Her Majesty the Queen v. Bidawi
[Indexed as: R. v. Bidawi]
Ontario Reports
Court of Appeal for Ontario
Lauwers, B.W. Miller and Fairburn JJ.A.
August 27, 2018
142 O.R. (3d) 520 | 2018 ONCA 698
Case Summary
Criminal law — Indictment and information — Amending information — Limitation period in s. 786(2) of Criminal Code not barring amendment of information that substitutes one offence for another in summary conviction proceedings — Amendment that substitutes one offence for another not "instituting" summary conviction proceedings — Summary conviction proceedings "instituted" when information is laid — Criminal Code, R.S.C. 1985, c. C-46, s. 786(2).
The accused was charged with two firearms offences under s. 86 of the Criminal Code. The offences were hybrid, and the Crown elected to proceed summarily. Because the Crown's case focused on culpability under s. 86(2) of the Code, the Crown asked the trial judge to amend the information to conform with the evidence at trial. The trial judge found that the amendments created new offences but did not have the effect of instituting new proceedings, so that the amendments were not barred by the limitation period in s. 786(2) of the Code. She amended the information and convicted the accused. The summary conviction appeal judge found that the amendments were barred by the limitation period in s. 786(2), allowed the appeal and entered acquittals. The Crown applied for leave to appeal and appealed.
Held, leave to appeal should be granted; the appeal should be allowed.
Leave to appeal should be granted as the appeal involved a pure question of law; the Court of Appeal had not yet addressed the core issue raised on appeal; that issue would undoubtedly arise again; and the issue could have ramifications for the general administration of criminal justice.
Section 786(2) does not bar amendments that substitute one offence for another in summary conviction proceedings. Section 786(2) provides that no proceedings shall be instituted more than six months after the time when the subject matter of the proceedings arose, unless the prosecutor and the defendant so agree. An amendment that substitutes one offence for another does not amount to the "institution" of summary conviction proceedings. Rather, summary conviction proceedings are "instituted" by the laying of an information. The accused was not prejudiced by the amendments in this case. He had fair notice of the charges he faced. The amendments were properly made.
Authorities
Cases Distinguished:
R. v. Joy Oil Co., [1959] O.R. 288, [1959] O.J. No. 642, 123 C.C.C. 370, 30 C.R. 132 (C.A.)
Cases Considered:
Other Cases Referred to:
Statutes Referred to:
Criminal Code, R.S.C. 1985, c. C-46, ss. 2, 86(1), (2), 601(2), (4), (6), (10), 683(1)(g), Part XXVII, ss. 786(2), 788(1)
Firearms Act, S.C. 1995, c. 39, s. 117(h)
The Weights and Measures Act, S.C. 1951, c. 36, s. 45
Rules and Regulations Referred to:
Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209, ss. 5, 10(2)(b)
Proceeding
APPEAL from the order of Ducharme J., [2017] O.J. No. 4115, 2017 ONSC 4732 (S.C.J.) allowing the appeal from the conviction entered on April 21, 2015 by Pringle J. of the Ontario Court of Justice.
Counsel:
Andrew Hotke, for appellant.
Kathryn Wells, for respondent.
The judgment of the court was delivered by
FAIRBURN J.A.:
Overview
[1] The respondent was tried in a summary conviction proceeding for firearm offences arising out of two separate transactions. The Crown asked the trial judge to amend the information to conform to the evidence elicited at trial. The respondent objected to the amendments, arguing that they would have the effect of substituting new charges, which would in turn give rise to the institution of new proceedings. He maintained that the six-month limitation period for instituting summary conviction proceedings had passed and, therefore, the amendments were statute-barred. The trial judge rejected that argument, made the requested amendments and ultimately entered convictions on the amended counts.
[2] The summary conviction appeal judge found that the trial judge erred by amending the counts. Section 786(2) of the Criminal Code, R.S.C. 1985, c. C-46 governs summary conviction proceedings and reads: "[n]o proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree". The summary conviction appeal judge reasoned that the amendments had the effect of instituting new proceedings and were, therefore, statute-barred by virtue of s. 786(2). He set aside the convictions and entered acquittals.
[3] The Crown now seeks leave to appeal to this court and, if leave is granted, appeals from the summary conviction appeal decision.
