R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6
Her Majesty The Queen Appellant
v.
Claude Daoust and Éric Bois Respondents
and
Attorney General of Canada and Attorney General of Ontario Interveners
Indexed as: R. v. Daoust
Neutral citation: 2004 SCC 6.
File No.: 29185.
2003: October 8; 2004: February 12.
Present: Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for quebec
Criminal law — Elements of offence — Laundering proceeds of crime — Actus reus — English and French versions describing actus reus of offence differently — Version to be favoured — Principles of bilingual statutory interpretation — Criminal Code, R.S.C. 1985, c. C-46, s. 462.31
Criminal law — Elements of offence — Laundering proceeds of crime — Mens rea — Meaning of expression “intent to convert” — Criminal Code, R.S.C. 1985, c. C-46, s. 462.31
Statutes — Interpretation — Bilingual statutes — Criminal Code — English and French versions describing actus reus of offence differently — Version to be favoured — Criminal Code, R.S.C. 1985, c. C-46, s. 462.31.
As part of an investigation of second-hand store owners suspected of selling stolen merchandise, the Quebec City police set up an operation using an undercover officer. The officer went to D’s establishment on four different occasions to sell goods which he hinted were stolen. Each transaction ended with the merchandise being accepted for a sum of money. On the final occasion, D told the officer that this would be the last time they would do business together, to which B, the establishment’s manager, added “We can’t always be helping you to steal.” B and D were charged under s. 462.31 of the Criminal Code with having “transfer[red] the possession of property with the intent to conceal or convert that property, knowing . . . that . . . that property was obtained . . . as a result of the commission . . . of an enterprise crime offence”. At trial, they were found guilty of laundering proceeds of crime. The Court of Appeal set aside the convictions on the ground that the actus reus of the offence had not been made out.
Held: The appeal should be dismissed.
The English and French versions of s. 462.31 of the Code present variations of the offence of laundering proceeds of crime. While the French version simply lists the acts constituting the actus reus of the offence, that is, “utilise, enlève, envoie, livre à une personne ou à un endroit, transporte, modifie ou aliène des biens ou leurs produits — ou en transfère la possession —”, the English version lists these same acts and adds a prohibition against any other dealings with respect to the property or its proceeds. The addition in the English version of the expression “or otherwise deals with” leaves the door open to other acts of laundering, thus avoiding the need to provide an exhaustive list. Even though the legislative history shows that the English version reflects Parliament’s true intent, it cannot be adopted. The Court cannot use the history of a clearly drafted statute as the sole basis for changing it or completely disregarding its meaning. Under the rules of contextual interpretation, moreover, words that could effectively broaden the scope of a penal statute cannot be read in. Finally, under the rules of bilingual statutory interpretation, where, as here, the meanings of the two versions of a provision are clear, yet irreconcilable, the common meaning of the two versions of the enactment should be favoured. Here, the common meaning is the narrower version, which is the French version. It is therefore the French version that must first be examined to determine whether it accords with Parliament’s intent. The two versions are divergent because of an error or an omission on the part of Parliament, but that does not give this Court the authority to amend a clearly drafted enactment.
The actus reus of the offence specified in the indictment has not been made out here. The activities criminalized by this provision all concern the same person, that is, the person who originally has the object in his or her possession and seeks to dispose of it. Buying or receiving property or similar acts involving the person who accepts or acquires the property do not constitute elements of the offence of laundering proceeds of crime. Since the purchase was not a “transfer of possession” within the meaning of s. 462.31, the accused must be acquitted.
With regard to mens rea, the term “convert” does not require an intent to conceal. The words “conceal” and “convert” are distinct terms with distinct meanings; they should not be read together. The term “convert” must be given its ordinary, literal meaning. Parliament’s choice of words is indicative of its intention to forbid “conversion” pure and simple, thereby ensuring that those who convert property they know or believe to have illicit origins, regardless of whether they try to conceal it or not, do not profit from it.
The Crown’s request for the substitution of a verdict of guilty of attempting to commit the offence of laundering proceeds of crime under s. 462.31, in the event the Court decides that the purchase does not constitute a “transfer of possession” within the meaning of the actus reus under s. 462.31, must be denied. The Court’s analysis is limited by the theory advanced by the Crown at trial. While pursuant to s. 601(3) of the Code, a court may amend a count in an indictment at any stage of the proceedings provided it is a particular of the offence that is amended, the change requested in this case would amount to laying a different charge from the one originally brought. To allow the Crown to make out a different offence would infringe on the accused’s right to be reasonably informed of the transaction alleged against him.
Cases Cited
Referred to: R. v. Saunders, [1990] 1 S.C.R. 1020; Morozuk v. The Queen, [1986] 1 S.C.R. 31; Elliott v. The Queen, [1978] 2 S.C.R. 393; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62; R. v. Mac, [2002] 1 S.C.R. 856,
2002 SCC 24; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610; Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, [1977] 1 S.C.R. 456; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Goldman v. The Queen, [1980] 1 S.C.R. 976; Gaysek v. The Queen, [1971] S.C.R. 888; Ville de Montréal v. ILGWU Center Inc., [1974] S.C.R. 59; R. v. Tejani (1999), 138 C.C.C. (3d) 366; Minister of Municipal Affairs of New Brunswick v. Canaport Ltd., [1976] 2 S.C.R. 599; R. v. Chartrand, [1994] 2 S.C.R. 864; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Quebec (Attorney General) v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831; R. v. Morielli, [2000] R.J.Q. 364; R. v. Bouchard (1995), 45 C.R. (4th) 55; 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708, 2002 SCC 72; United States of America v. Dynar, [1997] 2 S.C.R. 462; R. v. Poole, [1997] B.C.J. No. 957 (QL); R. v. Côté, [1978] 1 S.C.R. 8.
Statutes and Regulations Cited
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 9 [rep. 2001, c. 32, s. 48].
Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, s. 5 [rep. 2001, c. 32, s. 58].
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, s. 28 [rep. 2001, c. 32, s. 60].
Criminal Code, R.S.C. 1970, c. C-34, s. 420.11 [ad. 1988, c. 51, s. 2].
Criminal Code, R.S.C. 1985, c. C-46, ss. 25.1(8) [ad. 2001, c. 32, s. 2], 141, 354(1), 462.3 “enterprise crime offence”, 462.31 [ad. c. 42 (4th Supp.), s. 2; am. 1996, c. 19, s. 70(c); repl. 1997, c. 18, s. 28], 601(3).
Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 163.2 [ad. 1993, c. 25, s. 89; rep. 2001, c. 32, s. 62].
