Her Majesty the Queen v. McConnell

[Indexed as: R. v. McConnell]

75 O.R. (3d) 388

[2005] O.J. No. 1613

Docket: C42255

Court of Appeal for Ontario,

Laskin, Rosenberg and LaForme JJ.A.

April 27, 2005

Criminal law -- Indictment and information -- Amending information -- Accused charged with driving offences -- Crown seeking to amend information with respect to identity of accused's car before any evidence was heard -- Information not defective in form or substance so trial judge not having power to amend information under s. 601(3) of Code -- Court not having power to amend information to conform to evidence under s. 601(2) until evidence has been heard -- Trial judge not erring in refusing to amend information -- Criminal Code, R.S.C. 1985, c. C-46, s. 601. [page389]

At the accused's arraignment on several driving charges, the Crown sought to amend the information because the description of the vehicle driven by the accused was not accurate. Defence counsel refused to consent to the amendment, arguing that the amendment substantially altered the charge. The trial judge refused to amend the information, holding that the accused would be prejudiced by the amendment. Crown counsel then stated that the Crown was not in a position to prove the offences and, when the accused pleaded not guilty, offered no evidence. The accused was acquitted. The Crown appealed.

Held, the appeal should be dismissed.

The trial judge's reasons for refusing to amend the information were erroneous. There was no prejudice to the accused. However, the error was of no consequence since, in the absence of consent, the trial judge had no power to make the amendment at the stage it was requested by Crown counsel. There was no power of amendment under s. 601(3) of the Criminal Code as the information was not defective in form or substance. The only problem with the information was that the prosecution expected that its evidence would not support the charge as alleged. That was not a defect. Section 601(2) permits the court to amend the information "where there is a variance between the evidence" and a count in the information. There is no power to amend to conform to the evidence until the evidence has been heard. Crown counsel should have called his evidence. Once the evidence showed that the accused was not driving the vehicle alleged in the information, the Crown could have applied to amend the information at that stage in accordance with s. 601(2). Since there would have been no prejudice to the accused, the trial judge would have been required to make the amendment. Had she refused to make the amendment, this would have amounted to an error of law pursuant to s. 601(6). The Crown could then have appealed.

APPEAL from an acquittal by Vyse J. of the Ontario Court of Justice on driving charges, reported at [2004] O.J. No. 5826 (C.J.).

