REGINA v. BIERNACKI’
Indictment – Motion to quash a “preferred indictment” without
a preliminary hearing under Part XV of the Criminal Code having
been held prior thereto.
John R. Garson*
The Attorney General’s powers of preferring an indictment are more than
a little complex. There are several sections in the Criminal Code dealing with
the powers of the Attorney General in regard to indictments, and the decision
in Regina v. Biernacki gives them a sense of particular immediacy.
In the present case, the accused was charged with violating the Official
Secrets Act. 2 The charges against him were dismissed at a preliminary hearing
and the Attorney General then preferred an indictment before the Court of
Queen’s Bench without any further proceeding against the accused. Although
the Attorney General pressed for a trial by judge and jury, the accused was
permitted to elect a speedy trial and was brought before the Court of Sessions
of the Peace. Counsel for the accused then presented a motion to quash the
indictment.
The “motion to quash” was based on five grounds, four of which were not
examined by the judge, as his decision on one of the arguments was sufficient
to free the accused and make unnecessary a consideration of the remaining
grounds of the motion. The judge had to decide whether the freeing of the
accused following a preliminary inquiry constituted an exception to the power
of the Attorney General to proceed against him by way of a “preferred indict-
ment”.
Before attempting to examine the arguments of the learned judge, it might
be best to discuss briefly the general powers of the Attorney General in regard
to indictments, so that we may better appreciate the unique problem of the
immediate case.
The applicable sections of the Criminal Code are ss. 487 and 489.
Section 487(1) states:
A bill of indictment may be preferred
(a) by the Attorney General or anyone by his direction, before the grand jury of any
court constituted with a grand jury,
(b) by anyone who has the written consent of the Attorney General, or the written con-
sent of a judge of a court constituted with a grand jury, before the grand jury of the
court specified in the consent, or
(c) by order of a court constituted with a grand jury, before the grand jury of that court.
137 C.R. 226.
*Of the Junior Board of Editors, McGill Law Journal; second year law student.
2R.S.C. 1952, c. 198.
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CASE AND COMMENT
Section 489 states:
(1) In the provinces of Quebec, Manitoba, Saskatchewan, Alberta and British Columbia
and in the Yukon Territory and Northwest Territories it is not necessary to prefer a
bill of indictment before a grand jury, but it is sufficient if the trial of an accused is
commenced by an indictment in writing setting forth the offence with which he is
charged.
(2) An indictment under subsection (1) may be preferred by the Attorney General or his
agent, by the Deputy Attorney General, or by any person with the written consent
o a judge of the court or of the Attorney General or, in any province to which this
section applies, by order of the court.
A “preferred indictment” is a special indictment under the hand of the
Attorney General which brings an accused to trial without a preliminary
hearing. The policy that no person be improperly placed on trial is so firmly
embedded in our law that the “preferred indictment” must be regarded as a
very unusual and unique power.
The “preferred indictment” could, conceivably, be exercised in three situa-
tions. The first would be where the office of the Attorney General felt it best
that the accused be brought directly to trial without a preliminary hearing.
That the Attorney General may proceed against an accused either by way of
preliminary hearing or “preferred indictment” is a principle that has been
frequently confirmed by the courts.3
The second situation in which the “preferred indictment” might be exer-
cised would be one in which the Attorney General wished to abandon a pre-
liminary hearing before its conclusion in order to cure certain defects in the
original charge. Or the Attorney General might wish to abandon a proceeding
by way of summary conviction, because new information shows the gravity
of the offence, and commence proceedings by way of indictment. Once the
Crown has elected the mode of procedure, can there be a re-election? There is
much conflicting jurisprudence on this point, some of which will be dealt
with in the discussion of the Biernacki case.
The third situation is that which arises from the present case. Granting
the power of the Attorney General to prefer an indictment without a preliminary
hearing having been held prior thereto, can there be a “preferred indictment”
against an accused who has already been liberated at a preliminary hearing
on the same charges? If the Attorney General can proceed in the absence of a
preliminary hearing, can he do so where the magistrate at a preliminary
inquiry has refused to commit the accused for trial? He may, doubtless, order
a new preliminary inquiry on the strength of new evidence; the liberation is
not an autrefois acquit. But can he prefer an indictment?
