Informations that were sworn by a police officer with no knowledge of the case are nullities and must be quashed

How many of us have been asked by a supervising or fellow officer to “swear” an Information for them or another officer’s file?  I have been one of those officers asked to do so.  Well, this latest case out of a Nova Scotia Provincial Court should serve as a reminder to us if and when you are requested to do so.

R. v. Awad 2013 NSPC 82 – As a result of cross-examination of a police officer in an unrelated matter, defence counsel subsequently pursued an issue regarding the practice followed by a police agency in swearing Informations.  In this case, the officer swore 9 Informations in relation to this file.  Officers were directed to take the “court bag and get Informations sworn” (it would be no different if it was just 1-2 files).  The officer, unfortunately, although they always read the “Information and charges”, did not review the Crown Sheet, Occurrence Reports or any Supplemental Reports; nor did the officer speak to the Investigating Officer.

As stated in R. v. Southwick (1967), 2 C.R.N.S. 546 (Ont.C.A.), “Criminal proceedings commence when an Information is sworn before a justice.”  Section 504 of the Criminal Code states, inter alia:

“Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged…”

In R. v. Pilcher and Broadberry, 1981 CarswellMan 76, Prov. J. Minuk held that:

“The police officer’s belief in the truth of what he was told by his superiors was not sufficient to establish reasonable and probable grounds for believing that the accused committed the offences charged. As the police officer merely  read the information without apprising himself of the circumstances giving rise to the charges, the accused discharged the onus of proving on a preponderance of evidence that the police officer failed to satisfy the mandatory requirements for swearing an information.”

Section 601 of the Criminal Code states:

“An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect….”

Based on the evidence before the Judge, there were 9 Informations comprising this application for 8 defendants. Each Information was on the proper Form 2; each had been signed by an Informant; each was sworn before a Justice of the Peace who dated, signed and stamped the jurat; each Information had all the essential “averments” which advised the defendant of charges; each Information appeared valid “on it’s face;” each Promise to Appear appeared to be completed properly and valid on it’s face which required each defendant to appear in court and atone to the court’s jurisdiction.  Prior to signing or swearing the Information(s), the officer did not read the Crown Sheet, Occurrence Report, Supplementary Report or the Investigating Officer’s notes;  the officer did not speak to the Investigating Officer or any other officer involved in the investigation; the officer was not involved in the investigation(s) in any way; the officer did not receive any specific instructions regarding the swearing of Informations; the officer was “directed” as part of their duties to “take the court bag and get Informations sworn;” the officer had no personal knowledge nor reasonable and probable grounds to believe an offence had been committed by each of the defendants prior to swearing the Information(s); the officer relied on a “process” in that they believed the Investigating Officer or the Sergeant who had the file prior to them had reasonable and probable grounds.

The Judge said that the onus is on the accused to satisfy the court, on a balance of probabilities, that the Information is defective and in this case ruled the applicants had rebutted the presumption of regularity on the balance of probabilities.  The Judge said the officer had no personal knowledge, nor reasonable and probable grounds to believe an offence had been committed. In essence, the officer swore a “false information” and by doing so misled the Justice of the Peace.  The Judge said the ruling was not meant to impugn the reputation of the officer, but that the officer should bear in mind that it is their oath that is being committed, not the oath of a senior officer, supervisor or investigating officer. And, while they may not have personal knowledge of the allegations to which they deposed, they must have reasonable and probable grounds to believe those allegations were true.  Officers should not blindly follow the instructions of a superior. At the same time, those superior officers who issue instructions for Informations to be laid should bear in mind the obligation they are imposing upon the informant and should provide them with all of the information they need.  Based on all of this, the Judge found each Information a nullity and they were quashed.  The Judge closed the ruling by quoting Henry, J., in R. v. Peavoy 15 C.C.C.  (2d) 97, at para. 39:

“Recognizing that the pressure of duties and administration upon police forces may quite naturally cause them, when under pressure, to manage the laying of informations as a form of routine “paperwork”, I feel obliged to add the following comments. A person swearing an information, particularly a law enforcement officer, is not at liberty to swear the information in a perfunctory or irresponsible manner with a reckless disregard as to the truth of his assertion. To do so is clearly an affront to the Courts and is at variance with the right of the citizen to be left alone by the authorities unless there is reasonable and probable grounds for invading his liberty by compelling his attendance before the Courts. The police officer who does not satisfy himself that he can personally swear to the truth of the information according to its terms (i.e. personal knowledge or reasonable and probable grounds), yet does so, jeopardizes his personal position and also does a disservice to the upholding of law in the community. His oath must be beyond reproach. He need not, of course, have personal knowledge of all the facts or even most of the facts that support the allegation; indeed much of what would be available to him will, so far as he is concerned, be hearsay. He must however, be satisfied, even if it be on the basis of reliable reports made by other persons in the course of an investigation, that there is some evidence to support the charge, that that evidence in fact constitutes reasonable and probable grounds for believing that the accused committed the offence and that he believes that the accused did so. Moreover, he must be prepared to so satisfy the Justice of the Peace who, in turn, has an obligation judicially, not arbitrarily, to hear and consider the allegations before endorsing the information.”

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