COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brownson, 2013 ONCA 619

DATE: 20131015

DOCKET: C54358

MacPherson, MacFarland and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffery Brownson

Applicant/Appellant

Robert J. Reynolds, for the applicant/appellant

Chris Dwornikiewicz, for the respondent

Heard: September 12, 2013

On appeal from the judgment of Justice G.I. Thomson of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated September 30, 2011, with reasons reported at 2011 ONSC 5793, [2011] O.J. No. 6403, dismissing an appeal from the conviction entered by Justice S.J. Hunter of the Ontario Court of Justice, dated December 10, 2010.

MacPherson J.A.:

A. Introduction

[1] This appeal raises a narrow, but important issue: in what circumstances should this court permit the Crown to amend an information against an accused person at the appeal hearing?

B. Facts

(1) The parties and events

[2] The appellant Jeffery Brownson was convicted of operating a motor vehicle (an ATV) while disqualified from doing so by reason of an order pursuant to s. 259(1) of the Criminal Code, R.S.C. 1985, c. C-46, contrary to s. 259(4)(a) of the Code. He was sentenced to 15 days incarceration and a one year driving prohibition consecutive to any prohibition currently in place.

[3] Pursuant to s. 259(5) of the Code, the fact of disqualification can be proven in two ways: by proof of disqualification under s. 259(1) of the Code, or by proof of disqualification under a provincial law. In this case, the information was particularized as follows:

That Jeffery Brownson on or about the 28th day of June in the year 2010 at the village of Marmora in the said Region, did operate a motor vehicle, to wit a 2006 yellow Bombardier ATV, while disqualified from doing so by reason of an order pursuant to section 259(1) of the Criminal Code contrary to section 259(4)(a) of the Criminal Code of Canada. [Emphasis added.]

[4] At trial, the evidence established that the appellant had been disqualified not by an order under s. 259(1) of the Code, but rather by operation of an automatic provincial suspension.

[5] The defence contended that since the evidence did not establish the emphasized passage in the information above, the accused should be acquitted. The Crown did not seek to amend the information such that it would conform to the evidence about the source of the disqualification. Rather, the Crown contended that it had to establish only that the accused’s licence was suspended at the relevant time; the source of the suspension was irrelevant.

[6] The trial judge and the summary conviction appeal judge accepted the Crown position.

[7] The trial judge carefully considered the decision of this court in R. v. Chuang, 2010 ONCA 555, [2010] O.J. No. 3476, where the information was essentially identical to the information in this case, and the evidence similarly did not establish the charge set out in the information. In that decision, this court entered a verdict of acquittal. The trial judge set out the relevant passages from Chuang and purported to distinguish it from the factual situation in this case. In the result, he convicted the appellant. The summary conviction appeal judge agreed with the trial judge’s reasoning and result.

[8] The appellant seeks leave to appeal and, if leave is granted, an order allowing the appeal, setting aside the conviction, and entering a verdict of acquittal.

C. Issues

[9] There are three issues on appeal:

(1) Did the trial judge and the summary conviction appeal judge err in their analysis of s. 259 of the Code in the context of the information laid against the appellant?

(2) If the answer to (1) is “Yes”, should leave to appeal be granted?

(3) If the answer to (2) is “Yes”, should the Crown be permitted, on appeal, to amend the information to conform to the evidence at trial, thereby leading to a dismissal of the appeal and an affirmation of the conviction?

D. Analysis

(1) The merits of the two judgments

[10] On appeal, the Crown resiled from the position it had taken in the trial and summary conviction appeal courts. The Crown accepted the legal analysis, especially of Chuang, that was set out in the appellant’s factum. As expressed in the Crown’s factum, at para. 4:

The respondent acknowledges that the law in Chuang, and indeed in other cases where the Crown has failed to prove the case as particularized, remains clear: that if the Crown attempts to prove that an individual was driving while disqualified, either by way of a prohibition order or a suspension resulting from a conviction, they must either properly state the correct mode of disqualification in the Information or simply state that the driver was disqualified period and then lead evidence of either mode at trial. All of which is to say that the appellant seems to be correct in noting that the summary conviction appeal judge committed a legal error in coming to the conclusion that he did.

