R. v. Charles Jean Picot - 2011 NBPC 4, 2011 NBPC 4

R. v. Charles Jean Picot - 2011 NBPC 4 PROVINCE OF NEW BRUNSWICK File: 05408610 PROVINCIAL COURT HER MAJESTY THE QUEEN - v - CHARLES JEAN PICOT Decision on a motion to amend the date entered on the information, delivered by the Honourable Ronald LeBlanc, Judge of the Provincial Court, at Campbellton, New Brunswick, on February 8, 2010. Counsel: François Doucet, for the Crown Gilles Lemieux, for the accused [TRANSLATION] 1 . LEBLANC, P.C.J.: This is a motion under s. 601(2) of the Criminal Code for the amendment of the information. 2 . Mr. Picot is alleged to have committed

an act of indecent assault on the person of John Derek Lapointe between January 1, 1978, and December 31, 1978. At the end of the defendant’s testimony, the Crown asked the Court to amend the information pursuant to s. 601(2) of the Criminal Code . This request is based on a variance between the evidence presented at trial and the dates entered on the information. The defendant opposes the amendment and argues that it cannot be granted without causing prejudice to the accused because he has advanced alibi as his defence. THE FACTS 3 . I will summarize the relevant facts. Mr.

Lapointe testified that he was sexually assaulted by the accused when he was living in Dalhousie, New Brunswick. According to him, there was only one incident which occurred in the living room of the presbytery where Mr. Picot resided as parish curate. Mr. Lapointe also testified that the incident occurred in the fall of 1978. He was certain that this had happened during this period because he had moved on Catherine Street in Dalhousie during the summer of 1978 and later had joined the boy scouts. He started Grade 8 at the L.E.

Reinsborough School in September 1978 and it was only after he had moved on Catherine Street that he joined the scouts. This is why he was certain that the incident had occurred in the fall of 1978. 4 . In his testimony, Mr. Picot stated that he was a student at Saint Paul University in Ottawa starting in early September 1978, and that at no time was he in Dalhousie during the fall of 1978. He denies Mr. Lapointe’s allegation of indecent assault. He nevertheless admitted that he had known the complainant and his brother while he was scout master in Dalhousie.

He also conceded that it was altogether possible that he travelled to Bathurst by car with the complainant, that the complainant came to the presbytery where he would have played the album Saturday Night Fever for him. Knowing that the dates were disputed or under attack, the Crown, through its cross-examination, established that the incident, if incident there was, must have occurred when Mr. Lapointe and Mr. Picot both lived in Dalhousie.

For this reason, the Crown argues that the motion to amend the information should be granted since the law allows a judge to amend an information to make it conform to the evidence. 5 . Section 601(2) reads as follows: 601(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. 6 . Therefore, the court may amend the information at any point during the trial, whether it be when the prosecution or the defence is presenting its case. 7 . The wording of s. 601(4) is as follows: 601(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider (

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. 8 . Section 601(4.1) specifically mentions the date of the offence as follows: 601(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or (

b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court. 9 . At issue here is whether the amendment should be granted, given the particular circumstances of the case, and more specifically, considering the fact that the accused is relying, at least in part, on the defence of alibi.

10. The essence of the defence based on alibi was explained by the Court of Appeal of New Brunswick in R. v. G.P.M., (NB CA), [1996] N.B.J. No. 4, 171 N.B.R. (2d) 311, a case whose facts are relatively similar to the facts of the present case. Atparagraphs 11 to 14, Ryan, J.A. stated as follows: 11 Alibi means elsewhere.

It has been described as (1) a defence where an accused alleges that at the time when the offence withwhich he is charged was committed, he was elsewhere, Osborn, The Concise Law Dictionary, 4th ed. (London: Sweet & MaxwellLimited, 1954) and (2) a defence that places the defendant at the relevant time at a different place than the scene involved and soremoved therefrom as to render it impossible for him to be the guilty party, Black’s Law Dictionary, 5th ed. (St. Paul, Minn.: WestPublishing Co., 1979). 12 There are two important components to the disclosure of a defence of alibi.

They are the adequacy and the timeliness ofdisclosure of the defence. But most important, and that which is sometimes lost sight of, is that the failure to disclose does not mean thatthe defence of alibi is lost. It means that the failure to disclose may have an important and unfavourable consequence to an accused. Theconsequence of a failure to disclose properly an alibi is that the trier of fact “may” draw an adverse interest [sic] when weighing the alibievidence heard at trial. 13 In R. v.

