R. v. Thibodeau, 2014 ONSC 2175

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA 84/13

DATE: 20140407

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. A. Khoorshed, for the Crown

Respondent

• and -

MICHAEL THIBODEAU

Mr. M. Caroline, for the Appellant

Appellant

HEARD: April 2, 2014

REASONS FOR JUDGMENT

[On appeal from the judgment of Brown J. dated June 6, 2013]

Fragomeni J.

1The appellant, Michael Thibodeau, appeals from his convictions at a trial before the Honourable Justice S.D. Brown of the Ontario Court of Justice at Burlington, Ontario on the following charges:

1. Refuse to provide a breath sample; and

2. Breach of probation.

2Initially the appellant advanced the following four grounds of appeal:

1. That the learned trial judge erred in law in amending the Information in the absence of calling evidence and in not reviewing submissions by counsel on the issue;

2. That the learned trial judge erred in his application of the decision in R. v. W.(D.).;

3. That the learned trial judge erred in finding that the officer had reasonable grounds to suspect that the appellant had alcohol in his body; and

4. That the learned trial judge erred in finding the appellant guilty of the breach of probation charge.

3At the appeal hearing before me on April 2, 2014, the appellant only advanced the first ground of appeal relating to the amendment of the Information. The other three grounds of appeal were abandoned. As such, I will only deal with that one ground of appeal in these reasons.

Amendment of the Information

4Count 1 on the Information sworn November 15, 2012, sets out the following charge:

MICHAEL JOHN THIBODEAU of 767 Maple Avenue, 7 Burlington, DOB: 1965/06/09, Male, on or about the 6th day of November in the year 2012 at the City of Burlington, did without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer to provide then, or as soon thereafter as is practicable, samples of his breath, as in the opinion of a qualified technician were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood, contrary to Section 254(5) of the Criminal Code.

AND FURTHER

That MICHAEL JOHN THIBODEAU on or about the 6th day of November in the year 2012 at the City of Burlington in the said Region, did, while bound by a Probation Order made by the Alberta Court of Justice in Edmonton on 17 July 2012, fail without reasonable excuse to comply with such order, to wit: keep the peace and be of good behaviour, contrary to Section 733.1(1) of the Criminal Code.

5The trial of this matter was heard on June 6, 2014. The appellant was read the charge as set out in the Information and entered a plea of Not Guilty. In order to provide context to the analysis that follows it is informative and relevant to set out in detail the discussion that takes place in court as it relates to this issue and as it is set out in the transcript:

CLERK REGISTRAR: Thank you. How do you plead to these counts, guilty or not guilty?

MR. THIBODEAU: Not guilty.

CLERK REGISTRAR: Thank you. You may have a seat.

MR. KHOORSHED: Your Honour, as the – as madam clerk’s reading the charge in, it seems to me that the charge has been incorrectly worded. It’s, it’s – it refers to in the opinion of a qualified technician. It’s the right charge section, but it’s a roadside sample that, that was not given. So it’s actually – it should be making reference to a roadside sample. If, if I could take a minute, I could probably get the right wording. I don’t have one of the Martin’s Codes and it’ll have the right wording for the roadside.

THE COURT: All right. You can borrow mine, if you want.

MR. KHOORSHED: Thank you very much. Did fail or to refuse or refuse to provide – to provide forthwith a sample of his breath as in the opinion of the peace officer was necessary to enable a proper analysis of his breath to be made by means of an approved screening device. So if we can change qualified technician to peace officer and – I’m not sure if this is – Mr. Caroline, maybe you can assist. Is this an issue? The wording of the charge, is it an issue?

MR. CAROLINE: I don’t think the charge before the court is worded appropriately. That’s. …

MR. KHOORSHED: Fair enough.

MR. CAROLINE: I think you caught that, didn’t you?

MR. KHOORSHED: Yeah, yeah.

THE COURT: So rather than. . .

MR. KHOORSHED: Rather than – yeah.

THE COURT: …to provide then or as soon thereafter as practicable, it should be to provide forthwith.

MR. KHOORSHED: Right. And then it should be a sample as opposed to samples.

THE COURT: As in the opinion of a peace officer.

MR. KHOORSHED: Right. Was necessary to enable a proper analysis of his breath.

THE COURT: And it’s not…

MR. KHOORSHED: By way of an approved screening device. Or it says by means of an approved screening device is what it – the Martin’s says to say.

THE COURT: Enable a proper analysis of his – enable a proper analysis of his breath.

MR. KHOORSHED: To be made by means of an approved screening device. Thank you, Your Honour.

THE COURT: All right.

MR. KHOORSHED: Should we have a, a re-arraignment?

THE COURT: Yeah, we should re-arraign.

MR. KHOORSHED: Because that’s all changed now.

MR. CAROLINE: Just on count one, I take it?

