



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brownson, 2013
    ONCA 619

DATE: 20131015

DOCKET: C54358

MacPherson, MacFarland and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffery Brownson

Applicant/Appellant

Robert J. Reynolds, for the applicant/appellant

Chris Dwornikiewicz, for the respondent

Heard: September 12, 2013

On appeal from the judgment of Justice G.I. Thomson of
    the Superior Court of Justice, sitting as a summary conviction appeal judge, dated
    September 30, 2011, with reasons reported at
2011 ONSC 5793,
[2011] O.J. No. 6403,
dismissing an appeal from the
    conviction entered by Justice S.J. Hunter of the Ontario Court of Justice, dated
    December 10, 2010.

MacPherson J.A.:


A.

Introduction

[1]

This appeal raises a narrow, but important issue: in what circumstances
    should this court permit the Crown to amend an information against an accused
    person at the appeal hearing?

B.

Facts

(1)

The parties and events

[2]

The appellant Jeffery Brownson was convicted of operating a motor
    vehicle (an ATV) while disqualified from doing so by reason of an order
    pursuant to s. 259(1) of the
Criminal Code
,
R.S.C. 1985, c. C-46, contrary to s. 259(4)(a) of the
Code
. 
    He was sentenced to 15 days incarceration and a one year driving prohibition consecutive
    to any prohibition currently in place.

[3]

Pursuant to s. 259(5) of the
Code
, the fact of disqualification
    can be proven in two ways: by proof of disqualification under s. 259(1) of the
Code
,
or by proof of disqualification under a
    provincial law.  In this case, the information was particularized as follows:

That Jeffery Brownson on or about the 28
th
day of
    June in the year 2010 at the village of Marmora in the said Region, did operate
    a motor vehicle, to wit a 2006 yellow Bombardier ATV,
while disqualified
    from doing so by reason of an order pursuant to section 259(1) of the Criminal
    Code
contrary to section 259(4)(a) of the
Criminal Code of Canada
.
     [Emphasis added.]

[4]

At trial, the evidence established that the appellant had been
    disqualified not by an order under s. 259(1) of the
Code
, but rather
    by operation of an automatic provincial suspension.

[5]

The defence contended that since the evidence did not establish the emphasized
    passage in the information above, the accused should be acquitted.  The Crown
    did not seek to amend the information such that it would conform to the
    evidence about the source of the disqualification.  Rather, the Crown contended
    that it had to establish only that the accuseds licence was suspended at the
    relevant time; the source of the suspension was irrelevant.

[6]

The trial judge and the summary conviction appeal judge accepted the
    Crown position.

[7]

The trial judge carefully considered the decision of this court in
R.
    v. Chuang
, 2010 ONCA 555, [2010] O.J. No. 3476, where the information was
    essentially identical to the information in this case, and the evidence
    similarly did not establish the charge set out in the information.  In that
    decision, this court entered a verdict of acquittal. The trial judge set out
    the relevant passages from
Chuang
and purported to distinguish it from
    the factual situation in this case.  In the result, he convicted the
    appellant.  The summary conviction appeal judge agreed with the trial judges
    reasoning and result.

[8]

The appellant seeks leave to appeal and, if leave is granted, an order
    allowing the appeal, setting aside the conviction, and entering a verdict of
    acquittal.

C.

Issues

[9]

There are three issues on appeal:

(1)

Did the trial judge and the
    summary conviction appeal judge err in their analysis of s. 259 of the
Code
in the context of the information laid against the appellant?

(2)

If the answer to (1) is Yes,
    should leave to appeal be granted?

(3)

If the answer to (2) is Yes,
    should the Crown be permitted, on appeal, to amend the information to conform
    to the evidence at trial, thereby leading to a dismissal of the appeal and an
    affirmation of the conviction?

D.

Analysis

(1)

The merits of the two judgments

[10]

On
    appeal, the Crown resiled from the position it had taken in the trial and
    summary conviction appeal courts.  The Crown accepted the legal analysis,
    especially of
Chuang
, that was set out in the appellants factum.  As
    expressed in the Crowns factum, at para. 4:

The respondent acknowledges that the law in
Chuang
,
    and indeed in other cases where the Crown has failed to prove the case as
    particularized, remains clear: that if the Crown attempts to prove that an
    individual was driving while disqualified, either by way of a prohibition order
    or a suspension resulting from a conviction, they must either properly state
    the correct mode of disqualification in the Information or simply state that
    the driver was disqualified period and then lead evidence of either mode at
    trial.  All of which is to say that the appellant seems to be correct in noting
    that the summary conviction appeal judge committed a legal error in coming to
    the conclusion that he did.