Cleghorn (1995), (SCC), 100 C.C.C. (3d) 393 (S.C.C.), Iacobucci J., speaking for the majority(3:2) at 397 quoted with approval the decision of Cumming, J.A. in R. v. Letourneau (1994), (BC CA), 87 C.C.C. (3d)481 (B.C.C.A.) at 532: It is settled law that disclosure of a defence of alibi should meet two requirements: (

a) it should be given in sufficient time to permit the authorities to investigate: see R. v. Mahoney, supra, at p. 387, and R. v. Dunbarand Logan (1982), (ON CA), 68 C.C.C. (2d) 13 at pp. 62-63 ... (Ont. C.A.); (

b) it should be given with sufficient particularity to enable the authorities to meaningfully investigate: see R. v. Ford (1993), (BC CA), 78 C.C.C. (3d) 481 at pp 504-5… (B.C.C.A.). ... 14 Failure to give notice of alibi does not vitiate the defence, although it may result in a lessening of the weight that the trierof fact will accord to it. The gist of these several decisions just mentioned is that improper disclosure can only weaken alibi evidence, itcannot exclude the alibi.

Major J. in the minority judgment, concurred in by Sopinka J., noted that the rule governing disclosure of analibi is a rule of expediency. It is intended to guard against surprise evidence fabricated in the witness-box and which the prosecution isalmost powerless to challenge. 11. Finally, the trial judge in G.P.M. asked defence counsel essentially the same question as the one I asked Mr. Lemieux: [TRANSLATION] THE COURT: We do, did you inform the Crown that you were going to advance an alibi defense? Mr. ROACH: Well no, I did not because at that time I didn’t have, I just had a two month period to pick at.

I mean the only timethat I was certain that I was going to advance any type of alibi defense was when [the complainant] [got] on the stand today, cause Icouldn’t anticipate what she was going to say…” 12. In the present case, Mr. Lemieux tells us that he only was certain of having an alibi defence after the complainant had testified attrial and stated that the incident in question occurred in the fall of 1978. It was only after this testimony that he informed the Crown ofthe existence of his alibi. He claims he cannot be faulted for this.

Although the facts are similar, G.P.M. unfortunately does not dealwith a motion to amend the information; rather, it deals with the trial judge’s obligation to address the alibi defence once it has beenraised by the accused, even though notice of the defence was not given in a timely fashion. 13. The rule governing the alibi defence is one of expediency; it is not a rule of law. The danger or risk that alibi evidence may be

fabricated requires that a negative inference may be drawn when the defence of alibi is not disclosed soon enough to permit it to beinvestigated by the police. The requirement that an alibi defence be disclosed to the Crown prior to trial is an exception to anindividual’s right to silence. The right to pre-trial silence is a basic tenet of our legal system and falls within the ambit of s. 7 of theCharter. 14. The caselaw is unequivocal: the consequence of a failure to disclose properly an alibi is that the trier of facts may draw an adverseinference when weighing the alibi evidence heard at trial.

Improper disclosure can only weaken alibi evidence, it cannot exclude it. Therule is intended to eliminate the possibility of surprise alibis fabricated in the witness-box which the prosecution is almost powerless tochallenge. Disclosure is proper when it allows the prosecution and police to investigate the alibi evidence before trial. Disclosure at theearliest possible moment or disclosure by the accused him- or herself is no longer required for the criteria to be met. It should be givenin sufficient time to permit the authorities to investigate. 15.

I would be blind to reality in this case if I did not reach the conclusion that Mr. Lemieux is seeking to gain the advantage of thealibi defence without suffering the consequences of his failure to disclose. In fact, he is urging the Court to refuse to amend theinformation because he relies on the alibi defence, and at the same time, he admits that he did not disclose this alibi to the police, whichwould have allowed the police to investigate it. I do not believe this was the objective of the evolution of the caselaw, that is, to give theadvantage without taking into account the disadvantages of non-disclosure.

Instead, I believe a judge should consider the circumstancesas a whole in order to determine the reliability of the alibi as well as the obligation to disclose its existence. 16. Mr. Lemieux did not disclose the possibility of an alibi to the police. Yet he knew that his client was at Saint-Paul University inthe fall of 1978. He knew that the information filed on February 22, 2010, covered the period between January 1 and December 31,1978: a period during which his client was not in Dalhousie.

As a result, he obtained a letter from the university, dated May 18, 2010,that corroborated his client’s absence during the fall of 1978. Mr. Lemieux did not obtain this letter for nothing. The letter isspecifically linked to the alibi defence. In my opinion, Mr. Lemieux had a duty to disclose the existence of this alibi to the Crown. IfMr. Lemieux had revealed this defence, the police could have investigated further. Maybe the complainant would have realized that hewas in error; maybe not. We cannot guess what would have happened.

