W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.

DATE: 20030402

DOCKET: C38290

COURT OF APPEAL FOR ONTARIO

ABELLA, SIMMONS AND ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Susan Magotiaux For the Crown, appellant

Appellant

• and -

L. L.

Richard Litkowski For the respondent

Respondent

Heard: March 17, 2003

Released Orally: March 17, 2003

On appeal from the order quashing the indictment by Justice Alfred J. Stong of the Superior Court of Justice dated April 29, 2002.

SIMMONS J.A.:

[1] The main issue on this appeal is whether the application judge had jurisdiction to amend the indictment in the manner requested by the Crown.

[2] The respondent was born on March 13, 1947. He was charged with committing gross indecency and indecent assault against the complainant during the period between February 5, 1962 and February 5, 1968. Accordingly, as originally drafted, the information spanned a time frame when the respondent was between the ages of 14 and 20.

[3] At the preliminary inquiry, the complainant testified to a series of incidents beginning when he was between the ages of 6 and 9, but possibly as early as 5, and continuing until he was 11, 12 or even 13. Based on this evidence, at the request of the Crown, the time frame in the information was amended to commence on February 4, 1960. As amended, the information spanned a time frame when the respondent was between the ages of 12 and 20.

[4] At the conclusion of the preliminary inquiry, the respondent was committed for trial in the Superior Court based on the amended information.

[5] At the opening of trial, the defence moved to quash the indictment for want of jurisdiction. In particular, the defence pointed out that, at the time of the alleged offences, the Juvenile Delinquents Act, R.S.C. 1952 c. 160, gave the Juvenile Court exclusive jurisdiction in cases of delinquency, including matters involving children under the age 16 who were alleged to have committed criminal offences.

[6] The Crown responded with a motion to amend the indictment so that the time frame of the alleged offence would begin on March 13, 1963, which was the date of the appellant’s 16 birthday. The Crown also undertook not to take proceedings against the respondent under the Juvenile Delinquents Act.

[7] Relying on R. v. S.(D.) (1997), 1998 12364 (SK CA), 127 C.C.C. (3d) 162 (Sask. C.A.), the application judge quashed the indictment, holding that where the time frame of an alleged offence overlaps the accused’s status as a youth and his status as an adult, the proper procedure is to commence proceedings in youth court and have the youth court determine the proper forum for the trial on a transfer application held pursuant to s. 16 of the Young Offenders Act, R.S.C. 1985, c. Y-1.

[8] On appeal, the respondent submitted simply that the indictment was a nullity and that the application judge had no jurisdiction to amend it.

[9] I disagree. For the reasons set out by Dickson C.J. in R. v. Moore (1988), 1988 43 (SCC), 41 C.C.C. (3d) 289 (S.C.C.) at p. 297, the indictment was not a nullity, and was therefore capable of amendment:

The result of these two cases is that it is no longer possible to say that a defective information is automatically a nullity disclosing no offence known to law. If the document gives fair notice of the offence to the accused, it is not a nullity and can be amended under the broad powers of amendment s. 529 gives to the courts. Only if a charge is so badly drawn up as to fail even to give the accused notice of the charge will it fail the minimum test required by s. 510(2)(c).

[10] Based on the factors set out in s. 601(4) of the Criminal Code, R.S.C. 1985, c. C-46, including the nature of the evidence, the circumstances of the case, and my conclusion that there would be no prejudice or injustice to the respondent if the requested amendment were permitted, I would allow the appeal, vacate the order quashing the indictment, amend the indictment in the manner requested by the Crown to cover the period between March 13, 1963 and February 4, 1968, and remit the matter to the Superior Court of Justice for trial.

Released: April 2, 2003 “RSA”

“Janet Simmons J.A.”

“I agree R.S. Abella J.A.”

“I agree Robert P. Armstrong J.A.”