[11] At the appeal hearing, the panel indicated that it agreed with the persuasive analysis in the appellant’s factum and, therefore, accepted the Crown concession. It follows that the decisions of the trial and summary conviction appeal courts were in error.

[12] That, however, does not end the matter.

(2) Leave to appeal

[13] Because this is an appeal from a summary conviction appeal court decision, the appellant must seek and obtain leave to appeal: see Criminal Code, s. 839.

[14] The basic test for granting leave to appeal was summarized by Doherty J.A. in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 37:

In summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables – the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty. [Emphasis added.]

[15] In its factum, the Crown took the position that leave to appeal should not be granted on the basis that the legal issues raised had no significance to the general administration of criminal justice and because the question of law raised did not merit a second appeal.

[16] At the outset of the appeal hearing, the Crown announced that it was abandoning this position on the basis that the appeal came within the second branch of the test from R.R. emphasized above. The panel indicated that it accepted this concession and granted leave to appeal.

[17] I want to make one observation about this issue. In my view, the Crown position at the appeal hearing was fair and professional. I do not think that the second branch of the R.R. test should ever be ignored or even diminished. A criminal conviction is always a serious matter. A custodial sentence, even for a brief period, is always a serious matter. In my view, in a case where the Crown concedes, and this court accepts, that a conviction for a criminal offence flows directly from a legal error in a judicial decision, it would be rare and remarkable for this court to refuse leave to appeal.

(3) Amending the information

[18] This is the live issue on appeal.

[19] The Crown contends that, subsequent to granting leave, this court should amend the information pursuant to s. 683(1)(g) of the Criminal Code so that it conforms to the evidence led at trial, namely, that the appellant’s licence was suspended by operation of provincial law rather than prohibited pursuant to s. 259(1) of the Criminal Code. Doing so, the Crown submits, would cause no prejudice to the appellant, as he was fully aware of the case he had to meet – that when he was driving the ATV, he did so knowing that his licence was suspended.

[20] Section 683(1)(g) explicitly authorizes an appeal court to amend an indictment (and, by analogy, an information):

683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

(g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.

[21] Under this section, the scope of permissible amendments at the appeal stage is wide. As expressed by Doherty J.A. in R. v. Irwin (1998), 1998 CanLII 2957 (ON CA), 38 O.R. (3d) 689 (C.A.), at 699-700, “s. 683(1)(g) permits an amendment on appeal where the amendment cures a variance between the charge laid and the evidence led at trial regardless of whether the amendment materially changes the charge, substitutes a new charge for the initial charge, or adds an additional charge.”

[22] However, caution must be the watchword when an appeal court considers a Crown request to amend an indictment or information and enter a conviction for a person who would be acquitted on the basis of the un-amended indictment or information. As explained eloquently by Cory J. in R. v. Tremblay, 1993 CanLII 115 (SCC), [1993] 2 S.C.R. 932, at 956-57:

It is, I think, an extraordinary step for an appellate court to amend the charge materially and then to enter a conviction on the basis of the charge as amended. The unfairness that results from such a procedure was aptly described by Zuber J.A. in R. v. Geauvreau (1979), 1979 CanLII 83 (ON CA), 51 C.C.C. (2d) 75 (Ont. C.A.). At p. 84 he wrote:

It is part of our law of criminal procedure that a person accused of crime is entitled to know the charge against him, whether contained in an information or an indictment, in reasonably specific terms and he is tried on that charge. This principle retains its vitality even though the formalism of an earlier era has been diminished and trial Courts now possess reasonably wide powers of amendment. However, even though criminal procedure has become less technical and more flexible, the concept of an amendment at an appellate stage involves difficult considerations. An amendment at trial contemplates a continuing ability by the accused to meet an amended charge; the appellate stage occurs long after the evidence has been led, arguments made and facts found. In my view, it would be an extraordinary step for an appellate Court to materially amend the charge and uphold a conviction based on the charge as amended.

See also: R. v. Irwin, at paras. 33-34.

[23] When considering a Crown request to amend an indictment or information at the appeal stage of a criminal proceeding, the court must focus carefully on the precise qualifying words of s. 683(1)(g) of the Criminal Code, and ask this question: has the accused been misled or prejudiced in his defence or appeal?

