Amendment of information or indictment on appeal only with great caution

R. v. Brownson, 2013 ONCA 619:

[20]       Section 683(1)(g) explicitly authorizes an appeal court to amend an indictment (and, by analogy, an information):

683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

….

(g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.

[21]       Under this section, the scope of permissible amendments at the appeal stage is wide.  As expressed by Doherty J.A. in R. v. Irwin (1998), 38 O.R. (3d) 689 (C.A.), at 699-700, "s. 683(1)(g) permits an amendment on appeal where the amendment cures a variance between the charge laid and the evidence led at trial regardless of whether the amendment materially changes the charge, substitutes a new charge for the initial charge, or adds an additional charge."

[22]       However, caution must be the watchword when an appeal court considers a Crown request to amend an indictment or information and enter a conviction for a person who would be acquitted on the basis of the un-amended indictment or information.  As explained eloquently by Cory J. in R. v. Tremblay, [1993] 2 S.C.R. 932, at 956-57:

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.  The unfairness that results from such a procedure was aptly described by Zuber J.A. in R. v. Geauvreau (1979), 51 C.C.C. (2d) 75 (Ont. C.A.). At p. 84 he wrote:

It is part of our law of criminal procedure that a person accused of crime is entitled to know the charge against him, whether contained in an information or an indictment, in reasonably specific terms and he is tried on that charge. This principle retains its vitality even though the formalism of an earlier era has been diminished and trial Courts now possess reasonably wide powers of amendment. However, even though criminal procedure has become less technical and more flexible, the concept of an amendment at an appellate stage involves difficult considerations. An amendment at trial contemplates a continuing ability by the accused to meet an amended charge; the appellate stage occurs long after the evidence has been led, arguments made and facts found. In my view, it would be an extraordinary step for an appellate Court to materially amend the charge and uphold a conviction based on the charge as amended.

See also: R. v. Irwin, at paras. 33-34.

[23]       When considering a Crown request to amend an indictment or information at the appeal stage of a criminal proceeding, the court must focus carefully on the precise qualifying words of s. 683(1)(g) of the Criminal Code, and ask this question: has the accused been misled or prejudiced in his defence or appeal?

[24]       In my view, the answer to this question in this case is "Yes", especially in the defence (trial) context, but also in the appeal context.

[25]       The trial was exceptionally brief.  The Crown called only one witness, the arresting officer Constable Craig Williams.  His entire testimony is recorded in just eight pages of transcript and, in conjunction with the documents entered into evidence at trial, established, inter alia, these four facts:

(1) the appellant had been convicted of operating a motor vehicle with a blood-alcohol concentration over .08 on February 13, 2009;

(2) pursuant to that conviction, he was prohibited from driving for one year;

(3) pursuant to provincial law, on February 20, 2009 the appellant was suspended from driving for three years from the date of conviction; and

(4) the appellant was arrested for driving while disqualified on June 28, 2010.

[26]       It is apparent from this chronology that when he was arrested, the appellant was disqualified from driving by operation of a provincial law, but not by virtue of the prohibition order under the Criminal Code.  The latter had expired.  However, the information specified that the appellant had been arrested for driving while disqualified by s. 259(1) of the Criminal Code.  This was incorrect.

[27]       This background provides the context for considering defence counsel's cross-examination of Constable Williams.  It was very brief.  Defence counsel asked only three questions and established a single fact: the date of the appellant's previous conviction for driving with a blood-alcohol concentration in excess of .08 was February 13, 2009.

[28]       The closing submissions of trial counsel were not transcribed.  However, it is obvious from the cross-examination and from the trial judge's reasons what defence counsel submitted: the evidence led at trial did not conform to the facts specified in the information.  The Crown now concedes, and this court accepts, that this was true.

[29]       It is impossible to know what questions defence counsel might have asked of Constable Williams if the information had simply stated the offence without particularization or with the correct particularization (the continuing three year suspension by operation of provincial law).  Presumably, he would have explored the facts relating to the provincial suspension and, perhaps, the administrative structure tying together s. 259 of the Criminal Code and the provincial law imposing the additional suspension.  In any event, defence counsel's very focussed cross-examination aimed squarely at the incorrect particularization in the information. He almost certainly would not have solely addressed this issue if he had been faced with an information containing accurate or no particularization.  Thus, to the extent that the appellant relied on the information when formulating his defence at trial, he has been prejudiced.

[30]       In short, I do not think that the prejudice bar should be set very high in a case where the Crown seeks to amend an information on appeal, especially on a second appeal.  For the above reason, I conclude that the appellant has cleared the prejudice bar in this case.  Moreover, I observe that the problem the Crown faces in this case is easily solved.  The solution, as the Crown points out in its factum, at para. 4, is to "simply state that the driver was disqualified period and then lead evidence of either mode at trial."