3R. v. Court 4 C.R. 183; R. v. Houle 17 C.C.C. 407; R. v. Drew 60 C.C.C. 223; Re Criminal Code 16
C.C.C. 459; R. v. McGat’in Bakeries Ltd. (no. 1) 10 C.R. 251; Bureau v. Regem (1931) 51 B.R. 207;
R. v. Wilson 22 C.C.C. 161; Re Ecciestone and Dalton 102 C.C.C. 305; R. v. Mooney [1960] O.W.N.
401; R. v. German 89 C.C.C. 90; R. v. Smith et al 128 C.C.C. 4t-7; Retiva v. McKnight, Kondia and
Majnard 30 C.R. 65.
McGILL LAW JOURNAL
[Vol. 9
Trottier, J. quashed the “preferred indictment” taking support from five
decisions. We will consider his reasoning after an examination of the relevant
jurisprudence.
Welch v. The King’ and Regina v. Viau5 were cited to support the proposition
In
that the powers of the Attorney General must be interpreted restrictively.
the Welch case, Fauteux, J., noted that:
… the powers under s. 8736 are not absolute and cannot obtain in all circumstances. Like
many others in the Code, they remain subject to qualifications and restrictions implicitly and
necessarily flowing from other provisions. 7
In Regina v. Viau,s Prevost, J. quashed a “preferred
indictment” laid by
the Attorney General independent of the preliminary inquiry proceedings, the
purpose of which was to take advantage of certain amendments made to the
Criminal Code respecting murder. The learned judge said, in part:
Je crois devoir se ranger parmi ceux qui sont d’opinion que les pouvoirs du Procureur
g~nral en matire de “preferred indictment” ne sont pas absolu mais restreints par l’csprit
qui a pr~sid6 a notre lgislation en mati&e criminelle, par Ic principe que Ic pouvoir ex6cutif
ne peut s’ingrcr dans le pouvoir judiciaire, et quc cc droit ne peut 6trc cxcrc6 par Ic Procureur
gnral d’une fagon arbirraire. 9
The judge also took support from the decision of Prendergast, J. in Rex v.
Russell’ that while the Attorney General has his choice, he must, however,
proceed in one way or the other, that is, he must choose between a preliminary
inquiry or a “preferred indictment”, and cannot, by resorting to the latter
mode of procedure, make up for irregularities at the preliminary inquiry.
It may be noted, however, that this decision has been the subject of some
dispute. In Re Ecclestone and Dalton” it was held that although a magistrate
on preliminary inquiry dismisses certain charges against an accused, the Crown
is entitled to prefer an indictment against him on the same charges. Le Bel, J.
here took issue with the decision of Prendergast, J. in the Russell case:
In the Russell case, Prendergast J. as he then was, holds that the Attorney-General … having
proceeded in the ordinary way… to the end of the preliminary inquiry… cannot afterwards
ay an indictment. I cannot find any authority for this proposition, and I think it is significant
that while an appeal from the order of Prendergast, J. was dismissed, his comments … wcrc
not mentioned by the Court of Appeal.’ 2
In the Biernacki case, the learned judge did not discuss Re Ecclestone and
Dalton, but he did cite, to support his decision, the case of Regina v. Sednyk”
497 C.C.C. 117.
537 C.R. 41.
‘now ss. 487, 488, 489.
797 C.C.C. 191.
‘Supra.
9Supra, 46.
1o[1920] 1 W.W.R. 164.
11102 C.C.C. 305.
121bid., at p. 306.
“s23 C.R. 340.
No. 3]
CASE AND COMMENT
where a motion on behalf of the accused for a writ of habeas corpus with certiorari
in aid was granted, despite the argument that a “preferred indictment” signed
by the Attorney General constituted a formal obstacle to the presentation of
the procedure submitted by the accused.
In this case, Freedman, J. points out that the view of the law which obtained
in Rex v. Russell was rejected in the later case of Re Ecciestone and Dalton. He
then goes on to say that he is not obliged to express any views with respect to
these conflicting cases since he is dealing with the accused’s motion for a writ
of habeas corpus. It may be, however, that Re Eccestone loses some of its force
in the light of Regina v. Sednyk. If a court will ignore a “preferred indictment”
to send a case back to preliminary inquiry in order that it be properly termi-
nated, (as was the case in Sednyk), then so much less, argued counsel for
Biernacki, is the Crown entitled to rely upon a “preferred indictment” when
the accused has been discharged at the preliminary inquiry.