[11]

At
    the appeal hearing, the panel indicated that it agreed with the persuasive
    analysis in the appellants factum and, therefore, accepted the Crown
    concession.  It follows that the decisions of the trial and summary conviction appeal
    courts were in error.

[12]

That,
    however, does not end the matter.

(2)

Leave to appeal

[13]

Because
    this is an appeal from a summary conviction appeal court decision, the
    appellant must seek and obtain leave to appeal: see
Criminal Code
,
s. 839.

[14]

The
    basic test for granting leave to appeal was summarized by Doherty J.A. in
R.
    v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641, at para. 37:

In summary, leave to appeal pursuant to s. 839 should be
    granted sparingly.  There is no single litmus test that can identify all
    cases in which leave should be granted.  There are, however, two key
    variables  the significance of the legal issues raised to the general
    administration of criminal justice, and the merits of the proposed grounds of
    appeal.  On the one hand, if the issues have significance to the
    administration of justice beyond the particular case, then leave to appeal may
    be granted even if the merits are not particularly strong, though the grounds
    must at least be arguable.
On the other hand, where the merits appear
    very strong, leave to appeal may be granted even if the issues have no general
    importance
,
especially if the convictions in issue are serious and the
    applicant is facing a significant deprivation of his or her liberty
. 
    [Emphasis added.]

[15]

In
    its factum, the Crown took the position that leave to appeal should not be
    granted on the basis that
the
legal
    issues raised had no significance to the general administration of criminal
    justice and because the question of law raised did not merit a second appeal.

[16]

At
    the outset of the appeal hearing, the Crown announced that it was abandoning
    this position on the basis that the appeal came within the second branch of the
    test from
R.R.
emphasized above.  The panel indicated that it accepted
    this concession and granted leave to appeal.

[17]

I
    want to make one observation about this issue.  In my view, the Crown position
    at the appeal hearing was fair and professional.  I do not think that the
    second branch of the
R.R.
test should ever be ignored or even
    diminished.  A criminal conviction is
always
a serious matter.  A custodial
    sentence, even for a brief period, is
always
a serious matter.  In my
    view, in a case where the Crown concedes, and this court accepts, that a
    conviction for a criminal offence flows directly from a legal error in a
    judicial decision, it would be rare and remarkable for this court to refuse leave
    to appeal.

(3)

Amending the information

[18]

This
    is the live issue on appeal.

[19]

The
    Crown contends that, subsequent to granting leave, this court should amend the
    information pursuant to s. 683(1)(g) of the
Criminal Code
so that it
    conforms to the evidence led at trial, namely, that the appellants licence was
    suspended by operation of provincial law rather than prohibited pursuant to s.
    259(1) of the
Criminal Code
.  Doing so, the Crown submits, would cause
    no prejudice to the appellant, as he was fully aware of the case he had to meet
     that when he was driving the ATV, he did so knowing that his licence was
    suspended.

[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 counsels
    cross-examination of Constable Williams.  It was very brief.  Defence counsel
    asked only three questions and established a single fact: the date of the
    appellants 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 judges 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 counsels 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.

[31]

Finally,
    in light of the unique circumstances of this case, I am of the view that the
    Crowns attempt to amend the information at this juncture also prejudices the
    appellant on appeal, contrary to s. 683(1)(g) of the
Criminal Code
.

[32]

The
    issue of amending the information did not arise in the trial or summary
    conviction appeal courts.  The contested terrain in those courts was the
    interpretation of s. 259 of the
Code
and this courts decision in
Chuang
. 
    The appellant lost those battles below, appealed to this court, and prepared a
    factum  an excellent factum  on those issues.  Only in this court did the
    Crown fold on those issues.  Only in this court did the Crown raise the issue
    of amending the information.

[33]

The
    appellants counsel did not file a supplementary factum on this issue, nor did
    he seek to do so.  He did not ask for an adjournment.  He did file a
    supplemental case brief just before the appeal hearing and he made oral
    arguments on the issue.  Nevertheless, the fact that the Crown raised this
    issue for the first time in its respondents appeal factum, and did so after
    abandoning its position on the legal issue that had been the sole focus in the
    two courts below, strikes me as a late-breaking curve ball that caused some
    prejudice to the appellant on this appeal.

