COURT FILE NO.: 90/19 DATE: 2020 05 26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Joshua Graham Wilson
Erinn O’Marra, for the Crown Robin McCourt, for Mr. Wilson
HEARD: March 3, 2020
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Criminal Code, information that may identify the person described in this judgment as the complainant or witness may not be published, broadcasted or transmitted in any manner.
REASONS FOR RULING
Coats J.
Overview
[1] After the Crown had closed its case and before the Defence decided whether to call evidence, the Crown brought an application to amend the indictment to conform with the evidence. The Respondent opposed the amendments sought by the Crown. The application was argued on March 3, 2020. I granted the Crown’s application. I gave brief oral reasons and indicated that more detailed written reasons would follow. These are those reasons.
Issue
[2] The Crown sought to amend the dates on three counts in the indictment, namely counts 4, 8 and 9. The proposed amendments are reproduced below. The underlined portions are the proposed amendments and the struck through portions reflect the original wording.
AND FURTHER THAT Joshua Graham WILSON, between the 1st day of September November, 2017, and the 31st day of December, 2017 (both dates inclusive) at the Town of Milton, in the said Region, did commit an assault on D.I., contrary to Section 266 of the Criminal Code of Canada.
AND FURTHER THAT Joshua Graham WILSON, between the 1st day of December, 2017, and the 31st 10th day of December, 2017 (both dates inclusive) at the Town of Milton, in the said Region, did commit mischief by wilfully damaging without legal justification or excuse and without colour of right property to wit the kitchen wall of D.I. the value of which did not exceed five thousand dollars, contrary to Section 430(4) of the Criminal Code of Canada.
AND FURTHER THAT Joshua Graham WILSON, between the 1st day of December, 2017, and the 31st 10th day of December, 2017 (both dates inclusive) at the Town of Milton, in the said Region, did commit an assault on D.I, contrary to Section 266 of the Criminal Code of Canada.
[3] To summarize, the Crown sought to amend November in count 4 to September and the 10th to the 31st in both counts 8 and 9.
Applicable Provision of the Criminal Code
[4] Section 601 of the Criminal Code of Canada is the applicable provision. It provides as follows:
- (1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect.
(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and
(a) a count in the indictment as preferred; or
(b) a count in the indictment
(i) as amended, or
(ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to section 587.
(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears
(a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament;
(b) that the indictment or a count thereof
(i) fails to state or states defectively anything that is requisite to constitute the offence,
(ii) does not negative an exception that should be negatived,
(iii) is in any way defective in substance,
and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or
(c) that the indictment or a count thereof is in any way defective in form.
(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider
(a) the matters disclosed by the evidence taken on the preliminary inquiry;
(b) the evidence taken on the trial, if any;
(c) the circumstances of the case;
(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and
(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to
(a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or
(b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.
(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.
(6) the question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law.
(7) An order to amend an indictment or count therein shall be endorsed on the indictment as part of the record and the proceedings shall continue as if the indictment or count had been originally preferred as amended.
(8) A mistake in the heading of an indictment shall be corrected as soon as it is discovered but, whether corrected or not, is not material.
(9) The authority of a court to amend indictments does not authorize the court to add the overt acts stated in an indictment for high treason or treason or for an offence against any provision in sections 50, 51 and 53.
(10) In this section, “court” means a court, judge, justice or provincial court judge acting in summary conviction proceedings or in proceedings on an indictment.
(11) This section applies to all proceedings, including preliminary inquiries, with such modifications as the circumstances require.
The Evidence
[5] With respect to count 4, the complainant’s evidence in chief was that the incident occurred in the fall of 2017, which she understood to mean September, October, or November of that year. In cross-examination, she said that the incident happened in the fall and gave no further details.
[6] With respect to counts 8 and 9, the complainant’s evidence in chief was that the incidents happened in October of 2017. In cross-examination, she said she was mistaken in her evidence in chief and that the incidents actually happened in December of 2017. She gave no further particulars as to when in December 2017. In the complainant’s statement to police (given on January 26, 2018), she said count 9 occurred just before December 10, 2017, and that count 8 occurred before the incident in count 9 and in December of 2017.
Areas of Agreement
[7] Both counsel agreed that the date when the offence is alleged to have been committed is not an essential element of the offences in counts 4, 8 and 9. Counsel further agreed that the defence had not raised any suggestion or given any notice of an alternate suspect theory or an alibi defence.
