clearly irrelevant, privileged, or its  
disclosure is otherwise governed by law, the Crown must disclose to the accused  
all material in its possession. The Crown retains discretion as to the manner and  
timing of disclosure where the circumstances are such that disclosure in the usual  
course may result in harm to anyone or prejudice to the public interest. The  
Crown's exercise of discretion in fulfilling its obligation to disclose is reviewable by  
a court.  
As this Court confirmed in Mills, the Crown's obligation under Stinchcombe to  
disclose the fruits of the investigation does not signify that no residual privacy  
interest can exist in the contents of the Crown's file. It should come as no surprise  
that any number of persons and entities may have a residual privacy interest in  
material gathered in the course of a criminal investigation. Criminal investigative  
files may contain highly sensitive material including: outlines of unproven  
allegations; statements of complainants or witnesses - at times concerning very  
personal matters; personal addresses and phone numbers; photographs; medical  
reports; bank statements; search warrant information; surveillance reports;  
communications intercepted by wiretap; scientific evidence including DNA  
information; criminal records, etc. The privacy legislation of all 10 provinces  
addresses the disclosure of information contained in law enforcement files. See  
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 14;  
Access to Information and Protection of Privacy Act, S.N.L. 2002, c. A-1.1, s. 22;  
Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, s. 15;  
115  
Freedom of Information and Protection of Privacy Act, R.S.P.E.I. 1988, c. F-15.01,  
s. 18; Right to Information Act, S.N.B. 1978, c. R-10.3, ss. 6(a) and 6(f); An Act  
respecting Access to Documents Held by Public Bodies and the Protection of  
Personal Information, R.S.Q., c. A-2.1, s. 28; The Freedom of Information and  
Protection of Privacy Act, S.M. 1997, c. 50, s. 25; The Freedom of Information and  
Protection of Privacy Act, S.S. 1990-91, c. F-22.01, s. 15; Freedom of Information  
and Protection of Privacy Act, R.S.A. 2000, c. F-25, s. 20; Freedom of Information  
and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 15. See also the federal  
Privacy Act, R.S.C. 1985, c. P-21, s. 22.  
Implicit in the Crown's broad duty to disclose the contents of its file under  
Stinchcombe are not the absence of any residual expectation of privacy, but rather  
the following two assumptions. The first is that the material in possession of the  
prosecuting Crown is relevant to the accused's case. Otherwise, the Crown would  
not have obtained possession of it (O'Connor, at para. 12). The second assumption  
is that this material will likely comprise the case against the accused. As a result,  
the accused's interest in obtaining disclosure of all relevant material in the Crown's  
possession for the purpose of making full answer and defence will, as a general  
rule, outweigh any residual privacy interest held by third parties in the material.  
These two assumptions explain why the onus is on the Crown to justify the non-  
disclosure of any material in its possession.  
…
While the obligation itself is firmly established, the difficulty lies in identifying the  
contours of relevance for the purposes of the police's first party disclosure  
obligation. The particular question that this case exemplifies is whether information  
of misconduct by a police officer involved in the case against the accused should  
form part of the first party disclosure package provided to the Crown for its  
assessment of relevance according to the edicts of Stinchcombe. Obviously, the  
accused has no right to automatic disclosure of every aspect of a police officer's  
employment history, or to police disciplinary matters with no realistic bearing on  
the case against him or her. However, where the disciplinary information is  
relevant, it should form part of the first party disclosure package, and its discovery  
should not be left to happenstance.  
When the police misconduct in question concerns the same incident that forms the  
subject-matter of the charge against the accused, the police duty to disclose  
information concerning police disciplinary action taken in respect of that  
misconduct is rather self-evident. To state an obvious example, if a police officer  
is charged under the applicable provincial legislation for excessive use of force in  
relation to the accused's arrest, this information must be disclosed to the Crown.  
Where the misconduct of a police witness is not directly related to the investigation  
against the accused, it may nonetheless be relevant to the accused's case, in  
which case it should also be disclosed. For example, no one would question that  
the criminal record for perjury of a civilian material witness would be of relevance  
to the accused and should form part of the first party disclosure package. In the  
same way, findings of police misconduct by a police officer involved in the case  
against the accused that may have a bearing on the case against an accused  
should be disclosed.  
