Court File and Parties

COURT FILE NO.: 13-G5914 DATE: 2017/04/05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MATHIEU LANTAIGNE Accused

Counsel: Colleen Liggett, for the Crown Dominic Lamb, for the Accused

HEARD: April 4, 2017

Reasons

Beaudoin J.

[1] The accused stands charged with six offences as set out in the amended indictment; one count of possession of cocaine for the purposes of trafficking; one count of possession of an explosive substance and four counts of possession of firearms offences. Count six charges the accused with possession of “a loaded prohibited firearm, namely a Springfield Armory 1911 – A1 micro compact 45 calibre semi-automatic handgun, without being the holder of an authorization or licence permitting such possession at that place and the holder of a registration certificate for the said firearm contrary to section 95(2) of the Criminal Code of Canada.”

[2] A number of admissions were filed as Exhibit 1 at the outset of trial; these include that the Springfield handgun is a prohibited firearm with the meaning of the Criminal Code and that the accused was not knowingly (or otherwise) the holder of a registration certificate for this firearm.

[3] At trial, Acting Sergeant Mate Renic testified with regard to his search of the accused’s apartment. This search was executed pursuant to warrant. He discovered all of the cocaine and the other items referred to in the indictment along with the Springfield handgun. This was discovered in a compartment of the unit’s furnace where it was found along with the other weapons. The handgun was not loaded but sixteen 45 calibre bullets were found wrapped in white tissue in a shrink-wrapped package within the same small furnace compartment. Detective Sergeant Renic believed that the 45 calibre bullets were for Springfield handgun. The handgun and bullets were entered as exhibits.

[4] The Crown seeks to amend count six to read that the accused “was in possession of an unloaded prohibited firearm, namely a Springfield Armory 1911 – A1 micro compact 45 caliber semi-automatic together with readily accessible ammunition that is capable of being discharged in the firearm contrary to section 95(2) of the Criminal Code.”

[5] In R. v. Wong, 2012 ONCA 5031, the Court of Appeal concluded that the offence of possession of an unloaded firearm with readily accessible ammunition is not an included offence of possession of a loaded firearm and held at para 56.

[56] The principle that an accused must know the case he or she has to meet, also underlies the requirement that it is an error to convict when, as here, the Crown particularizes the mode of commission of the offence in the indictment but fails to prove it as charged and does not seek to amend the indictment to accord with the evidence: see R. v. Saunders, [1990] 1 S.C.R. 1020. Thus, even if the offence of possession of an unloaded firearm with ammunition close by were an included offence, the trial judge erred in finding the appellant guilty because the Crown particularized possession of a loaded firearm and failed to prove it. (Emphasis mine))

[6] The Crown now seeks to amend count 6 of the indictment in order to conform to the evidence at trial and it seeks to further reopen its case to adduce expert evidence to establish that the readily accessible ammunition was capable of being discharged in the firearm that was found. The Crown submits that there was an inadvertent error in the drafting of the indictment that was carried forward from the original 25 Count Information that targeted Lantaigne and a co-accused Edwin Alonso Gomez. The charges against Gomez have been disposed of.

[7] The Crown relies on the court’s discretion to amend an indictment pursuant to sections 601(2) and (3) of the Criminal Code.

[8] In R. v. Morozuk, [1986] 1 S.C.R. 31; the Supreme Court articulated the test to be applied when considering an amendment at para 20:

Of course if there is irreparable prejudice, there can be no amendment, the charge will stay as is, and an acquittal must be entered. As there has never been any suggestion that the accused was misled or prejudiced in any way, and, as in any event it is apparent under the particular circumstances of this case that he was not, the charge should have been amended at some stage of the proceedings, surely before registering the conviction. (emphasis mine)

[9] In R. v. Irwin, 1998 ONCA 2957, the Court of Appeal had to consider the Court’s power to amend an indictment on Appeal and said this:

Broad powers of amendment at the trial and appellate stages serve two important goals. First, they promote the determination of criminal cases on their merits.

Second, wide powers of amendment avoid a multiplicity of proceedings. ….

In dealing with the case before it, the Court continued:

The authorities do not compel me to accept the submission that there is no power to make the amendment sought by the Crown. Nor does the language of s. 601(2) preclude an amendment which has the effect of changing the charge. The section reads in part: (emphasis mine)

601(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein . . . to make the indictment, count or particular conform to the evidence . . .

On a plain reading, the section contemplates any amendment which makes a charge conform to the evidence. The limits on that amending power are found, not in the nature of the change made to the charge by the amendment, but in the effect of the amendment on the proceedings, and particularly, on the accused's ability to meet the charge. The ultimate question is not what does the amendment do to the charge, but what effect does the amendment have on the accused?