Excise Act, R.S.C. 1985, c. E-14, s. 126.2 [ad. 1993, c. 25, s. 38; rep. 2001, c. 32, s. 64].
Food and Drugs Act, R.S.C. 1985, c. F-27.
Municipal By-Law No. 755 concerning second-hand dealers or hucksters, City of Québec, November 4, 1949 [s. 10 am. December 21, 1998 by By-Law No. 4961].
Narcotic Control Act, R.S.C. 1985, c. N-1 [rep. 1996, c. 19, s. 94], s. 19.2 [am. c. 42 (4th Supp.), s. 2].
Authors Cited
Black’s Law Dictionary, 7th ed. by Bryan A. Garner. St. Paul, Minn.: West Group, 1999, “transfer”.
Cornu, Gérard, dir. Vocabulaire juridique, 8e éd. Paris: Presses Universitaires de France, 2000, “transfert”.
Côté, Pierre-André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.
German, Peter M. Proceeds of Crime: The Criminal Law, Related Statutes, Regulations and Agreements. Scarborough, Ont.: Carswell, 1998.
Nouveau Petit Robert, dictionnaire alphabétique et analogique de la langue française, nouvelle éd. Paris: Le Robert, 2002, “transfert”.
APPEAL from a judgment of the Quebec Court of Appeal (2002), 1 C.R. (6th) 127 (sub nom. R. v. Bois), 165 C.C.C. (3d) 123, [2002] Q.J. No. 447 (QL), setting aside the accused’s convictions for laundering proceeds of crime. Appeal dismissed.
Louis Coulombe and Daniel Grégoire, for the appellant.
Jean Asselin and Sophie Dubé, for the respondents.
Bernard Laprade and Martin Lamontagne, for the intervener the Attorney General of Canada.
John Corelli and Leanne Salel, for the intervener the Attorney General of Ontario.
English version of the judgment of the Court delivered by
Bastarache J. —
I. Introduction
1 The most important issue raised in this appeal is that of the interpretation of divergent provisions of a bilingual statute. In the case before us, we are faced with two versions of s. 462.31 of the Criminal Code, R.S.C. 1985, c. C-46. Their meanings are clear, yet irreconcilable:
462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of
(a) the commission in Canada of an enterprise crime offence or a designated substance offence; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an enterprise crime offence or a designated substance offence. [Emphasis added.]
462.31 (1) Est coupable d’une infraction quiconque — de quelque façon que ce soit — utilise, enlève, envoie, livre à une personne ou à un endroit, transporte, modifie ou aliène des biens ou leurs produits — ou en transfère la possession — dans l’intention de les cacher ou de les convertir sachant ou croyant qu’ils ont été obtenus ou proviennent, en totalité ou en partie, directement ou indirectement :
a) soit de la perpétration, au Canada, d’une infraction de criminalité organisée ou d’une infraction désignée;
b) soit d’un acte ou d’une omission survenu à l’extérieur du Canada qui, au Canada, aurait constitué une infraction de criminalité organisée ou une infraction désignée.
2 The Attorney General of Canada submits that this situation is due to an error and that the Court should give priority to the English version of the Code, whose meaning is broader than that of the French version. The Attorney General argues that the legislative history shows that the English version reflects Parliament’s true intent. There are several reasons why I cannot accept this position. First, the Court cannot use the history of a clearly drafted statute as a basis for changing it or completely disregarding its meaning. On the contrary, the legislative intent revealed by the statute’s history must be one that could reasonably be supported by the text of the statute. Second, under the rules of contextual interpretation, words that could effectively broaden the scope of a penal statute cannot be read in. An accused should be able to read the applicable legislative provisions in each of the two official languages and derive from them an understanding of the limits of his or her liability. Third, the rules of bilingual statutory interpretation prescribe an approach that favours the common meaning of the two versions of an enactment. The common meaning of s. 462.31 Cr. C. must be the narrower of the two versions, which is the French version in this particular case. It is therefore the French version that must initially be analysed in relation to Parliament’s intent.
II. Facts
3 In December 1997, the Quebec City police conducted an investigation of second-hand store owners suspected of selling stolen merchandise. As part of the investigation, investigators Tremblay and Gagné were ordered to set up an operation using an undercover officer codenamed “Agent 008” who would offer merchandise he claimed to be stolen to selected merchants.
4 The respondent Claude Daoust owns three pawn shop/second-hand stores, including Argent Comptant, a business located in Quebec City. The respondent Éric Bois is the manager of this establishment. Between December 2 and 5, 1997, the undercover officer went to Argent Comptant on four different occasions to offer merchandise to the respondents Daoust and Bois. The undercover officer would hint he had criminally obtained goods to sell. Disguised so as to give the impression he was a financially disadvantaged person, he approached the respondents on four occasions, offering to sell them two new video cassette recorders, a slightly used video cassette recorder, two new telephones and a new alarm clock. He received a total of $60 for the goods.
5 As none of the merchandise offered and sold by the undercover officer was actually stolen, but had instead come from a merchant who had agreed to lend the goods to the police for the purposes of their investigation, the objective of the operation was to establish if the respondents were laundering merchandise as part of their normal commercial activities while believing, if not knowing for certain, that the goods were stolen. The undercover officer was supposed to offer the merchandise while mentioning that it was “hot” or indicating as much in similar terms such that there could be no doubt that the goods were illegally obtained.
6 According to the officer’s notes, the first “sale”, that of a used Sony video cassette recorder with remote control, unfolded as follows:
[translation]
– Daoust: “Does it work?” (referring to the video equipment).
– 008: “I don’t know. It’s not mine. It’s hot. I have to unload it.”
– Daoust: (staring closely at the undercover officer and smiling faintly) “You got any I.D.?”
– 008: “Yeah, but don’t call the police. I don’t want any trouble, O.K.?”
– Daoust: “Well, I can’t give you $50 for stuff like that. I’ll give you $20 if it works.”
– 008: “Come on. Give me at least $30. I need the money.”
– Daoust: “If it’s stolen, $20 and not a penny more.”
7 Similar meetings leading to sales occurred over the next three days. The last transaction, one involving a new Sony video cassette recorder, ended with the merchandise being accepted for $5. At that time, the respondent Daoust told the undercover officer that this was the last time they would do business together, to which the respondent Bois added, [translation] “We can’t always be helping you to steal.”
8 In accordance with Quebec City municipal by-law 755, which requires that all transactions be recorded in a register, the transactions between the undercover officer and the respondents were entered in the shop’s computer. However, the copy of the contract normally given to the client was deliberately torn up, while the respondents kept the originals in their files.
