ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17/13
DATE: 2013-09-30
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
Emily Roda, for the Crown
James Miglin, for the Defendant
HEARD: September 30, 2013
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR DECISION
CROWN APPLICATION REGARDING AMENDMENT
SOUGHT TO COUNT 5 AND
DEFENCE APPLICATION FOR A DIRECTED VERDICT ON COUNT 5
CONLAN J.
Introduction
[1] L.W. stands charged before a Judge and Jury in a multi-count Indictment alleging several sexual-related offences involving two alleged young victims.
[2] After the close of the Crown’s case, the Prosecution applied for an amendment to count 5 of the Indictment.
[3] To paraphrase, that count currently alleges that Mr. W. invited S.W. to touch herself.
[4] Although the correct charging section of the Criminal Code of Canada (“CCC”) is included for the offence of invitation to sexual touching, there is no reference in the count to Mr. W. allegedly doing so (making the invitation) for a sexual purpose.
[5] The Crown wants the charge to be amended to allege that Mr. W. did, for a sexual purpose, invite S.W. to touch herself.
[6] On the other hand, even if the amendment is granted, the Defence seeks a directed verdict of acquittal on count 5.
The Positions of the Parties
The Crown
[7] The Crown submits that its request to have count 5 amended ought to be granted under subsection 601(3)(b)(i), to cure a count that fails to state anything requisite to constitute the offence, and/or subsection 601(3)(b)(iii) CCC, to cure a count that is in any way defective in substance.
[8] The Crown resists the Defence Application for a directed verdict on count 5 on the simple basis that the rather stringent test has not been met.
The Defence
[9] Quite responsibly, the Defence does not seriously contest the proposed amendment to count 5.
[10] The Defence does not allege that any specific prejudice or injustice to Mr. W. would result from the granting of the amendment.
[11] Rather, the Defence argues that its position on the amendment sought is interwoven with its Application for a directed verdict.
[12] In other words, the Defence submits that because the matter to be alleged in the proposed amendment (see the concluding words in subsection 601(3) (b) CCC) is not disclosed by the evidence at trial, the amendment ought not to be granted.
[13] Similarly, even if the amendment is granted, a directed verdict of acquittal ought to be entered on that count, according to the Defence.
Analysis
The Amendment to Count 5
[14] On the Application to amend count 5, the onus is on the Crown to show, on balance, that the variance ought to be granted.
[15] On the directed verdict Application, the onus is on the Defence to show, on balance, that an acquittal should be entered.
[16] In R. v. Moore, 1988 43 (SCC), [1988] S.C.J. No. 58, the Supreme Court of Canada stated that “If the document gives fair notice of the offence to the accused, it is not a nullity and can be amended under the broad powers of amendment…” (paragraph 16 of the dissenting opinion authored by Chief Justice Dickson).
[17] That principle remains the law in Canada.
[18] I conclude that Mr. W. had fair notice of the offence alleged in count 5. The Defence does not argue otherwise.
[19] Having regard to the factors outlined in subsection 601(4) CCC, I find that the amendment sought will not cause Mr. W. any prejudice or injustice. The Defence does not argue otherwise.
[20] Finally, for the reasons outlined below in discussing the issue of a directed verdict on count 5, I conclude that the matter to be alleged in the proposed amendment is indeed disclosed by the evidence at trial. In other words, there is evidence that Mr. W., for a sexual purpose, invited S.W. to touch herself.
[21] Thus, the Crown’s request for an amendment to count 5 is granted.
The Application for a Directed Verdict on Count 5
[22] The test generally is whether a reasonable jury properly instructed could return a verdict of guilty on count 5. Put another way, has the Crown made out a prima facie case against the accused on that count? Has the Crown adduced a scintilla of evidence on each essential element of the charge?
[23] It is the totality of the evidence that must be considered. This Court should not lightly usurp the role of the jury. Nor should this Court engage in a piece-meal examination of individual items of evidence. The case for the Crown must be taken at its highest. Competing permissible inferences must be resolved in favour of the Crown. R. v. Masterson, 2008 ONCA 481 at paragraph 6.
[24] I agree with the Defence that there is no direct evidence that Mr. W. had a sexual purpose for allegedly inviting S.W. to touch herself.
[25] There is, however, circumstantial evidence in support of that element of the charge.
[26] I have read the two authorities filed by the Defence, R. v. Morrisey, 2001 ABCA 106, [2001] A.J. No. 553 (Alta. C.A.) and R. v. Prohaska, [2013] O.J. No. 4020 (S.C.J.), although I find the decision of McKinnon J. in R. v. Francis, 2003 2208 (ON SC) to be more helpful to me.
[27] In particular, I agree with these comments of Justice McKinnon at paragraph 7 of the said decision:
“The most current authority touching upon the test to be applied on a motion for a directed verdict is found in R. v. Arcuri, 2001 SCC 54, (2001), 157 C.C.C. (3d) 21 wherein Chief Justice McLachlin determined that where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a “limited weighing” of the whole of the evidence to determine whether a reasonable jury properly instructed could return a verdict of guilty. In performing this task the judge does not draw inferences from facts nor assess credibility. Rather the task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, the task of limited weighing never requires consideration of the inherent reliability of the evidence itself. Instead it is an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.”
[28] This jury is entitled to accept all, some or none of the evidence of S.W. This jury is entitled to accept her evidence that Mr. W. asked her to pull down her pants; that she did so and pulled down her pants and underwear; that Mr. W. asked her to pull up her shirt; that she did so, exposing her bare chest; and that Mr. W. was looking at her private (vagina).
[29] It is true that, ultimately, S.W. stated in cross-examination that she is not sure where Mr. W. was looking, but the jury remains entitled to accept her earlier evidence which is more favourable to the Crown.
[30] It is true that there is an alternative and innocent explanation for what allegedly happened between S.W. and Mr. W. – that he was checking her size to get some new clothing for her. But the jury is entitled to draw the inference more favourable to the Crown – that Mr. W. asked (invited) S.W. to do that for a sexual purpose on the part of the accused.
[31] That is an inference that a reasonable jury, properly instructed, could draw. And if that inference is drawn by the jury, then there is evidence upon which the jury, acting reasonably and with proper instructions, could find Mr. W. guilty of count 5, as amended.
[32] As for the alternative argument by the Defence that there is no evidence that Mr. W. invited S.W. to touch herself, I reject that submission. An invitation for S.W. to pull down her pants and pull up her shirt amounts to an invitation that she touch herself.
[33] Despite the able submissions of Mr. Miglin as counsel for Mr. W., the Defence Application for a directed verdict is dismissed.
Conclusion
[34] Count 5 shall be amended to add the words “for a sexual purpose” as requested by the Crown.
[35] The Defence Application for a directed verdict of acquittal on count 5 is dismissed.
Conlan J.
Released: September 30, 2013
COURT FILE NO.: 17/13
DATE: 2013-09-30
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
REASONS FOR dECISION
Conlan J.
Released: September 30, 2013