I see no useful purpose in absolutely foreclosing an amendment to make a charge conform to the evidence simply because the amendment will substitute one charge for another. As long as prejudice to the accused remains the litmus test against which all proposed amendments are judged, it seems unnecessary to characterize the effect of the amendment on the charge itself. If the accused is prejudiced, the amendment cannot be made regardless of what it does to the charge. If no prejudice will result from the change, why should it matter how the change to the charge is described?

In addressing the prejudice to an accused Justice Doherty added:

Prejudice in the present context speaks to the effect of the amendment on an accused's ability and opportunity to meet the charge. In deciding whether an amendment should be allowed, the appellate court must consider whether the accused had a full opportunity to meet 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 the accused had a full opportunity to meet the issues and the conduct of the defence would have been the same, there is no prejudice: ….

[10] In R. v. Duhamel, 2012 ONSC 6449, Justice Campbell had to consider a request to amend an indictment where the indictment charged possession of a “prohibited weapon” whereas the evidence at trial disclosed that it was a “restricted weapon”. The error was only discovered by the trial judge during his deliberations. He noted at paras 134 and 135:

[134] In her submissions on this issue, the Crown acknowledged the drafting error in the indictment, but sought an amendment of this count, pursuant to s. 601(2) of the Criminal Code, to conform with the evidence, to either: (1) charge the accused with the unlawful possession of a “loaded prohibited or restricted firearm;” or (2) charge the accused with simply the unlawful possession of a “loaded restricted firearm.” The Crown argued that such an amendment would cause no prejudice to the accused given that the only issue at trial had been whether it was the accused who was in possession, and no issue had been raised as to whether the firearm was a prohibited or restricted firearm.

[135] Counsel for the accused opposed this suggested amendment. He argued that, if this amendment of the indictment was permitted the accused would be prejudiced. He could not, however, with respect, persuasively articulate what that prejudice might be. In any event, I reject this submission. In my view, this is an appropriate case in which to amend the indictment. More specifically, the third count of the “firearms” indictment shall be amended so as to charge the accused with the unlawful possession of a “loaded prohibited or restricted firearm.” In my opinion such an amendment is fair and appropriate for the following reasons:

• The amendment does not change the nature of the offence alleged against the accused, but rather only enlarges the allegation with respect to the legal character of the firearm allegedly possessed by the accused.

• The amendment does not in any way change the jeopardy faced by the accused in terms of the potential punishment for the offence. With the amendment, the accused still faces a charge contrary to s. 95(1) of the Criminal Code.

• The parties agree that, in light of the decision in R. v. Williams, at para. 16, the law is clear that the offence created by s. 95(1) of the Code is, essentially, one of being in unlawful possession of a firearm that is loaded, and that it matters not whether the firearm is prohibited or restricted.

• I can discern no prejudice at all, let alone any irremediable prejudice, that the accused might suffer as a result of this amendment. As I have indicated, the only issue raised at trial was whether the accused was the person in possession of the firearm in question. The accused never raised any issue as to the legal character of that firearm and defended this case as if that issue was of no consequence. See: R. v. Montgomery, at para. 66-69; R. v. Montague, 2010 ONCA 141, [2010] O.J. No. 710 (C.A.) at para. 42-43; Mr. Justice E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed., 2012), vol. 1, § 9:12090 et seq.

• To refuse the proposed amendment would gift the accused with an acquittal based upon the most technical of grounds, based upon an obvious inadvertent drafting error on the part of the Crown.

[11] The case law makes it clear that prejudice to the accused is the paramount consideration. In this case, the Defence made a number of admissions and signaled that “knowledge and control” would be the defence advanced at trial. The accused is expected to be the only witness. There was early disclosure of the Report of the firearms expert to establish that the ammunition was capable of being discharged in the firearm that was found.

[12] The Defence relies on R. v. Haskell, 2004 ABQB 20. In that case, the evidence failed to establish that the weapons in question were “prohibited” weapons. The Crown sought to amend the indictment by relying on section 95 of the Criminal Code which states that all handguns that are not prescribed to be prohibited are restricted. The trial judge concluded that there was no serious prejudice to the accused to make full answer and defence but determined that this was not enough to authorize the amendment. He concluded that the proposed amendment was a new offence and rejected the Crown’s request.

[13] I do not adopt the reasoning in that case. The decision is not binding and is at odds with the Court of Appeal’s conclusions in Irwin that the language of s. 601(2) does not preclude an amendment which has the effect of changing the charge.