[24] In my view, the answer to this question in this case is “Yes”, especially in the defence (trial) context, but also in the appeal context.

[25] The trial was exceptionally brief. The Crown called only one witness, the arresting officer Constable Craig Williams. His entire testimony is recorded in just eight pages of transcript and, in conjunction with the documents entered into evidence at trial, established, inter alia, these four facts:

(1) the appellant had been convicted of operating a motor vehicle with a blood-alcohol concentration over .08 on February 13, 2009;

(2) pursuant to that conviction, he was prohibited from driving for one year;

(3) pursuant to provincial law, on February 20, 2009 the appellant was suspended from driving for three years from the date of conviction; and

(4) the appellant was arrested for driving while disqualified on June 28, 2010.

[26] It is apparent from this chronology that when he was arrested, the appellant was disqualified from driving by operation of a provincial law, but not by virtue of the prohibition order under the Criminal Code. The latter had expired. However, the information specified that the appellant had been arrested for driving while disqualified by s. 259(1) of the Criminal Code. This was incorrect.

[27] This background provides the context for considering defence counsel’s cross-examination of Constable Williams. It was very brief. Defence counsel asked only three questions and established a single fact: the date of the appellant’s previous conviction for driving with a blood-alcohol concentration in excess of .08 was February 13, 2009.

[28] The closing submissions of trial counsel were not transcribed. However, it is obvious from the cross-examination and from the trial judge’s reasons what defence counsel submitted: the evidence led at trial did not conform to the facts specified in the information. The Crown now concedes, and this court accepts, that this was true.

[29] It is impossible to know what questions defence counsel might have asked of Constable Williams if the information had simply stated the offence without particularization or with the correct particularization (the continuing three year suspension by operation of provincial law). Presumably, he would have explored the facts relating to the provincial suspension and, perhaps, the administrative structure tying together s. 259 of the Criminal Code and the provincial law imposing the additional suspension. In any event, defence counsel’s very focussed cross-examination aimed squarely at the incorrect particularization in the information. He almost certainly would not have solely addressed this issue if he had been faced with an information containing accurate or no particularization. Thus, to the extent that the appellant relied on the information when formulating his defence at trial, he has been prejudiced.

[30] In short, I do not think that the prejudice bar should be set very high in a case where the Crown seeks to amend an information on appeal, especially on a second appeal. For the above reason, I conclude that the appellant has cleared the prejudice bar in this case. Moreover, I observe that the problem the Crown faces in this case is easily solved. The solution, as the Crown points out in its factum, at para. 4, is to “simply state that the driver was disqualified period and then lead evidence of either mode at trial.”

[31] Finally, in light of the unique circumstances of this case, I am of the view that the Crown’s attempt to amend the information at this juncture also prejudices the appellant on appeal, contrary to s. 683(1)(g) of the Criminal Code.

[32] The issue of amending the information did not arise in the trial or summary conviction appeal courts. The contested terrain in those courts was the interpretation of s. 259 of the Code and this court’s decision in Chuang. The appellant lost those battles below, appealed to this court, and prepared a factum – an excellent factum – on those issues. Only in this court did the Crown fold on those issues. Only in this court did the Crown raise the issue of amending the information.

[33] The appellant’s counsel did not file a supplementary factum on this issue, nor did he seek to do so. He did not ask for an adjournment. He did file a supplemental case brief just before the appeal hearing and he made oral arguments on the issue. Nevertheless, the fact that the Crown raised this issue for the first time in its respondent’s appeal factum, and did so after abandoning its position on the legal issue that had been the sole focus in the two courts below, strikes me as a late-breaking curve ball that caused some prejudice to the appellant on this appeal.

[34] By raising the issue of amendment on appeal, the Crown has made it more difficult for the appellant to prove that he has been prejudiced. For the defence to demonstrate concrete prejudice on appeal, the defence would need to essentially re-try the underlying case and demonstrate how the appellant could have conducted himself differently at trial, and how this could have affected the trial outcome. This task is made more difficult by the time that has passed between the trial and this second appeal, and the additional expense and effort that the defence would need to incur in order to determine prejudice at trial several years after the fact. This, as well, exacerbates the prejudice suffered on appeal by the defence. In light of the low bar for tolerable prejudice on appeal, this prejudice is fatal to the proposed amendment of the information.