[34]

By
    raising the issue of amendment on appeal, the Crown has made it more difficult
    for the appellant to prove that he has been prejudiced.  For the defence to
    demonstrate concrete prejudice on appeal, the defence would need to essentially
    re-try the underlying case and demonstrate how the appellant
could
have
    conducted himself differently at trial, and how this
could
have
    affected the trial outcome.  This task is made more difficult by the time that
    has passed between the trial and this second appeal, and the additional expense
    and effort that the defence would need to incur in order to determine prejudice
    at trial several years after the fact.  This, as well, exacerbates the
    prejudice suffered on appeal by the defence.  In light of the low bar for
    tolerable prejudice on appeal, this prejudice is fatal to the proposed
    amendment of the information.

E.

Disposition

[35]

I
    would grant leave to appeal, allow the appeal, set aside the conviction, and
    enter a verdict of acquittal.

J.C. MacPherson J.A.

I agree J. MacFarland J.A.


Epstein J.A. (dissenting):

[36]

I
    agree with my colleague MacPherson J.A. that, in the light of the Crowns
    concessions, the trial judge and the summary conviction appeal judge erred in
    law and leave to appeal ought to be granted.  The only issue to be determined,
    therefore, is whether this court should grant the Crowns request to amend the
    information to conform to the evidence led at trial indicating that the
    appellants driving disqualification was the result of a suspension under the
Highway
    Traffic Act
, rather than a s. 259(1) order under the
Criminal Code
.

[37]

My
    colleague, at para. 29 of his reasons, concludes that, in the context of the
    trial and appeal, the appellant has been misled or prejudiced. The basis of
    this conclusion is that defence counsel may have broadened the scope of
    cross-examination to explore the provincial suspension instead of focusing
    exclusively on the incorrect particularization in the information.

[38]

I
    have reached a different conclusion on the issue of whether this court ought to
    grant the amendment.   With respect, I am of the view that, without more,
    speculation about a possible defence position does not constitute prejudice
    that would preclude this court from amending the information.  In my opinion,
    in the circumstances of this case, it would be in the interests of justice for
    this court to exercise its discretion under s. 683(1)(g) of the
Code
and
    amend the information as requested by the Crown.

[39]

In
R. v. Irwin
(1998), 38 O.R. (3d) 689 (C.A.), Doherty J.A. canvassed
    the prerogative of an appellate court to amend the charge as originally laid.  At
    the conclusion of his extensive review of the relevant jurisprudence, Doherty
    J.A. made the following observations about an appellate courts power to amend
    an indictment or information, at pp. 693, 698-700:

1. Section 683(1)(g) permits an amendment on appeal to cure 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.

2. There is no reason why the scope of the power to amend on
    appeal should be different from the scope of the power to amend at trial.

3. The limits on the amending power are found, not in the
    nature of the change made by the amendment, but in the effect of the amendment
    on the proceedings, and particularly, on the accused's ability to meet the
    charge.

[40]

Doherty
    J.A. identified prejudice to the appellant as the litmus test against which
    proposed amendments should be judged. The amending power should be exercised
    only if the appellant will not, as a result of the amendment, be misled or
    prejudiced in his defence or appeal.

[41]

As
    my colleague points out, at p. 700 in
Irwin
, Doherty J.A. counselled
    that  [t]he risk of prejudice is particularly great where it is proposed to
materially
amend an indictment on appeal and affirm the conviction on the basis of that
    amendment.  In setting out this principle, Doherty J.A. adopted Cory J.s
    statement from
R. v. Tremblay
, [1993] 2 S.C.R. 932, at p. 956, that it
    would be 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 (emphasis
    added).  See also
R. v. A.L.B.
(1998), 128 C.C.C. (3d) 87 (B.C.C.A.),
    at para. 24.

[42]

My
    reasoning that the application of the principles established in

Irwin
leads to the conclusion that it is in the interests of justice to allow the
    amendment to the information to replace the driving suspension from one under
    the
Criminal Code
to one under the
Highway Traffic Act
is as
    follows.

[43]

First,
    I do not agree that amending the information in this case would constitute an
    extraordinary step contemplated in
Tremblay

and in
Irwin
. 
    In both decisions, Cory J. and Doherty J.A. explicitly state that the potential
    for prejudice is particularly high when the requested amendment to the charge
    is
material
.  In my view, a material amendment should be interpreted
    as one capable of having a demonstrable impact on a defence open to the
    accused.  An example that comes to mind is when the Crown requests an amendment
    to the date of the offence in circumstances in which the accused intended to
    rely on an alibi defence that would not apply to the proposed amended date.