R. v. Callocchia, 2000 29873 (QC CA), [2000] J.Q. No. 4728, [2000] R.J.Q. 2841, J.E. 2000-2232, 149 C.C.C. (3d) 215, 39 C.R. (5th) (C.A.), apld R. v. Giffin, 1981 3157 (NS CA), [1981] N.S.J. No. 493, 48 N.S.R. (2d) 308, 63 C.C.C. (2d) 111 (S.C. App. Div.), not folld R. v. Deal, 1978 2349 (NS CA), [1978] N.S.J. No. 491, 24 N.S.R. (2d) 594, 38 C.C.C. (2d) 425 (S.C. App. Div.); R. v. Moore, 1988 43 (SCC), [1988] 1 S.C.R. 1097, [1988] S.C.J. No. 58, 29 B.C.L.R. (2d) 1, 85 N.R. 195, [1988] 5 W.W.R. 1, 41 C.C.C. (3d) 289, 65 C.R. (3d) 1; R. v. Webber, 1995 333 (BC CA), [1995] B.C.J. No. 2178, 65 B.C.A.C. 161, 102 C.C.C. (3d) 248 (C.A.), consd Other cases referred to R. v. Adduono, 1940 109 (ON CA), [1940] O.R. 184, [1940] 1 D.L.R. 597, 73 C.C.C. 152 (C.A.); R. v. Austin, 1955 470 (ON CA), [1955] O.W.N. 882, 113 C.C.C. 95, 22 C.R. 269 (C.A.); R. v. Edgar and Rea, (1962) 1962 560 (BC CA), 39 W.W.R. 59, 132 C.C.C. 396, 38 C.R. 110 (C.A.); R. v. Elliott, 1969 373 (ON CA), [1970] 2 O.R. 102, [1970] 3 C.C.C. 233 (C.A.); R. v. Fiore (1962), 1962 593 (ON CA), 132 C.C.C. 213, 37 C.R. 31 (Ont. C.A.); R. v. Hatherley, 1971 560 (ON CA), [1971] 3 O.R. 430, 4 C.C.C. (2d) 242 (C.A.) [Leave to appeal to S.C.C. refused [1971] S.C.R. ix]; R. v. I. (J.), [2000] S.J. No. 602, 2000 SKCA 114, 199 Sask. R. 219, 232 W.A.C. 219, 149 C.C.C. (3d) 422 (C.A.); R. v. Irwin (1998), 1998 2957 (ON CA), 38 O.R. (3d) 689, [1998] O.J. No. 627, 123 C.C.C. (3d) 316, 14 C.R. (5th) 338 (C.A.); R. v. King, 1956 538 (ON CA), [1956] O.W.N. 810, 116 C.C.C. 284, 25 C.R. 67 (C.A.); R. v. Melo, 1986 4706 (ON CA), [1986] O.J. No. 278, 15 O.A.C. 6, 29 C.C.C. (3d) 173 (C.A.); R. v. S. (C.A.), 1997 2519 (BC CA), [1997] B.C.J. No. 451, 87 B.C.A.C. 217, 114 C.C.C. (3d) 356 (C.A.); R. v. Van Hees, 1957 500 (ON CA), [1957] O.W.N. 602, 119 C.C.C. 129, 27 C.R. 14 (C.A.) [page390]

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [as am.], 581 [as am.], 583(g), 601 [as am.], 603 [as am.], 676 [as am.], 683 [as am.], 686 [as am.]

Susan Magotiaux, for appellant. Don Clarke, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- This appeal from acquittal concerns the somewhat arcane question of the timing of an amendment to an information. At the respondent's arraignment on several driving charges, Crown counsel sought to amend the information with respect to the identity of the respondent's vehicle. The defence refused to consent and the trial judge refused to permit the amendment. Rather than pressing on with the trial and applying to amend the information once evidence had been called as to the vehicle's identity, Crown counsel offered no evidence after the respondent pleaded not guilty. The trial judge accordingly dismissed the charge. In my view, the trial judge did not err in law and accordingly the Crown appeal must be dismissed.

The Facts

[2] The appellant was charged in an information with impaired care and control and "over 80" [^1]. Both counts referred to a "motor vehicle to wit a 1979 Chevrolet van". The appellant appeared before Vyse J. and was arraigned on the two counts. Before the respondent pleaded to the charge, Crown counsel interrupted and stated that the vehicle described in the counts "is not accurate". He went on to say that, "It is a typo, and it should read, '1986 Ford MLG convertible'." Crown counsel then said that he assumed the change was on consent. Defence counsel stated that it was not on consent. He said that the information from his client was that the vehicle described in the charge was a vehicle he owned in the past. [page391]

[3] Defence counsel outlined his objections to the amendment. He submitted that the trial judge had a discretion whether or not to permit the amendment and this amendment substantially altered the charge. Crown counsel responded that there was no prejudice, and that the disclosure that had been provided to the defence at least a month earlier showed that the vehicle involved was the Ford convertible. The trial judge refused to amend the information. She said the following:

I am not aware, as a result of counsels' submissions, what the import of the 1979 Chevrolet van is in the Information, but if I were an accused looking at the Information, and had some knowledge of a Ford MLG convertible 1986 and a 1979 Chev van, my defence might be a little bit different depending on which vehicle is the subject matter of the Information. Given that it is a 1979 Chevrolet van in the Information, I am not of the view that it qualifies as properly amendable under section 601.

