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R. v. Benji

2002 SCC 5 [2002] 1 SCR 142 Court SCC Decision date 2002-01-15 Docket 28443 English

PartiesHer Majesty The Queen Appellant·Rajinder Kumar Benji Respondent

Judges McLachlin, Beverley; Gonthier, Charles Doherty; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis

Delivered by Arbour J.

On appeal from British Columbia

Subjects Criminal law

Contents

Arbour J.

Arbour J. -- We are all of the view that the Court of Appeal for British Columbia erred in its interpretation of the Criminal Code provisions dealing with the preferring of indictments. The better view was expressed by Proulx J.A. of the Quebec Court of Appeal in the similar case of R. v. Cross (1996), 112 C.C.C. (3d) 410, leave to appeal refused, [1997] 2 S.C.R. viii, and by Baudouin J.A. in Canada (Procureur général) v. Bélair (1991), 10 C.R. (4th) 209 (Que. C.A.) (approved in R. v. Tapaquon, [1993] 4 S.C.R. 535, at pp. 549-50).
In the present case, the respondent concedes that he could have been indicted through the ordinary process of s. 574(1) (a) of the Criminal Code , R.S.C. 1985, c. C-46 . This in itself is sufficient to permit his inclusion in the direct indictment which could only be brought under s. 577 of the Code against his co-accused Bhatti.
This interpretation is consistent with the reasons of Sopinka J. in Tapaquon, supra, at pp. 548-49, referring to Lamer J. (as he then was) in McKibbon v. The Queen, [1984] 1 S.C.R. 131, at p. 157, dealing with the predecessor provisions to s. 577, where he said:

1. The Attorney General or anyone with the written consent of a judge of the court may prefer an indictment for any offence irrespective of whether a preliminary inquiry has been held, and if so, whether the accused was discharged or committed for that or any other offence.

For these reasons, the appeal is allowed, the judgment of the British Columbia Court of Appeal is set aside and the indictment charging the respondent and Suraj Singh Bhatti is reinstated.

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