…
116  
The Ferguson Report concluded that leaving the entire question of access to police  
disciplinary records to be determined under the O'Connor regime for third party  
production "is neither efficient nor justified" (p. 15). In order to assist in bridging the  
gap between first party disclosure and third party production, the Ferguson Report  
made a number of recommendations, including the automatic disclosure by the  
police upon request by the Crown of the following information regarding acts of  
misconduct by a member of the Toronto Police Service who may be a witness or  
who was otherwise involved in a case before the court (at p. 17):  
a. Any conviction or finding of guilt under the Canadian Criminal Code or the  
Controlled Drugs and Substances Act [for which a pardon has not been  
granted].  
b. Any outstanding charges under the Canadian Criminal Code or the  
Controlled Drugs and Substances Act.  
c. Any conviction or finding of guilt under any other federal or provincial  
statute.  
d. Any finding of guilt for misconduct after a hearing under the Police Services  
Act or its predecessor Act.  
e. Any current charge of misconduct under the Police Services Act for which  
a Notice of Hearing has been issued.  
The Ferguson Report recommended that upon receiving this information from  
police, the Crown act as "gate-keeper", sorting out what parts of this material, if  
any, should be turned over to the defence in compliance with the Crown's  
Stinchcombe obligation of disclosure. The Ferguson Report made the further  
recommendation that any concerned officer who was the subject of disciplinary  
records produced to the Crown be notified in writing and be given the opportunity  
to make submissions to the Crown.  
I agree that it is "neither efficient nor justified" to leave the entire question of access  
to police misconduct records to be determined in the context of the O'Connor  
regime for third party production. Indeed, as discussed earlier, the disclosure of  
relevant material, whether it be for or against an accused, is part of the police  
corollary duty to participate in the disclosure process. Where the information is  
obviously relevant to the accused's case, it should form part of the first party  
disclosure package to the Crown without prompting. For example, as was the case  
here, if an officer comes under investigation for serious drug-related misconduct,  
it becomes incumbent upon the police force, in fulfilment of its corollary duty of  
disclosure to the Crown, to look into those criminal cases in which the officer is  
involved and to take appropriate action. Of course, not every finding of police  
misconduct by an officer involved in the investigation will be of relevance to an  
accused's case. The officer may have played a peripheral role in the investigation,  
or the misconduct in question may have no realistic bearing on the credibility or  
reliability of the officer's evidence. The kinds of information listed in the Ferguson  
Report can provide useful guidance on those types of matters in respect of which  
a police force may well be advised to seek the advice of Crown counsel.  
With respect to records concerning police disciplinary matters that do not fall within  
the scope of first party disclosure obligations, procedures such as those  
recommended in the Ferguson Report, tailored to suit the particular needs of the  
community in which they are implemented, can go a long way towards ensuring a  
117  
more efficient streamlining of O'Connor applications for third party production. Trial  
courts seized with motions for disclosure under Stinchcombe or applications for  
third party production are well placed to make appropriate orders to foster the  
necessary cooperation between police, the Crown and defence counsel.  
(a) The Ferguson Five  
[212] To reiterate, the following items, referred to as the “Ferguson Five”, are the kinds of  
material or information regarding acts of misconduct pertaining to investigating  
officers or officers involved in an accused’s case that would be regarded as relevant  
and should be turned over to the defence as McNeil Disclosure:  
a. Any conviction or finding of guilt under the Canadian Criminal Code or the  
Controlled Drugs and Substances Act [for which a pardon has not been  
granted].  
b. Any outstanding charges under the Canadian Criminal Code or the Controlled  
Drugs and Substances Act.  
c. Any conviction or finding of guilt under any other federal or provincial statute.  
d. Any finding of guilt for misconduct after a hearing under the Police Services  
Act or its predecessor Act.  
e. Any current charge of misconduct under the Police Services Act for which a  
Notice of Hearing has been issued.  
[213] On the other hand, unlike police officers, Provincial Offences Officers and Municipal  
Bylaw Officers do not normally arrest individuals suspected of committing regulatory  
or provincial offences where physical contact or restraint may have to be used. As  
such, Provincial Offences Officers and Municipal Bylaw Officers may not attract the  
same type of complaints from the public involving misconduct brought against them  
that police officers might receive.  
[214] Accordingly, records relating to findings of serious misconduct by the Investigating  
Provincial Offences Officer involved in the investigation against the defendants  
properly fall within the scope of the "first party" disclosure package that is due to  
the prosecution, where the investigator’s misconduct is either related to the  
investigation, or the finding of misconduct could reasonably impact on the case  
against the defendants. If there are such records, then the prosecutor as the  
“gatekeeper” has to obtain these records, review them for relevance, and disclose  
them with proper redactions if they can reasonably assist the defendants in making  
full answer ad defence.  