THE COURT: Yes, count one.

Position of the Appellant

6The appellant submits that the court had no power, prior to hearing evidence, to amend the Information. In support of his position, the appellant relies on the decision of the Court of Appeal for Ontario in R. v. McConnell (2005), 2005 13781 (ON CA), 75 O.R. (3d) 388 (C.A.) where Rosenberg J.A. set out the following at pp. 394-97:

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.

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;

In my view, the interpretation that is most consistent with the wording of the Criminal Code is that there is no power to 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 (Ont. 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 (Ont. C.A.) and R. v. S.(C.A.) (1997), 1997 2519 (BC CA), 114 C.C.C. (3d) 356 (B.C.C.A.) at pp. 360 and 364. But the fact that no prejudice was occasioned by the error cannot create a power of amendment outside the Criminal Code regime.

7The appellant argues further that he did not consent to the amendment and a fair reading of the exchange in court supports that position. Not only did he not consent, the learned trial judge did not give him an opportunity to make submissions on the issue.

Position of the Crown

8The Crown agrees that there was no power for the court, prior to any evidence to amend the Information to conform to “anticipated evidence”. The Crown acknowledges that the amendment at that time could only be made with the consent of the defence.

9The Crown argues further that even if the court finds that the appellant did not consent, and the amendment was not properly made, the Crown could have asked for the amendment during the officer’s testimony or at the end of the Crown’s case to comply with the evidence. The premature amendment occasioned no prejudice to the appellant or resulted in a substantial wrong or miscarriage of justice.

Analysis and Conclusion

10I am satisfied that when read in its entirety, the discussion that took place in Court relating to the amendment, establishes that the appellant took no issue with the Court amending the Information. The issue was clearly identified by the Crown and the defence had an opportunity to consider the issue. The Crown was looking for the correct wording in Martin’s Criminal Code and put forward the correct wording. The defence knew what was being put forward and what the issue was and clearly acknowledged that the wording was not appropriate when he said, “I don’t think the charge before the court is worded appropriately …”.

11If it was his position and intention to object to the Information being amended as suggested he could have and should have advanced his objection at that time. It is not surprising that the trial judge did not call upon the defence to make submissions on this point, as the exchange indicates that proceeding as they did was not a problem.

12The defence also had a further opportunity to express his objection when the discussion of re-arraigning the appellant came up. The court suggested that the appellant should be re-arraigned, the Crown agreed and the defence stated:

Just on Count 1, I take it.

13I agree with the Crown’s position on this issue. I am satisfied that the defence took no issue with the amendment taking place when it did and for all intents and purposes signalled his consent in doing so.

14However, even if my interpretation of that exchange is in error and the defence did not in fact consent to the procedure followed in amending the Information, I am not satisfied that the defence was in any way prejudiced or misled.

15In McConnell, Rosenberg J.A. stated, at pp. 395-96:

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), 1981 3157 (NS CA), 63 C.C.C. (2d) 111 (N.S.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 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), 1978 2349 (NS CA), 38 C.C.C. (2d) 425 (N.S.S.C. App. Div.) 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 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.

16In R. v. Fiore (1962), 1962 593 (ON CA), 132 C.C.C. 213 (Ont. C.A.) the court set out the following, at p. 215:

I am not satisfied that there was any authority in law to make the amendment at the stage of the proceedings when it was made and before there was any evidence given that was in variance with the charge. However, be that as it may, I have decided that the only complaint that can properly be made on behalf of the appellant is that the amendment was premature and untimely. The fact that it was made too soon, at a stage of the proceedings before the Court had power to make it did not occasion any injustice whatsoever to the appellant or any prejudice to his defence. He knew beyond doubt or question that the person against whom the assault was alleged to have been committed was Orlando Turco and not Orlando Furio. The name Orlando Furio as set forth in the charge in the information and to which he pleaded could not mislead him to any extent or in any way whatsoever. It was immaterial to his defence whether the amendment to the information was made too early in the proceedings or at a later stage thereof when the Court had the power to do so. I think that the exception taken by counsel on behalf of the appellant cannot be given effect because there has been no substantial wrong or miscarriage of justice occasioned by the untimely and premature amendment to the charge in the information.

17Section 686(1)(b)(iii)(iv) of the Criminal Code states:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

18Section 822(1) of the Criminal Code states:

822. (1) Certain sections applicable to appeals – Where an appeal is taken under section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require.

19As I indicated, even if I am in error regarding whether the defence consented or at least did not object to the timing of the amendment, I am satisfied that the premature amendment in this case did not result in any prejudice to the appellant or result in a miscarriage of justice.

20In all of those circumstances, therefore, the appeal is dismissed.

Fragomeni J.

Released: April 7, 2014

COURT FILE NO.: SCA 84/13

DATE: 20140407

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT