COURT FILE NO.: CR-22-00101551-CNJ
DATE: 2024/01/11
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Crown/Respondent on the Application
– and –
A.K.C.
Accused/Applicant on the Application
Melissa Ernewein, counsel for the Crown / Respondent on the Application
Stephen Gehl, counsel for the Accused/Applicant on the Application
HEARD: November 28, 2023
THE HONOURABLE JUSTICE M. J. VALENTE (ORALLY)
DECISION ON APPLICATION FOR PARTICULARS PURSUANT TO S.587(1) OF THE CRIMINAL CODE OF CANADA
Overview
[1] A.K.C. (the ‘Applicant’) is charged on an Indictment, dated November 24, 2022, with one count of sexual assault contrary to s.271 of the Criminal Code of Canada (the ‘Code’) against A.S. (the ‘Complainant’).
[2] A trial by judge alone is scheduled to commence April 22, 2024.
[3] The Applicant has brought a motion pursuant to s.587(1) of the Code for an order that the Crown particularize the count with respect to the date, time and place of the sexual assaults alleged by the Complainant.
Factual Allegations
[4] On October 24, 2022 an Indictment was filed charging the Applicant with sexually assaulting the Complainant between July 1, 2020 and February 28, 2021, both dates inclusive, in the Region of Waterloo. A Replacement Indictment was later filed on November 24, 2022 charging the Applicant with having sexually assaulted the Complainant between September 1, 2014 and February 28, 2021, both dates inclusive, in the Region of Waterloo, contrary to s.271 of the Code. The Crown is proceeding on the Replacement Indictment
[5] When the Complainant first reported the alleged incidents of sexual violence to the police on September 25, 2021, she provided a video recorded statement (the ‘September Video Statement’). In the September Video Statement, the Complainant stated that the Applicant had assaulted her twenty times and provided certain specific details of the alleged assaults. The Applicant has been provided with disclosure of the September Video Statement as well as a summary and transcript of the September Video Statement.
[6] On September 25, 2021, the Complainant also provided a written statement to police. A copy of the written statement was provided to the Applicant.
[7] In addition, the Applicant was provided with the video recorded statement of the Applicant’s mother and a summary of her statement.
[8] On November 1, 2021, the Complainant reattended the police station and provided a further video recorded statement (the ‘November Video Statement’). In the November Video Statement, the Complainant disclosed that the Applicant had allegedly sexually assaulted her as early as September 1, 2014 and continuously thereafter. She confirmed that the Applicant had sexually assaulted her more than thirty times and again provided details of the alleged assaults. The Applicant was provided with disclosure of the November Video Statement along with a summary and transcript of the November Video Statement.
[9] Finally, in the November Video Statement, the Complainant referred to notes that she had with her. These notes have also been disclosed to the Applicant.
Guiding Principles
[10] Section 581(1) of the Code provides that each count in an Indictment shall contain sufficient detail of the alleged offence to give the accused “reasonable information” regarding the alleged act or omission “but otherwise the absence or insufficiency of details does not vitiate the count”.
[11] Section 583 of the Code further provides that no count in an Indictment is insufficient where, in the opinion of the court, it satisfies the requirements of s.581, or in other words, a count is not lacking only because “it does not specify the means by which the alleged offence was committed”.
[12] Nonetheless, s.587(1)(f) stipulates that particulars may be ordered where the court is “satisfied that it is necessary for a fair trial”, including “further describing the means by which an offence is alleged to have been committed”.
[13] The purpose of particulars is to give the defendant reasonable information about the offence charged, so that the accused can make full answer and defence. As the Supreme Court of Canada has stated in R. v. G.R., 2005 SCC 45, it is fundamental to a fair trial that the accused knows the charge or charges he or she must meet.
[14] Having said that, particulars are to be distinguished from the Crown’s theory of the case which it is not required to prove (see: R. v. Groot, 1998 CanLII 2151 (Ont. C.A.) at paras. 14-15). As Watt J. (as he then was) stated in R. v. Fatima and Khan (‘Fatima’) at para. 40:
To the extent that a demand for particulars is a demand for the prosecution’s evidence, or a specification of the evidence on which the prosecutor relies to prove a particular element of the offence charged, or a basis of liability, the demand must go unanswered (unreported ruling delivered Aug. 26, 2022 (S.C.J.) cited in R. v. Hersi, 2014 ONSC 1373 at para. 11 (Ont. S.C.J.)
[15] Watt J. also confirmed that a count “need not specify the nature of an accused’s participation” in an offence. A count that charges an offence in general terms is a valid pleading
that leaves open “any mode of participation” in the offence for which there is evidentiary support (see: Fatima at paras. 47-48).
Position of the Parties
[16] The Applicant submits that the proper test for determining whether particulars are required is a consideration as to whether the count as drafted allows the Applicant to answer the question, “What have I done?”. He submits that the answer in this case is “I don’t know”, and for that reason, the Replacement Indictment requires particulars. The Applicant submits that the only information he has going into trial is the name of the Complainant. Otherwise, it is impossible to determine from the Crown’s disclosure whether the alleged sexual activity between he and the Complainant was non-consensual.