9 Shortly after the final transaction, that is, during the afternoon of December 5, 1997, police officers went to the shop and executed a search warrant to recover the goods from the previous transactions. In two separate cases, the respondents were charged under ss. 141 and 462.31(1)(a) Cr. C. with compounding an indictable offence and laundering proceeds of crime. The evidence presented at the respondent Daoust’s trial, including his testimony, was introduced with consent at the trial of the respondent Bois, who chose not to testify.
III. Judicial History
10 On July 3, 2000, Judge Dionne of the Court of Québec acquitted the respondents of compounding an indictable offence, stating that he was unable to conclude that the respondents had conspired with the undercover officer to conceal an indictable offence they knew or believed had been committed, as required under the offence. The respondents were nevertheless found guilty of laundering proceeds of crime under s. 462.31 Cr. C. According to Judge Dionne, the transfer of possession of the property, as evidenced by the respondents’ receiving, registering, taking possession of and storing the property, constituted the actus reus of the offence.
11 With respect to the mens rea, Judge Dionne held that the offence of laundering includes the intent to conceal or convert property, as well as the knowledge or belief that the property was obtained illegally. With regard to the meaning of the word “convert”, Judge Dionne stated that the word must be given its ordinary meaning and does not require evidence of stealth:
[translation] We would have expected Parliament to use words such as “disguise”, “conceal” or “place beyond reach” rather than “convert” if it had intended to reaffirm the element of stealth. Why should the mental element necessarily be surreptitiousness when changing ill‑gotten property already includes a mental element of making the detection of such property difficult?
(C.Q., Nos. 200-01-039905-983 and 200-01-39910-983, July 3, 2000, p. 21)
12 Judge Dionne concluded by affirming that the Crown had proved that the respondents knew or believed that the property had been obtained or derived as a result of the commission of an offence. He drew the following conclusion (at p. 28):
[translation] The evidence as a whole persuades us that the two accused were prepared to accept items for a ridiculously low price despite the dubious origins of the goods. The court is convinced that, under the apparent protection of a by‑law requiring them to specify the identity of items purchased, the two accused smelled a bargain and closed their eyes to the dubious origins of the property. [Footnote omitted.]
13 The Quebec Court of Appeal allowed the respondents’ appeal and ordered that acquittals be substituted for the convictions entered against the respondents Daoust and Bois ((2002), 165 C.C.C. (3d) 123).
14 Fish J.A. ruled that the actus reus had not been made out in this case, as the respondents, in purchasing the property from the undercover officer, had not transferred the possession of the property they believed to be stolen. In Fish J.A.’s opinion, s. 462.31 is aimed at individuals who, having control or possession of proceeds of crime, commit one of the prohibited acts with the requisite knowledge and intent (at para. 15):
The Crown’s case against Daoust and Bois is that they acted as principals, not as accessories. Thus, while “008” doubtless transferred the possession of the purportedly “hot” property when he sold it to Daoust and Bois, the Crown does not allege that Daoust and Bois thereby aided and abetted “008” in the commission by him of an offence under s. 462.31 of the Criminal Code. Nor could the Crown do so: “008” committed no offence under that section, since he neither knew nor believed that the property was stolen — indeed, he knew that it was not.
15 Having concluded that the actus reus had not been made out, Fish J.A. nevertheless went on to consider the mens rea. With regard to the meaning of the word “convert”, he said, at paras. 24-25:
In its ordinary sense, to “convert” is to “change in form, character or function”: The Canadian Oxford Dictionary, 1998, p. 309.
That definition corresponds, in my view, to the evident objectives of s. 462.31 of the Code: to prevent those who commit enterprise crime offences and designated drug offences from placing the proceeds of their crimes beyond reach or recognition — or difficult to trace, identify or recover — and to punish those who help them to do so.
16 Having adopted this definition of “convert”, Fish J.A. could not conclude that the respondents intended to change, transform or alter the merchandise they had purchased, as he was of the opinion that the respondents’ intent was to sell the goods, rather than to cover up the crime that supposedly had been committed.
IV. Analysis
A. Particulars of the Indictment
17 Before I begin my analysis, I would like to point out that some of the parties’ arguments before this Court concern elements that could have been alleged in the indictment, but were not, and more importantly were not raised at trial or in the Court of Appeal. The Court must, in these circumstances, focus on what in fact was alleged, since the issues are circumscribed by the earlier debate, which dealt exclusively with the fact that the accused allegedly committed the offence of laundering proceeds of crime provided for in s. 462.31 Cr. C. and not that they allegedly attempted, aided or abetted that offence.
18 The indictment brought against the accused reads in part as follows:
[translation] 2. In the month of December 1997, at Quebec City, District of Québec, the accused did, in any matter and by any means, transfer the possession of property with the intent to conceal or convert that property, knowing or believing that all or a part of that property was obtained directly or indirectly as a result of the commission in Canada of an enterprise crime offence or a designated offence, thereby committing an offence under s. 462.31[(1)](a) of the Criminal Code.
19 The present discussion must therefore be limited to determining whether the offence was committed by means of a transfer of possession. The Crown was free to particularize the charge differently or to describe it generally, but it was bound by its choice. In Fish J.A.’s opinion, at para. 13, the Crown’s specific theory at trial might result from the difference between the English and French versions of s. 462.31, which I mentioned earlier:
The English version thus makes it an offence to perform any of the enumerated acts in relation to property that is known or thought to be proceeds of crime or to otherwise deal with it in any manner and by any means. The French version, on the other hand, makes it an offence in any manner to perform the enumerated acts. This difference can only be harmonized by adopting the narrower French version. And it is perhaps for this reason that the Crown, in drafting the indictments that concern us here, felt constrained to allege one of those enumerated acts — that Daoust and Bois had transferred possession of the property sold to them by “008”. On the particular facts, I would have expected the Crown, if it felt free to do so, to allege instead, in virtue of the English‑language basket clause, that Daoust and Bois had otherwise dealt with the property in any manner and by any means. [Underlining added; italics in original.]
20 Based on the French version of s. 462.31, the Crown was limited with respect to the actus reus of which it accused the respondents, as the French version prima facie limits the material element of the offence to the acts enumerated therein. According to Fish J.A., if the Crown had wanted to define the alleged offence in a general manner, it should have done so in English, since the French version of s. 462.31, being more narrowly constructed, does not lend itself to the Crown’s arguments.
