Court File and Parties

Court File No.: CR-19-152 Date: 2020-11-19 Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

Jeffery Ferguson-Cadore, Applicant

Counsel:

Neil Riley, for the Crown

Tobias Okada-Phillips, for the Applicant

Heard: November 17, 2020

Ruling on Motion to Amend Indictment

Healey J.:

[1] The accused is charged with assault and assault with a weapon, being counts 3 and 7 on the indictment.

[2] Count 3 reads:

Jeffery Ferguson-Cadore stands charged that on or about the 6th day of July, 2018, at the Town of Wasaga Beach, and elsewhere in the Province of Ontario, did commit an assault on Beverly Ann O’Grady, contrary to the Criminal Code of Canada.

[3] Count 7 reads:

Jeffery Ferguson-Cadore stands charged that on or about the 6th day of July, 2018, at the Town of Wasaga Beach, and elsewhere in the Province of Ontario, did in committing an assault on Beverly Ann O’Grady use a weapon, to wit: a bottle, contrary to the Criminal Code of Canada.

[4] Although the Crown has not formally closed its case, after the evidence of the last witness was finished, Crown counsel moved to amend the counts to substitute the words “a female person” for “Beverly Ann O’Grady”.

[5] After hearing argument, I granted the motion to amend with reasons to follow.

[6] Amendments to an indictment to change the name of an alleged victim were the subject of rulings by the Ontario Court of Appeal in R. v. Austin, 1955 CarswellOnt 32 and R. v. Melo, 1986 CarswellOnt 1141. Those decisions indicate that, provided the amendment is sought at trial and the court correctly considers and applies the factors set out in what is now s. 601(4) of the Criminal Code, an application to amend an indictment to change the name of the alleged victim or to substitute “a female person” for the alleged victim named in the charge may be considered by the trial judge.

[7] The Crown’s motion was prompted by a ruling made by this court which foreclosed Crown counsel from eliciting the name of the alleged victim through police witnesses unless those police witnesses had verified her identity through her identification, namely her driver’s licence. In the result, although the Crown led evidence which a jury may find capable of supporting the elements of both offences, the Crown had not been able to elicit evidence of the victim’s name. The victim’s name was unknown to the lay witnesses who testified for the Crown.

[8] The Crown accordingly sought to amend the counts to conform to the evidence. While capable of potentially supporting a guilty verdict, the evidence was not capable of proving that the female victim was Beverly Ann O’Grady. Counsel did so at the correct time, being after the Crown’s evidence had been heard: R. v. McConnell, 2005 13781 (ON CA), 75 O.R. (3d) 388 (Ont. C.A.)

[9] To prove the charges, it is not essential for the identity of the victim to be known. However, the Crown having particularized the name of the victim, on the basis of the above authorities the correct course appears to be, in the absence of ability to prove the name of the alleged victim, for the Crown to seek to amend the indictment to remove the reference to Beverly Ann O’Grady and change it to conform with the evidence heard at trial.

[10] The argument of the defence is twofold. First, defence counsel argues that the accused is somehow prejudiced because the jury has heard evidence suggesting that the woman who was with the accused on the night in question, and allegedly assaulted, was his domestic partner. Altering the counts to read “a female person” somehow casts his alleged behaviour toward this female person in a more negative light.

[11] The jury has heard evidence of violent assaults occurring by the accused against this female person. I fail to understand how having a particular name attached to the female person can dilute the effect of that evidence, if believed, or conversely, how amending the indictment as suggested could have the effect of aggravating that evidence.

[12] The defence’s second argument is that prejudice arises from the Crown not calling Beverly Ann O’Grady as a witness in the absence of an explanation for why she is not a witness, a “failed” motion for the admission of hearsay evidence regarding her identity, and then a subsequent attempt to cure these “defects” through an amendment. Even if any of this could be characterized as problematic for the accused - and I am at a loss as to how it could - I am certain that none of this amounts to prejudice of the type that this court is required to consider. In McConnell, at para. 11, the court cited R. v. Irwin (1998), 1998 2957 (ON CA), 38 O.R. (3d) 689 (Ont. C.A.), at para. 38, to explain that prejudice “speaks to the effect of the amendment on an accused’s ability and opportunity to meet the charge.” The defence has not, through this argument, satisfied this court of any prejudice of this type.

[13] Suffice it to say that the Crown can call its case as it chooses and as it is able. For reasons unknown even to Crown counsel, as he explained in his submissions, Beverly Ann O’Grady is not available for this trial. But while making his submissions, defence counsel suggested that he is now possibly forced to call her as a witness. If her contact information or whereabouts is known to the defence but has not been disclosed, recognizing that there is no obligation to do so, it nonetheless makes it difficult for defence to criticize her absence from the Crown’s case.

[14] Nor would I consider the ruling obtained with respect to the identity of the woman a failed motion that the Crown is now trying to remedy. It was defence counsel who suggested that a motion for a directed verdict would be brought on the two counts due to the absence of proof of the victim’s identity after he objected, rightly enough, to a police officer repeating the alleged victim’s out-of-court statements that would identify her. This was so even though defence counsel had referred to the woman in question as “Beverly O’Grady” in his questioning of the main Crown witness who relayed the evidence of the alleged assaults. As the court stated in R v. Melo, at para. 4, “[i]ndeed it was the accused who disputed the proof of the victim’s identity, and it is difficult to credit his later claim to be prejudiced when the Crown sought the amendment to obviate that proof.”

[15] The essential elements of both offences are the intentional application of force (with a weapon) against a person without his or her consent, the accused knowing that that person did not consent to such force. The manner in which the victim is named or identified makes no difference to proof of the offences generally, and there is nothing in the fact situation of this case that causes the particular identity of the woman to have relevance other than the wording of the indictment.

[16] I was not persuaded that the defence has provided any indication of prejudice. The amendment does not charge a new offence or change the existing offence charged. The accused is in the same place after the amendment, and is not misled about time or place or the person involved as the alleged victim. The indictment as amended contains sufficient information to give the accused reasonable information of the acts to be proved against him and to identify the transaction in question. Defence counsel was unable to point to any way in which the defence would have changed had the indictment read “a female person” from the outset. In fact, he confirmed that his defence has always been, and remains, that the conduct alleged never occurred, and that the witness who provided evidence that it did, is neither credible nor reliable.

[17] Accordingly, the proposed amendment could be made without injustice being done. Having considered all of the required factors set out in s. 601(4) of the Criminal Code, the Crown’s motion was granted.

[18] Following the ruling, I alerted counsel before the accused elected to call evidence that if the evidence of the defence proved that the alleged victim was Beverly O’Grady, I would consider revisiting this ruling so that the jury was not presented with an unnecessarily confusing amendment to the indictment. Both the accused and Beverly O’Grady testified, firmly establishing the identity of the formerly unidentified female.

[19] In accordance with guidance provided by the Supreme Court of Canada in R v. Adams, 1995 56 (SCC), [1995] S.C.J. No. 105, as a discretionary mid-trial order I subsequently reversed that ruling in the interests of justice and common sense. The circumstances present when the order was made changed, and reversing the ruling avoids having to explain to the jury how to treat the amendments previously ordered.

Madam Justice S.E. Healey

Released: November 19, 2020