Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Ammar Bekri
Before: Justice Julie I. Bourgeois
Reasons for Ruling on Crown's Application
Pursuant to s. 601(2) of the Criminal Code
Counsel
L. Bramwell — counsel for the Crown
H. Gonzalez — counsel for the defendant
Decision
Crown's Application
1At the closing of its case, the Crown brought an application pursuant to s. 601(2) to amend counts 1 and 2 to conform with the evidence heard at trial.
2More specifically, in relation to count 1, the Crown is seeking to have the specified named alleged victim, to wit: Special Constable Condie, replaced by a specified group, to wit: Carleton University security personnel. The Crown is also seeking to include both descriptions of the offence as stated under subsection 264.1(1)(a) of the Criminal Code that is "utter a threat to cause death OR bodily harm". This count is in relation to the events described by the first two witnesses heard at trial, Carleton Campus security student safety patrol, Caroline Campbell and Ragik Pinto, while testifying about their encounter at around midnight on Sept 10, 2018 with the person alleged to be Mr. Bekri. During their encounter, reference was made to an earlier incident where he had been expelled from the campus. He is alleged to have uttered words about "popping" any security officer trying to approach him or touch him. Both witnesses testify amongst other things to have understood this expression to mean shooting security officers with a gun.
3In relation to the second count, the Crown is seeking this count to read similar to the first count, that is to amend the specific named alleged victim, Special Constable Larochelle, to read instead the Carleton University security personnel, and to add to the current wording: "utter by word of mouth a threat to cause death", the complete wording of the offence section to wit: "or bodily harm", contrary to s. 264.1(1)(a). The Crown argues that the evidence at trial points to threats uttered to the special constables during the 6pm interaction with Mr. Bekri while in their custody, after Ms. Campbell alerted them to the presence on campus of the same man she believed she and her partner interacted with earlier that night, at around midnight.
Defence Objections
4Counsel on behalf of Mr. Bekri raises two main objections to the Crown's application. First, counsel questions the timing of the application at the end of its case; secondly, it is argued that the proposed variance would cause an irreparable prejudice.
Analysis
Issue 1: Timing of the Application
5S. 601(2) – Amendment where variance – specifically describe amending a count to conform to the evidence, where there is a variance between the evidence and a count. S. 601(3) – Amending indictment – specifically describe amending a count as may be necessary where it appears that a count fails to state or states defectively in substance matters to be alleged in the proposed amendments which are disclosed by the evidence at trial. Both these sections make it clear that the evidence need to have been heard for such determination to be made and that is at the end of the Crown's case.
6It would be an error in law to amend an Information in the absence of an "evidential basis" for it (see R. v. S.(C.A.), 114 C.C.C. (3d) 356). An amendment for a variance of evidence to conform with a charge may only be made after the evidence has been led at trial. (See R. v. King, 116 C.C.C. 284; R. v. Callocchia, 149 CCC (3d) 215 at para. 53 and R. v. McConnell, 196 CCC (3d) 28, at paras. 16-17. (Ewaschuck, Criminal Pleadings & Practice in Canada, at para. 9:12090).
Issue 2: Prejudice to the Accused from the Proposed Variances
7Still in relation to the question of the timing of the application as it relates to the question of prejudice, the evidence in this case make it such that defence cannot be said to have been taken by surprise by the application. Exhibit 4 – the correspondence between counsel the day before the trial date – sets it out clearly. The Crown sought defence consent to relaying an Information past the six months limitation period to proceed on summary election to correct or vary the said counts. The proposition then was to include the variance to count 1 as proposed in this application. Specifically in relation to count 2, the proposition specified to change the name of the targeted person from Special Constable Larochelle to Michael Radcliffe.
8It was of course open to defence not to consent. However, the Crown made it clear it would be seeking such amendments pursuant to s. 601 of the Criminal Code to the existing Information, to conform with the evidence"if appropriate and necessary", as indicated in the correspondence exchanged between counsel prior to the trial date (see Exhibit 4).
9It is difficult to see how the timing and the nature of the application in this context is prejudicial to the accused. From the proposed amendments themselves, in the context of the disclosure and now of the evidence presented at trial, it is clear that count 1 refers to the earlier events when describing having been run off campus by the security personnel and it is clear that Michael Radcliffe is one of the special constable involved in the 6pm events surrounding the detention of Mr. Bekri. The disclosure would have made that clear through his notes and/or report as to his involvement in the matter but also the evidence at trial and the cross-examination make it clear in the sense of none of his evidence came as a surprise as to his involvement in the matter related to the detention at around 6pm. As such, this transaction is clearly identified. That the Crown now seeks, after hearing the evidence, to amend the count to reflect not only special constable Radcliffe but also his colleagues as a group of targeted people to the utterance to cause death or bodily harm does not change anything to the issue or the analysis. That transaction is still clearly identifiable and identified.
