IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The accused, Wayne Patrick Tardif, makes an application for an order pursuant to section 601 of the Criminal Code quashing Information No. 205341-3-BC.  That information provides as follows:

[2]           The Information sought to be quashed replaced Information No. 205341-2-B, which charged in a separate count the failure to comply for each of the 7 relevant taxation years, thereby making for a total of 7 counts.  Given that each count is identically framed, I will reproduce only the first count, in respect of the 2007 taxation year:

[3]           The accused contends that the new Information rolling up the 7 counts into one offends the "single transaction rule” prescribed by section 581 of the Criminal Code and should be quashed as a nullity pursuant to s. 601(1).

[4]           Section 601(1) of the Criminal Code provides as follows:

[5]           Section 581(1) provides as follows:

[6]           The accused submits that the new, single count Information incorporates different elements as compared to the previous Information, takes away his right to object to those changes that would otherwise occur by Crown seeking to amend, impedes his ability to plead guilty only in respect of some of the taxation years as opposed to all of them, and is prejudicial to his ability to present different defences for each of the relevant taxation years.

[7]           The single transaction rule has been canvassed in a number of authorities.

[8]           In R. v. P.E.L., 2017 B.C.J. No. 174, the court held that an indictment alleging more than one instance of historical sexual assault in a single count did not violate the single transaction rule despite the theoretical evidentiary advantage the accused might have benefited from had the instances been framed in separate counts.  The court noted at para. 43 that no objection was taken during trial that the admission of any such evidence was actually prejudicial to the accused.

[9]           The court, at para. 44 citing R. v. Hulan, 1969 CanLII 306 (ON CA), [1970] 1 C.C.C. 36 (Ont. C.A.), interpreted s. 581(1) to be a rule of general application that may not necessarily apply in all cases.  At para. 45, the court noted Hulan to have been adopted in R. v. G.L.M., 1999 BCCA 467, quoting from Ryan J.A. in that decision as follows:

[10]        In R. v. Sharpe, [2007] B.C.J. No. 626, a conviction on a single count alleging indecent assault against a single complainant but spanning two different time periods, one when he was under the age of 14 and the other when he was over, was set aside; not on the basis that it offended the single transaction rule but rather, that it contained different elements of proof for each such time period, one requiring the Crown to prove lack of consent, and the other not, thereby setting out two offences.  At para. 26 the Court wrote:

[11]        At para. 33 of Sharpe, the court in further quoting R. v. G.L.M. noted the importance of keeping separate the concept of "essential ingredients" from the facts which prove them:

[12]        The Court summarized at para. 35:

[13]        In Lilly and The Queen, 1983 CanLII 153 (SCC), [1983] 1 S.C.R. 794, a conviction on a single count alleging multiple instances of theft of trust monies was set aside where the accused advanced the defence of colour of right in respect of some but not all of the trust transfers.  The Supreme Court found the trial judge misdirected the jury on the defence of colour of right.  Because the case was heard by a jury, it was impossible to know which transactions the guilty verdict was founded upon and in particular, whether any of them involved the available defence upon which the trial judge had misdirected.

[14]        Other cases referenced by the parties addressed principles, facts and issues not applicable to the present application or otherwise not in dispute.  As such, I have not reviewed those in these reasons.

[15]        The accused maintains that every taxation year that the order in question was allegedly not complied with can constitute a separate offence.  While that may be true, it does not, however, settle the issue.  Just because multiple instances of an offence can be charged separately, does not necessarily mean that they must.

[16]        The accused also notes he may have different defences regarding different taxation years and that combining all of the years into one count will prejudice his ability to present them.  The Crown contends there is only one defence realistically available to him, namely that of due diligence.  Regardless, I conclude there to be nothing in the framing of multiple taxation years into a single count that would preclude the accused from presenting any defence or defences applicable to some, but not all of the taxation years charged, or from presenting different defences for different years. 

[17]        The accused did not specifically identify which defences may arise in a way that could become problematic.  While he is not required to do so, I would only add that any such issues that actually do arise in the course of the trial would be expected to be brought to the attention of the trial judge in order that any prejudice to the accused actually identified might then be addressed in a contextual as opposed to a theoretical basis.

[18]        Further, any potential agreement with Crown to accept a plea of guilty in respect of only some of the taxation years in question would not be hampered as suggested by the accused.  There could be a consent amendment deleting the years not applicable to the guilty plea or, at the very least, the sentencing submissions could make clear which year or years the plea involved.  In any event, there would be no confusion in what was intended.

[19]        The accused contends the new single count consolidating each of the taxation years in question contains different elements of the offence as compared to the previous multi-count Information.  I am not sure what, if anything turns on that argument.  The Crown decides how to frame any charge and the elements then flow from that.  There is no rule I am aware of, or that was cited to me, that would preclude the Crown from replacing a count with one differently framed at this stage of the proceedings.

[20]        A plain reading of the new rolled up count alleges non-compliance with the Order of the Honourable Judge Arthur-Leung.  For each of the relevant years in question, the breach of the order is alleged to have occurred on a common date, being December 14, 2015.  Here it is important to distinguish the actual offence is not, per se, the failure to file tax returns, but rather the non-compliance with the Order.  The failure to file the returns in any one or more years is the alleged factual basis of the charged offence. 

[21]        As noted in para. 27 of Sharpe, supra, having multiple possible factual pathways to a conviction is not of itself a contravention of section 581(1), as long as the elements of the offence for each of the pathways are the same.  There is no suggestion in the present case that the elements the Crown must prove differ from any one taxation year to the next.

[22]        I would note in respect of the requirements of s. 601(1), the Information, as drawn, is neither lacking in detail nor is it so overbroad as to deprive the accused of knowledge of the case he must meet.

[23]        While accepting that non-compliance with the order in respect of any single taxation year could constitute a separate offence, I am of the view that this does not in and of itself contravene the single transaction rule set out in section 581(1) of the Criminal Code having regard to the facts of this case and applying the principles in the cases above cited.  Any potential prejudice is at this point unproven.

[24]        The application is dismissed.