Court File and Parties
COURT FILE NO.: CR-19-300000340-0000 DATE: 20210810
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
H.W.
Counsel: Kevin Pitt, for the Crown John Fennel, for H.W.
HEARD: July 22, 2021
judgment on application to amend indictment
RESTRICTION ON PUBLICATION
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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
R. MAXWELL J.:
[1] H.W. is charged with three counts of sexual assault and three counts of sexual interference in relation to two complainants, A.M. and S.M.
[2] Counts 1-4 on the Indictment relate to A.M and specify an offence date range between “the 1st day of January in the year 2000 and the 31st day of December in the year 2003”.
[3] Counts 5 and 6 on the Indictment relate to S.M. and specify an offence date range between “the 1st day of January in the year 2001 and the 31st day of December in the year 2003”.
[4] Following the evidence of the Crown’s first witness, S.M., the Crown applied to amend the Indictment to change the end date of the offence on each count to December 31, 2004. The Crown seeks to expand the date ranges on each count on the Indictment to accord with the evidence heard at the trial.
[5] S.M. testified in examination in chief that she met H.W. for the first time when he was living with her mother at a home on Burrows Hall. She testified that she was not certain of the exact date or year, but believed the incident of sexual assault occurred between 2001 and 2003 in the summertime and that it happened at the Burrows Hall address.
[6] In cross-examination, it was suggested to S.M. that her mother and H.W. did not meet until 2003 and did not move into Burrows Hall until 2004. She testified that she was not aware of when her mother and H.W. met, or when they moved into the Burrows Hall address. She ultimately accepted, on re-examination, that it is possible that her mother and H.W. did not move into Burrows Hall until 2004 and that she might be mistaken on the date.
[7] On behalf of H.W., Mr. Fennel opposed the application to amend the Indictment. He argued that the Crown had the opportunity to amend the Indictment following the evidence called on a pre-trial motion (brought by the Crown to admit similar fact evidence) in which the defence alerted the Crown, through its cross-examination of the proposed similar fact evidence witness, that the offences could not have occurred prior to 2004 because the family did not move to Burrows Hall until 2004.
[8] Further, he argued that the defence would be prejudiced by an amendment to the Indictment, the Crown having called its first witness (S.M.) and that witness having been cross-examined. He argued that he would have cross-examined S.M. differently, and that the defence theory of the case, would be impacted by the proposed amendment.
[9] Following submissions and before any further evidence was called, I gave brief oral reasons granting the Crown’s application, with written reasons to follow. These are my reasons.
Analysis
[10] Under s. 601 of the Criminal Code, R.S.C., 1985, c. C-46, the court has broad powers to make any amendment to an indictment which makes a charge conform to the evidence. Subsections 601(2) and (3) of the Code state:
(2) Subject to this section, a court may, on a 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) […]
(b) that the indictment or 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.
[11] As the Court of Appeal for Ontario stated in R. v. Irwin (1998), 1998 CanLII 2957 (ON CA), 38 O.R. (3d) 689 (C.A.), at para. 11, broad powers of amendment at trial serve two important goals. First, amendment powers promote the determination of criminal matters on their merits. Second, amendment powers avoid a multiplicity of proceedings.
[12] In determining the fairness of a proposed amendment, the focus must be on substance rather than form. The operative issue is prejudice, as Doherty J.A. explained in Irwin, at para. 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? [emphasis added]
[13] In this case, Mr. Fennel does not argue that the date of the alleged offences is an essential element of the offences such that the Crown would be required to prove the date of the offences beyond a reasonable doubt. Indeed, as the Supreme Court of Canada held in R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 49, 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 also R. v. S.M., 2017 ONCA 878, at para. 10; Criminal Code, s. 601(4.1).
[14] There will be certain circumstances in which proving the date on which an offence occurred is necessary. The nature of the charge may make it necessary for the Crown to prove the date of the offence beyond a reasonable doubt in order to establish all the essential elements of the offence. For example, if an offence has, as an essential element, that the complainant be under a specified age, it may be that the date of the offence is a fact that the Crown must prove in order to establish that an offence was committed. The date of an alleged offence may also be relevant to an affirmative defence, such as an alibi.
[15] In this case, there is no dispute that A.M. and S.M. were under the age of 16 years at the time of the alleged offences, whether the offences happened in 2000, 2001, 2002, 2003, or 2004. Therefore, the essential element of the offence of sexual interference, requiring proof beyond a reasonable doubt that the complainants were under the age of 16 years at the time of the alleged incidents, is not contested.
[16] There is otherwise nothing inherent in the nature of the charges that makes the date of the alleged offences an essential element of the offences.