[4] The resolution of this case turns on the answer to the following question: does the limitation period in s. 786(2) of the Criminal Code restrict the types of amendments that can be made to informations in summary conviction proceedings? I would grant leave to appeal, answer that question in the negative and allow the Crown's appeal.
Background
(1) Facts Giving Rise to the Charges Against the Respondent
[5] The respondent was the owner and operator of a private security company. He possessed licences to carry on that business and to carry non-restricted and restricted firearms.
[6] The police received information that caused them to place the respondent under surveillance. On June 21, 2012, officers watched as the respondent left his home with a shotgun in hand, entered his SUV and mounted the shotgun in the front seat area of the vehicle. The respondent then drove to a bank, parked the vehicle and entered the bank. He left the shotgun unattended in the vehicle. It was visible to people walking by. The respondent later returned to the vehicle, drove to his workplace, parked the vehicle and entered the building. This time, he left the still-visible shotgun unattended in the vehicle for at least an hour.
[7] Six days later, while executing a search warrant at the respondent's home, the police found what they believed to be the same shotgun that the respondent had transported in his vehicle on June 21. The firearm was exposed, leaning against a bedroom wall. The gun had shells attached to it. Twenty-five rounds of ammunition were also lying on top of a dresser that was close to the gun.
[8] These events gave rise to several charges against the respondent. A four-count information was sworn about a week following the search of the respondent's home. The first two counts covered the June 21, 2012 incident (the "SUV incident"). The other two counts covered the June 27, 2012 discovery of the gun with accessible ammunition nearby (the "bedroom discovery").
[9] For reasons that are immaterial to the resolution of this appeal, the Crown eventually withdrew counts one and four on the information, leaving one count per incident before the court. In their original form, those remaining counts read:
Count Two: "Fawzi Bidawi on or about the 21st day of June in the year 2012 in the City of Toronto . . . did without lawful excuse store a firearm, to wit a shotgun in a careless manner contrary to the Criminal Code"
Count Three: "Fawzi Bidawi on or about the 27th day of June in the year 2012 in the City of Toronto . . . did, without lawful excuse store ammunition in a careless manner contrary to the Criminal Code . . ."
(Emphasis added)
(2) The Need for Amendments and the Trial Judge's Decision
[10] Section 86 of the Criminal Code governs the storage and transportation of, among other things, firearms and ammunition. That provision creates a hybrid offence, allowing the Crown to elect to proceed either summarily or by indictment. In this case, the trial Crown elected to proceed summarily.
[11] Despite the manner in which the counts were framed, from the beginning to the end of the trial, the trial Crown took the position that the prosecution was based upon proving offences under s. 86(2) of the Criminal Code. I refer to the manner in which the counts were framed because it seems clear that the counts were also rooted in conduct that is prohibited under s. 86(1) of the Criminal Code.
[12] Among other things, s. 86(1) makes it an offence to store a firearm and/or ammunition in a careless manner without lawful excuse. In their original form, counts two and three were worded in a way that suggested the careless storage of a firearm (the SUV incident) and careless storage of ammunition (the bedroom discovery). The evidence arguably supported those offences having been committed. Had the matter proceeded on that basis, there would have been no need for amendments to the information. Accordingly, nothing in these reasons should be understood to mean that the original framing of the counts, and the evidence elicited at trial, could not have supported a prosecution under s. 86(1) of the Criminal Code.
[13] The fact remains, though, that the matter was prosecuted with a unilateral focus on s. 86(2). The Crown approach led the trial judge and, in turn, the summary conviction appeal judge to focus exclusively on that provision. The appeal has also been argued on that basis, and so it is upon that basis that we will decide the case.
[14] Because the trial Crown focused on culpability under s. 86(2), amendments to the counts were required. Section 86(2) makes it an offence to contravene a regulation made under the authority of s. 117(h) of the Firearms Act, S.C. 1995, c. 39, respecting, among other things, the storage and transportation of firearms (not ammunition).
[15] Sections 5 and 10 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209 (the "Regulations"), are made under the authority of s. 117(h). Section 5 governs the "storage of non-restricted firearms" and s. 10(2)(b) governs the "transportation of non-restricted firearms" in vehicles. There is no dispute that the shotgun was a non-restricted firearm. The trial Crown maintained that s. 5 of the Regulations corresponded to the bedroom discovery (count three) and s. 10(2)(b) corresponded to the SUV incident (count two).