Summary of Crown’s Position
[8] The Crown relied on a total of six cases.
[9] The Crown referred to R. v. S.M., 2017 ONCA 878, and in particular, the following:
10 As a general rule, the Crown is not required to prove beyond a reasonable doubt that the alleged offence occurred within the timeframe set down in the indictment: see R. v. B.(G.) (1990), [1990] 2 S.C.R. 30, 56 C.C.C. (3d) 200, at 215-16 (SCC); Criminal Code, s.601(4.1).
12 The respondent contends that this case falls within that category of cases in which fairness to the accused demands that the Crown be required to prove that the offence occurred within the timeframe alleged in the indictment. Broadly speaking, these are cases in which an accused can demonstrate a prejudice to his or her ability to properly defend the case flowing from the Crown’s attempt to prove that the offences occurred at some time outside of the time period alleged in the indictment.
13 We do not accept that the respondent was prejudiced in the relevant sense by a finding that the assaults occurred outside of the timeframe alleged in the indictment. The respondent had clear notice of the legal and factual nature of the allegations and the factual context in which they were said to have occurred. The Crown maintained that the respondent sexually assaulted his daughter on two occasions during the weekend visits that occurred on alternate weekends over several weeks. The actual dates of the alleged offences, or the timeframe within which they occurred, added nothing that would assist the respondent in identifying the allegations.
14 Nor did the timeframe have anything to do with the defence advanced by the respondent. Although the respondent did not testify, it was the defence position that the alleged assaults did not occur and that E.M. was not a reliable witness. That defence in no way depended on, or took its shape from, the timing of the alleged sexual assaults.
15 This is not a case in which an accused advanced an alibi-like defence in response to the timeframe alleged by the Crown in the indictment, only to have the Crown argue for a conviction based on events outside of the timeframe. There is simply no reason to think that the defence advanced here hinged in any way on the timeframe alleged in either the original indictment or the amended indictment.
18 This argument is essentially a reformulation of the unfairness argument. The question remains – can the respondent demonstrate any unfairness to the defence should the Crown be allowed to rely on events outside the timeframe alleged in the indictment as amended? As pointed out above, the defence did not turn on the timeframe in the indictment. It turned on the reliability of E.M.’s evidence. Neither the substance of the respondent’s argument that her evidence was unreliable, nor the potential force of that argument, was affected by the amendment to the indictment. Whatever the timeframe alleged in the indictment, it was clear that E.M.’s recollection as to when the alleged assaults occurred was in error. The impact of that error on the reliability of her evidence had nothing to do with the timeframe alleged in the indictment.
19 We are satisfied that the Crown did not have to prove that the alleged offences occurred within the timeframe alleged in the indictment. Having regard to the reasons as a whole, we conclude that the trial judge did treat the timeframe alleged in the indictment as an essential element of the offence. The final words in his reasons make that clear:
I cannot say that the incidents occurred between November 25, 2005 and January 5, 2006. The accused will be found not guilty.
20 The trial judge erred in law in requiring the Crown to prove beyond a reasonable doubt that the offences occurred within the timeframe alleged in the indictment. The error was crucial. The trial judge expressed concerns about the reliability of E.M.’s evidence. The concerns were based in part on her clearly erroneous recollection of when the offences occurred. The trial judge did not, however, come to any conclusion as to the reliability of E.M.’s evidence, but instead wrongly decided the case on the ground that the Crown had failed to prove beyond a reasonable doubt that the offence occurred within the timeframe alleged in the indictment. It may well be that a trial judge would find E.M.’s evidence sufficiently reliable to satisfy the Crown’s burden of proof. There must be a new trial on all charges.
[10] R. v. S.M. was not a decision applying s. 601 of the Criminal Code. The trial judge had found S.M. not guilty and treated the time within which the offences occurred as an essential element of the sexual assault and related offences. The Court of Appeal determined that the trial judge erred in law by requiring the Crown to prove beyond a reasonable doubt that the offence occurred within the timeframe in the indictment.
[11] The Crown also referenced paragraphs 1 and 2 of R. v. S.D., 2011 SCC 14, which provide as follows:
The majority of the Court would allow the appeal, Fish J. Dissenting. The main issue in this appeal is whether the trial judge erred in law in convicting the respondent, who was charged with sexual interference with his daughter, on the basis [page 528] of a date other than the one referred to in the indictment.
The majority of the Court agree with the conclusion of Duval Hesler J.A., who dissented in the Court of Appeal, that [TRANSLATION] ‘trial fairness was not compromised.... The evidence accepted by the trial judge satisfied her beyond a reasonable doubt that the incident in question did in fact occur regardless of the exact time it took place” (para. 69). In our view, the defence was based entirely on a question relating to credibility. The respondent was in no way prejudiced.
[12] R. v. S.D. was not a case considering s. 601. There was no amendment of the indictment. The Supreme Court determined that the trial judge did not err in law in convicting the accused of sexual interference on the basis of a date other than the one referred to in the indictment.
[13] The case of R. v. B.(G.), [1990] 2 S.C.R. 30, involved sexual offences. The trial judge had determined that time was an essential element of the offence and that the information should not be amended under s. 529 of the Criminal Code (a predecessor to s. 601). The matter was ultimately appealed to the Supreme Court of Canada. The Crown referred to paras. 43, 44 and 45 of that decision:
In my view, the following conclusions can be drawn from the authorities:
While time must be specified in an information in order to provide an accused with reasonable information about the charges brought against him and ensure the possibility of a full defence and a fair trial, exact time need not be specified. The individual circumstances of the particular case may, however, be such that greater precision as to time is required, for instance, if there is a paucity of other factual information available with which to identify the transaction.
If the time specified in the information is inconsistent with the evidence and time is not an essential element of the offence or crucial to the defence, the variance is not material and the information need not be quashed.
If there is conflicting evidence regarding the time of the offence, or the date of the offence cannot be established with precision, the information need not be quashed and a conviction may result, provided that time is not an essential element of the offence or crucial to the defence.
If the time of the offence cannot be determined and time is an essential element of the offence or crucial to the defence, a conviction cannot be sustained.
Accordingly, when a court is faced with circumstances in which the time of the offence cannot be determined with precision or the information conflicts with the evidence, the first question that must be asked is whether time is either an essential element of the offence or crucial to the defence. It will only be in cases where this first question is answered affirmatively that the trier of fact must then determine whether the time of the offence has been proven beyond a reasonable doubt. If the answer to the first question is in the negative, a conviction may result even although the time of the offence is not proven, provided that the rest of the Crown’s case is proven beyond a reasonable doubt.
In the present case, however, the trial judge failed to address the first question. He found on the evidence before him that the date of the offence had not been established beyond a reasonable doubt and acquitted the accused. In doing so he erred. (I add in fairness to the learned judge that he was understandably misled by the sparse report of Hamilton-Middleton upon which he relied in reaching his decision.) Had the trial judge directed himself to the first question, he would have been forced to conclude that time was not an essential element of the offence or crucial to the defence. Indeed, the date of the offence is not generally an essential element of the offence of sexual assault. It is a crime no matter when it is committed. From the record in this case it is also clear that the date of the offence was not crucial to the defence. The appellant’s claim on appeal that the date was crucial because alibi evidence was led cannot, in my view, be seriously maintained. At trial each appellant testified and put forward only general denials. They did not lead alibi evidence at that time. Moreover, since the alleged assault took place in the school washroom during recess, the only possible alibi would seem to be that one or more of the appellants was not in attendance at school during the relevant period specified in the [page 54] information or suggested by the evidence. There is nothing in the record to support this.
[14] In R. v. P.A., [1986] N.S.J. No. 559, the trial judge in a Nova Scotia Youth Court matter amended the information to conform with the evidence in circumstances where the Crown failed, even refused, to seek an amendment. [1] The Court considered whether it could substitute s. 80(b) of the Criminal Code for s. 80(a), thereby changing “explosive substances” to “explosive weapons,” to conform with the evidence. At issue was whether this would be substituting a new offence or particularizing an offence already charged. Paragraphs 11, 13 and 15 provide as follows:
It is suggested by the defence and a Crown that an analogous situation arose in R. v. Elliott, [1970] 3 C.C.C. 233 (Ont. C.A.). In that case the accused was charged with “breaking and entering a place and committing an indictable offence” contrary to S. 292(1)(b). The judge amended the charge to read “breaking and entering with intend (sic) to commit an indicatable offence” under s. 292(1)(a). On appeal it was held that the judge lacked jurisdiction to amend an indictment so as to charge an offence completely different from the original one.
