COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGee, 2014 ONCA 358

DATE: 20140502

DOCKET: C57632

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David McGee

Applicant/Appellant

Norman Peel, Q.C., for the appellant

Molly Flanagan, for the respondent

Heard and released orally: April 30, 2014

On appeal from the conviction entered on August 20, 2013 by Justice R.G.E. Hunter of the Ontario Court of Justice.

ENDORSEMENT

[1] After an altercation at home in November 2012, the appellant was charged with six counts of assault, assault with a weapon, mischief and uttering threats. Some of the counts involved allegations of historical acts of domestic violence against his wife and daughter. Following a half-day trial on August 20, 2013, the appellant was convicted on five counts by Justice R.G. Hunter of the Ontario Court of Justice. The appellant appeals his conviction on only one count, namely, the conviction for assault with a weapon.

[2] The information for this count alleged that the appellant assaulted his wife with a chair between January 1 and December 31, 1999. The appellant contends that the evidence at trial does not support a conclusion that the offence, if committed, was committed at any time in 1999.

[3] The wife’s testimony about this offence, both in chief and on cross, was very brief. However, she said that it may have happened in 1999, but also that it happened when she was pregnant with her son who at the time of trial was 17. This would mean that the offence would have taken place in 1996.

[4] Neither counsel at trial explored this potential discrepancy. On appeal, the appellant contends that this discrepancy is serious enough to warrant that the appeal be allowed and an acquittal entered.

[5] The Crown responds with two submissions: (1) in this case, timing is not an essential element of the offence; and (2) alternatively, this court, pursuant to s. 683(1)(g) of the Criminal Code, should amend the information to conform with the evidence at trial.

[6] We agree with the Crown’s first submission. In the normal course, the date on which an offence is alleged to have been committed is not an essential element of that offence: see s. 601(4.1) of the Criminal Code; R. v B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at paras. 37-38 and 43; and R. v. S.D., 2011 SCC 14, at paras. 1-2.

[7] The exception to this general rule arises in a case where “the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or her defence”: B.(G.) at para. 38.

[8] In our view, this exception does not come into play in this case. The appellant knew the case he had to meet – did he throw a chair at his wife and hit her? Further, it is clear from the record, including the cross-examination of the complainant, that the date of the alleged offence played no part in the appellant’s defence.

[9] The appeal is dismissed. We record that the appellant abandoned his appeal of the two uttering threat convictions.

“Alexandra Hoy A.C.J.O.”

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”