[16] Pursuant to s. 5, a non-restricted firearm must be stored in a way that is "not readily accessible to ammunition", unless that ammunition is stored in a specified manner. The exposed shotgun found in the bedroom, being in close proximity to exposed ammunition, was stored in a manner that contravened s. 5 of the Regulations, making it an offence under s. 86(2) of the Criminal Code. The difficulty was that count three, intended to cover the bedroom discovery, referred to the storage of "ammunition". Having regard to the fact that s. 86(2) of the Criminal Code did not make it an offence to store ammunition, and s. 5 regulated the storage of a "firearm" (in close proximity to ammunition), the Crown asked that the count be amended to replace the word "ammunition" with "firearm".
[17] Pursuant to s. 10(2)(b) of the Regulations, where a non-restricted firearm is left in an "unattended vehicle" that is not equipped with a trunk or similar compartment, the firearm must not be visible from the outside of that vehicle. Leaving the visible and unattended shotgun between the front seats of the SUV contravened s. 10(2)(b) of the Regulations, making it an offence under s. 86(2) of the Criminal Code. Having regard to the fact that s. 10(2)(b) actually regulated the "transport" of firearms in a specified manner, the Crown asked that the count be amended to replace the word "store" with the word "transport".
[18] The trial judge concluded that, although the amendments created new offences, they did not have the effect of instituting new proceedings because the "original information remains valid, albeit with a different offence reflected on its face". She also rejected the respondent's position that he would be prejudiced if the amendments were to be made. To compensate for any potential prejudice, the trial judge permitted the respondent to recall two witnesses.
[19] The respondent did not continue to advance his prejudice claim on summary conviction appeal or in this court, focusing instead on his claim that the amendments were statute-barred.
(3) The Summary Conviction Appeal
[20] Placing heavy reliance upon R. v. Joy Oil Co., [1959] O.R. 288, [1959] O.J. No. 642, 123 C.C.C. 370 (C.A.), a judgment which I will have more to say about later, the summary conviction appeal judge reasoned that, in summary conviction proceedings, amendments involving the substitution of new charges necessarily give rise to the institution of new proceedings. Accordingly, having regard to the timing of the amendments in this case, the summary conviction appeal judge concluded that they were "statute barred by the limitation period contained in s. 786(2) of the Criminal Code".
[21] The summary conviction appeal judge allowed the appeal and denied the Crown's request to order a new trial. He entered acquittals on the basis that, without an amendment to the information, the evidence at trial could not support convictions on the offences charged.
[22] I now turn to my analysis of the threshold question -- whether leave to appeal should be granted in this case.
Analysis
(1) Leave to Appeal
[23] The Crown submits that the robust test for a second level of appeal has been met because the case raises an important issue of general application to the administration of criminal justice. The respondent quite fairly agrees. For the reasons that follow, I conclude that this is an appropriate case in which to grant leave to appeal.
[24] First, the issue that this court is asked to decide is a pure question of law. Indeed, s. 601(6) of the Criminal Code makes it so: "[t]he question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law".
[25] Second, this court has not yet addressed the core issue raised on appeal. Although there is a well-established body of jurisprudence pertaining to when, how and in what circumstances amendments to charging documents can be made, this court has not squarely addressed the impact, if any, of the limitation period for instituting summary conviction proceedings on those otherwise broad powers of amendment.
[26] Third, it is common for summary conviction trials to commence after the six-month limitation period has expired. It is also common for amendments to be made to informations and counts within informations. Consequently, the question raised on this appeal will undoubtedly arise again.
[27] Finally, the central issue raised in this matter could have ramifications for the general administration of criminal justice. By way of example, if the six-month limitation period restricts the type of amendments that can be made, (a) acquittals could result from technicalities, without any regard to the merits of a case; and (b) the Crown will be required to proceed by indictment in cases where some types of amendments to informations are required outside of the six-month limitation period. Proceeding by indictment to prosecute cases that are otherwise deserving of a summary conviction proceeding approach is an inefficient prospect, one that would place an additional burden on an already overly taxed criminal justice system.
[28] Accordingly, I would grant leave to appeal.
(2) The Power to Amend After the Expiry of the s. 786(2) Limitation Period
[29] Section 786(2) must be read in its proper context. That context includes s. 601 of the Criminal Code, which provides the statutory basis for the power to amend. Accordingly, before explaining why s. 786(2) does not bar amendments that substitute one offence for another in summary conviction proceedings, I will review s. 601 and how it has been judicially interpreted.
(a) The Power to Amend Under s. 601 of the Criminal Code
[30] Section 601 of the Criminal Code contains the statutory power to amend an information or indictment. While s. 601 specifically refers to amending "indictments", s. 2 of the Criminal Code defines an "indictment" as including an "information or a count therein". Further, s. 601(10) says that where the term "court" is used within the provision, it is to be understood as including a judge acting in summary conviction proceedings. Consequently, the s. 601 power to amend an indictment applies with equal force to informations in summary conviction proceedings. As the focus of this appeal is on amendments to an information, I will use that terminology.
[32] Section 601(4) lists the factors that must be taken into account when considering whether to make an amendment, including (a) the evidence taken; (b) the circumstances of the case; (c) whether the accused has been "misled or prejudiced in his defence by any variance, error or omission"; and (d) whether the amendment can be made without creating an injustice. Conspicuously absent from that list, and from s. 601 in general, is any reference to the statutory limitation period within s. 786(2) or, for that matter, any limitation period.
[33] The power to amend an information or count within an information is a broad one: R. v. Irwin (1998), 38 O.R. (3d) 689, [1998] O.J. No. 627, 107 O.A.C. 103 (C.A.), at para. 9; R. v. S. (A.), [1998] O.J. No. 4070, 113 O.A.C. 340 (C.A.), at para. 4. Provided there is no irreparable prejudice to the accused, and the fairness of the trial will not be adversely impacted, the trial judge may exercise her or his power in favour of making an amendment: R. v. Morozuk, [1986] 1 S.C.R. 31, [1986] S.C.J. No. 3, at para. 22.
[34] As noted by Doherty J.A. in Irwin, at para. 26, provided that "prejudice to the accused remains the litmus test" against which to assess any potential amendment to an information, the wide power to amend includes the ability to substitute one charge for another. The essential inquiry should be into the impact of any potential amendment on the accused, not on how the amendment will impact the charge. Doherty J.A. summed up this point in the following question: "If no prejudice will result from the change, why should it matter how the change to the charge is described?" See Irwin, at para. 26.
[35] Although Irwin was decided in the context of a case involving an appeal court's power to amend under s. 683(1)(g) of the Criminal Code, the parties agree that the general principles articulated in that judgment have equal application to the trial setting. Where the parties part company is on the question of whether the Irwin principles apply in the context of this case. Like the trial judge, the Crown says Irwin governs. Like the summary conviction appeal judge, the respondent says that in a summary conviction proceeding, before looking to the "litmus test" of prejudice, the court must ask whether the amendment is statute-barred by virtue of s. 786(2).
[36] I will now explain why I conclude that s. 786(2) does not bar amendments that substitute one offence for another in summary conviction proceedings. In particular, I will focus on (i) why Joy Oil, which was key to the summary conviction appeal judge's analysis, is not binding on this issue; (ii) why amendments do not "institute" proceedings; and (iii) why the important rationales that underpin the broad powers of amendment support my interpretation of s. 786(2).
(b) The Power to Amend in Summary Conviction Proceedings
(i) Joy Oil Does Not Support the Respondent's Position
[37] The summary conviction appeal judge leaned almost exclusively on Joy Oil in support of the view that amendments that substitute new offences result in the institution of new proceedings, thereby triggering the application of s. 786(2). Accordingly, I will commence by addressing Joy Oil and why I do not agree that it assists in resolving the issue on appeal.
[38] Joy Oil was a service station in Toronto that was charged on a one count information under s. 45 of The Weights and Measures Act, S.C. 1951, c. 36. Section 45 made it an offence for a "trader" (defined as a person engaged in trade) to use in trade a "measuring machine that is false". The single count information alleged that Joy Oil used gasoline pumps in trade that produced false measures.
[39] The charge was originally dismissed on the basis that the information was deficient because it did not refer to Joy Oil's status as a "trader". Being 1958 at the time of the first level of appeal, the Crown appealed to the then County Court for a trial de novo. At the outset of the proceedings, the County Court judge amended the count in two ways, one of which is relevant for these purposes. Just after reference to Joy Oil, the words "being a trader" were inserted into the count. Following the trial de novo, the dismissal of the charge was vacated and a conviction substituted.