(2) Request For Curriculum Vitae Of The Investigating Provincial  
Offences Officer  
118  
[215] There is no evidence or indication that the Investigating Provincial Offences Officer  
is being called as an expert witness but only as the enforcement official who may  
testify about what that had observed on the property in question about the events  
or circumstances of the alleged 4 offences on the dates in question. Although the  
Investigating Provincial Offences Officer’s education, training, and experience may  
have some relevance, it is not essential to the defendants’ ability to make full  
answer and defence or to have a fair trial. Therefore, unless the Investigating  
Provincial Offences Officer is being tendered as an expert witness in respect to a  
specific filed of endeavour, the curriculum vitae of the Investigating Provincial  
Offences Officer will not have to be dis closed to the defendants.  
[216] In respect to the defendants’ request for McNeil disclosure, if there are records of  
misconduct in regard to the Investigating Provincial Offences Officer, then the  
prosecution as the gatekeeper of such evidence is obligated to request it and review  
it to determine if it needs to be disclosed to the defendants.  
(3) Request for the name of the complainant who telephoned the Town  
of Caledon about the property in question  
[217] The defendants have also requested the name of the complainant who called the  
Town of Caledon complaining abut the property in question. Normally, the name of  
complainants are not disclosed so as to protect people who call authorities about  
offences being committed from facing retaliation from accused person. As such,  
names of complainants are not usually provided as part of disclosure and are  
treated as privileged information that does not have to be disclosed, referred to as  
Informer privilege. The name of the complainant will only be disclosed unless the  
innocence of the defendants are demonstrably at stake.  
[218] In addition, the prosecution has indicated that it does not plan to call the  
complainant as a witness and the evidence being proffered to prove the charges  
against the defendant will be coming from the Investigating Provincial Offences  
Officer who attended the property in question and who observed the alleged  
offences.  
[219] Furthermore, the alleged offences would have to have been personally observed  
by the Investigating Provincial Offences Officer in order for the charges to be laid  
and the defendants would still be able to question the Investigating Provincial  
Offences Officer about those observations.  
[220] The Supreme Court of Canada in R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 9 and  
28, emphasized that the rule of informer privilege plays a vital role in law  
enforcement and is premised on the duty of all citizens to aid in enforcing the law  
and that the discharge of this duty carries the risk of retribution from those involved  
in crime. The rule of informer privilege was developed to protect citizens who assist  
119  
in law enforcement and to encourage others to do the same. In addition, the  
Supreme Court held that the scope of the rule of informer privilege extends not only  
to the name of the informer, but to any details which might reveal the informer's  
identity [emphasis is mine below]:  
A court considering this issue must begin from the proposition that informer  
privilege is an ancient and hallowed protection which plays a vital role in law  
enforcement. It is premised on the duty of all citizens to aid in enforcing the law.  
The discharge of this duty carries with it the risk of retribution from those involved  
in crime. The rule of informer privilege was developed to protect citizens who assist  
in law enforcement and to encourage others to do the same. As Cory J.A. (as he  
then was) stated in R. v. Hunter (1987), 57 C.R. (3d) 1 (Ont. C.A.), at pp. 5-6:  
The rule against the non-disclosure of information which might identify an informer  
is one of long standing. It developed from an acceptance of the importance of the  
role of informers in the solution of crimes and the apprehension of criminals. It was  
recognized that citizens have a duty to divulge to the police any information that  
they may have pertaining to the commission of a crime. It was also obvious to the  
courts from very early times that the identity of an informer would have to be  
concealed, both for his or her own protection and to encourage others to divulge  
to the authorities any information pertaining to crimes. It was in order to achieve  
these goals that the rule was developed.  
…
The ultimate issue on this appeal is whether the trial judge erred in editing the tip  
sheet to remove references to the informer's identity and in ordering the edited  
sheet disclosed to the appellant. In addressing this question, I have regard to the  
following propositions, discussed above. Informer privilege is of great importance.  
Once established, the privilege cannot be diminished by or "balanced off against"  
other concerns relating to the administration of justice. The police and the court  
have no discretion to diminish it and are bound to uphold it. The only exception to  
the privilege is found where there is a basis to conclude that the information may  
be necessary to establish the innocence of the accused. The scope of the rule  
extends not only to the name of the informer, but to any details which might reveal  
the informer's identity. It is virtually impossible for the court to know what details  
may reveal the identity of an anonymous informer. The same considerations apply  
on challenges to search warrants or wiretap authorizations.  