21 Given that the Crown chose to accuse the respondents of transferring the possession of the property, the respondents submit that the Crown must prove that the offence was committed by this means, not by any other. They rely on the decision in R. v. Saunders, [1990] 1 S.C.R. 1020, in which McLachlin J. (as she then was) wrote, at p. 1023:
It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved. In Morozuk v. The Queen, [1986] 1 S.C.R. 31, at p. 37, this Court decided that once the Crown has particularized the narcotic in a charge, the accused cannot be convicted if a narcotic other than the one specified is proved. The Crown chose to particularize the offence in this case as a conspiracy to import heroin. Having done so, it was obliged to prove the offence thus particularized. To permit the Crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars, which is to permit “the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial”: R. v. Côté, [1978] 1 S.C.R. 8, at p. 13.
22 It is a well-established legal principle that an accused need only answer the charges as they appear in the indictment and that the Crown has the burden of proving them unless it requests an amendment, which in this case was not done in time. Pursuant to s. 601(3) Cr. C., a court may amend a count in an indictment at any stage of the proceedings provided it is a particular of the offence that is amended: Morozuk v. The Queen, [1986] 1 S.C.R. 31 (per Lamer J., as he then was); Elliott v. The Queen, [1978] 2 S.C.R. 393, at p. 427 (per Ritchie J.). However, an amendment to the indictment we are concerned with would not constitute a change in the particulars of the offence. Rather, it would amount to laying a different charge from the one originally brought. At any rate, this Court is certainly not prepared to amend the indictment at this stage of the proceedings.
23 Our analysis should therefore be limited to what is alleged in the indictment and was pleaded at trial. The subject matter of this case, in relation to the actus reus, is thus limited to whether the respondents effectively participated in a transfer of possession within the meaning of s. 462.31 Cr. C.
B. Actus Reus
24 In light of the inconsistency in the two versions of s. 462.31 with respect to the actus reus of the offence, it would be appropriate at this point to briefly address the question of bilingual statutory interpretation. A clarification of the principles of interpretation would help us to better understand the scope of s. 462.31 and the expression “transfers the possession of”.
25 Fish J.A. recognized that the English and French versions of s. 462.31 offer differing descriptions of the elements of the offence. In his view, this difference could only be resolved by adopting the French version, which is more restrictive. However, Fish J.A. does not explain his reasons for choosing the French version over the English and does not apply any of the principles of bilingual statutory interpretation enshrined in recent decisions of this Court. It is to this that I will now turn my attention.
(1) Principles of Bilingual Statutory Interpretation
26 The Court has on several occasions discussed how a bilingual statute should be interpreted in cases where there is a discrepancy between the two versions of the same text. For example, in Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62, at para. 56, LeBel J. wrote:
A principle of bilingual statutory interpretation holds that where one version is ambiguous and the other is clear and unequivocal, the common meaning of the two versions would a priori be preferred; see: Côté, supra, at p. 327; and Tupper v. The Queen, [1967] S.C.R. 589. Furthermore, where one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning: see Côté, supra, at p. 327; R. v. Dubois, [1935] S.C.R. 378; Maurice Pollack Ltée v. Comité paritaire du commerce de détail à Québec, [1946] S.C.R. 343; Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, [1977] 1 S.C.R. 456, at pp. 464‑65; and Gravel v. City of St‑Léonard, [1978] 1 S.C.R. 660, at p. 669.
As well, in R. v. Mac, [2002] 1 S.C.R. 856, 2002 SCC 24, at para. 5, I stated the following:
The Criminal Code is a bilingual statute of which both the English and French versions are equally authoritative. In his Interpretation of Legislation in Canada (3rd ed. 2000), at p. 327, Pierre‑André Côté reminds us that statutory interpretation of bilingual enactments begins with a search for the shared meaning between the two versions.
I would also draw attention to the two-step analysis proposed by Professor Côté in The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 324, for resolving discordances resulting from divergences between the two versions of a statute:
Unless otherwise provided, differences between two official versions of the same enactment are reconciled by educing the meaning common to both. Should this prove to be impossible, or if the common meaning seems incompatible with the intention of the legislature as indicated by the ordinary rules of interpretation, the meaning arrived at by the ordinary rules should be retained.
27 There is, therefore, a specific procedure to be followed when interpreting bilingual statutes. The first step is to determine whether there is discordance. If the two versions are irreconcilable, we must rely on other principles: see Côté, supra, at p. 327. A purposive and contextual approach is favoured: see, for example, Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, at para. 27; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33.
28 We must determine whether there is an ambiguity, that is, whether one or both versions of the statute are “reasonably capable of more than one meaning”: Bell ExpressVu, supra, at para. 29. If there is an ambiguity in one version but not the other, the two versions must be reconciled, that is, we must look for the meaning that is common to both versions: Côté, supra, at p. 327. The common meaning is the version that is plain and not ambiguous: Côté, supra, at p. 327; see Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610, at p. 614; Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, at p. 863.
29 If neither version is ambiguous, or if they both are, the common meaning is normally the narrower version: Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660, at p. 669; Pfizer Co. v. Deputy Minister of National Revenue For Customs and Excise, [1977] 1 S.C.R. 456, at pp. 464-65. Professor Côté illustrates this point as follows, at p. 327:
There is a third possibility: one version may have a broader meaning than another, in which case the shared meaning is the more narrow of the two.
30 The second step is to determine whether the common or dominant meaning is, according to the ordinary rules of statutory interpretation, consistent with Parliament’s intent: Côté, supra, at pp. 328-329. At this stage, the words of Lamer J. in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1071, are instructive:
First of all, therefore, these two versions have to be reconciled if possible. To do this, an attempt must be made to get from the two versions of the provision the meaning common to them both and ascertain whether this appears to be consistent with the purpose and general scheme of the Code.
31 Finally, we must also bear in mind that some principles of interpretation may only be applied in cases where there is an ambiguity in an enactment. As Iacobucci J. wrote in Bell ExpressVu, supra, at para. 28: “Other principles of interpretation — such as the strict construction of penal statutes and the ‘Charter values’ presumption — only receive application where there is ambiguity as to the meaning of a provision.”
(2) Application to this Case
32 In this case, it is quite simply not possible to say, as the appellant would have us do, that the English text is more consistent with Parliament’s intent. In this appeal, we must apply the rules of statutory interpretation to determine whether or not there is an apparent discordance, whether there is a common meaning and, finally, how consistent the common meaning, if there is one, is with Parliament’s intent.