[4] The trial judge then permitted Crown counsel to make further submissions. He referred the trial judge to cases indicating that amendments should only be refused where there would be irreparable prejudice to the defence. He also pointed out that "the gravamen of the offence ... does not require the prosecution to prove the identity of the vehicle, the make of the vehicle, but simply prove that the accused, the defendant, was operating a vehicle, and certainly the evidence that you will hear will support that". Defence counsel maintained that the amendment should not be made. He pointed out that the respondent was being held in custody on these charges and that therefore he had obtained a quick date for the trial. He took the position that since the Crown had alleged the identity of the vehicle, that allegation was now a relevant part of the charge and the proposed amendment "substantially changes our whole case".

[5] The trial judge refused to change her ruling. She said as follows:

I am of the view that the existence of prejudice is, I think, never more clearly expressed than when a man is in custody. To adjourn the matter to another date for trial would clearly be prejudicial against Mr. McConnell.

[6] The trial judge went on to say that she would consider amending the information to include both vehicles, but that she did not think that was what the Crown was seeking. Crown counsel then said the following:

Then on the basis of that ruling which prohibits the Crown from amending the Information, Your Honour, the Crown is not in a position to prove the offences before the Court. There is no reasonable prospect of a conviction.

[7] The appellant pleaded not guilty to the charges and, since the Crown offered no evidence, the charges were dismissed. [page392]

Analysis

[8] The resolution of this appeal turns on the application of s. 601 of the Criminal Code, R.S.C. 1985, c. C-46 and, in particular, the following subsections:

(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and

(a) a count in the indictment as preferred; or

(b) a count in the indictment

(i) as amended, or

(ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to section 587.

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears

(a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament;

(b) that the indictment or a count thereof

(i) fails to state or states defectively anything that is requisite to constitute the offence,

(ii) does not negative an exception that should be negatived,

(iii) is in any way defective in substance,

and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or

(c) that the indictment or a count thereof is in any way defective in form.

(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider

(a) the matters disclosed by the evidence taken on the preliminary inquiry;

(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 [page393]

(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. [^2]

(Emphasis added)

[9] The Crown/appellant submits that the proposed amendment in this case falls within s. 601(3) as a defect in form. Accordingly, the amendment was mandatory subject to the guidelines in subsection (4). Since no evidence had been heard, Crown counsel submits that the question of amendment turns on the circumstances of the case, whether the respondent had been misled or prejudiced in his defence by any variance, error or omission and whether the amendment could be made without injustice being done. Crown counsel submits, as had counsel at trial, that the test is irreparable prejudice and the respondent would have suffered no relevant prejudice.

[10] I agree with much of the Crown's submission. The proposed amendment would not have resulted in irreparable prejudice to the respondent. It was not shown that the identity of the vehicle was an essential averment. For example, there was no suggestion that the naming of the specific vehicle was necessary to sufficiently identify the transaction to comply with s. 581 of the Criminal Code. Further, s. 583(g) expressly provides that no count is insufficient by reason only that "it does not name or describe with precision any person, place or thing".

[11] As this court said in R. v. Irwin (1998), 1998 2957 (ON CA), 38 O.R. (3d) 689, [1998] O.J. No. 627, 123 C.C.C. (3d) 316 (C.A.), at para. 38, prejudice "speaks to the effect of the amendment on an accused's ability and opportunity to meet the charge". 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. The respondent was aware of the essential elements of the charges and was aware of the transaction being alleged against him from the Crown disclosure. There would have been no prejudice in this case and defence counsel in his submissions to the trial judge did not point to any relevant prejudice. In his submissions before us, counsel for the respondent conceded that there was no relevant prejudice. As Morden J.A. said in R. v. Melo, O.J. No. 278, 1986 4706 (ON CA), 29 C.C.C. (3d) 173 (C.A.), at p. 185 C.C.C.:

The only prejudice which would be occasioned to the accused by the amendment is the removing of a defence which is both technical and unrelated to the merits of the case or to procedural fairness. The refusal of the [page394] amendment, with respect, resulted in the matter being decided on a basis that was not "in accordance with the very right of the case": [R. v. Adduono, 1940 109 (ON CA), [1940] O.R. 184, 73 C.C.C. 152 (C.A.), at p. 187 O.R., p. 155 C.C.C.].