What the Informations aver is [sic] “explosive substance” rather than “explosive weapon” as set out in s.80(b). The thrust of the charges is illegally having in possession something that is explosive. The distinctions of “substance” and “weapon” have been obliterated by a new s.80 which effectively eliminated 80(b) and redefined “explosive substance” to include a Molotov Cocktail. The accused knew they were being charged with having Molotov Cocktails in their possession. The fact that they are not, of themselves, explosive “substances” but rather explosive “weapons” does not change the nature of the charge to fit within R. v. Elliot. To change the wording is to conform with the evidence. It is not substituting a new offence, but rather specifying a particular of an offence charged.
In considering s. 529(4) the accused were acutely aware from the wording of the Informations and the presentation of evidence that they were being charged with possession of Molotov Cocktails. The fact that these devices were called “explosive substances” rather than “explosive weapons” could not mislead or prejudice them in their defence. What they had in their possession were illegal devices, prohibited by the Criminal Code. The basic questions to be determined are, essentially, did the accused have them, were they of a nature so as to be prohibited, and did the Informations specify, with sufficient clarity, the type and nature of the offence? To all three questions I conclude in the affirmative. Section 529(3) clearly states that a court shall, not may, amend the information if it is defective in substance. I find the defect exists and accordingly amend all the Informations by deleting the word “substance” and replacing it with the word “weapon”; by deleting the words “for other than a lawful purpose”, they being unnecessary in the count; and, by substituting the figures 80(a) with the figures 80(b).
[15] In R. v. Groenewegen, [1998] N.W.T.J. No. 13, 37 W.C.B. (2d) 446, the summary conviction appeal court considered whether to grant an amendment under s. 601 of the Criminal Code, to change a By-law infraction from s. 27(1) to s. 27(2). The Crown referred to paras. 14 and 17-19:
- The emphasis in the Code is on amending the information if at all possible to do so without injustice being done. This point was made by Lamer J. In R. v. Moore, [1988] 1 S.C.R. 1097, 41 C.C.C. (3d) 289 (S.C.C.), at pages 311-312:
Since the enactment of our Code in 1892 there has been, through case-law and punctual amendments to s. 529 [now s. 601], and its predecessor sections, a gradual shift from requiring judges to quash to requiring them to amend in the stead; in fact, there remains little discretion to quash...
My understanding of s. 529 [now s. 601] when read in its entirety, is that it commands the following to the trial judge: Absent absolute nullity and subject to certain time limits set out in ss. (9), the judge has very wide powers to cure any defect in a charge by amending it; if the mischief to be cured by amendment has misled or prejudiced the accused in his defence, the judge must then determine whether the misleading or prejudice may be removed by an adjournment. If so, he must amend, adjourn and thereafter proceed. But, if the required amendment cannot be made without injustice being done, then and only then the judge is to quash. Therefore, a judge must not quash a charge, and it is reversible error of law if he does, unless he has come to that conclusion, namely, that “the proposed amendment” cannot be made without injustice being done.”
The Elliott case [referring to R. v. Elliott, [1970] 3 C.C.C. 233 (Ont. C.A.)] does indeed stand for the proposition that there is no power to amend an Indictment so as to charge an offence completely different from that originally charged. In that case the accused was originally charged with the offence of break and enter and commit an indictable offence. Prior to arraignment the charge was amended to break and enter with intent to commit an indictable offence. These are two distinct and different offences.
In my opinion the Elliott case is distinguishable. The two charges in that case are different. They required different acts by the accused. One requires the actual commission of an indictable offence while the other requires merely the intent to commit one. Hence the actus reus to constitute one offence is different from that necessary to constitute the other offence (even the necessary mens rea differ). Here there is no different conduct required to constitute the offence. The charge is speeding. Both subsections (1) and (2) of section 27 make it an offence to drive a snowmobile at excessive speeds. The only difference is the location of the prohibited conduct. Subsection (1) specifies a highway while subsection (2) specified off-highway areas. The appellant knew what he was charged with and where he was alleged to have committed the offence. The erroneous reference to s.27(1) could not have misled him.
Since, in my opinion, the reference to s.27(1) was not in any way misleading, the J.P. could have amended the charge so as to designate the offence as being contrary to s. 27(2) of the By-Law. The ticket sufficiently described the offence by the written description. Upon the amendment being made the conviction was properly entered. There was no prejudice to the appellant since, in any event, the potential penalty is the same under both subject subsections. The fact that the appellant did not have the assistance of counsel at the hearing in J.P. Court is irrelevant to this issue.
[16] In R. v. P.(M.B.), [1994] 1 S.C.R. 555, the Supreme Court considered the trial judge’s decision to allow the Crown to reopen its case and amend the indictment to extend the timeframes, as charged. The Crown referred to pp. 566-567 of that decision:
This case is, fundamentally, about the reopening of the Crown’s case and not about the amendment to the indictment. I am not convinced that the respondent suffered any irreparable prejudice by the mere fact of the amendment to the dates specified in the indictment. However, the respondent was prejudiced by the trial judge’s decision to allow the Crown’s case to be reopened after the respondent had begun to answer the case against him by revealing that he would be calling three witnesses. Therefore, I am satisfied that the trial judge committed a reversible error at the reopening stage, before the Crown moved to amend the indictment.
The reason it was not the amendment in itself but the reopening which created the injustice is that, on the facts as found by the trial judge, the respondent knew what was alleged against him from the outset. He had been made aware at the time of his arrest that the relevant period during which he was alleged to have sexually assaulted the complainant was when he was living at her parents’ house. I am inclined to think that, up until the point when the Crown closed its case, the dates in the indictment could have been amended so as to make them conform with the period during which the respondent was living with the complainant’s family. In this regard, I would simply note that courts, including this one, have accepted that, in cases involving offences and particularly sexual offences against young children, absolute precision with respect to the timing of an alleged offence will often be unrealistic and unnecessary: B. (G.), supra, at p.53; also see R. v. W.(R.), [1992] 2 S.C.R. 122, at pp.132-34, and Re Regina and R.I.C. (1986), 32 C.C.C. (3d) 399 (Ont. C.A.), at p.403.
[17] As set out above, both counsel agree that the date was not an essential element of any of the three offences in this case. The Crown’s position is that the defence cannot demonstrate that any prejudice or unfairness would result if the proposed amendments were permitted. The Crown submits that the time specified in the indictment is not crucial to the defence and that the proposed amendments do not substitute a new offence.
[18] The Crown further submits that all of the counts on the indictment (including those not at issue) are alleged to have taken place between May 1, 2017 and January 31, 2018 – the approximate period during which the accused and the complainant cohabited. The proposed amendments do not take the dates outside of these parameters.
[19] This is not a case in which the accused advanced an alibi-like defence in response to the timelines in the indictment, only to have the Crown seek an amendment based on events outside that timeframe.
[20] The Crown submits that it should not have come as a surprise to the defence that the complainant was inconsistent with her dates. The defence could have cross-examined the complainant at trial about any differences in dates between her statements to police, her evidence at the preliminary hearing and then her testimony in chief at trial. The Crown submits that this would have been clear from reading her two police statements and reviewing her evidence from the preliminary hearing.
[21] The defence theory was that the complainant was an unreliable witness. This theory had several elements, including a suggestion that the complainant was motivated by jealousy over the accused’s relationship with Ms. Paris and that she intended to write a book about the alleged domestic violence. The Crown submits that neither of these elements, nor the defence’s theory that the complainant was unreliable/incredible (more generally) were affected by the proposed amendments. Therefore, there would be no prejudice or unfairness to the accused because the dates were not crucial to the defence.
[22] With regard to Ms. Paris, the defence fully questioned the complainant and the two other Crown witnesses about the accused’s relationship with Ms. Paris from the summer of 2017 to January 2018. The cross-examinations covered this entire period. The proposed amendments did not prejudice the defence. The defence theory that the complainant planned to write a book is based on events that occurred after the charges were laid, which would be unaffected by the proposed amendments.
[23] In terms of counts 8 and 9, part of the defence theory involved questioning the complainant about whether the accused’s son was present during an alleged assault. The defence, however, had a full opportunity to cross-examine the complainant regarding the son’s schedule in December of 2017. Based on the evidence, the son’s schedule had no relevance to count number 4. With respect to these three counts, the defence had a full opportunity (without limitation) to cross-examine the complainant about when she believed the alleged offence occurred, as well as any inconsistencies between her prior statement and her evidence at the preliminary hearing or in chief at trial.
[24] It is the Crown’s position that the defence had full opportunity to test the complainant’s reliability and credibility. Cross-examination was not limited in any way by the timelines in the indictment. The amendments sought do not create a completely different offence for any of the three counts. The offence for each is the same with the only amendment being the timeframe. Time is not an essential element of any of the offences at issue.