(a) Discordance
33 Each version of s. 462.31 Cr. C. presents a variation of the offence of laundering proceeds of crime. While the French version simply lists the acts constituting the actus reus of the offence, that is, “utilise, enlève, envoie, livre à une personne ou à un endroit, transporte, modifie ou aliène des biens ou leurs produits — ou en transfère la possession —”, the English version lists these same acts and adds a prohibition against any other dealings with respect to the property or its proceeds. The addition in the English version of the expression “or otherwise deals with” would appear, in effect, to leave the door open to other acts of laundering, thus avoiding the need to provide an exhaustive list.
34 Although the two versions are obviously irreconcilable, given the complete enumeration of the elements of the actus reus in the French version and the non‑exhaustive enumeration in the English version, both versions taken individually are nevertheless clear, inasmuch as they are not reasonably capable of more than one meaning. Given that the versions are irreconcilable but not individually ambiguous, the next step is to consider their common meaning.
(b) Common Meaning
35 As I have already mentioned, when one of the two versions of a provision of a bilingual statute has a broader meaning than the other, the common meaning of the two versions is normally the one that is derived from the version with a more restricted meaning. This rule is especially relevant in a criminal context, as the accused may, depending on which version he or she reads, form a different conception of the elements of the offence in question.
36 Here, the only possible common meaning is the most restrictive one. This common meaning is easily derived, as the two versions list similar prohibited acts, with the exception of the added phrase which appears in the English version only. Since the English version cannot represent the common meaning, the French version must. Thus, we are restricted to the elements of the actus reus enumerated in the French version.
37 As mentioned earlier, it is important to ensure that all accused persons, regardless of the official language in which they read s. 462.31, have the same understanding of the elements of the offence of laundering proceeds of crime. The two versions must therefore publicize exactly the same description of the offence. It would not be fair to propose an interpretation whereby in one language the elements of the actus reus would be met, but not in the other. If we adopted the English version, which is broader than the French one, this Court would be making an undue judicial amendment of the statute. For these reasons, the Court must favour the French version.
(c) Compatibility of the Common Meaning with Parliament’s Intent
38 The intervener the Attorney General of Canada argues that the divergence between the two versions of s. 462.31 is the result of a mere oversight on the part of Parliament. According to the Attorney General, the legislative history shows that Parliament’s true intent is reflected in the English version of the provision. It is therefore important that our analysis include a brief examination of the provision’s legislative history.
39 Section 462.31 Cr. C. (formerly s. 420.11) was originally part of Bill C-61, which was enacted by Parliament on January 1, 1989 (S.C. 1988, c. 51 (now R.S.C. 1985, c. 42 (4th Supp.)), s. 2). This provision created, for the first time in Canada, an offence of “laundering proceeds of crime”. Bill C-61 also added provisions to the Narcotic Control Act, R.S.C. 1985, c. N-1, and the Food and Drugs Act, R.S.C. 1985, c. F-27, which both contained separate offences covering the laundering of proceeds of crime in situations in which property or the proceeds of property were derived by committing offences under these Acts. The new provisions of these two Acts mirror the relevant portions of s. 420.11 Cr. C. Consequently, the English and French versions of these provisions were not perfectly consistent with each other, that is, the English version contained the expression “or otherwise deals with, in any manner and by any means”, while the French version had no equivalent expression. The relevant parts of the two versions of the above-mentioned provisions read as follows:
462.31 [420.11] (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds . . . . [Emphasis added.]
462.31 [420.11] (1) Est coupable d’une infraction quiconque — de quelque façon que ce soit — utilise, enlève, envoie, livre à une personne ou à un endroit, transporte, modifie ou aliène des biens ou leurs produits — ou en transfère la possession — dans l’intention de les cacher ou de les convertir . . .
40 In 1993, the Excise Act, R.S.C. 1985, c. E-14, and the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), were amended to add provisions creating an offence of laundering proceeds of crime to cover cases in which the proceeds were derived from the commission of offences under those Acts (S.C. 1993, c. 25, ss. 38 and 89). These provisions were drafted differently from those of the other three Acts and the English and French versions were more consistent with each other. The English version contained the expression “or otherwise deal with, in any manner or by any means”, while the French version prohibited the following: “d’effectuer toutes autres opérations à leur égard”. The relevant portions of s. 126.2 of the Excise Act and s. 163.2 of the Customs Act read as follows:
No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner or by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds . . . .
Il est interdit à quiconque d’utiliser, d’envoyer, de livrer à une personne ou à un endroit, de transporter, de modifier ou d’aliéner des biens ou leur produit — ou d’en transférer la possession —, ou d’effectuer toutes autres opérations à leur égard, et ce de quelque façon que ce soit, dans l’intention de les cacher ou de les convertir . . . [Emphasis added.]
41 In 1997, the Narcotic Control Act was repealed, as was the part of the Food and Drugs Act that contained the offence of laundering proceeds of crime: S.C. 1996, c. 19, ss. 94 and 81. They were replaced by the Controlled Drugs and Substances Act, which itself included a provision forbidding the laundering of proceeds of crime. As it had done in 1993, Parliament drafted the provision in such a manner as to ensure that the English and French versions were consistent with each other.
42 In 1998 and 2000, Parliament enacted s. 5 of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, and s. 28 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. Here again, the English and French versions are concordant.
43 Finally, in 2001, Parliament amended Part XII.2 of the Criminal Code (in which s. 462.31 appears), specifically to give the Attorney General of Canada the power to prosecute the laundering of proceeds of crime obtained or derived from a “designated offence”. The five other provisions allowing the Attorney General of Canada to prosecute the laundering of proceeds of crime were therefore repealed, namely s. 9 of the Controlled Drugs and Substances Act, s. 163.2 of the Customs Act, s. 126.2 of the Excise Act, s. 5 of the Corruption of Foreign Public Officials Act, and s. 28 of the Crimes Against Humanity and War Crimes Act: S.C. 2001, c. 32, ss. 48, 62, 64, 58 and 60. However, s. 462.31(1) was not amended, so the discrepancy between the English and French versions of this provision remained.
44 We can conclude from the legislative history of the enactments pertaining to the laundering of proceeds of crime that Parliament’s true intent was to criminalize all acts (“or otherwise deal with”) in relation to the proceeds of crime where the intent is to conceal or convert them. This intent is explicit in the English version of s. 462.31. Nevertheless, the legislative intent revealed by the history must be one that could reasonably be supported by the text of the statute. Such is not the case here. Parliament did not achieve what it intended when it drafted s. 462.31. For this reason, the French version, the one with the narrower meaning, must be favoured. Here, we are concerned with discovering not only the intent that Parliament was pursuing, but also the intent it expressed: Goldman v. The Queen, [1980] 1 S.C.R. 976, at pp. 994‑95.
45 The two versions of s. 462.31 are divergent because of an error or an omission on the part of Parliament, but that does not give this Court the authority to amend a clearly drafted enactment: Gaysek v. The Queen, [1971] S.C.R. 888, at p. 895; Ville de Montréal v. ILGWU Center Inc., [1974] S.C.R. 59, at p. 66. If this Court did have such authority, an accused could not know the limits of his or her liability.
46 The appellant submits that in R. v. Tejani (1999), 138 C.C.C. (3d) 366, the Ontario Court of Appeal recognized that Parliament’s intent in enacting s. 462.31 was to catch every facet of the laundering of proceeds of crime. Tejani concerned s. 19.2 of the Narcotic Control Act, a provision corresponding to s. 462.31 Cr. C., but in the context of property obtained through the perpetration of drug offences. In that case, Laskin J.A. remarked on the very broad nature of Parliament’s purpose: “I think it evident from Bill C-61's origin and purpose, and from the broad language of s. 19.2 [of the Narcotic Control Act], that Parliament intended to cast a wide net over the laundering of the proceeds of illicit drug dealing” (para. 26). However, it should be noted that Laskin J.A. referred only to the English version of s. 19.2 of the Narcotic Control Act when he inferred the purpose of Bill C-61; he did not attempt to derive a common meaning from the English and French versions. The analysis used in Tejani is therefore of no assistance on this issue, in that Tejani dealt only with the English version.
47 It therefore follows that the text to be analysed here is the one that allows us to establish the common meaning, that is, the more restrictive of the two versions. Since the two versions are identical, with the exception of an addition in the English version, the French version must prevail for the purposes of this analysis.
(3) Was the Purchase a “Transfer of Possession” Within the Meaning of Section 462.31 Cr. C.?
48 The following question now arises: does one “transfer the possession” of property in the context of laundering proceeds of crime if one buys the property with the intention of converting it? The Court of Appeal answered this question in the negative, and I believe its interpretation is the correct one in this case. The Court of Appeal held that s. 462.31, as drafted, does not apply to the receiver of the property (at para. 14):
Read as a whole, s. 462.31 appears to me to be aimed at the person who, having the control or possession of the proceeds of a crime, carries out any of the prohibited activities — uses the proceeds, transfers their possession, transports them, alters them or disposes of them — with the prohibited knowledge and intent, to which I shall return presently. [Emphasis added.]
49 Section 462.31 contains a list of acts that are essentially unilateral ones. The “transfer of possession” is the act of the person who has the control or possession of the object and then tries to pass it on to another. This interpretation is compatible with the ordinary meaning of the word “transfer/transfert”, that is, [translation] “[a]ct whereby a person transmits a right to another”: Le Nouveau Petit Robert (2002); [translation] “[t]ransmission of a right from one holder to another”: Gérard Cornu, ed., Vocabulaire juridique (8th ed. 2000); “[a]ny mode of disposing of or parting with an asset or an interest in an asset”: Black’s Law Dictionary (7th ed. 1999). Although “transfer/transfert” necessarily implies a relationship between two persons and that a beneficiary of the transfer is an essential element of carrying it out, the offence is not aimed at the beneficiary. This is demonstrated by the text of s. 462.31 itself, which criminalizes the act of “deliver[ing] to any person or place”. This clarification highlights the fact that Parliament intended that this provision apply only to the party originally having control of the property, rather than both parties.
50 The word “transfer” (transfert) must therefore be given its ordinary meaning, this despite the presence of the expression “in any manner and by any means” (de quelque façon que ce soit) in s. 462.31. The appellant argues that the inclusion of this expression demonstrates Parliament’s intent that the terms in s. 462.31, including the word “transfer”, be given a large and liberal interpretation. I cannot accept this argument. The words “in any manner and by any means” do not add to the number of activities constituting a transfer of possession. Rather, they qualify the methods by which it is possible to execute the transfer, leaving unanswered the question as to whom this provision is intended to apply. For example, within the meaning of s. 462.31, the transportation of property could include any mode of transportation, be it boat, airplane, car or any other (“in any manner and by any means”). In other words, one of the elements of the actus reus enumerated in s. 462.31 must be present, but the manner in which this element is carried out is unimportant. The activities criminalized by this provision all concern the same person, that is, the person who originally has the object in his or her possession and seeks to dispose of it.
51 The appellant also argued that both versions of s. 462.31 show an unequivocal intent to encompass all positive acts committed in relation to criminally obtained property for the purpose of converting or concealing it. However, upon examining the list of prohibited acts in this provision, it would appear that all these acts are of the same nature or category and apply only to the person with control over the property. For example, the verbs “sell” (vendre), “give” (donner), “exchange” (échanger) and “dispose of” (se départir) are close in meaning to the enumerated acts. However, the word “purchase” (achat) has an altogether different meaning, so this Court could not interpret a series of terms as including that word when it does not share their common meaning. For this reason, buying or receiving property or similar acts involving the person who accepts or acquires the property do not constitute elements of the offence of laundering proceeds of crime. This is an application of the noscitur a sociis rule. According to that rule, the meaning of a term may be revealed by its association with other terms where the latter may not be read in isolation: Côté, supra, at p. 313, and Minister of Municipal Affairs of the Province of New Brunswick v. Canaport Ltd., [1976] 2 S.C.R. 599, at p. 604.
52 This interpretation is supported by a reading of s. 354 Cr. C., which already prohibits the possession of criminally obtained property:
354. (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
(a) the commission in Canada of an offence punishable by indictment; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
This provision is aimed specifically at persons who receive or accept property despite knowing it to be of illicit origin. It would thus be redundant to interpret the word “transfert” in s. 462.31 as including the act of purchasing or possessing property when another provision of the Criminal Code already prohibits that act. Although a statute may be redundant, the contrary is presumed: Côté, supra, at p. 278; R. v. Chartrand, [1994] 2 S.C.R. 864. It must therefore be presumed that s. 462.31 criminalizes different behaviours, since Parliament does not speak in vain: Bell ExpressVu, supra, at para. 37; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 617; Quebec (Attorney General) v. Carrières Ste‑Thérèse Ltée, [1985] 1 S.C.R. 831, at p. 838.
