R v MS, 2023 ABKB 455

Court of King’s Bench of Alberta Citation: R v MS, 2023 ABKB 455 Date: 20230803 Docket: 210809687Q1 Registry: Edmonton Between: His Majesty the King Crown - and - MS Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant and the Accused must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Decision on Crown Application to Amend the Indictment of the Honourable Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] MS is charged with sexual interference.

The Indictment says that the alleged offence occurred between November 8, 2016, and November 7, 2017. [ 2 ] After cross-examination of the Crown’s second witness, the Complainant’s mother, and before closing its case, the Crown applied to amend the Indictment to expand the alleged offence dates to November 8, 2015, to November 7, 2017. Counsel for MS

opposed the Application. After a brief oral argument, I invited the parties to make written submissions to me on the Application, and I adjourned the trial. Background [ 3 ] The trial started on June 7, 2023. Two witnesses were called: the Complainant and her mother. The Complainant testified about two incidents involving MS. The first incident was while she and MS were on the couch, in the living room, of the family home. The Complainant said that her mother was in the same room but unaware of what was occurring.

The second incident also occurred on the couch, in the living room, of the family home and was possibly witnessed by the Accused’s brother. [ 4 ] The Complaint’s testimony was that both of these incidents took place in the house, in the rural Alberta town (the “House”) where she recalled celebrating her 11 th birthday. She was unable recall the dates when these things occurred, but believes they happened after her 11 th birthday. Extrapolating from that, the two incidents would have taken place between November 8, 2016, and November 7, 2017, when the Complainant turned 12.

The Complainant gave a detailed description of the House including where various rooms were and where furniture was located in the living room. The Complainant was cross-examined as to her certainty about the timing of the events being after her 11 th birthday. [ 5 ] The Complainant’s mother gave evidence. In her direct testimony, she said that the Complainant was living with her and MS in the House when the Complainant turned 11.

That also placed the alleged offence dates as November 8, 2016, and November 7, 2017. [ 6 ] During cross-examination, the Complainant’s mother was shown a court order (not certified nor made an exhibit) dated November 23, 2016, relating to unpaid rent for the House and costs associated with cleaning up of the House.

From this document, the Complainant’s mother agreed that they must have been out of the House for some time before the Court Order was granted, and based on that, she and the Complainant must have lived in the House between November 1, 2015, and November 1, 2016. [ 7 ] Hence, the Crown’s Application to amend the Indictment to conform to this evidence. [ 8 ] MS argues that if the amendment is allowed, his right to a fair trial and his right to make full answer and defence would be irreparably prejudiced. Law [ 9 ] Sections 601(2) and 601(3) govern applications to amend an indictment. They provide:

(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 .

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears (

a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament; (

b) that the indictment or a count thereof (

i) fails to state or states defectively anything that is requisite to constitute the offence, (ii) does not negative an exception that should be negatived, (iii) is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or (

c) that the indictment or a count thereof is in any way defective in form. [ 10 ]

Section 581 deals with the required content of an indictment: Substance of offence 581

(1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.

Form of statement

(2) The statement referred to in subsection (1) may be (

a) in popular language without technical averments or allegations of matters that are not essential to be proved; (

b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence; or (

c) in words that are sufficient to give to the accused notice of the offence with which he is charged. Details of circumstances

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information withrespect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence orinsufficiency of details does not vitiate the count. Arguments [11] The Crown argues that, as in R v B(G), (SCC), [1990] 2 SCR 30, the requirement for specifying time in anindictment is to provide the Accused with reasonable information about the charges brought against them to ensure the possibility of afull defence and fair trial.

That is essentially so that a transaction may be identified. [12] The Crown says that they gave the Accused notice of their intention to amend the Indictment as soon as the evidenceestablished that such an amendment was required. That reduced any prejudice to the Accused. The Crown says that here, the Accusedknew what the specific transactions in question were: two incidents on the couch in the House.

The new evidence did not change thoseparticulars. [13] Accordingly, the Crown says the Accused had a “full opportunity to confront the Complainant about these allegations and totest the credibility and reliability of the witness under cross-examination.” [14] They refer to: R v SD, 2011 SCC 14; R v B(G), (SCC), [1990] 2 SCR 30; R v HW, 2021 ONSC 5471; R v McConnell, (ONCA); R v Bekri, 2020 ONCJ 680; and R v Lommerse, 2017 SKQB 119. [15] Ms.