[221] However, informer privilege is subject only to one exception, known as the  
"innocence at stake" exception which had been confirmed by the Supreme Court of  
Canada in R. v. Leipert, at para. 20 to 22, and 24. In addition, the Supreme Court  
held that in order for an accused person to raise the "innocence at stake" exception  
to informer privilege, there must be a basis on the evidence for concluding that  
disclosure of the informer's identity is necessary to demonstrate the innocence of  
the accused person. However, the Supreme Court also emphasized that mere  
speculation that the information about the informer’s identity might assist the  
defence is insufficient to override the privilege [emphasis is mine below]:  
120  
Informer privilege is subject only to one exception, known as the "innocence at  
stake" exception. Lord Esher, M.R., described this exception in Marks v. Beyfus  
(1890), 25 Q.B.D. 494 (C.A.), at p. 498:  
. . . if upon the trial of a prisoner the judge should be of opinion that the disclosure  
of the name of the informant is necessary or right in order to shew the prisoner's  
innocence, then one public policy is in conflict with another public policy, and that  
which says that an innocent man is not to be condemned when his innocence can  
be proved is the policy that must prevail.  
In Bisaillon v. Keable, supra, this Court held (at p. 93):  
The rule is subject to only one exception, imposed by the need to demonstrate the  
innocence of an accused person.  
As Cory J. stated in Scott, supra, at pp. 995-96:  
In our system the right of an individual accused to establish his or her innocence  
by raising a reasonable doubt as to guilt has always remained paramount.  
In order to raise the "innocence at stake" exception to informer privilege, there  
must be a basis on the evidence for concluding that disclosure of the informer's  
identity is necessary to demonstrate the innocence of the accused: R. v.  
Chiarantano, [1990] O.J. No. 2603 (C.A.), per Brooke J.A., aff'd [1991] 1 S.C.R.  
906. In Chiarantano, the possibility that the information provided by the informer  
regarding the arrival at a residence of drugs later found in the possession of the  
accused might conflict with the evidence of the accused was held not to raise a  
basis for disclosure pursuant to the "innocence at stake" exception. The court held  
that the usefulness of the information was speculative and that mere speculation  
that the information might assist the defence is insufficient. If speculation sufficed  
to remove the privilege, little if anything would be left of the protection which the  
privilege purports to accord.  
On the other hand, circumstances may arise where the evidence establishes a  
basis for the exception, as where the informer is a material witness to the crime or  
acted as an agent provocateur: see Scott, supra. Where such a basis is  
established, the privilege must yield to the principle that a person is not to be  
condemned when his or her innocence can be proved.  
…
This argument rests on a right to disclosure broader than any which this Court has  
enunciated. In Stinchcombe, supra, the right to disclosure of Crown documents  
was expressly made subject to two conditions: relevance (to be interpreted  
generously as including all that is not clearly irrelevant) and privilege. The right to  
disclosure was not to trump privilege. Any doubt about its application to informer  
privilege was expressly negated (at p. 335):  
. . . it is suggested that disclosure may put at risk the security and safety of persons  
who have provided the prosecution with information. No doubt measures must  
occasionally be taken to protect the identity of witnesses and informers. Protection  
of the identity of informers is covered by the rules relating to informer privilege and  
exceptions thereto. . . . [Emphasis added.]  
121  
[222] Furthermore, Binnie J. for the majority of the Supreme Court of Canada in R. v.  
Barros, [2011] S.C.J. No. 51, at para 37, confirmed that there is a duty on the police,  
the Crown and the courts to protect and enforce the rule of informer privilege  
[emphasis is mine below]:  
The duty to protect and enforce informer privilege rests on the police, the Crown,  
and the courts, but we have been referred to no prior case where the duty has  
been extended to the accused and his or her representatives such as Mr. Barros  
apart from the exceptional case of inadvertent disclosure to defence counsel: see  
R. v. Hirschboltz, 2004 SKQB 17, [2006] 1 W.W.R. 174, and R. W. Hubbard, S.  
Magotiaux and S. M. Duncan, The Law of Privilege in Canada (loose-leaf), at pp.  
2-43 and 2-44. …  
[223] Ergo, the name of the complainant or identity of the complainant in the case at bar  
is protected by the Rule of Informer Privilege and will not be ordered to be disclosed  
by the prosecution. Furthermore, the Supreme Court also held in R. v. Leipert at  
para. 24 that no exception exists for overriding the informer privilege, except for the  
innocence at stake exception, in disclosing the name of the complainant in order for  
the defendants to make full answer and defence or as part of the prosecution’s  
disclosure obligation under Stinchcombe. In the presence case, the innocence at  
stake exception has not been argued or made out by the defendants.  