53 In the present case, the evidence shows that the respondents bought the merchandise believing it to be stolen. However, in light of the foregoing, the act of purchasing this merchandise is not the equivalent of “transfers the possession of”, which is the element of the offence specified in the indictment and which the Crown must prove. For this reason, it is my opinion that the respondents did not transfer the possession of the property within the meaning of s. 462.31.
(4) Enterprise Crime
54 Section 462.31, as it read at the time the respondents were charged, required proof that an offence referred to in a paragraph had been committed, namely, an “enterprise crime offence” or a “designated substance offence”. Since, at the time charges were brought against the respondents, “designated substance offence” only included offences under the Controlled Drugs and Substances Act, the respondents argue that the final element of the actus reus of which they stand accused must be laundering property or proceeds of property derived from an enterprise crime offence. Therefore, they submit not only that the property or its proceeds must come from the commission of an offence, but also that the offence must have been committed by a criminal organization.
55 Here, the respondents advance the same argument that was rejected by the trial judge, who was of the opinion that an “enterprise crime offence” does not incorporate the element of organization implied by the words “criminalité organisée” and therefore does not necessarily have to be committed by a criminal organization. The respondents’ argument was also rejected by the Court of Appeal, which explained its reasoning as follows:
Some might think it curious, bearing in mind its French equivalent (“une infraction de criminalité organisée”) that “enterprise crime offence” should include, as it does pursuant to s. 462.3 of the Code, any one of more than 50 different offences, even if committed only once by a single offender acting alone. And the specified offences range from paying or accepting secret commissions to murder, theft, fraud and uttering forged documents. In addition, “enterprise crime offence” includes any indictable offence under any Act of Parliament “committed for the benefit of, at the direction of or in association with a criminal organization for which the maximum punishment is imprisonment for five years or more”. [Emphasis in original.]
At the time, s. 462.3 of the Criminal Code specifically identified offences deemed to be “enterprise crime offences”. Since theft was one such offence (see s. 462.3 “enterprise crime offence” (a)(xi)), the statutory conditions were met in this case, regardless of whether the activity was related to a criminal organization or not.
C. Mens Rea
Does the Term “Convert” Require Intent to Conceal?
56 The mens rea of the offence of laundering proceeds of crime has two elements: (1) intent to conceal or convert property or proceeds of property, and (2) knowledge or belief that the property or proceeds were derived from an enterprise crime offence or a designated substance offence. The issue raised in the present case hinges on the meaning of the word “convert”.
57 The respondents rely on the following conclusions of the Court of Appeal to argue that proof of intent to conceal the proceeds is required to establish mens rea (at para. 25):
That definition corresponds, in my view, to the evident objectives of s. 462.31 of the Code: to prevent those who commit enterprise crime offences and designated drug offences from placing the proceeds of their crimes beyond reach or recognition — or difficult to trace, identify or recover — and to punish those who help them to do so. [Emphasis added.]
In this Court, the parties pointed out that the Court of Appeal held that an intent to disguise must be proved to establish mens rea under s. 462.31 Cr. C. This seems to be in keeping with the trend in Quebec case law, according to which “intent to convert”, like “intent to conceal”, requires an element of concealment or transformation for the purpose of making the proceeds undetectable. I am not convinced that Fish J.A. really adopted this point of view since he does not refer to the intent to conceal when he deals with the question in para. 26 of his reasons. Be that as it may, given the uncertainty with respect to the Court of Appeal’s conclusions and the divergent interpretations the courts have given to this expression, I shall first examine the case law concerning the interpretation of the expression “intent to convert”.
(a) Quebec Court of Appeal: Morielli
58 In R. v. Morielli, [2000] R.J.Q. 364, the Quebec Court of Appeal ruled that “intent to convert” requires an element of concealment or transformation. More specifically, it held that [translation] “for the actions of the police to have been illegal, it would have to have been shown that there was an intent to hide the criminal origins of the currency” (para. 60).
59 It is helpful to examine the context in which the decision in Morielli was rendered to fully understand the reasoning behind it. Unlike the present case, which concerns charges of laundering the proceeds of an individual’s crime, Morielli dealt with an application brought by the accused in relation to the illegality of a police investigation in which police officers operated a currency exchange office to identify criminal organizations engaged in importing and trafficking in narcotics. In Morielli, proof of an intent to hide the criminal origins of the converted money had been presented to exclude the possibility that the police involved in the operation were not in turn found guilty. I note in this regard that amendments have since been made to s. 25.1(8) of the Criminal Code authorizing, on certain conditions, the commission of “an act or omission — or . . . directing the commission of an act or omission . . . — that would otherwise constitute an offence”.
60 The interpretation given to the word “convert” by the Court of Appeal in that case was supported by the decision in R. v. Bouchard (1995), 45 C.R. (4th) 55, in which Pinard J. of the Quebec Superior Court dealt with Mr. Morielli’s preliminary application for a stay of proceedings. At para. 29, Pinard J. tried to relate “intent to convert” to “intent to conceal” to arrive at a common intent to conceal the origin of the property:
[translation] In every dictionary, the usual meaning of the word “convert” is to change something into something else or transform it. In relation to the word “conceal”, and in the general context of this section, the word “convert” could only mean to transform property so as to hide its origins.
It is true that the noscitur a sociis rule, which we applied earlier, allows us to determine the meaning of a term through its relation to other terms. However, this principle is normally applied when interpreting terms in an enumeration: Côté, supra, at p. 313; see also 2747-3174 Quebec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, at para. 195.
61 In the present case, the words “conceal” and “convert” are not part of a list. On the contrary, they are two distinct terms with distinct meanings. This is demonstrated by Parliament’s use of the expression “with intent to conceal or convert”, as the use of the word “or” shows an intent to distinguish the two terms from each other. For this reason, these two terms should not be read together, and the noscitur a sociis rule does not apply.
(b) Ontario Court of Appeal: Tejani
62 In Tejani, supra, the Ontario Court of Appeal ruled that the term “convert” does not require intent to conceal or disguise the illicit origin of property. According to the Court of Appeal, the courts should not read into the mens rea of the offence of money laundering an intent that is required only in the case of someone accused of having acted with an “intent to conceal”. Laskin J.A., was of the opinion, at paras. 28 and 30, that the term “convert” does not have the same meaning as the word “conceal”:
The words “conceal” and “convert” are not synonymous. Conceal does mean to hide. But convert has a broader meaning; it means to change or transform.
. . .
Absent a good reason, I do not think that the court should read words into a criminal statute. I do not find any good reason to read the word “disguise” into s. 19.2. The section is not ambiguous and, as drafted, gives effect to what I consider to be Parliament's obvious intention.