[17] Nor, in my view, does the requested amendment prejudice H.W.’s ability to defend against the charges. This is not a case in which the defendant has raised an alibi defence, such that the particular date of the offence is of significance. Nor is this a case where the identity of the perpetrator is in issue, such that a specified date range could be significant in eliminating the defendant as a suspect.
[18] The issue in this case is whether the Crown can prove beyond a reasonable doubt that the events that S.M. and A.M. described occurred. Credibility and reliability are the central issues in the case. I am not persuaded that the proposed amendment to the Indictment creates any significant prejudice to the defence in this case, for several reasons.
[19] First, it is important to note the timing of the Crown’s application. The Crown sought to amend the Indictment after S.M. testified and was cross-examined. She was the Crown’s first witness. It was brought well before the end of the Crown’s case, and well before the defence needed to decide whether to call any evidence.
[20] Mr. Fennel argues that the amendment should have been sought after the similar fact evidence voir dire because the witness on the application was cross-examined about when the family moved to Burrows Hall and accepted that it could have been 2004. While the Crown might have flagged the possibility of bringing the application following this witness’s evidence, I do not accept that the Crown should have asked for an amendment before either A.M. or S.M. had testified. There may have been no need for an amendment, if for example, neither A.M. nor S.M. accepted the suggestion that the family did not live at Burrows Hall before 2004.
[21] Second, the defendant had clear notice of the legal and factual nature of the allegations and the case to meet. The actual dates of the offences, or a time range, add nothing which would assist the defendant in identifying the allegations or any possible defences: S.M., at para. 13.
[22] Third, I do not accept Mr. Fennel’s argument that he would have approached his cross-examination of S.M. differently had he known the date range would be expanded to include 2004. The defence forecasted, through its cross-examination of S.M. at trial and through the cross-examination of J.D. on the similar fact evidence voir dire at trial, that it intended to challenge the credibility and reliability of the complainants on the dates when the alleged offences are said to have occurred. Mr. Fennel cross-examined S.M. comprehensively on this issue. Indeed, it was in the cross-examination of S.M. that Mr. Fennel put the suggestion to S.M. that the family did not move into Burrows Hall until 2004, a suggestion she tacitly accepted, and which, in re-examination, she confirmed was a possibility. In my view, the conduct of the cross-examination reflects that the defence had a full opportunity to ask about the timeframe of the allegations and did so thoroughly in its examinations of S.M.
[23] It should also be noted that when the application was brought by the Crown, neither A.M. nor J.D. (the anticipated Crown witnesses) had yet been called to testify. I inquired with counsel whether a ruling on the application was required before hearing from any more Crown witnesses. Mr. Fennel indicated he did not require a ruling and that he had accounted for the possible amendment to the Indictment in his preparations to cross-examine Crown witnesses still to come. Following a brief recess, I gave my oral ruling granting the application and the next Crown witness, A.M., was called as a witness. In the circumstances, it is not the case that the cross-examination of A.M. or J.D. would have proceeded differently because of the amendment.
[24] Fourth, I do not accept that the defence theory is impacted by the proposed amendment. The proposed amendment does not materially impact the ability of the defence to argue that the complainants’ respective memories about when the events took place are faulty, or to challenge the credibility of the complainants. The defence can still make the argument that the events could not have happened when the complainants stated they did and raise the discrepancy in the dates as an area that undermines the credibility and reliability of the complainants. An amendment to the Indictment does not materially change the argument.
[25] Finally, and importantly, leaving the Indictment as is may create confusion for the jury. The jury heard, during the reading of the charges and during the evidence of A.M. and S.M. that the incidents occurred in the date range of 2000 to 2003 and 2001 to 2003 respectively. However, they also heard the suggestion that the family did not move to Burrows Hall until 2004. The jury may be confused by the fact that the witnesses accepted it was possible that the family moved to the address in 2004, yet the Indictment specifies a date range that does not include 2004. Amending the Indictment simply reconciles the Indictment with the evidence and avoids confusing the jury.
[26] The jury has been instructed, and will be told again in a mid-trial instruction, that the Indictment is not evidence. The jury will also be advised, through a mid-trial instruction, that the Indictment has been amended and that they should not read anything into the fact that it has been amended. Further instructions about the Indictment will be provided in the final charge to the jury.
[27] For these reasons, the Crown’s application to amend the date ranges on each count on the Indictment to a time period that extends to December 31, 2004 is granted.
R. Maxwell J.
Released: August 10, 2021
COURT FILE NO.: CR-19-300000340-0000
DATE: 20210810
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
H.W.
REASONS FOR JUDGMENT
R. Maxwell J.
Released: August 10, 2021