(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  
[224] In addition, the defendants seek the notes or the transcribed recording of the calls  
made by the complainant to the Town of Caledon in respect to the complaint about  
the property in question.  
[225] In this request, the notes of the complainant’s complaint to the Town of Caledon  
about the property in question may be of assistance to the defendants to make full  
answer and defence, so this court ordered that any notes of the complainant’s  
complaint taken by the Town of Caledon had to be disclosed to the defendants and  
that the notes could be redacted so as to not disclose any information about the  
complainant’s name or identity. The prosecution informed this court while an  
adjournment date was being obtained from the trial coordinator that the notes of the  
complainant’s complaint taken by the Town of Caledon with redactions had been  
provided to the defendants’ legal representative.  
5.  
DISPOSITION OF THE DEFENDANTS’ APPLICATIONS  
(A) the defendants’ 11(a) application  
122  
[226] The defendants have not proven on a balance of probabilities that their s. 11(a) right  
to be informed about the specific offence without delay has been infringed.  
Therefore, the defendants’ s. 11(a) application is dismissed, as well as their motion  
for costs.  
(B) the defendants’ application to quash the charge in count #1 for being  
laid outside the 6-month limitation period.  
[227] Section 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, does  
not expressly make the suspension of limitation periods subject to the discretion of  
the court, tribunal or other decision-maker responsible for the proceeding. Ergo,  
this court does not have any discretion in respect to the application and suspension  
of the 6-month limitation period over count #1. The 6-month limitation clock stopped  
running from March 16, 2020 to September 14, 2020. At the time the information  
was sworn on September 3, 2020, only 19 days of the 6 month limitation period had  
elapsed due to the suspension of limitation periods in Ontario. Therefore, the  
charge set out in count #1 is not void for being laid outside the 6-month limitation  
period and is a valid charge.  
(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  
(i) McNeil Disclosure  
[228] For the disclosure request for McNeil disclosure, if there are records of misconduct  
in regard to the Investigating Provincial Offences Officer, then the prosecution as  
the gatekeeper of such evidence is obligated to request it and review it to determine  
if it needs to be disclosed to the defendants. 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].  
[229] 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  
123  
Officer] have been independently reviewed and it has been determined that they do  
not fall within the scope of required disclosure."  
[230] 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."  
[231] Accordingly, if the prosecution has properly performed its duty in respect to inquiring  
about the existence of any disciplinary or employment records of the Investigating  
Provincial Offences Officer, and if any exist, have obtained and review the records  
for relevance to fulfill its gatekeeper function, then it has to respond to the  
defendants about their request for McNeil disclosure and inform them of one of the  
following three responses: (1) there are no records in existence in respect to the  
Investigating Provincial Offences Officer, or (2) there are disciplinary or employment  
records pertaining to the Investigating Provincial Offences Officer, but after review  
it has been determined that they are not relevant or (3) there is a matter  
documented in the employment record of the Investigating Provincial Offences  
Officer that may be relevant and is therefore provided as disclosure.  
(ii) the curriculum vitae of the Investigating Provincial Offences  
Officer  
[232] As there is no indication that the Investigating Provincial Offences Officer is being  
called or proffered as an expert witness in a particular and specialized field of  
endeavour, then the prosecution does not have to obtain and disclose the  
curriculum vitae of the Investigating Provincial Offences Officer to the defendants.  
Moreover, relevance of the curriculum vitae in these proceedings has not been  
established.  
(iii) the name of the complaint who complained to the Town of  
Caledon about the property in question  
[233] The name of the complainant who had complained to the Town of Caledon about  
the property in question does not have to be disclosed by the prosecution to the  
defendants. This is in order to protect the complainant from any potential reprisal.  
Moreover, the name of the complainant is privileged evidence and falls under the  
Informer Privilege rule.  
(iv) the notes or transcribed recording of the complainant’s complaint  
made to the Town of Caledon about the property in question  
124  
[234] The notes of the complainant’s complaint to the Town of Caledon about the property  
in question may be of assistance to the defendants to make full answer and  
defence, and were required to be disclosed if they exist. This court ordered that  
any notes of the complainant’s complaint taken by the Town of Caledon, if they  
exist, had to be disclosed to the defendants. However, before the notes are to be  
disclosed, they should be redacted so as to not disclose any information about the  
complainant’s name or identity. Subsequent to this court’s order to provide the  
notes of the complainant’s complaint, the prosecution provided the redacted notes  
to the defendants’ legal representative.  
Dated at the City of Mississauga on May 20, 2022.  
____________________________  
QUON J.P.  
Ontario Court of Justice  
125  


© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission