The respondent submits that the learned trial judge erred in ruling on the
application by the appellant to declare that s. 269 of the Criminal Code was of no
force or effect before hearing the evidence at trial. It is clear that as the liberty
interest of the appellant is ultimately at risk in this appeal, the appellant has the
right to question the constitutional validity of the provision under which he is
charged. This is the case even though the unconstitutional effects may not be
directed at the appellant per se (R. v. Morgentaler,  1 S.C.R. 30, at p. 63).
The appellant submits that this Court has the power and the duty to review the
elements of criminal offences and this is not disputed by the Crown. As the
elements of the offence necessarily affect adjudication under it, an accused has
standing to contest the elements of any provision under which he or she is charged.
While it is incumbent on a court to consider such issues at some point in its
deliberations, it is less clear in what circumstances this review must or should be
done prior to hearing evidence.
The general rule with respect to attacking an indictment by reason of a defect in
law is that a motion to quash the indictment for a defect apparent on the face
thereof must be made before pleading. This rule is subsumed in the provisions of
s. 601(1) of the Code, which requires the motion to be made before the plea, and
thereafter only with leave of the court. The main purpose of the rule, and of s.
601(1) to the extent that it embodies the rule, is to ensure that defects curable by
amendment are attacked before pleading, since if not cured by amendment they
may be waived by a plea. (See R. v. Côté,  1 S.C.R. 8, at p. 15; R. v.
Villeneuve (1984), 54 A.R. 265 (C.A.), at p. 267; R. v. Cook (1985), 20 C.C.C. (3d)
18 (B.C.C.A.), at pp. 30-31 and 40; R. v. R.I.C. (1986), 17 O.A.C. 354, at pp. 357-
58; R. v. Peremiczky (Zoly) (1973), 25 C.R.N.S. 399 (B.C.S.C.), at p. 400; and R.
v. Denton (1990), 100 N.S.R. (2d) 174 (Co. Ct.), at p. 176.)
The temporal requirement of moving before pleading has no application, however,
to a motion to quash which questions the validity of the law under which the
accused is charged. I expressly refrain from addressing the effect of a plea of guilty.
(See R. v. Tennen,  O.R. 77 (C.A.), aff'd  S.C.R. 302, at p. 83 O.R.,
and R. v. Sarson (1992), 73 C.C.C. (3d) 1 (Ont. Gen. Div.). Such a defect goes to
the jurisdiction of the court to proceed with the charge and is not subject to the
temporal restriction in s. 601(1). Such an application may be brought at any time.
Indeed, where the trial court is a court of inferior jurisdiction, a motion may be
brought before trial to prohibit the trial court from proceeding. See Canadian
Broadcasting Corp. v. Attorney-General for Ontario,  S.C.R. 188, rev'g 
O.R. 55 (C.A.), which aff'd  O.R. 466 (H.C.). There is no question, therefore,
that the trial judge has jurisdiction to hear and dispose of a motion to quash the
indictment on the grounds of constitutional invalidity. Whether he or she is bound
to do so or whether as a matter of practice should do so is more problematic.
 Consequently, s. 11.1, as it is presently worded in the official version of the Town of
Caledon Zoning Bylaw #2006-50, is an absurdity, and as such, it does not relate to
an offence known to law. Ergo, since Information #0661-999-20-3574 contains 4
counts that charge the defendants with committing an offence under s. 11.1,