[25] In terms of prejudice, the Crown sought the amendments before the defence decided whether or not to call any evidence. Of the ten counts in the indictment, only count 1 (which is not in issue) has narrowly particularized dates. The other nine counts each set out a date range before the amendments were sought.
Summary of the Defence Position
[26] The defence agreed that time was not an essential element of any of the offences in counts 4, 8 or 9. There is also agreement that a variance between a count and the evidence taken is immaterial with respect to the time that the offence was alleged to have been committed (pursuant to s. 601(4.1) of the Criminal Code). The defence states the focus is on whether the accused has been prejudiced in his defence (s. 601(4)(d) of the Criminal Code).
[27] The defence referred to several cases.
[28] In R. v. Lemoyre, 2012 ONCJ 129, the trial judge allowed an amendment regarding a victim’s identity. Mr. Lemoyre was initially charged with attempting to rob OxyContin tablets from a pharmacy in Halton region. Although the victim was originally particularized as “K.N.,” the Crown was permitted to amend the information at the end of trial to read “a pharmacy employee.” The Court found that the essence of the Crown’s case would have been apparent from the outset, and that defence counsel would not have been misled by the evidence. Defence counsel in this case referred me to paragraphs 103 and 104 of Lemoyre, which provides:
103 In allowing an amendment of an indictment at appeal, Doherty J.A. stated in R. v. Irwin, [1998] O.J. No. 627 (Ont. C.A.) this of the power of amendment pursuant to s. 601(2):
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?
- Mr. Justice Doherty discussed the policy consideration in allowing trial judges a broad power of amendment. He states in paragraph 32 that policy considerations apply to the amendment power:
32 In holding that the amendment power, even on appeal, can extend to the substitution of a different substantive offence, I must acknowledge the policy implication of that holding. As Laskin C.J.C. so clearly put it in R. v. Elliott (1977), [1978] 2 S.C.R. 393, supra, at p.199, it is the responsibility of the Crown and not the court to settle the charge which will be brought against the accused. While I accept the force of that observation, I am moved by a different policy consideration. If there is no power to make the amendment, even in the total absence of prejudice, there can be no impediment to a new prosecution on the substituted charge. That prosecution would involve a re-litigation of exactly the same issues on presumably exactly the same evidence. I see no value from the point of view of the due administration of justice in a second trial in those circumstances. Witnesses would be inconvenienced and resources spent for no purpose other than to give an accused a second chance to litigate issues which had been fully canvassed at the first trial. I go even a step further. I think the possibility of a different assessment of the same issues and the same evidence on a second trial does a disservice to the due administration of justice. In my view, denying the power to amend to substitute a new charge where the substitution could not prejudice the accused would be akin to ordering a new trial where there had been an error in law at trial which could not have caused any prejudice to the accused. In both situations, the result strikes me as an unwarranted windfall for an accused.
33 My conclusion as to the scope of the amending power addresses only the first two issues which an appellate court must face in deciding whether to make an amendment. Having found that the power exists, the court must go on and determine whether it should be exercised in a given case. The amending power can be exercised only if the accused will not be “misled or prejudiced in his defence or appeal.” The nature of the proposed amendment and the stage of the proceedings at which it is sought will be important factors in determining whether an accused has been misled or prejudiced. The risk of prejudice is particularly great where it is proposed to materially amend an indictment on appeal and affirm the conviction on the basis of that amendment. As Cory J. said in R. v. Tremblay (1993), [1993] 2 S.C.R. 934:
It is, I think, an extraordinary step for an appellate court to amend the charge materially and then to enter a conviction on the basis of the charge as amended...
34 Therefore, while I am satisfied that this court has the power to make the amendment requested by the Crown, the nature and timing of the proposed amendment demand a cautious approach and a thorough consideration of the potential prejudice to the accused flowing from the amendment.