E. Disposition

[35] I would grant leave to appeal, allow the appeal, set aside the conviction, and enter a verdict of acquittal.

“J.C. MacPherson J.A.”

“I agree J. MacFarland J.A.”

Epstein J.A. (dissenting):

[36] I agree with my colleague MacPherson J.A. that, in the light of the Crown’s concessions, the trial judge and the summary conviction appeal judge erred in law and leave to appeal ought to be granted. The only issue to be determined, therefore, is whether this court should grant the Crown’s request to amend the information to conform to the evidence led at trial indicating that the appellant’s driving disqualification was the result of a suspension under the Highway Traffic Act, rather than a s. 259(1) order under the Criminal Code.

[37] My colleague, at para. 29 of his reasons, concludes that, in the context of the trial and appeal, the appellant has been misled or prejudiced. The basis of this conclusion is that defence counsel may have broadened the scope of cross-examination to explore the provincial suspension instead of focusing exclusively on the incorrect particularization in the information.

[38] I have reached a different conclusion on the issue of whether this court ought to grant the amendment. With respect, I am of the view that, without more, speculation about a possible defence position does not constitute prejudice that would preclude this court from amending the information. In my opinion, in the circumstances of this case, it would be in the interests of justice for this court to exercise its discretion under s. 683(1)(g) of the Code and amend the information as requested by the Crown.

[39] In R. v. Irwin (1998), 1998 CanLII 2957 (ON CA), 38 O.R. (3d) 689 (C.A.), Doherty J.A. canvassed the prerogative of an appellate court to amend the charge as originally laid. At the conclusion of his extensive review of the relevant jurisprudence, Doherty J.A. made the following observations about an appellate court’s power to amend an indictment or information, at pp. 693, 698-700:

1. Section 683(1)(g) permits an amendment on appeal to cure a variance between the charge laid and the evidence led at trial regardless of whether the amendment materially changes the charge, substitutes a new charge for the initial charge, or adds an additional charge.

2. There is no reason why the scope of the power to amend on appeal should be different from the scope of the power to amend at trial.

3. The limits on the amending power are found, not in the nature of the change made by the amendment, but in the effect of the amendment on the proceedings, and particularly, on the accused's ability to meet the charge.

[40] Doherty J.A. identified prejudice to the appellant as the “litmus test” against which proposed amendments should be judged. The amending power should be exercised only if the appellant will not, as a result of the amendment, be misled or prejudiced in his defence or appeal.

[41] As my colleague points out, at p. 700 in Irwin, Doherty J.A. counselled that “[t]he risk of prejudice is particularly great where it is proposed to materially amend an indictment on appeal and affirm the conviction on the basis of that amendment.” In setting out this principle, Doherty J.A. adopted Cory J.’s statement from R. v. Tremblay, 1993 CanLII 115 (SCC), [1993] 2 S.C.R. 932, at p. 956, that it would be “an extraordinary step for an appellate court to amend the charge materially and then to enter a conviction on the basis of the charge as amended” (emphasis added). See also R. v. A.L.B. (1998), 1998 CanLII 5974 (BC CA), 128 C.C.C. (3d) 87 (B.C.C.A.), at para. 24.

[42] My reasoning that the application of the principles established in Irwin leads to the conclusion that it is in the interests of justice to allow the amendment to the information to replace the driving suspension from one under the Criminal Code to one under the Highway Traffic Act is as follows.

[43] First, I do not agree that amending the information in this case would constitute an extraordinary step contemplated in Tremblay and in Irwin. In both decisions, Cory J. and Doherty J.A. explicitly state that the potential for prejudice is particularly high when the requested amendment to the charge is material. In my view, a material amendment should be interpreted as one capable of having a demonstrable impact on a defence open to the accused. An example that comes to mind is when the Crown requests an amendment to the date of the offence in circumstances in which the accused intended to rely on an alibi defence that would not apply to the proposed amended date.