[44]

I
    do not see the proposed amendment in this case as material.  The proposed
    amendment changes nothing other than the label applied to the offence.  The
    charge as originally laid required the Crown to establish two facts - the
    appellant was driving a motor vehicle and was doing so when his license was
    suspended.  If the appellant had been charged with driving while disqualified
    under the
Highway Traffic Act
rather than the
Code
, the Crown
    would have had to prove the same two facts.  It follows that while the exercise
    of this courts discretion to amend must, in this case as in all cases, be
    principled in the sense of being guided by wording of s. 683(1)(g) of the
Code
,
here no additional caution is called for.

[45]

This takes me to my second point - the important issue of
    prejudice.  The appellant seeks to rely on prejudice: it is therefore his onus
    to establish some form of prejudice.  See
R. v. Griffin
(1996), 111
    C.C.C. (3d) 567 (B.C.C.A.), at para.
22; and
R. v. Pelletier
(2012), 291 C.C.C. (3d) 279 (Ont. C.A.).

[46]

Prejudice
    speaks to the effect of the amendment on the appellants ability to meet the
    charge. In deciding whether to allow the amendment, consideration must be given
    to whether the appellant had a full opportunity to respond to all issues raised
    by the charge as amended and whether the defence would have been conducted
    any differently had the amended charge been before the trial court. If so,
    there is no prejudice: see
R. v. Foley
(1994), 90 C.C.C. (3d) 390
(Nfld. C.A.), at 400-403.

[47]

I
    am mindful that in this case, the defence strategy at trial focused entirely on
    showing that the appellants suspension was not the result of a s. 259(1) order,
    as set out in the information.  Yet in responding to the Crowns request for an
    amendment, the appellant has not been able to identify anything he would have
    done differently had the information properly identified the suspension as
    being under the
Highway Traffic Act
rather than the
Criminal Code
.

[48]

As
    set out above, my colleague suggests that the appellant may have expanded the scope
    of his cross-examination and explored facts relating to the provincial
    suspension and perhaps the inter-relationship of a driving suspension under the
Code
and under the
Highway Traffic Act
.


[49]

With
    respect, I am of the view that speculation about a possible different approach
    to the defence is insufficient to establish prejudice.  If it were, the
    discretion to amend at the appellate level would be rendered nugatory, as
    speculation of this nature would be available in every case.  I agree that the
    bar is low but it must be more than mere conjecture: see
Griffin
, at
    para. 23.

[50]

In
    my view, the appellant has not demonstrated that the amendment would cause him
    any prejudice.

[51]

Third,
    the interests of justice - the objective expressly identified in s. 683(1) as the
    controlling factor in the exercise of discretion to amend - lead me to conclude
    that the amendment ought to be allowed.

[52]

Denying
    the amendment strikes me as an unwarranted windfall for the appellant.  The
    appellant was not caught off guard.  He received full disclosure and knew that
    the Crowns evidence was directed at showing that his disqualification was the
    result of a provincial suspension. The appellant came to trial with a view to
    defeating the charge on a technicality.  I think it is fair to say that for
    some time now, in the interests of justice, the law has been moving away from
    giving effect to technical defences.  See
R. v. B.(G.)
[1990] 2 S.C.R.
    30 at para. 21 and
R. v. Sault Ste. Marie (City)
[1978] 2 S.C.R. 1299
    at p. 6.

[53]

I
    make one final comment relevant to the principal consideration of the 
    interests of justice.  While the administration of justice has an interest in
    an accurate efficient criminal process, starting with charges that are correct
    or, if not, corrected at the first opportunity, I am of the view that the
    administration of justice has a greater interest in not allowing individuals to
    rely on a technicality to avoid responsibility for unlawful conduct. Allowing the
    Crowns request to amend the information in a manner that does not change the
    substance of the offence and where the amendment causes the appellant no
    prejudice would better serve the interests of justice than allowing the
    appellant to avoid the consequences of unlawful conduct recently denounced by
    this court in
R. v. Fernandes
, 2013 ONCA 436, 115 O.R. (3d) 746, at
    para. 117, as follows:

Parliament and the courts have long recognized that driving
    offences, particularly drinking and driving offences, are serious crimes with
    grave consequences.  Not infrequently, they result in significant societal
    damage and injury, often of a tragic and permanent nature.  In this
    context, driving while disqualified prosecutions assume great importance.

[54]

For
    these reasons, I would amend the information to charge the appellant with
    driving while disqualified under the
Highway Traffic Act
and dismiss
    the appeal.

Released: October 15, 2013 (J.C.M.)

Gloria Epstein J.A.