[12] However, that does not end the inquiry. To make out the charge, the Crown did not have to prove the make or model of the appellant's vehicle; this particular allegation was unnecessary. But, the Crown having made that allegation, Crown counsel submits that it was bound to prove the allegation. Accordingly, Ms. Magotiaux submits that it was essential to amend the information to either remove the reference to the identity of the vehicle or change it to conform to the evidence the prosecution intended to call. There are certainly authorities to support that position and I will assume for the purposes of this appeal that her submission is correct and an amendment was required: See R. v. Austin (1955), 1955 470 (ON CA), 113 C.C.C. 95, [1955] O.W.N. 882 (C.A.). That said, I have some doubt that if this was merely a defect in form or if the allegation about the identity of the vehicle was mere surplusage, that any amendment was required: See R. v. Moore, 1988 43 (SCC), [1988] 1 S.C.R. 1097, [1988] S.C.J. No. 58, 41 C.C.C. (3d) 289, at p. 1128 S.C.R., p. 312 C.C.C., per Lamer J. and R. v. Van Hees (1957), 1957 500 (ON CA), 119 C.C.C. 129, [1957] O.W.N. 602 (C.A.), at p. 135 C.C.C.

[13] Crown counsel does not submit that, absent consent, the trial judge had any inherent power to amend the information. She submits that the power to amend the information fell within the provisions of s. 601(3) because the information was defective in form. The cases are remarkably unhelpful as to what constitutes a defect in form or substance. An example is found in R. v. Edgar and Rea (1962), 1962 560 (BC CA), 132 C.C.C. 396, 39 W.W.R. 59 (C.A.), at p. 399 C.C.C.: "if the matter pleaded be in itself insufficient, without reference to the manner of pleading it, the defect is substantial; but that if the fault is in the manner of alleging it, the defect is formal".

[14] In my view, however one were to define a defect in form or substance, this information was not defective. It alleged offences known to law and complied with the sufficiency requirements of s. 581. On its face, there was nothing wrong with the information. In my view, it was not defective in either form or substance. The only problem was that the prosecution expected that its evidence would not support the charges as alleged. In my view, that is not a defect. In considering the meaning of defect it is appropriate to look at the other parts of s. 601 and in particular subsection (2). That subsection deals exactly with the prosecution's problem in this case. It permits the court to amend a count in an information "where there is a variance between the evidence" and a count in the information. [page395]

[15] Alternatively, the problem in this case may be captured by s. 601(3)(b)(i), which I repeat for ease of reference:

601(3)(b) that the indictment or a count thereof

(i) fails to state or states defectively anything that is requisite to constitute the offence,

and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial;

[16] The problem for the prosecution in this case is that to rely on this part of subsection (3), the matters to be alleged in the amendment must have been disclosed in the evidence. At the opening of the trial, when Crown counsel sought the amendment, there was no evidence. In my view, the submissions of counsel as to what is contained in the disclosure is not evidence.

[17] The Quebec Court of Appeal was faced with something of the reverse situation to this case in R. v. Callocchia, 2000 29873 (QC CA), [2000] J.Q. no. 4728, 149 C.C.C. (3d) 215 (C.A.). There, the Crown sought to amend a preferred indictment at the close of its case. The trial judge refused the amendment on the basis that the amendment should have been made at the outset of the case. Fish J.A. held as follows at para. 53:

There was, as already noted, no preliminary inquiry in this case and the trial proceeded on a direct indictment. The trial judge appears to have considered that the Crown was entitled to amend that indictment at the outset of the trial, with or without the consent of the accused. Here, consent was sought and refused. I agree with Crown counsel that section 601 of the Criminal Code, which governs the matter, did not authorize Crown counsel, unilaterally, to amend the indictment at that stage.