[40] On appeal to the Court of Appeal, Joy Oil raised three arguments for why the County Court judge had erred in amending the count to include the words "being a trader": (a) the County Court judge was without jurisdiction to amend the count before he had heard evidence; (b) the count omitted a "vital and essential ingredient of the offence", which made the count defective in substance, a nullity and incapable of amendment; and (c) in the alternative, the effect of the amendment was to substitute a new charge, effectively instituting a new proceeding after the six-month limitation period.
[41] Although it is Joy Oil's third ground of appeal that pertains to the issue in this case, the judgment did not turn on that ground. Schroeder J.A. concluded that the original wording of the count did not omit to state an essential ingredient of the offence. To the contrary, the count had been properly drafted and the amendment constituted mere "surplusage". Consequently, it became unnecessary to consider Joy Oil's third ground of appeal. Indeed, as Schroeder J.A. recognized, "[h]aving regard to the decision which I have reached on the second ground of appeal, it becomes unnecessary to deal with the third ground". Even so, he went on in one short paragraph to comment on the limitation period issue.
[42] It is the following obiter comment from Joy Oil, at p. 375 C.C.C., that forms the backbone of the summary conviction appeal decision:
There are numerous authorities in which it has been held that if the effect of an amendment would be to substitute an entirely new charge, it cannot be permitted since this would be in effect to permit the institution of a prosecution after the time limited by statute had expired. If, however, an amendment has the effect merely of supplying an allegation necessary to a complete statement of the offence, the statutory period of limitation would not act as a bar to the prosecution: Rex v. Ayer (1908), 17 O.L.R. 509 at p. 513, considered and applied in Rex v. Ross, [1949] O.W.N. 442.
(Emphasis added)
[43] The respondent contends that the summary conviction appeal court was right to consider Joy Oil as binding authority. The respondent says that the amendments made by the trial judge in this case were inconsistent with that authority and that the trial judge essentially allowed the Crown to do indirectly what it was not permitted to do directly. I disagree.
[44] I start by noting that it is understandable why the summary conviction appeal judge applied Joy Oil to the circumstances of this case. At first blush, the judgment appears to apply. Despite its seeming application to the circumstances of this case, though, for the following reasons I find that it is neither conclusive nor persuasive on the issue to be determined.
[45] First, as set out above, the judgment actually turned on a finding that the amendment was unnecessary because it added nothing to the charge. In the result, as acknowledged by Schroeder J.A., the comment about the intersection between amendments and limitation periods was made in obiter.
[46] Second, the comments in Joy Oil were made against a factual backdrop that did not involve anything even close to the substitution of a new charge. Without a factual context against which to measure the expression "entirely new charge", it is difficult to know exactly what was being contemplated when Schroeder J.A. penned the critical obiter sentence relied upon.
[47] Finally, and most importantly, Joy Oil was decided almost 60 years ago, long before the modern approach to amending informations and indictments took root.
[48] Joy Oil and the judgments it cites in the passage set out above, one of which is over a hundred years old, were written at a time when decisions to amend were much more likely to turn on technicalities. Since that time, there has been a significant evolution of the law regarding the predominant factors upon which decisions to amend rest. As noted in R. v. Côté, some 20 years following Joy Oil, a "golden rule" governing informations and indictments had emerged, one where the "extreme technicality of the old procedure" had given way to a focus on prejudice: , [1978] 1 S.C.R. 8, [1977] S.C.J. No. 37, at p. 13 S.C.R. The previous focus on technicalities gave way to a practical exploration of whether the accused had been "reasonably informed of the transaction alleged against him": Côté, at p. 13 S.C.R.
[49] That same year, in R. v. Sault Ste-Marie (City), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59, Dickson J. (as he then was) also addressed the historical jurisprudence, when the "slightest defect made an indictment a nullity". He referred to the fact that "[t]hat age ha[d] passed": at p. 1307 S.C.R. Although addressing the matter in the context of alleged duplicity, his comments about the move away from the "punctilio of an earlier age" and toward an emphasis on "substance and not petty formalities" are equally applicable to the desirability of a broad amending power: at p. 1307 S.C.R. See, also, R. v. Bengert (No. 5), [1980] B.C.J. No. 721, 53 C.C.C. (2d) 481 (C.A.), at pp. 505-506 C.C.C.
[50] A broad amending power -- one that avoids technicalities and, instead, focuses upon prejudice -- is even further justified in the age of full disclosure. While there was a day when the information was the central document providing the accused with notice of what the state alleged, that is no longer the case. Today, the accused also receives full disclosure of the Crown's case, a valuable source of material from which the accused can obtain information about what is alleged.