10Now turning to the issue of prejudice as it relates to the unfairness, injustice or irreparable nature of the prejudice it would cause the accused in making full answer and defence to the charges.
11Counsel for M. Bekri argues that in R. v. Tremblay, [1993] 2 SCR 932 the SCC stated that a court cannot amend an Information where to do so would cause irreparable prejudice. However, the Court also stated that the accused should be granted an adjournment if it would remove possible prejudice. On this point, counsel argues that this case is toeing the Jordan ceiling and the Court should consider this element. Even though it is an element the Court, as any other member of the justice system, ought to consider and not be complacent about it, a quick overview of the history revealed on the Information led me to consider the delay, in the context of a possible adjournment for this reason, is not a determining factor on this point. But more importantly, I am not convinced here that irreparable prejudice, let alone any prejudice requiring such adjournment would be caused by the amendments sought by the Crown.
12When considering such an application, s. 601(4) provides matters to be considered by the Court. Particularly applicable to this case are the following subsections:
The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider
(b) the evidence taken on the trial, if any;
(c) the circumstances of the case;
(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and
(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
13This is clearly a similar situation as in R. v. Melo, [1986] O.J. No. 278 and I adopt the reasons of the majority, Grange, J.A. at p. 6 and Morden, J.A. at p. 7.
14I grant the Crown's application to amend the counts to conform to the evidence, pursuant to s. 601(2)(b)(ii) and s. 601(3)(b)(iii). The names of the intended alleged victim provide sufficient information to clearly identify each transaction in question. Mr. Bekri cannot have been misled nor prejudiced in his defence and having regard to the merits of the case, the amendments can be made without injustice being done.
15I have already addressed the issue of notice and timing of the application earlier as it relates to the prejudice and concluded Mr. Bekri was not prejudiced in this regard. But more specifically, now, as it relates to prejudice from the actual amendments, I conclude, as did Morden, J. at p. 9 of R. v. Melo, supra, that the refusal of the amendments would result "in the matter being decided on a basis that [would] not [be] "in accordance with the very right of the case". R. v. Addunono, [1940] O.R. 184 at p. 187. Refusing the amendments would only result in providing a technical defence (the Crown possibly proving that threats were uttered but not to cause death only to cause bodily harm under the same section and not to the person named in the counts but to a group of persons of which the named person is a part of) and unrelated to the merits of the case or to procedural fairness (therefore having nothing to do with whether the Crown was able to prove essential elements of the offence such as, for example, words uttered that meet the definition of threat or the identity of the perpetrator).
16R. v. McIvor, [2009] M.J. No. 146 is a more recent case, from Manitoba Court of Queen's Bench but applying the principles found in R. v. Melo, supra. The circumstances in this case equally apply to the reasoning in McIvor at para. 16, 18 and 19. More specifically, para. 22 addresses the issue of prejudice and clarifies that "more than the possibility of prejudice" is required to deny an amendment. Quoting from its Court of Appeal in R. v. M.(E.A.D.), 2008 MBCA 78:
"Prejudice" must be real and substantial. It must be "irreparable." See R. v. Morozuk, [1986] 1 S.C.R. 31 (S.C.C.), at 38, and R. v. McConnell, 196 C.C.C. (3d) 28 (Ont. C.A.) at para. 10. As the court said in McConnell (at para. 11):
... prejudice "speaks to the effect of the amendment on an accused's ability and opportunity to meet the charge" [R. v. Irwin, 123 C.C.C. (3d) 316 (Ont. C.A.)]. Thus, in deciding whether an amendment should be allowed, the court will consider whether the accused will have a full opportunity to meet all issues raised by the charge and whether the defence would have been conducted differently. ...
17As in McIvor, supra, the amendment in this case does not change the nature of the culpable conduct alleged. The gravamen of the offences remains utterances of threats to security personnel on the said date. The cross-examination of the witnesses was conducted based on the gravamen of the offence for each respective witness as per their involvement. The fact that they were questioned, at least in part, as per the named persons on the counts, does not take away from the totality of the cross-examination and of course the totality of the analysis in this context. The accused was put on notice prior to the start of the trial and cannot be misled by the amendments. There cannot be any prejudice, let alone irreparable prejudice, as defined and discussed in McIvor and R. v. M.(E.A.D.) above, justifying the refusal of the Crown's amendments. I therefore grant the Crown's application.
Released: February 27, 2020
Signed: Justice Julie I. Bourgeois