Citation: R. v. Bidawi. 2017 ONSC 4732
Court File No. CR-15-40000086-00AP
Date: 20170804
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Danielle Carbonneau for the Crown
- and -
FAWZI BIDAWI
Kathryn Wells for the Appellant
HEARD: January 16, 2016
T. DUCHARME J.
REASONS FOR JUDGMENT
Summary Conviction Appeal
- The Appellant, Mr. Fawzi Bidawi, was charged with four counts of failing to comply with the regulations of the Firearms Act pursuant to s. 86(2) of the Criminal Code. The original charges read as follows:
(1) Fawzi BIDAWI on or about the 21st day of June in the year 2012 in the City of Toronto, in the Toronto Region did, without lawful excuse store ammunition in a careless manner, CONTRARY TO THE CRIMINAL CODE OF CANADA.
(2) Fawzi BIDAWI on or about the 21st day of June in the year 2012 in the City of Toronto, in the Toronto Region did, without lawful excuse store a firearm, to wit a shotgun in a careless manner contrary to the Criminal Code.
(3) Fawzi BIDAWI on or about the 27th day of June in the year 2012 in the City of Toronto, in the Toronto Region did, without lawful excuse store ammunition in a careless manner, CONTRARY TO THE CRIMINAL CODE OF CANADA.
(4) Fawzi BIDAWI on or about the 27st day of June in the year 2012 in the City of Toronto, in the Toronto Region did, without lawful excuse store ammunition in a careless manner, CONTRARY TO THE CRIMINAL CODE OF CANADA.
The Crown elected to proceed by way of summary conviction and on June 7, 2013, the Appellant’s trial began before Justice Leslie Pringle. After the arraignment, the Crown provided a detailed overview to the court, outlining the history of the investigation against Mr. Bidawi and the evidence to be adduced at trial. On the first day of the trial, the Crown indicated that he would be seeking an amendment to count 3 to reflect that the allegation related to a “shotgun” rather than “ammunition.” The Court invited the Crown to make such an amendment “at the appropriate time, if the evidence comes out as you expect that it will.” The Defence did not oppose this request at this time.
On July 23, 2013, a Garofoli application began. It was during the Garofoli application that the issue of transportation as opposed to the storage of the firearm and ammunition first arose. Det. Nair testified that the essence of the offence was the unlawful transportation, given that the shotgun and ammunition were left unattended, in plain view, in a motor vehicle that Mr. Bidawi had control over. Det. Nair agreed with Defence Counsel that neither s. 86(2) of the Criminal Code nor the Storage, Display, Transportation and Handling of Firearms Regulations referred to ammunition. Based on this evidence, the Crown later asked for counts 1 and 4 of the Information, which involved ammunition, to be dismissed on December 12, 2013.
On December 3, 2013, the trial proper began immediately after counsel finished their submissions on the Garofoli application.
On December 12th, after the Crown closed its case, Defence Counsel recalled that the Crown had indicated that it would be seeking an amendment to count 3 to replace the word “ammunition” with the word “firearm,” but that this was not actually done. The Crown thought that this had already been done so he asked to re-open his case for this purpose. He submitted that this caused no prejudice to the Defence, given that he was aware of the plan to do this all along. Defence counsel opposed the Crown’s application, submitting that the amendment would create a new offence and the Crown couldn’t proceed outside the 6-month limitation period contained in s. 786(2) of the Criminal Code, absent a waiver from the Defence.
On December 13, 2013, both counsel made further submissions on the amendment issue. At this time the Crown requested a further amendment to count 2 to replace the word “store” with the word “transport,” in light of the evidence heard.
On December 15, 2013, the trial judge issued a ruling on this issue, granting both amendments. Counts 2 and 3 were amended to read:
(2) Fawzi BIDAWI on or about the 21st day of June in the year 2012 in the City of Toronto, in the Toronto Region did, without lawful excuse transport a firearm, to wit a shotgun in a careless manner contrary to the Criminal Code.
(3) Fawzi BIDAWI on or about the 27th day of June in the year 2012 in the City of Toronto, in the Toronto Region did, without lawful excuse store a firearm in a careless manner, CONTRARY TO THE CRIMINAL CODE OF CANADA.
The trial judge held that these amendments resulted in no prejudice to the accused, but allowed the Defence to recall officers Beard and Harris on the issue of the transportation in count two.
- On April 21, 2015, the Honourable Justice Pringle released her reasons for judgment convicting the Appellant on counts 2 and 3. The Appellant now appeals against conviction.
Grounds of Appeal
First, the Appellant alleges that the learned trial judge erred in permitting the Information to be amended as this resulted in the charging of a new offence outside the 6-month limitation period contained in s. 786(2) of the Criminal Code.
The second argument advanced on this appeal is that the verdict was unreasonable. In oral submissions Ms. Wells abandoned this ground and I will not consider it further.
The Amendment of the Information
- The appellant argues that the trial judge erred in her reliance on the decision of the Ontario Court of Appeal in R. v. Irwin and in focusing on the issue of whether or not the amendments prejudiced the appellant. Rather, the appellant argues that the trial judge should have first considered the question of whether or not the amendments created a different charge outside of the 6-month limitation period contained in s.786(2) of the Criminal Code.
Reasons of the Trial Judge
- The trial judge considered the defence submission with respect to s.786(2) of the Criminal Code and rejected it, saying:
I cannot agree with the Defence that the summary conviction limitation period is engaged when an amendment is made to reflect a new offence. If an amendment is made there is no new charging document and the original information remains valid, albeit with a different offence reflected on its face.