Kidane, for MS, says that the Crown’s disclosure included summaries of the initial statements given to RCMP in 2021.She also received an audio-video statement of an interview conducted with the Complainant on June 23, 2021. In the video statement,the Complainant spoke extensively about the House, and described it as “the exact house it happened in”. She was definite about celebrating her 11th birthday in the House, and said she was still 11 when the 2nd incident happened. She described the incidents ashappening at night time, during spring or summer, when she was not in school. [16] Ms.

Kidane argues that allowing the amendment will result in “significant prejudice to the Accused, whose defence strategywas specifically crafted to address the allegation as particularized in the Indictment as it currently reads.” [17] She says: The Defence made strategic decisions in how it approached the cross-examination for the child witness to sufficiently defend against theprosecution while maintaining a sense of fairness and consideration for the unique factors associated with a child witness/complainant.Furthermore, knowing the case to meet, the Defence specifically put to the Complainant that she might be mistaken and she in fact had her 10th birthday at the (House).

This would confirm with the amended dates as proposed, however, the Complainant vehemently denied this suggestion and doubled-down on her assertion that she had her 11th birthday and that the allegations occurred thereafter.” [18] Ms. Kidane says that she would otherwise have focused on other aspects of the Complainant’s testimony during cross-examination. [19] She references: R v Tremblay, (SCC), [1993] 2 SCR 932; and R v Berube, 2018 ABQB 393. Analysis

[ 20 ] In R v SD , the Supreme Court allowed an appeal from the Quebec Court of Appeal, 2010 QCCA 1418 . That Court overturned the accused’s conviction on the basis that his conviction was for an incident other than the one referred to in the indictment. The Supreme Court adopted the reasons of the dissenting Quebec Court of Appeal judge, that “the defence was based entirely on a question relating to credibility. The respondent was in no way prejudiced” (at para 2). [ 21 ] The dissenting judge quoted from R v B(

G) at para 58 : [58] Again in R. v. B. (G.) , Wilson J. draws four important premises from the authorities: In my view, the following conclusions can be drawn from the authorities: 1. While time must be specified in an information in order to provide an accused with reasonable information about the charges brought against him and ensure the possibility of a full defence and a fair trial, exact time need not be specified.

The individual circumstances of the particular case may, however, be such that greater precision as to time is required, for instance, if there is a paucity of other factual information available with which to identify the transaction. 2. If the time specified in the information is inconsistent with the evidence and time is not an essential element of the offence or crucial to the defence, the variance is not material and the information need not be quashed. 3.

If there is conflicting evidence regarding the time of the offence, or the date of the offence cannot be established with precision, the information need not be quashed and a conviction may result, provided that time is not an essential element of the offence or crucial to the defence. 4. If the time of the offence cannot be determined and time is an essential element of the offence or crucial to the defence, a conviction cannot be sustained. [13] [ 22 ] Hesler JA noted at para 59 that “time became an essential element when

an act is committed at a time that can be identified and the accused is raising an alibi defence.” [ 23 ] As in R v SD , there has been no notice of an alibi defence in this case. [ 24 ] The Defence relies on R v Tremblay . In that decision, the Quebec Court of Appeal had overturned the trial judge’s refusal to permit an amendment to the indictment and also overturned the acquittal. The Supreme Court concluded that the appellants had been prejudiced as they had prepared their defence in a specific way based on the original indictment.

The Court noted that it might have been appropriate to allow the amendment “much earlier in the trial proceedings” to provide an adequate adjournment to prepare their defence to meet the amended charges (at para 49). [ 25 ] The Court noted that while the provisions in the Criminal Code give the courts reasonably wide powers of amendment, “it remains an important principle of criminal law that persons accused of a crime must know the charge brought against them in order to present a full answer and defence” (at para 51). [ 26 ] The Defence also relies on Justice Ross’s decision in R v Berube .

In that case, Justice Ross held at para 3: [3] Generally speaking, a variance between a count and the evidence with respect to a date is not material, so long as the indictment was preferred within the prescribed limitation period: s 601(4.1). That would mean, generally, that an amendment is not necessary. However, the Crown does not rely on this

section because the dates in the indictment are significant in identifying particular transactions – incidents between the complainant and the accused, during which it is alleged that the alleged offences occurred. So, the significance goes beyond a mere date, it goes to identifying an event. [ 27 ] She stated at paras 5-6: [5] Prejudice is shown where the accused is misled as to the circumstances of the offence alleged or the accused does not know the case he is required to meet: Ferguson at para 28 .

In addition, prejudice can arise where tactical decisions are made based on the count as drafted: Ferguson at para 29 .

Because the Crown ran its case on the basis of impairment by alcohol, and the defence conducted its cross- examination on that basis, the trial judge was entitled to conclude that the late amendment would be prejudicial. [6] In this case, where the offences are alleged to have occurred over a period of more than a month, at the conclusion of an 11 ½ year relationship, and where the complainant’s evidence on direct and cross-examination has moved beyond the alleged incidents and referred to other allegedly bad conduct by the accused, it is important that the accused know what transactions are alleged to have occurred and the particulars of those transactions.

To fail to exercise care in this context is significant, because an inference could be drawn that, if an allegation is not supported by the evidence regarding one transaction, it may have occurred on another occasion. This type of reasoning could make defending somewhat fluid allegations difficult, if not impossible.

While flexibility may be required regarding allegations of historical sexual assault, especially involving complainants who were minors at the time, there are no such special circumstances here. [ 28 ] Ross J concluded that the late application for an amendment was prejudicial to the defence, as the date was significant in identifying the alleged transaction. [ 29 ] The real issue on this Application is whether MS has been prejudiced by the Crown’s late Application to amend the Indictment. [ 30 ] A distinguishing factor between this case and R v Berube is that the Crown has not yet closed its case.

The Application came after the Crown’s final planned witness was cross-examined. The nature of the defence has not been disclosed, although it is reasonable

to conclude from the cross-examination that the credibility of the Complainant and her mother are very much in issue. No alibi defence has been raised. [ 31 ] From MS’s opposition to the Application, and the arguments raised, it appears that the principal contemplated defence was to cast doubt on the dates of the alleged incidents as described in the Indictment. The Defence had obtained documentation aimed at showing that the incidents could not have happened during the interval alleged in the Indictment, as the Complainant and her mother did not live in the House at the time. [ 32 ] In light of R v SD , R v B(

G) and cases such as those cited by the Crown, relying on an error in the offence dates in the indictment is not an absolute defence, as the trial judge has some discretion to allow amendments to the indictment in holding the Crown to those dates. [ 33 ] Here, I do not see that the Accused should have had any real difficulty identifying the transactions or incidents complained of once the particulars had been provided. No issue has been raised about disclosure, or the timeliness of disclosure.

The Complainant’s statement is clear that the events occurred on the couch, in the living room, in the House where she and her mother lived with MS.

From the evidence so far, the House was the last place the Complainant and her mother lived with MS, so the timing of the incidents alleged by the Complainant should have been reasonably clear to MS. [ 34 ] Cross-examination of both the Complainant and her mother appears to have been directed credibly, although there has yet been no argument as to what should be taken from their evidence. [ 35 ] I am not satisfied on the submissions made on this Application that MS has been prejudiced in his defence.

He has not yet been called on to elect whether or not to call any defence evidence, or to testify himself. [ 36 ] On the assertion that counsel’s cross-examination of the Complainant would have been conducted differently had the dates in the Indictment been amended earlier, any prejudice to the Defence can be remedied by having the Complainant recalled to be cross- examined on the area(

s) counsel did not previously explore. [ 37 ] Accordingly, if there is any potential prejudice to MS, it can be overcome. Conclusion [ 38 ] The Crown’s Application to amend the Indictment is granted. To avoid any potential prejudice to MS, Ms. Kidane may continue her cross-examination of the Complainant to deal with other topics that were not explored or fully explored because of the original strategy. I emphasize that further cross-examination will be limited to areas not previously explored and it is not intended to be a re-cross-examination.

Heard on the 9 th day of June, 2023 and by way of written submissions. Dated at the City of Edmonton, Alberta this 3 rd day of August, 2023. Robert A. Graesser J.C.K.B.A. Appearances: Dallas Sopko Alberta Justice

for the Crown Yodit Kidane Kidane Law for the Accused