(Emphasis added)

[18] I agree with this decision. It is consistent with the wording of the Criminal Code. In this respect I cannot agree with the decision of the court in R. v. Giffin, 1981 3157 (NS CA), [1981] N.S.J. No. 493, 63 C.C.C. (2d) 111 (S.C. App. Div.). In that case, a summary conviction matter, the court held that it was open to the trial judge to amend the information at the opening of the trial and in the face of an objection from the defence on the basis of the representation from Crown counsel that he would be calling evidence to support the amendment. The court held at p. 114 C.C.C. that the judge had the power to make this amendment because "the accused was in no way prejudiced or misled and no injustice was occasioned to him". Curiously, the court in Giffin relied on an earlier decision of Macdonald J.A. in R. v. Deal, 1978 2349 (NS CA), [1978] N.S.J. No. 491, 38 C.C.C. (2d) 425 (S.C. App. Div.) [page396] dismissing an appeal by the accused where the trial judge had amended the information to change the place of the offence from "Western Shore" to "Chester" before any evidence had been called. Macdonald J.A. dismissed the appeal since the amendment could have been made subsequently when the evidence to support the amendment was given and there was no prejudice to the accused. He stated, however, at p. 437 C.C.C. that the amendment "was premature because there was at that time no evidence as to the events at Chester or elsewhere". While Deal is clearly authority for the view that if the amendment is improperly made the appellate court can dismiss the appeal where no substantial wrong has been occasioned, it is not authority for the broader proposition that the trial court has a broad inherent power outside the Criminal Code and absent consent to amend the information.

[19] Another case that perhaps supports the power to make the amendment at the opening of the trial is R. v. Webber, 1995 333 (BC CA), [1995] B.C.J. No. 2178, 102 C.C.C. (3d) 248 (C.A.). In that case, the accused was charged with being an accessory after the fact to murder. Before his trial began the principal offender pleaded guilty to manslaughter. Defence counsel then applied at the opening of the trial to quash the indictment. The Crown in return asked to amend the indictment to allege that the accused was an accessory after the fact to manslaughter. The trial judge permitted the amendment. On appeal, the court held that the amendment was properly made because it alleged an included offence, even though no evidence had been heard. The court noted at p. 256 C.C.C. that, "Although no evidence had been led at the time the amendment was sought, the learned judge correctly observed that [the principal offender] had now been found guilty of the offence of manslaughter and that it was understood that evidence would be led that he was guilty of the offence of manslaughter but not murder." Unfortunately, there is no other discussion of the amendment and the only case relied upon is R. v. Moore which admittedly stands for the proposition that a trial judge has wide powers of amendment. Moore does not, however, suggest that there is some inherent power, absent consent, outside the Criminal Code to amend at the opening of the trial. While s. 601 gives the trial court wide powers of amendment, those powers are not unlimited and have to be exercised in accordance with the conditions set down in that provision: See R. v. I. (J.), 2000 SKCA 114, [2000] S.J. No. 602, 149 C.C.C. (3d) 422 (C.A.), at p. 428 C.C.C. and R. v. Elliott, 1969 373 (ON CA), [1970] 2 O.R. 102, [1970] 3 C.C.C. 233 (C.A.), at p. 106 O.R., p. 237 C.C.C.

[20] In my view, the interpretation that is most consistent with the wording of the Criminal Code is that there is no power to [page397] amend to conform to the evidence until the evidence has been heard. In addition to R. v. Callocchia, see for example, R. v. King (1956), 1956 538 (ON CA), 116 C.C.C. 284, [1956] O.W.N. 810 (C.A.). Admittedly, the cases are also almost universally to the effect that if the trial judge errs and permits a premature amendment, if the accused was not prejudiced the appeal will be dismissed, presumably by application of the proviso in s. 686(1)(b)(iii) or (iv) of the Criminal Code. Thus, in addition to R. v. Deal, see R. v. Fiore (1962), 1962 593 (ON CA), 132 C.C.C. 213, 37 C.R. 31 (Ont. C.A.) and R. v. S. (C.A.), 1997 2519 (BC CA), [1997] B.C.J. No. 451, 114 C.C.C. (3d) 356 (C.A.), at pp. 360 and 364 C.C.C. But the fact that no prejudice was occasioned by the error cannot create a power of amendment outside the Criminal Code regime.

[21] The trial judge's reasons for refusing to amend the information were erroneous. There was no prejudice to the respondent. However, the error was of no consequence since in the absence of consent the trial judge had no power to make the amendment at the stage it was requested by Crown counsel. The only material error was made by Crown counsel when he offered no evidence because there was "no reasonable prospect of a conviction". That was not the case. Crown counsel should have called his evidence. Once the evidence showed that the respondent was not driving the vehicle alleged in the information, the Crown could have applied to amend the information at that stage in accordance with s. 601(2). Since there would have been no prejudice to the respondent, the trial judge would have been required to make the amendment. This was the conclusion of this court in R. v. Hatherley, 1971 560 (ON CA), [1971] 3 O.R. 430, 4 C.C.C. (2d) 242 (C.A.), leave to appeal to S.C.C. refused [1971] S.C.R. ix [^3], at p. 431 O.R., p. 243 C.C.C.:

What the Crown should have done, in the face of the extraordinary refusal of the Provincial Court Judge to grant the amendment requested by the Crown, was to proceed with the trial and when, as undoubtedly would have been the case, the evidence had disclosed that the serial number, and the serial number only, in the charges laid was in error, in our view the Court would, in duty bound, have then acceded to a renewed request for amendment of the charge. That renewed request, of course, is contemplated by those sections of the Code which deal with amendment of the charge to conform to the evidence adduced.

[22] If the trial judge had refused to make the amendment, this would have amounted to an error of law pursuant to s. 601(6). [page398] The Crown could then have appealed. Alternatively, it may be that the trial judge could have proceeded with the case to verdict without amending the charge because the allegation as to the identity of the car was not an essential matter that had to be proved: See R. v. Moore at pp. 1128-30 S.C.R., pp. 312-13 C.C.C. and R. v. S. (C.A.) at p. 361 C.C.C.

[23] There is one final argument open to the Crown. It could be argued that given her reasons at the opening of trial, the trial judge would have likely refused to amend the information at a later stage once the evidence was led to support the amendment power under s. 601(2). This may be, but the fact remains that when she refused to permit the amendment the trial judge committed no error of law. Her reasons may have been erroneous but she came to the right result. The Crown's right of appeal depends on an error of law: See s. 676 of the Criminal Code. The trial judge committed no reversible error of law. The proximate cause of the appellant's acquittal was not the trial judge's ruling, which was correct, but Crown counsel's error in offering no evidence because of his erroneous view that there was no reasonable prospect of conviction. While this court also has a power to amend the information under s. 683(1)(g) of the Criminal Code, there would be no point to doing so, since the fact remains that the Crown offered no evidence and this was the cause of the acquittal. In any event, I doubt that our powers of amendment are wider than those of the trial court: See R. v. Irwin, supra, at para. 8.

Disposition

[24] Accordingly, I would dismiss the appeal.

Appeal dismissed.

Notes

[^1]: The appellant was also charged with driving while disqualified. The Crown withdrew that charge for reasons unrelated to this appeal and it is no longer in issue.

[^2]: "Indictment" includes an information or a count therein: Criminal Code, s. 2.

[^3]: There is some suggestion in Hatherley that the amendment should have been made at the opening of the trial. Unfortunately, the circumstances are not set out in the case and in particular there is no indication whether the amendment was on consent.