[51] By referring to the evolution of the law of criminal procedure away from formalities and toward substance, I should not be taken as suggesting that a limitation period under s. 786(2) is a mere "petty formality". Plainly, barring the consent of the parties to proceed summarily, where the statutory criteria within s. 786(2) are operative, s. 786(2) governs. I simply wish to underscore that Joy Oil was decided during an earlier stage of the law surrounding amendments. There is a risk in relying upon a 60-year-old passing obiter comment, made at a time when technicalities sometimes trumped substance, to inform the contemporary approach to amendments.
[52] I conclude that Joy Oil is not of assistance in resolving the central issue in this case.
(ii) To Institute Proceedings Requires the Laying of an Information
[53] I now turn to s. 786(2), the provision at the heart of this appeal. Section 786(2) lies within Part XXVII of the Criminal Code, the part governing summary conviction proceedings. For ease of reference, I repeat s. 786(2) since the precise wording is important:
786(2) No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree.
(Emphasis added)
[54] As before, s. 86(2) creates a hybrid offence. In this case, the information was sworn within days of the offences being committed. Accordingly, it was open to the Crown to elect to proceed by indictment or summary conviction. The Crown chose to proceed summarily. In light of that election, the matter had to be treated "in all respects as a summary conviction offence": R. v. Dudley, [2009] 3 S.C.R. 570, [2009] S.C.J. No. 58, 2009 SCC 58, at para. 2.
[55] Given that it was a summary conviction proceeding from the moment that the Crown elected to proceed summarily, I agree with the respondent that the amendments were requested within the context of a summary conviction proceeding. For the purposes of this appeal, I also accept the parties' characterization of the amendments as having substituted new offences. That does not mean, though, that the amendments had the effect of instituting new summary conviction proceedings. Indeed, I conclude that the amendments did not institute any proceedings. They were amendments.
[56] It is important to remain focused on what s. 786(2) prohibits, namely, the institution of summary conviction proceedings more than six months after the subject matter of the proceedings arose. Accordingly, the nub of the question on appeal is what is meant by the term "institute" under s. 786(2)? Does an amendment that substitutes one offence for another amount to instituting proceedings?
[57] Section 788(1) provides a clear answer to that question: no. Section 788(1) says that a summary conviction proceeding is "commenced by laying an information in Form 2". Both the majority and concurring judgments in Dudley interpreted s. 788(1) as meaning that summary conviction proceedings are "instituted" by the laying of the information. In the majority judgment, Fish J. pointed out, at para. 51, that "hybrid offences prosecuted summarily are instituted by the laying of an information" (emphasis added). In her concurring judgment, at para. 69, Charron J. concluded that:
Proceedings relating to summary conviction offences are instituted pursuant to s. 788(1) of the Criminal Code; proceedings relating to indictable offences are instituted pursuant to s. 504 or 505 of the Criminal Code. In either case, instituting the procedure requires laying an information in Form 2.
(Emphasis added)
[58] Section 788(1) is clear. In accordance with that provision, and how it was interpreted in Dudley, I conclude that summary conviction proceedings are instituted at the time that the information is laid. Although prosecutions involving hybrid offences will only take on their character as summary conviction proceedings after the Crown has elected to proceed summarily (Dudley, at para. 2), the proceeding is instituted with the laying of the actual information.
[59] I reject the respondent's position that allowing for the substitution of a new offence by way of amendment, after the limitation period for a summary conviction proceeding has expired, allows the Crown to do indirectly what it cannot do directly. An amendment to an information or count within an information cannot constitute the institution of proceedings because it does not constitute the laying of an information within Form 2. That is true, regardless of the nature of the amendment, even if it substitutes one offence for another. An amendment simply amends the previously laid information.
[60] To conclude otherwise would conflict with the plain meaning of s. 788(1), the interpretation of that provision in Dudley, and the important reasons underpinning the broad power of amendment. I will now turn my attention to this latter point.
(iii) The Rationales Supporting a Broad Power to Amend
[61] The power to amend is widely understood to serve two important goals: (1) the determination of criminal cases on their merits; and (2) ensuring that a multiplicity of proceedings do not arise from single transactions: Irwin, at paras. 9-11. These rationales underscore the sound proposition that a fair criminal justice system prioritizes substance over form. The goals that underpin the power to amend would be undermined by an interpretation of s. 786(2) that precluded amendments in summary conviction matters.