But one thing is certain: the failure to disclose eliminated thepossibility of a correction. 17. Moreover, it is not sufficient, in my opinion, for defence counsel to say that he did not know precisely at what date the incident inquestion occurred. No one knew exactly the precise date. It is quite normal in cases of sexual abuse to deal with complainants whocannot give the precise date of the encounters with their abuser. This is a case where an individual is testifying about an incident thattook place more than 30 years ago. Lamer, C.J., in R. v.

M.B.P., refers to this situation at paragraph 16: In this regard, I would simply note that courts, including this one, have accepted that, in cases involving offences and particularly sexualoffences against young children, absolute precision with respect to the timing of an alleged offence will often be unrealistic andunnecessary: B. (G.), supra, at p. 53; also see R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, at pp. 132-34, and Re Reginaand R.I.C. (1986), (ON CA), 32 C.C.C. (3d) 399 (Ont. C.A.), at p. 403. 18. I am of the opinion here that even with only a possibility of an alibi defence, Mr.

Lemieux had a duty to disclose it to the Crown. The period during which his client was absent covered part of the period covered in the information. Moreover, this period covered thedates specified in the complainant’s statements, which Mr. Lemieux had in his possession. He had contemplated the possibility that analibi defence might apply and acted accordingly by obtaining the letter from the university. 19. One thing is certain: Mr. Lemieux knew, at the end of the complainant’s direct testimony, that the defence would apply.

Even atthis late date in the proceedings, he could have notified the Crown of this defence. I do not know what would have resulted from thislate disclosure, but at least an effort would have been made, in a more timely fashion, to comply with the need to provide the requirednotice. Waiting until the prosecution had closed its case to give the notice caused problems, for instance, the prosecution’s motion toreopen its case to correct the complainant’s testimony. 20. In considering whether or not the information should be amended, the judge may consider the evidence adduced at trial.

This ofcourse includes the evidence of the two parties as to the dates, but the judge is not limited to this. He may consider all of the evidencepresented at trial. In fact, he must do so. The time of the offence cannot be precisely determined in this case. Moreover, thecomplainant’s testimony regarding the date of the offence does not conform with the evidence the accused gave concerning his presencein Dalhousie, the place where the offence occurred. The accused testified that he was in Dalhousie from the summer of 1975 until thesummer of 1978.

Consequently, the accused concedes that he was in Dalhousie at least part of the period indicated in the information,that is, from January 1978 to August 31, 1978, a period during which the offence, if offence there was, could have been committed.

21. How important is the date of the offence? I quote from page 53 of R. v. B. (G.), (SCC), [1990] 2 S.C.R. 30, adecision of Wilson, J.: Accordingly, when a court is faced with circumstances in which the time of the offence cannot be determined with precision or theinformation conflicts with the evidence, the first question that must be asked is whether time is either an essential element of the offenceor crucial to the defence.

It will only be in cases where this first question is answered affirmatively that the trier of fact must thendetermine whether the time of the offence has been proven beyond a reasonable doubt. If the answer to the first question is in thenegative, a conviction may result even although the time of the offence is not proven, provided that the rest of the Crown’s case isproven beyond a reasonable doubt. …Indeed, the date of the offence is not generally an essential element of the offence of sexual assault. It is a crime no matter when it iscommitted. 22. The exception of course, as I mentioned earlier, is alibi.

See page 51 of the same decision: Another circumstance which has been held on the authorities to make the time of the alleged offence critical is when an accused defendsthe charge by providing evidence of an alibi for the date or time period alleged. To hold otherwise would be to deny an accused the rightto make full answer and defence. 23. R. v. B. (G.) does not deal with a motion to amend an information, but it provides a review of the caselaw concerning theimportance of the date of the offence.

In principle, it is of no consequence if the date specified in the information differs from thatarising from the evidence. It is only where the time of the offence is critical and the accused may be misled by the variance (andpossibly prejudiced in his or her defence) that the time of the offence is material. The date of the offence need not even be proven inorder for a conviction to result unless time is an essential element of the offence (see R. v. B.(G.) at page 49).

This is consistent with s.601(4.1) which provides that a variance between the indictment and the evidence is not material with respect to the time of the offence. 24. Turning now to the matter at hand. Mr. Lemieux must have known that the date of the offence would not be establishedprecisely. It is alleged that the incident took place more than 30 years ago. The statements he received indicated that the incident hadoccurred in 1978 or 1979. The information told him that the incident had occurred in 1978.