[17] For its part, the Crown submits that the answer to the question, “What have I done?” is contained in the Replacement Indictment. It specifies the time period, the place, the particular offence, the parties involved, and the specific section of the Code alleged to have been violated. In short, the Crown’s position is that the Replacement Indictment provides sufficient detail of the circumstances of the alleged offence to give the Applicant reasonable information with respect to the act to be proved against him.
Analysis
[18] I am of the opinion that this is not an appropriate case for particulars to be ordered. It is my view that a sexual assault Indictment is sufficient provided it describes the time, place, victim’s name and nature of the offence even it if does not describe the particular details of the offence (see: R. v. Herntier, 2020 MBCA 95 (‘Herntier’) at para. 84. The Replacement Indictment contains all of that information and sufficiently puts the Applicant on formal notice of the potential legal jeopardy he faces.
[19] The Manitoba Court of Appeal has recently confirmed that it is well established that non- essential particulars such as details of “time or place, need not be proved with precision and may be deemed to be surplusage” (see: Herntier at para. 84). I agree with the Crown’s submission that this is especially true in cases with multiple instances of sexual assault occurring over a lengthy period of time. In that instance, as in the case before me, the British Columbia Supreme Court in
R. v. C.M.C., 2023 BCSC 1097 (‘C.M.C.’), makes clear that complainants “cannot be expected to provide a precise and fully particularized account of incidents and dates” (at para. 7).
[20] Furthermore, as the court in C.M.C. also points out, it is irrelevant, in the case of an adult complainant, “that incidents of unwanted sexual touching may have been interspersed with consensual sexual relations” (at para. 14). Such incidents all form part of a single transaction and cannot be said to adversely impact the Applicant’s ability to make full answer and defence.
[21] In support of this application, the Applicant relies on the Alberta Court of Queen’s Bench’s decision in R. v. Carter, 2021 ABQB 430 (‘Carter’). In my view, this decision is distinguishable on its facts. In Carter, the court compelled the Crown to provide particulars with respect to charges of perjury where the two accused had difficulty ascertaining which false statements gave rise to the charges. The court reached its decision, in part, by recognizing that perjury is an inchoate crime, and unlike most criminal offences, including the offence of sexual assault, the substance “of the alleged criminality is [not] exceedingly obvious from the disclosure provided by the Crown” (at para. 60).
[22] In R. v. Berndt, 2022 ABQB 216, the accused faced charges relating to the sexual molestation of his three children over a fifteen-year period. Each complainant provided a video recorded statement, all of which were disclosed by the Crown. Relying on the decision in Carter, the accused brought an application for particulars. In dismissing the application, Wilson J. of the Alberta Court of Queen’s Bench stated that the facts in Carter were “not remotely similar to what is before me to make the Carter decision helpful when analyzing the Accused’s complaints” (at para. 37).
[23] The Applicant also relies on the decision of this Court in R. v. Armour Pharmaceutical Company, 2006 ONSC 811, where multiple accused were charged with four counts of criminal negligence. This case, too, is distinguishable on its facts.
[24] The court required the Crown to provide particulars of the offence of criminal negligence where it found the allegations against the accused were found generically as criminal negligence and covered a wide range of possible acts, omissions and failed legal duties which were not known by the accused.
[25] Quoting from R. v. Curragh Inc., [1993] NSJ No. 279, the court distinguished the offence of criminal negligence from most offences that can be committed in only a limited number of ways:
… when a person is charged, for example, with theft, assault or even fraud or sexual assault, and the words of the Criminal Code section are used and the alleged victim is identified, as well as the date and place, the accused would have little difficulty knowing the transaction alleged to have constituted the offence. That is not so when the charge is manslaughter or criminal negligence, particularly not when alleged to have been committed over a long period of time (at pg. 30).
[26] In my view, the case before me falls into the category of most offences that can be committed in only a limited number of ways and where the accused would have little difficulty knowing the transaction alleged to have constituted the offence provided, as in this case, the Indictment identifies the time, place, victim’s name and nature of the offence.
Disposition
[27] For all of the above reasons, I am not satisfied that this is an appropriate case for me to exercise my discretion to order that the Crown provide particulars pursuant to s.587(1)(a) of the C Code to ensure a fair trial. In summary, I have concluded that the count, as specified in the Replacement Indictment, combined with the substantial Crown disclosure, sufficiently delineate the underlying facts so as to permit meaningful full answer and defence by the Applicant.
[28] Accordingly, the application for particulars pursuant to s.587(1) of the Code is dismissed.
M. J. Valente, J.
Released: January 11, 2024
COURT FILE NO.: CR-22-00101551-CNJ
DATE: 2024/01/11
ONTARIO SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
A.K.C.
Crown/Applicant
Respondent
DECISION ON APPLICATION FOR PARTICULARS PURSUANT TO S.587(1) OF THE CRIMINAL CODE
M. J. Valente, J.
Released: January 11, 2024
/lr