It would be redundant for the expression “convert” in s. 462.31 to mean “conceal”, as that term is already found in the wording of the provision. Moreover, as P. M. German points out in Proceeds of Crime: The Criminal Law, Related Statutes, Regulations and Agreements (1998), a parliamentary committee responsible for studying Bill C-61 had rejected a proposal to replace the words “conceal or convert” with “disguise”.
63 I am therefore of the opinion that the interpretation given to “intent to convert” by the Ontario Court of Appeal in Tejani, supra, is the correct one. The verb “to convert”, in my view, cannot be given the meaning of “disguise” or “conceal” unless there is an express indication to that effect in the enactment. Absent this, the term “convert” must be given its ordinary, literal meaning. While Parliament might have, in enacting s. 462.31, intended to prohibit acts to disguise or conceal the illicit origins of property or its proceeds, this was only a secondary purpose that was part of a much broader one, that is, to ensure that crime does not pay: Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708, 2002 SCC 72, at para. 25. Section 462.31 has a broad deterrent effect, in that it is designed to prevent offenders from profiting from their crimes or from engaging in illegal activities, an objective that has nothing to do with disguising the origins of property or its proceeds.
64 Moreover, to read an intent to disguise into “convert” would mean that the offence of laundering proceeds of crime would apply only to clandestine transactions, while leaving the same acts, if committed openly, unpunished. This would be an unreasonable result, particularly in this case, where the evidence shows, as the Court of Appeal recognized at para. 21, that the respondents did not attempt to conceal or disguise the property they had purchased:
. . . the Crown concedes that there is no basis whatever for concluding that Daoust and Bois intended to “conceal” what they had bought. On the contrary, it appears that they intended to sell it openly in their pawnshop.
Given that the respondents bought the merchandise believing it to be stolen and made no attempt to disguise its origins, even recording the purchases in their register, the Court of Appeal concluded that they did not have the intent required to commit the offence of laundering proceeds of crime. Despite the air of legality the respondents gave to the transactions by recording the date of the purchase, as well as the name and address of the seller, in the register in compliance with municipal by-laws, the acts committed are nonetheless as illegal as if they had tried to conceal them. Even if, as the trial judge had indicated, the respondents did not [translation] “intend to camouflage a crime” (p. 15 (emphasis added)), they still intended to commit it.
65 In short, I believe Parliament’s choice of words is indicative of its intention to forbid “conversion” pure and simple, thereby ensuring that those who convert property they know or believe to have illicit origins, regardless of whether they try to conceal it or not, do not profit from it. I am therefore of the opinion that Parliament’s intent and purpose in enacting s. 462.31 favours an interpretation of the word “convert” that does not include an intent to disguise. The interpretation given by the Quebec Court of Appeal to the term “convert” is too narrow and excludes from the scope of s. 462.31 activities that Parliament intended to prohibit.
D. Attempting, Aiding and Abetting
66 The appellant asks this Court, in the event it decides that the purchase does not constitute a “transfer of possession” within the meaning of the actus reus under s. 462.31, to substitute a verdict of guilty of attempting to commit the offence of laundering proceeds of crime under s. 462.31 Cr. C., thereby finding that the respondents had the required mens rea for the offence of laundering in buying property they believed to be stolen with the intent to convert it. We cannot assent to that request.
67 As I mentioned at the beginning of my analysis, this Court’s analysis is limited in the present case by the theory advanced by the Crown at trial. As Fish J.A. remarked, the Crown had, at trial, argued that the accused were the principals to the offence of laundering. The Crown had not alleged that a crime had been committed because the respondents aided the seller, nor had it asked that a conviction for attempted laundering be substituted. As Fish J.A. stated, at paras. 15-16:
The Crown’s case against Daoust and Bois is that they acted as principals, not accessories. Thus, while “008” doubtless transferred the possession of the purportedly “hot” property when he sold it to Daoust and Bois, the Crown does not allege that Daoust and Bois thereby aided and abetted “008” in the commission by him of an offence under s. 462.31 of the Criminal Code. Nor could the Crown do so: “008” committed no offence under that section, since he neither knew nor believed that the property was stolen — indeed, he knew that it was not.
Moreover, the Crown has not asked us to consider a conviction for attempt. [Emphasis in original.]
68 If Fish J.A. had examined the question of attempt, he would have faced two problems. The first problem is the type of attempt alleged by the appellant, that is, whether the respondents committed an attempted laundering of proceeds of crime or an attempt to aid or abet the seller’s own commission of the offence. The second problem is one of proximity, that is, whether the acts committed by the respondents were “act[s] more than merely preparatory taken in furtherance of the attempt” (United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 50) and formed part of the same transaction as the main offence: R. v. Poole, [1997] B.C.J. No. 957 (QL) (C.A.), at para. 35. The appellant submits that, notwithstanding these problems, because of the evidence that the respondents bought the property, there should be a presumption of fact to the effect that the respondents would inevitably resell the property, making them at the very least guilty of attempt.
69 As I have already said, however, if attempt were to be considered in this Court, it would have to be considered in light of the wording of the charge, that is, an attempt to “transfer the possession” of the property. But none of the arguments put forward by the parties at trial or in the Court of Appeal address this issue. The Court may not, now, explore alternative theories of guilt. Since attempt was not alleged and was not pleaded by the parties, this Court cannot fall back on a new charge that has never been supported by an analysis or arguments until now. It was only before this Court that the appellant, for the first time, suggested an amendment to the indictment. I have already explained why this Court cannot amend the indictment at this stage of the proceedings.
70 I would point out in closing that the most important point to remember in this regard is that s. 601(3) Cr. C. only permits a court to amend a count in relation to a particular of the offence: Morozuk, supra; Elliott, supra, at p. 427 (per Ritchie J.). Amending the count in the present case, which referred specifically to the transfer of possession, it must be recalled, to substitute attempt to commit an offence not specified or defined in accordance with the English version of the provision, would not be a change in particulars, but rather of the act itself of which the respondents stand accused. To allow the Crown to make out a different offence would infringe on the accused’s right “to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial”: R. v. Côté, [1978] 1 S.C.R. 8, at p. 13. When, as in the present case, the indictment refers to a specific offence, the accused must not be misled.
V. Conclusion
71 I would dismiss the appeal.
Appeal dismissed.
Solicitors for the appellant: Attorney General’s Prosecutors for Quebec, Sainte‑Foy.
Solicitors for the respondents: Labrecque Robitaille Roberge Asselin & Associés, Québec.
Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Ontario: Ministry of the Attorney General, Toronto.