Before the complainant testified, Mr.Lemieux did not know that he was going to say that the offence took place during the fall of 1978. Mr. Lemieux had to prepare hisdefence accordingly, which meant that he had to prepare for the possibility, if not the certainty, that the complainant’s testimony wouldcover a longer period of time with respect to the offence. Consequently, he did not prepare for trial solely on the basis of the alibidefence and he would have been lacking in foresight if he had done so in this case because the date of the offence is generally not anessential element in cases of sexual assault. 25.

I can therefore conclude that alibi was not the only defence contemplated by Mr. Lemieux. I would even venture so far as to saythat it was not his main defence. I rely in part on his acceptance of the identification of his client at trial. As the Ontario Court ofAppeal stated in R. v.

C.(T.W.) (2006), (ON CA), 209 O.A.C. 119, at paragraph 31: 31 In order to constitute an alibi, the evidence at issue must be determinative of the final issue of guilt or innocence of the accused.In essence, such evidence contemplates that it was impossible for the accused to have committed the crime charged because, at thetime of its commission, the accused was elsewhere: R. v. Hill (1995), (ON CA), 102 C.C.C. (3d) 469 (Ont. C.A.) at478-79. 26. I repeat: alibi means elsewhere. If Mr. Picot was elsewhere at the time the offence was committed, he could not possibly havecommitted it.

If this is the case, I cannot see how the identification of the accused would not be disputed in a case where the defence isbased on alibi. Page 16-194 of Criminal Pleadings and Practice in Canada, 2d Edition, Ewaschuk, contains the following: It has alsobeen stated that in practice the accused, in pleading alibi, does not deny that the crime was committed, but denies that he committed it. Ido not mean to say that Mr. Lemieux admitted that his client had committed the offence. I simply mean that by not disputing theidentification, he must have been thinking of a defence other than alibi. 27.

Thus, in my opinion, alibi was not critical to the defence in this case. The alleged incident could have occurred during the periodcovered in the information, notwithstanding that the accused was absent for a certain period of time. In other words, the incident couldhave occurred between January 1 and August 31, 1978. His alibi did not cover the entire period of time.

28. Finally, I do not consider that the accused would be misled or prejudiced in his defence if I were to allow the amendment. Nor doI believe, having regard to the merits of the case, that the proposed amendment results in unfairness to him. In fact, this defence landedin his lap at the last minute with the unanticipated testimony that circumscribed the date of the commission of the offence to the fall of1978. 29.

Considering all of the relevant factors in this case, I find that the administration of justice would be better served if the guilt orinnocence of the accused was determined on the merits of the case rather than on the possibility that the complainant made an error withrespect to the date of the offence. The accused knew from the outset what he was accused of. There was nothing unusual about thenature of the allegation. Needless to say, a judge must take into consideration all of the issues pertaining to and arising out of the trial,including the credibility of the parties. 30.

The words of Vallerand, J.A., of the Quebec Court of Appeal in R. v. Attias, [1990] Q.J. No. 414, are relevant to this case andworth repeating: [TRANSLATION] There is no question that — and s. 601(4.1)(

a) of the Criminal Code says so — a variance between the alleged date and the proven dateis not material. In short, if a date is alleged and another one is proven, the accused will not be acquitted based on the sole ground, whichrepresents a technicality in the circumstances, that he has established an alibi for the first date. Whether or not the date entered on theinformation is amended and this is an administrative matter, the accused will be tried on the evidence pertaining to the essence of theoffence… 31.

Consequently, pursuant to s. 601(2) of the Criminal Code, I will amend the information to make it conform to the evidence. Thedate of January 1, 1978, will be replaced with July 1, 1975, the date on which Charles Picot moved to Dalhousie.

Signed at Campbellton, New Brunswick, on February 8, 2011. _______________________ Ronald LeBlanc Judge of the Provincial Court Para. 25 – Citation to be added in the French version: [TRADUCTION] Afin de constituer un alibi, la preuve en question doit permettre de conclure, en définitive, à la culpabilité ou à l’innocence de l’accusé.Essentiellement, une telle preuve signifie qu’il aurait été impossible pour l’accusé d’avoir commis le crime puisque, au moment de saperpétration, l’accusé se trouvait ailleurs : R. c. Hill (1995), (ON CA), 102 C.C.C. (3d) 469 (C.A. Ont.), aux pages 478-479.

Para. 26 – line 5 - Citation to be added in the French version: [TRADUCTION] Il a également été déclaré qu’en pratique, l’accusé qui avance un alibi ne nie pas qu'un crime ait été commis mais plutôt qu'il en ait étél’auteur.