[29] The defence also referred me to Chief Justice Laskin’s dissent in R. v. Elliott (1977), [1978] 2 S.C.R. 393. This case is referred to above in para. 104 of R. v. Lemoyre which, in turn, was referencing R. v. Irwin, [1998] O.J. No. 627 (Ont. C.A.). In Irwin, Justice Doherty summarized a different case called R. v. Elliott, (1970) 3 C.C.C. 223 (Ont. C.A.). To avoid confusion, I will address this latter case as ‘Elliott ONCA.’ In Irwin, Doherty J. summarized Elliott ONCA as follows:
Elliott stands for the proposition that the court cannot substitute one charge for another under the guise of amending a defect in substance when the charge as initially laid was not defective in substance. Elliott does not address the question of the power to amend to make a charge conform to the evidence. That power of amendment is distinct from the other powers of amendment set out in s. 601 in that it is not premised on any defect in the language of the charge as initially laid, but rather on a divergence between the charge as laid and the evidence as led. Legitimate limitations on the power to amend to cure defects in the way the charge is worded cannot be imposed on a separate amendment power aimed at an entirely different kind of defect. (Irwin, at para. 18).
[30] The defence also referred to the case of R. v. McCue, 2006 ONCJ 139, in which the trial judge refused a Crown request to substitute one charge for another. The accused was charged with driving while prohibited from doing so ‘by court order.’ The Crown sought at trial to vary the charge to reflect an allegation of driving while ‘under suspension.’ The court held that this amendment would constitute prejudice to the accused and cited the summary of Elliott ONCA that was provided at para. 18 of Irwin.
[31] The defence also referred to page 19 of Irwin which states:
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: e.g., see R. v. Foley (1994), 90 C.C.C. (3d) 390 (Nfld. C.A.). As I see it, had the appellant been charged with unlawfully causing bodily harm, the trial would have proceeded exactly as it did save that there would have been no argument as to the applicability of the doctrine of transferred intent.
[32] In its response to the Application to Amend Indictment, the defence summarized the legal issue as follows:
- To make the argument, of course, the defence would have to demonstrate that key elements of the defence strategy or arguments have already been revealed to the Crown and/or to the court, at the proposed amending stage, such that the amendment would create prejudice. In such an instance, the accused could submit – in the language of Lemoyre – that she or he has already “hung his hat” on a line of defence developed in response to a particular charge, and that amending the charge at such a late stage would be unfair. The success of this argument would depend on the extent to which the accused is able to demonstrate that he actually did choose a particular course of defence, different from the line of defence he would have taken if faced with the altered charge, because of the original indictment.
[33] Applying the law to the facts of this case, the defence disagrees with the Crown submission that it was a known fact that the complainant had issues recalling dates prior to trial. This is because the complainant confirmed her statements to police to be truthful when they were played at the preliminary hearing. Both statements to police specified dates which differed from her trial testimony in regard to these counts.
[34] The defence also disagrees with the Crown about the importance of the timeframes as initially particularized in comparison to the proposed amended versions of counts 4, 8 and 9. The timeframes were initially set out in a narrow ranges (count 4: November 1, 2017 to December 31, 2017 and counts 8 and 9: December 1 to December 10, 2017). These timeframes were confirmed by the complainant as accurate at the preliminary hearing when she adopted her police statements as truthful. The defence submits that these ‘were the goalposts’ following the preliminary and they only changed during the complainant’s examination in chief and in cross-examination at trial.
[35] The defence submits that its theory turns on more than just credibility and reliability. It submits that the complainant had a motive to fabricate because she believed the accused had been unfaithful to her and, as a result, she became jealous and vengeful. The defence also submits that she had a financial motive to fabricate because she planned to write a book about the alleged domestic violence and profit off its sale.
[36] While the defence cross-examined her on these issues, it argues that it would have done so differently if it knew the goalposts had moved. If it had known, defence counsel submits, it would have asked questions about these three counts on a wider basis and tested the evidence differently. Instead, defence counsel circumscribed its questions within the dates outlined in the indictment and claims to have suffered prejudiced as a result.
[37] As counts 8 and 9 were set out in the indictment at the preliminary hearing, the timeframe stopped on December 10, 2017. The complainant had testified that the accused’s son was present at the time of the offence and that his son was visiting with them over Christmas.
[38] The defence did not test the complainant’s evidence about contact with the accused’s son over the Christmas period because this contact did not occur in the timeframe on the indictment.
[39] The defence also argued that the questions put to the complainant in cross about Ms. Paris were laid out around the 1st to 10th of December 2017 because this was the timeframe in counts 8 and 9 on the indictment. If the rest of December 2017 were in the scope of the indictment, the defence would have asked more questions.
