The short answer is that such amendment will only be allowed where the change is minor and does not go to the heart of the case as argued. Further, such amendment will only be made if the amendment would, in fact, have an effect on the result from the trial.
The Court held:
[32] Whether the court accepts the Crown's analysis or duty counsel's analysis, the result is the same - the charge as framed in the indictment was not established by the evidence.
[33] What remains to consider is the Crown's request to amend the indictment to conform to the evidence. Duty counsel submits that the amendment sought by the Crown changes the gravamen of the offence by specifying a different untruth. According to Mr. Hutchison, such an amendment would go beyond the scope of s. 683(1)(g).
CONCLUSION
[34] I start with the observation of Cory J. in R. v. Tremblay (1993), 84 C.C.C. (3d) 97 (S.C.C.) at 114:
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.
[35] I would not invoke the court's jurisdiction to grant the amendment sought by the Crown. I am not persuaded that if the amendment were made, it would necessarily follow that the appeal would or should be dismissed. I say this because, in my view, the oral evidence of Mr. Younger and the documentary evidence of the name search, admitted pursuant to s. 30 of the Evidence Act, would not be sufficient to establish the guilt of Mr. Deutsch. In this respect I agree with the "two potential sources of authority" submission advanced by duty counsel. The evidence of Mr. Younger and the name search only addressed Mr. Deutsch's lack of authority to practice before the state courts. Such evidence did not address the "Federal courts" issue in a way that would support the Crown's case.
[36] If the amendment were made, I believe it would raise further questions. What is "the New York State Bar"? What evidence is there that such a body, if it exists, did or did not grant Mr. Deutsch a licence to practice law? Mr. Younger's evidence does not answer these questions. Mr. Younger's evidence speaks mainly to the registration of those who may practice in the state courts. I observe that Mr. Younger testified that his office did not certify the good standing of attorneys in New York State. According to his evidence it is the four appellate divisions of the Supreme Court who have jurisdiction over the admission and discipline of attorneys and who certify their good standing.
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