The trial judge then considered whether the proposed amendments would prejudice the appellant. She concluded they would not and she amended the Information using the powers of amendment set out in s. 601 of the Criminal Code. However, the trial judge allowed the Defence to recall officers Beard and Harris on the issue of the transportation in count two.
- In support of her conclusion the trial judge referred to the decision of Doherty J.A. in R. v. Irwin, quoting from para 25 where he said the following about s. 601 of the Code:
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? [Emphasis by trial judge.]
Analysis
- There are two basic principles that must underlie the resolution of this appeal. First, as a result of s. 786(2) of the Criminal Code, as The Supreme Court of Canada held in R. v. Dudley 2009 SCC 58, [2009] 3 S.C.R. 570 at para. 2:
Where the Crown elects to proceed by way of summary conviction, or "summarily", the hybrid (or "dual procedure") offence is treated in all respects as a summary conviction offence. Of particular importance here, the proceedings must be instituted within six months unless the parties otherwise agree.
- Second, as the Ontario Court of Appeal held in Regina v. Joy Oil Co. Ltd., 1959 172 (ON CA), [1959] O.R. 288, 30 C.R. 132, 123 C.C.C. 370 at 375 (C.A.):
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 [supra], considered and applied in Rex v. Ross [supra].
The trial judge amended the Information using the powers of amendment set out in s. 601 of the Criminal Code. Section 601 is contained within Part XX of the Criminal Code – “Procedure in Jury Trials.” Section 795 permits the application of Part XX of the Code to summary conviction proceedings under Part XXVII of the Code insofar as they are consistent with summary conviction procedures. This means that, consistent with the foregoing principles, a Court can only consider an amendment under s. 601 if it has properly concluded that such an amendment does not run afoul of s.786(2) of the Criminal Code.
The question then becomes whether or not these amendments resulted in new charges or merely clarified the nature of the charge that has already been laid to conform with the evidence. Count 2 was changed from “store a firearm, to wit a shotgun in a careless manner” to “transport a firearm, to wit a shotgun in a careless manner.” Count 3 was changed from “store ammunition in a careless manner” to “store a firearm in a careless manner.”
The trial judge is correct that there “is no new charging document and the original information remains valid”; but that is not the question. Rather, the question is whether these amendments resulted in new charges. It appears from her reasons that she did think these amendments resulted in a new offence as she spoke of “an amendment is made to reflect a new offence” and the fact that the amended Information has “a different offence reflected on its face.” But given her reliance on Irwin she did not pursue this any further.
Certainly the amended charges continue to be laid under s. 86(2) of the Criminal Code. But this does not mean that the charges remain the same. First one need only consider the breadth of s. 86(2) of the Criminal Code, which provides as follows:
86(2) Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.
Obviously, s. 86(2) of the Code encompasses such a broad range of distinct offences that the mere fact that the charges remain under the same section does not mean that the charges have not been changed.
Second, a consideration of the specifics of the amended charges makes it clear that they are new charges. The amendment to Count 2 involved a change from storage to transportation of a firearm. There can be no question that this is a different charge even though it involves the same firearm. Storage involves how the firearm is kept at a particular place while transport involves the movement of the firearm from one place to another. The amendment of Count 3 even more obviously is a new charge, as the issue of storing ammunition has been changed to storage of a firearm. These changes are not merely correcting an inaccuracy in the drafting of the offence in terms of the particulars or the elements of the same offence.
Given that these amended charges are new charges, was the trial judge correct in finding that this was permissible on the authority of R. v. Irwin? Certainly there is language in Irwin that seems to be supportive of such an amendment. At paras 25 and 26, Doherty J.A. wrote the following about s. 601 of the Code:
[25] 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?
[26] 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? [Emphasis added.]
The trial judge in following Irwin very carefully considered whether or not these amendments prejudiced the appellant and concluded that they did not. I agree with her analysis of this question and her conclusion on the issue of prejudice. Indeed, I do not understand the appellant to contend that the trial judge erred in this regard.
The difficulty with this reliance on Irwin is that Irwin dealt with an indictable offence so that there was no need to deal with the limitation period in s. 786(2) of the Criminal Code. So Justice Doherty had no need to discuss the situation of amending a charge to a new charge in a circumstance where a new charge is statute-barred by the statute of limitations.
Unfortunately, I have concluded that the new charges that resulted from these amendments are statute barred by the limitation period contained in s. 786(2) of the Criminal Code. Thus, despite the fact that the amendments did not prejudice the appellant, this appeal must be allowed.
The Curative Proviso
- The Crown submits that the curative proviso pursuant to s. 686(1)(b)(ii) of the Criminal Code be applied because no substantial wrong or miscarriage of justice has occurred in this case. As the new charges were statute-barred it cannot be said that this is an appropriate case for the curative proviso.
The Appropriate Remedy
The appellant submits that I should allow the appeal and enter acquittals for the two convictions. The Crown submits that if the appeal is allowed I should order a new trial.
There is no point in ordering a new trial. The Crown sought these amendments because otherwise, given the evidence at trial, there would not have been a conviction. Repeating the trial on the same evidence would serve no purpose.
The appeal is allowed, the convictions are quashed and acquittals are entered.
T. DUCHARME J.
Released: August 4, 2017
Citation: R. v. Bidawi. 2017 ONSC 4732
Court File No. CR-15-40000086-00AP
Date: 20170804
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
FAWZI BIDAWI
Appellant
REASONS FOR JUDGMENT
Summary Conviction Appeal
T. DUCHARME J.
Released: August 4, 2017