[40] With respect to count 4, the amendment would encompass two additional months. The defence submits this could not have been anticipated until the complainant’s evidence in chief when she said the incident happened in “the fall” and described the fall as September, October and November. The defence claims prejudiced because the cross-examination focused on the period in the indictment and questions were not asked about September and October as these months were not within the original timeframe.
A Summary of Crown’s Reply
[41] With reference to Lemoyre, the Crown referred me to para. 105 of that decision. As in Lemoyre, the Crown says that it was clear to the defence from the outset that the allegations in this case involved a number of domestic violence incidents taking place over a period of time.
[42] The Crown also states that McCue is distinguishable because the whole character of the charge would have changed if the amendments were allowed (McCue, at para. 25). This is not the situation in the case before me.
[43] With respect to counts 8 and 9, the defence fully canvassed the month of December 2017 with regard to Ms. Paris and the accused’s son’s schedule of visits. There was a full and complete cross-examination.
Analysis
[44] As counsel have agreed, the time/date when the offence occurred is not an essential element of any of the three counts at issue. There was also no suggestion of an alibi defence in either the evidence or the submissions.
[45] The Crown and defence do not disagree on the law. Pursuant to s. 601(4.1), a variance between a count and the evidence is not material. There is also no issue of any limitation period. The focus is on whether the defence has been prejudiced or misled (s. 601(4)(d)) and whether permitting the amendment would be unfair to the defence (R. v. S.M., at para. 12).
[46] The timing is important. The Crown sought these amendments and the decision was made by me, before the defence decided whether to call any evidence.
[47] The accused was not prejudiced in that he had clear notice of the legal and factual nature of the allegations and the context in which they were said to have occurred. The actual dates of the offences, or the timeframes, added nothing which would assist the accused in identifying the allegations. This is similar to the situation in R. v. S.M., at para. 13.
[48] In my view, the timeframe had nothing to do with the defence, as advanced. The defence was based on the complainant’s credibility and reliability. It was also based on the complainant’s alleged motive to fabricate because of her belief that the accused was having a relationship with Ms. Paris and because of her intention to write a book with an eye to profit.
[49] The complainant’s intention to write a book, however, was raised prior to trial in text communications that were already disclosed to the defence. The defence fully cross-examined her in this regard and this aspect of the defence was totally unrelated to the proposed amendments.
[50] Additionally, the defence thoroughly cross-examined the complainant about the accused’s relationship with Ms. Paris, from the summer of 2017 to January 2018. There were no temporal restrictions placed on the cross-examination based on the time periods in these three counts. The defence had a full opportunity to cross-examine the complainant as to when she began to believe the accused was unfaithful. She was also questioned about how long she held this belief. There was no reason to think that this aspect of the defence was based, in any way, on the original timeframes in counts 4, 8, and 9 of the indictment.
[51] In terms of the accused’s son’s visits, the complainant testified that the accused’s son was present when the allegations in count 9 occurred. There were no temporal limits on the cross-examination. It was not limited to the period from December 1 to 10, 2017. The defence elicited evidence of the son’s visits beyond this time period, at Christmas of 2017.
[52] There is no suggestion that these amendments created a completely new offence. The case before me is distinguishable from Elliott ONCA in this regard.
[53] There is also no suggestion that the defence theory – with respect to the timelines of these offences and the complainant’s credibility/reliability – was impacted by the proposed amendments. The evidence about the incident alleged at count 4 being in the fall of 2017 (September, October, November) came out in chief. The defence had a full opportunity to ask about the timeframe and did so in cross. The complainant also corrected evidence she had given in chief about when counts 8 and 9 occurred during her cross-examination. She stated that they occurred in December, not October, as she had indicated in chief. The defence had a full opportunity to press her on this as well.
[54] However, I do not agree with the Crown’s submission that the defence should have anticipated that the complainant had difficulty recollecting dates. Her statements to police and her testimony did not support this. I also do not agree that there was no prejudice just because the amended timeframes remained within the boundaries of the period of cohabitation between the complainant and Mr. Wilson. Notwithstanding, I find that the overall trial fairness was not compromised in this case for the reasons previously set out. The defence had a full opportunity to test all aspects of the allegations in cross-examination, unrestricted by timelines.
Conclusion
[55] Based on all of the above, the Crown’s application to amend counts 4, 8 and 9 of the indictment as set out in para. 2 above is granted.
(“ Original signed by”)
Coats J.
Released: May 26, 2020
[1] This case dealt with s. 529 of the Criminal Code, which is the predecessor section to section 601.