



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGee, 2014 ONCA 358

DATE: 20140502

DOCKET: C57632

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David McGee

Applicant/Appellant

Norman Peel, Q.C., for the appellant

Molly Flanagan, for the respondent

Heard and released orally: April 30, 2014

On appeal from the conviction entered on August 20, 2013
    by
Justice R.G.E.

Hunter of the
    Ontario Court of Justice.

ENDORSEMENT


[1]

After an altercation at home in November 2012, the appellant was charged
    with six counts of assault, assault with a weapon, mischief and uttering
    threats.  Some of the counts involved allegations of historical acts of
    domestic violence against his wife and daughter.  Following a half-day trial on
    August 20, 2013, the appellant was convicted on five counts by Justice R.G.
    Hunter of the Ontario Court of Justice.  The appellant appeals his conviction
    on only one count, namely, the conviction for assault with a weapon.

[2]

The information for this count alleged that the appellant assaulted his
    wife with a chair between January 1 and December 31, 1999.  The appellant
    contends that the evidence at trial does not support a conclusion that the
    offence, if committed, was committed at any time in 1999.

[3]

The wifes testimony about this offence, both in chief and on cross, was
    very brief.  However, she said that it may have happened in 1999, but also that
    it happened when she was pregnant with her son who at the time of trial was
    17.  This would mean that the offence would have taken place in 1996.

[4]

Neither counsel at trial explored this potential discrepancy.  On
    appeal, the appellant contends that this discrepancy is serious enough to
    warrant that the appeal be allowed and an acquittal entered.

[5]

The Crown responds with two submissions: (1) in this case, timing is not
    an essential element of the offence; and (2) alternatively, this court,
    pursuant to s. 683(1)(g) of the
Criminal Code
, should amend the
    information to conform with the evidence at trial.

[6]

We agree with the Crowns first submission.  In the normal course, the
    date on which an offence is alleged to have been committed is not an essential
    element of that offence: see s. 601(4.1) of the
Criminal Code
; R. v
B.(G.)
,
    [1990] 2 S.C.R. 30, at paras. 37-38 and 43; and
R. v. S.D.
, 2011 SCC
    14, at paras. 1-2.

[7]

The exception to this general rule arises in a case where the time of
    the offence is critical and the accused may be misled by the variance and
    therefore prejudiced in his or her defence:
B.(G.)
at para. 38.

[8]

In our view, this exception does not come into play in this case.  The
    appellant knew the case he had to meet  did he throw a chair at his wife and
    hit her?  Further, it is clear from the record, including the cross-examination
    of the complainant, that the date of the alleged offence played no part in the
    appellants defence.

[9]

The appeal is dismissed.  We record that the appellant abandoned his
    appeal of the two uttering threat convictions.

Alexandra Hoy
    A.C.J.O.

J.C. MacPherson J.A.

R.A. Blair J.A.