[14] The Defence further relies on the case of R. v. McConnell, 75 O.R. (3d) 388 but in that case, the Crown sought to amend the information at the outset of trial before it called any evidence. Justice Rosenberg concluded at para 16:

[16] The problem for the prosecution in this case is that to rely on this part of subsection (3), the matters to be alleged in the amendment must have been disclosed in the evidence. At the opening of the trial, when Crown counsel sought the amendment, there was no evidence. In my view, the submissions of counsel as to what is contained in the disclosure is not evidence.

[15] This has led to a rather circular argument by the Defence who argues that there can be no amendment since there has been no evidence by the firearms expert to establish that the ammunition was capable of being discharged in the firearm that was found. He submits that the Crown has sought to “put the cart before the horse”.

[16] At the same time, the Crown has sought to re-open its case to adduce that evidence and relies on the Supreme Court of Canada’s decision in R. v. G.(S.G.) [1997] 2 S.C.R. 716 where the Court discussed a trial judge’s discretion to allow the Crown to reopen its case at paras 29 and 30:

29. The decision of a trial judge to allow the Crown to reopen its case at any time prior to a verdict is discretionary, and as a result will generally be accorded deference. However, that discretion must be exercised judicially, and in the interests of justice…Now that the accused’s rights to a fair trial are constitutionally protected, courts must be even more vigilant in protecting those interests. The crucial question to be resolved upon an application to reopen the Crown’s case is “whether the accused will suffer prejudice in the legal sense ‑‑ that is, will be prejudiced in his or her defence”.

30 The ambit of a trial judge’s discretion to allow the Crown to reopen its case becomes narrower as the trial proceeds because of the increasing likelihood of prejudice to the accused’s defence as the trial progresses. During the first stage, when the Crown has not yet closed its case, the trial judge’s discretion is quite broad. At the second stage, which arises when the Crown has just closed its case but the defence has not yet elected whether or not to call evidence, the discretion is more limited. Finally, in the third phase ‑‑ where the defence has already begun to answer the Crown’s case ‑‑ the discretion is extremely narrow, and is “far less likely to be exercised in favour of the Crown”. The emphasis during the third phase must be on the protection of the accused’s interests.….

[17] The Court added at para 39:

…..In order to succeed, the Crown must also explain why the evidence was not led earlier and must justify this departure from the normal rules of the adversarial process…..

[18] Counsel for the defence takes issue with the Crown’s submission that the error in the indictment was technical or created by inadvertence and says that this has been an error from the outset of the criminal proceedings. The Crown notes however that the previous counsel of record for the defence also failed to see the error and consented to the committal to trial on this count as it originally read.

[19] The Defence argues that the Crown should not be permitted to reopen its case since evidence of the firearms expert is irrelevant to charge as it currently reads, yet he objects to the amendment that would make that evidence relevant.

[20] Having heard the submissions of counsel, I grant the relief sought by the Crown. Whether the Crown should have first sought to reopen its case and then seek the amendment, the primary consideration at each step is prejudice to the accused. Defence counsel could not persuasively articulate what that prejudice might be.

[21] The element of the offence of possession of a prohibited firearm requires proof of the following external elements:

1. That the Accused possessed a firearm;
2. That the firearm was a prohibited firearm;
3. That the firearm was loaded.
4. That the Accused did not have authorization, licence or registration certificate for the firearm.

[22] The elements of the offence of possession of an unloaded firearm with readily accessible ammunition requires proof of the following external elements:

1. That the Accused possessed a firearm;
2. That the firearm was a prohibited firearm;
3. That the firearm was unloaded with readily accessible ammunition capable of firing in the weapon.
4. That the Accused did not have authorization, licence or registration certificate for the firearm.

[23] The defence has already admitted two elements in common; namely that the Springfield handgun is a prohibited firearm with the meaning of the Criminal Code and that the accused was not knowingly (or otherwise) the holder of a registration certificate for this firearm. Acting Sergeant Renic testified that the ammunition was readily accessible to the handgun. The report of the firearms expert was disclosed early in February 2014. The accused was not misled about the nature of the charge and the amendment has no effect on the substance of the case. This is the second stage of the trial, the Crown has just closed its case and noted the error just before the resumption of the trial that had to be adjourned. I am satisfied that the error was inadvertent; the passage of time does not change that.

[24] From the outset, the Defence signaled that knowledge and control would be the issue at trial and indicated that it was inevitable that the Defence would be calling evidence to answer to the Case put forward by the prosecution. The amendment does not in any way change the jeopardy faced by the accused in terms of the potential punishment for the offence. I find no prejudice to the accused in granting the relief sought.

[25] The Crown may reopen its case to call the firearms expert since his report is not accompanied by an affidavit or solemn declaration as required by section 657.3(1) of the Code. If requested, an adjournment shall be granted. After that evidence has been heard, the Crown may then renew its request to amend the indictment.

Mr. Justice Robert N. Beaudoin

Released: April 05, 2017