The fifth and last case cited by Trottier, J. is Rex v. Newton. 4 In that case,
the Attorney General of Alberta, through his agent, preferred an indictment
against the accused, in an attempt to cure certain defects and irregularities at
the preliminary hearing. A motion to quash the indictment was upheld by
the Alberta Supreme Court.
C. Ford, J. said, in part:
It was argued that the indictment preferred by the agent of the Attorney-General, on his
behalf, cures such defects and irregularities and that it is the right of the Attorney-General
to prefer such an indictment as he has here. However that may be, the Crown proceeded by
way of preliminary hearing and obtained a committal for trial, which as I have held was
obtained without jurisdiction, and as is pointed out in some of the cases, that method of
procedure cannot now be changed so as to put the matter on a different footing for the purposes
of this application. 5
Such are the cases cited by the learned judge. Perhaps the best defence of
the proposition that a preliminary inquiry must be an essential element of any
prosecution is the dissenting opinion of Idington, J. in Re the Criminal Code:16
The policy of the law that there should be a preliminary examination was thus clearly
settled and so settled in order that on grounds of humanity and justice that examination might,
as so often happens, enable one accused without perhaps the slightest foundation, by cross-
examination of his accusers or by his own explanations to dispel the false appearances against
him and save him the pain and indignity of being improperly placed on his trial.
The difference between that and the system of placing a man on his trial without giving
him such opportunity is most radical. The tendency in the one method is towards a humane
administration of justice and in the other towards the vicious reverse thereof.17
Notwithstanding the obvious rightness of the sentiment that the unusual
power of the “preferred indictment” be very restrictively exercised, there is
much jurisprudence to the effect that the powers of the Attorney General in
1494 C.C.C. 180.
15Ibid., at p. 184.
1616 C.C.C. 459.
2Thbid., at p. 473.
McGILL LAW JOURNAL
[Vol. 9
this area are quite unlimited. In R. v. Court’s it was held that the Attorney
General is untrammelled in his discretion to prefer a bill of indictment for any
charge whether or not the accused has been committed for trial on that charge, and in
R. v. Mooney,”9 Porter, C. J. 0. held that the Crown was not precluded from
abandoning the preliminary inquiry proceedings before the magistrate and
proceeding in accordance with s. 487 (1) (b) of the Criminal Code.
Two other cases lend support to the view that s. 487 be interpreted in its
widest sense. In R. v. German20 Robertson, C. J. 0. states:
I am not aware of anything that prevents the Attorney General, after proceedings have
been commenced under Parr XV of the Cr. Code, and before a trial has been had, from abandon-
ing a proceeding by way of summary conviction and commencing proceedings by way of in-
dictment. It may well be that after proceedings have been so commenced matters will come to
the knowledge of the Crown authorities indicating that proceedings by way of indictment are
more suited to the gravity of the offence.2
Further, in R. v. Smith et a112 Spence, J. said:
When the Attorney General has preferred an indictment before the Grand Jury, then no proceed-
ings prior to that indictment can affect the validity of the indictment or the committal thereon,2 3
However, in this and the other cases cited, the accused had not been freed
at a preliminary inquiry and the question of whether or not the Attorney
General can then proceed by way of “preferred indictment” was not explicitly
settled.
On the other hand, Re Ecclestone, (supra), did in fact say that the Attorney
General may prefer an indictment against a person on the same charges from
which he has just been released at preliminary inquiry. But the case may
perhaps be distinguished in that the accused were here committed for trial on
three charges of receiving but liberated from three charges of theft. That the
Attorney General was allowed to prefer an indictment on all charges need
not necessarily suggest that the situation would have been the same had the
accused been completely freed, that is, if all six charges had been dismissed
at a preliminary inquiry.
In Regina v. McKnight, Kondia and Maynard24 the Supreme Court of British
Columbia held that the discharge of an accused at the end of a preliminary
inquiry does not prevent the Attorney General from later preferring an indict-
It is to be noted that the learned judge in the
ment for the same offence.
Biernacki case did not distinguish, nor even mention those several cases which
would suggest that the Attorney General has full power to prefer an indict-
ment before, during, or after a preliminary inquiry, regardless of its result.
1888 C.C.C. 27.
1″[1960] O.W.N. 401.
2089 C.C.C. 90.
21’bid., at p. 93.
22128 C.C.C. 407.
2Ibid., at p. 409.
2430 C.R. 65.
No. 3]
CASE AND COMMENT
It is further suggested that the jurisprudence is of such a conflicting nature
that no decision can be based entirely on it and that resort must be had to other
argument.
Trottier, J. presents two arguments to support his decision, in addition to
the five cases already discussed. The first was that s. 487 must be read in the
light of the other sections of the Criminal Code and that the provisions of s.
480 would be redundant were the argument of the prosecution to be accepted.
Referring to s. 480 and the preliminary inquiry which it prescribes, he says
of the Attorney General:
si le r~sultat lui itait dfavorable, ou mieux, ne rencontrait p as ses vues et ses d~sirs, il
indictment” et ainsi
n’aurait qu’i intervenir i nouveau, cette fois par voic du “preferred
astreindre l’accus6 a subir le procis de son choix.
480 sont superflucs, n’ont aucune place dans le code criminel.2 5
Si ccci avait &6 l’intention du lgislateur, il faut inf6rcr que les dispositions dudit art.
Section 480 states:
The Attorney General may, notwithstanding that an accused elects under section 450,
468 or 475 to be tried by a judge or magistrate, as the case may be, require the accused to be
tried by a court composed of a judge and jury, unless the alleged offence is one that is punish-
able with imprisonment for five years or less, and where the Attorney General so requires, a
judge has no jurisdiction to try the accused under this Part and a magistrate shall hold a
preliminary inquiry.
It is respectfully submitted that the argument of the learned judge in regard
to this section is less than conclusive insofar as the accused was permitted to
elect a speedy trial. When the indictment was preferred, it is true that the
Attorney General pressed for a trial by judge and jury, but the Court of Queen’s
Bench granted the right of option to the accused. Thus, although section
480 requires a preliminary inquiry where the accused is deprived of his option
to elect the mode of trial, the section is not made redundant through the
preferring of an indictment by the Attorney General against an accused liberated
at preliminary inquiry when such accused is not deprived of his option to elect
the mode of trial. That such a situation may offend one’s sense of justice does
not make the provisions of section 480 redundant.
The second argument of the learned judge in this case was that the Crown
must realize that the accused is bound to be acquitted at the trial for the same
lack of evidence that brought him his freedom at the preliminary inquiry.
Et si laccusE est libr6 au terme final de cette enquate prliminaire, le Procureur gan~ral
ne peut pas plus l’amener i subir, par la suite, un proc~s devant un jury . .. pour la simple
raison qu’il anticipe lU et alors et raalise que l’accus6 est destin6, au proc s, 1 obtenir un verdict
d’acquittement, vu la ma me absence de preuves inculpatives.2 1
However, if the Attorney General realized that the accused was bound to
be acquitted, there would be no reason for him to pursue the case. It is hard
to accept the view that the sole motive of the Crown was to inflict pain on the
accused. Whether the fact of new evidence or information, may we not assume
2at p. 232.
26at p. 233.
McGILL LAW JOURNAL
[Vol. 9
that the motive behind the decision to prefer an indictment was neither frivolous
nor callous?
It has been suggested that the arguments supporting the judgment in the
present case, and the cases cited by the learned judge, do not conclusively
demonstrate the illegality of a “preferred
indictment” against an accused
freed at preliminary inquiry. On the other hand, it may well be that the
judgments which obtained in those cases supporting the powers of the Attorney
General, however well constructed, were inimical to an equitable legal order.
It may be that a situation in which an accused, freed at a preliminary hearing,
be not immune from a “preferred indictment” is essentially unjust. But it is
certain that neither the Criminal Code nor the leading cases provide a clear
definition of the powers of the Attorney General where charges against an
accused have been dismissed at a preliminary inquiry.
If it is true that there here exists, in the provisions of sections 487 and 489,
an unresolved conflict between the judicial and executive powers, it may not
be improper to suggest that legislation be enacted to relieve this confused
situation. It would be desirable were such legislation to limit the powers of
the Attorney General in matters of “preferred indictment”. For the present,
one hopes that the courts will view the “preferred indictment” as an unusual
and dangerous power, the use of which is to be governed by just and humane
considerations.