[44] I do not see the proposed amendment in this case as material. The proposed amendment changes nothing other than the label applied to the offence. The charge as originally laid required the Crown to establish two facts - the appellant was driving a motor vehicle and was doing so when his license was suspended. If the appellant had been charged with driving while disqualified under the Highway Traffic Act rather than the Code, the Crown would have had to prove the same two facts. It follows that while the exercise of this court’s discretion to amend must, in this case as in all cases, be principled in the sense of being guided by wording of s. 683(1)(g) of the Code, here no additional caution is called for.

[45] This takes me to my second point - the important issue of prejudice. The appellant seeks to rely on prejudice: it is therefore his onus to establish some form of prejudice. See R. v. Griffin (1996), 1996 CanLII 3210 (BC CA), 111 C.C.C. (3d) 567 (B.C.C.A.), at para. 22; and R. v. Pelletier (2012), 2012 ONCA 566, 291 C.C.C. (3d) 279 (Ont. C.A.).

[46] Prejudice speaks to the effect of the amendment on the appellant’s ability to meet the charge. In deciding whether to allow the amendment, consideration must be given to whether the appellant had a full opportunity to respond to all issues raised by the charge as amended and whether the defence would have been conducted any differently had the amended charge been before the trial court. If so, there is no prejudice: see R. v. Foley (1994), 1994 CanLII 9760 (NL CA), 90 C.C.C. (3d) 390 (Nfld. C.A.), at 400-403.

[47] I am mindful that in this case, the defence strategy at trial focused entirely on showing that the appellant’s suspension was not the result of a s. 259(1) order, as set out in the information. Yet in responding to the Crown’s request for an amendment, the appellant has not been able to identify anything he would have done differently had the information properly identified the suspension as being under the Highway Traffic Act rather than the Criminal Code.

[48] As set out above, my colleague suggests that the appellant may have expanded the scope of his cross-examination and explored facts relating to the provincial suspension and perhaps the inter-relationship of a driving suspension under the Code and under the Highway Traffic Act.

[49] With respect, I am of the view that speculation about a possible different approach to the defence is insufficient to establish prejudice. If it were, the discretion to amend at the appellate level would be rendered nugatory, as speculation of this nature would be available in every case. I agree that the bar is low but it must be more than mere conjecture: see Griffin, at para. 23.

[50] In my view, the appellant has not demonstrated that the amendment would cause him any prejudice.

[51] Third, the interests of justice - the objective expressly identified in s. 683(1) as the controlling factor in the exercise of discretion to amend - lead me to conclude that the amendment ought to be allowed.

[52] Denying the amendment strikes me as an unwarranted windfall for the appellant. The appellant was not caught off guard. He received full disclosure and knew that the Crown’s evidence was directed at showing that his disqualification was the result of a provincial suspension. The appellant came to trial with a view to defeating the charge on a technicality. I think it is fair to say that for some time now, in the interests of justice, the law has been moving away from giving effect to technical defences. See R. v. B.(G.) 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at para. 21 and R. v. Sault Ste. Marie (City) 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 6.

[53] I make one final comment relevant to the principal consideration of the interests of justice. While the administration of justice has an interest in an accurate efficient criminal process, starting with charges that are correct or, if not, corrected at the first opportunity, I am of the view that the administration of justice has a greater interest in not allowing individuals to rely on a technicality to avoid responsibility for unlawful conduct. Allowing the Crown’s request to amend the information in a manner that does not change the substance of the offence and where the amendment causes the appellant no prejudice would better serve the interests of justice than allowing the appellant to avoid the consequences of unlawful conduct recently denounced by this court in R. v. Fernandes, 2013 ONCA 436, 115 O.R. (3d) 746, at para. 117, as follows:

Parliament and the courts have long recognized that driving offences, particularly drinking and driving offences, are serious crimes with grave consequences. Not infrequently, they result in significant societal damage and injury, often of a tragic and permanent nature. In this context, driving while disqualified prosecutions assume great importance.

[54] For these reasons, I would amend the information to charge the appellant with driving while disqualified under the Highway Traffic Act and dismiss the appeal.

Released: October 15, 2013 (“J.C.M.”)

“Gloria Epstein J.A.”