[62] As the Crown correctly points out, the result of the summary conviction appeal decision would be to enter acquittals on pure summary conviction offences when an amendment in the nature of substituting a charge is required after the six-month limitation period. Even if the Crown wanted to, in a pure summary conviction matter, it could not re-lay an information by virtue of having passed the limitation period in s. 786(2).
[63] Accordingly, in pure summary conviction matters, criminal cases might be decided in a manner detached from an assessment of the merits of the case. Acquittals in these circumstances, arising from a mere technicality in the drafting of a count, would be unjust.
[64] As for hybrid offences, they operate differently.
[65] Even if amendments could institute new proceedings -- a proposition that I do not accept -- making those amendments in the context of hybrid offences (after the six-month limitation period) would do nothing more than render a nullity the Crown's original election to proceed summarily; they would not invalidate the information. Consistent with the reasons in Dudley, a case dealing with the need for a re-election, multiple options would be available. Barring the accused's consent to continue the matter as a summary conviction proceeding, even if the amendments "instituted" proceedings, I see no reason why: a mistrial could not be declared and the case start over with the Crown electing to proceed by indictment; or why the Crown could not withdraw the information, relay a different Form 2 and elect to proceed by indictment: Dudley, at para. 43. Barring any potential abuse of process argument, there is no reason that the Crown could not proceed in that manner: Dudley, at paras. 31, 43-44.
[66] If s. 786(2) were to operate as the respondent suggests, proceedings might have to be commenced again, the second time by indictment, resulting in the need to recall witnesses and repeat evidence. Proceeding in that way would conflict with the desire to avoid a multiplicity of proceedings arising from a single transaction.
[67] The rationales upon which the wide-ranging power to amend rest are best served by interpreting ss. 786(2) and 788(1) in accordance with their plain meaning.
(3) Propriety of the Amendments in This Case
[68] As before, the respondent is not alleging that he was prejudiced by the amendments, only that they were statute-barred.
[69] The respondent knew what the Crown alleged and the case he was required to meet. The proceedings were instituted by the laying of the information on July 3, 2012, less than two weeks after the SUV incident and about a week following the bedroom discovery.
[70] At a minimum, the disclosure made the offence alleged in count two abundantly clear. When considering any fairness issues that may arise from an amendment, the court may look to the disclosure provided: R. v. Robinson (2001), 53 O.R. (3d) 448, [2001] O.J. No. 1072, 143 O.A.C. 80 (C.A.), at paras. 23, 28; R. v. Munyaneza, [2014] Q.J. No. 3059, 2014 QCCA 906, 309 C.R.R. (2d) 71, at para. 86. Among other things, an information to obtain a search warrant for the respondent's home clearly set out the allegations involved in the SUV incident, all of which conformed with an offence under s. 10(2)(b) of the Regulations. The affiant clearly set out the facts involving the visibility of the shotgun in the SUV when the respondent left the vehicle unattended on two occasions.
[71] In addition, on the first day of trial, the Crown explained its theory on what constituted the criminal conduct relating to the SUV incident. The Crown explained that the police had the respondent under surveillance because they were concerned about how he had been "transporting a shotgun". He explained that the alleged offence involved "what you have to do when you're transporting firearms in a vehicle or, more importantly, if you leave them in an unattended vehicle, namely that you can't leave them visible".
[72] This theme continued throughout the trial. The affiant for the search warrant was clear in his evidence that the SUV incident involved a transporting offence.
[73] As for the bedroom discovery, the trial Crown was also clear on the first day of trial that he would be asking for an amendment to count three to conform to the evidence. He specifically noted that the word "ammunition" should have read "firearm". The defence did not object at that time. Indeed, so unobjectionable was the Crown's comment that when the respondent brought an application for a directed verdict, he was mistakenly under the impression that the amendment to count three had actually been made on the first day of trial.
[74] The respondent had fair notice of the charges he faced. It was a simple prosecution, the scope of which was clear from the outset. The offences were also clear. This is precisely the kind of case that amendments are made for. They were properly made.
Conclusion
[75] I would grant leave to appeal, grant the appeal, set aside the acquittals and reinstate the convictions.
Appeal allowed.
End of Document