Amending the Indictment/Information at Trial
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. [FN1]
See
R. v. B. (G.)
(1990), 56 C.C.C. (3d) 200, at 215-16 (SCC);
Criminal
Code, s. 601(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…”
Typically, when the evidence at trial divulges that the
alleged offence occurred at a time outside the timeframe alleged in the
indictment/information, the Crown will bring an application under section 601(2)
of the Criminal Code to have the
indictment amended.
However, given that the Crown is not required to prove as
part of its case that the offence date corresponded with the offence date
alleged in the indictment, amendment during trial is not necessarily required in order to secure a conviction. [FN2]
R. v.
S.M.
2017 ONCA 878: where 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.
R. v. Smiley (R.R.) (1995),
1995 CanLII 960 (ON CA), 80 O.A.C. 238: which considered the
meaning of the phrase “on or about [date]”, standard wording in an
information/indictment. If the evidence
shows an offence to have been committed within some period that has a
reasonable proximity to the date alleged in the indictment, the Court may
proceed without a formal amendment of the information.
The ultimate question is what
effect does the amendment have on the accused? Prejudice to the accused remains
the litmus test against which all proposed amendments are judged.
R. v. Irwin,
1998 CanLII 2957 (ON CA).
Where prejudice is established, fairness to the accused may
demand that the Crown prove that the offence occurred within the
timeframe alleged in the original indictment/information.
Alternatively, if in the opinion of the court the
misleading or prejudice may be removed by an adjournment, the court may adjourn the matter under section 601(5) of the Criminal Code.
In some circumstances a court will be able to use its implicit authority to manage and control the proceedings over which it presides to mitigate or eliminate prejudice to the accused, for instance, by permitting the defence to recall witnesses.
In some circumstances a court will be able to use its implicit authority to manage and control the proceedings over which it presides to mitigate or eliminate prejudice to the accused, for instance, by permitting the defence to recall witnesses.
[FN1] For some offences, however, the age of the
complainant is an essential element of the offence (eg. invitation to sexual
touching). Therefore, in some
prosecutions the Crown must establish beyond a reasonable doubt the timeframe in
which the offence was committed in order to establish that the complainant was
of a particular age.
[FN2] Though amending the indictment before the defence calls
evidence may reduce the prejudice to the accused.
Note: Amendment of the
indictment is not restricted to trial: under section 601(3), a court may at any
stage of the proceedings amend the indictment or a count therein as may be
necessary.
Stuart
O’Connell, O’Connell Law Group, www.leadersinlaw.ca
Criminal
Code
Amendment where variance
601(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.
Matters
to be considered by the court
(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.
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