2013 NBCA 26, 2013 NBCA 26

COURT OF APPEAL OF NEW BRUNSWICK 127-11-CA CHARLES PICOT APPELLANT CHARLES PICOT APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Picot v. R., 2013 NBCA 26 Picot c.

R., 2013 NBCA 26 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge en chef Drapeau L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Provincial Court: May 5, 2011 (conviction) Appel d’une décision de la Cour provinciale : Le 5 mai 2011 (déclaration de culpabilité) History of Case: Historique de la cause : Decision under appeal: 2011 NBCP 19 , 2011 NBPC 19 Décision frappée d’appel : 2011 NBCP 19 Preliminary or incidental proceedings: [2011] N.B.J.

No. 387 (QL) Procédures préliminaires ou accessoires : [2011] A.N.-B. no 387 (QL) Appeal heard: September 11, 2012 Appel entendu : Le 11 septembre 2012 Judgment rendered: April 18, 2013 Jugement rendu : Le 18 avril 2013 Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard

Concurred in by: The Honourable Chief Justice Drapeau The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge en chef Drapeau L’honorable juge Bell Counsel at hearing: For the appellant: Robert Carew For the respondent: François Doucet, Q.C. Avocats à l’audience : Pour l’appelant : Robert Carew Pour l’intimée : François Doucet, c.r. THE COURT The appeal against conviction is dismissed. The judgment of the Court was delivered by RICHARD J.A. I.

Introduction [1] Charles Picot was charged on an information alleging he had, between January 1 and December 31 of 1978, committed an indecent assault on a male person (s. 156 of the Criminal Code as it then read). His trial in the Provincial Court pitted the testimony of a single prosecution witness against that of the accused. The complainant alleged Mr. Picot, who was then a parish priest, had, on a single occasion, touched his penis as the two were sitting in a living room listening to music from the Saturday Night Fever album.

The complainant was not unequivocal on the date of the offence, inferring from other contemporaneous events occurring more than 30 years ago that it might have taken place in the fall of 1978. Mr. Picot not only denied the incident, but also established he had left the parish by the end of August

1978. [2] Giving effect to a prosecution motion made after the evidentiary portionof the trial, the judge amended the information to conform to the evidence andbroadened the dates set out in the information to read between July 1, 1975, andDecember 31, 1978. [3] On May 5, 2011, the trial judge convicted Mr. Picot. The judge neitherbelieved the accused nor was he left with a reasonable doubt. Mr. Picot appeals hisconviction. He does not challenge any of the judge’s credibility findings nor doeshe attack the reasonableness of the verdict.

Instead, he bases his appeal solely on thejudge’s decision to (1) amend the information, and, in doing so, (2) disregard what hesays was an “alibi”. [4] For the reasons given below, I would dismiss the appeal. In my view, therecord reveals it was not necessary for the judge to amend the information toencompass such a broad period of time, but his decision to do so was of no realconsequence. The record establishes the incident alleged occurred between December14, 1977, and the end of August the following year. An amendment to cover thosedates would have been sufficient. As explained below, Mr.

Picot could not possiblyhave been prejudiced by such an amendment. II. Background [5] To put this appeal in full context, it is necessary to review the trialproceedings in some detail. [6] As stated earlier, the information initially charged Mr. Picot with anindecent assault alleged to have occurred between January 1 and December 31, 1978. As is often the case in matters involving sexual crimes, committed long ago but onlyrecently reported, the evidence pitted the testimony of the complainant against that ofthe accused.

In this case, like many other such cases, the critical determination iswhether the judge is left with a reasonable doubt after assessing the matter pursuantto the framework laid out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742,[1991] S.C.J. No. 26 (QL). [7] In direct examination, the complainant was questioned on the chronology

of his youth. He was born in November 1964. After living in various locations, his family moved from Chatham to the Dalhousie region, first to New Mills, where he attended the Notre Dame School for grade seven, and then, the next summer, to Catherine Street in Dalhousie where he entered grade eight at the L. E. Reinsborough School (“L.E.R.”). The complainant specifically recalled celebrating his 13 th birthday at that school. He graduated in 1982. [8] The complainant did not know Mr. Picot until after his family had moved to the Catherine Street home.

He met him when he and his brother became involved with the Scout movement after they had relocated to Dalhousie. He found Mr. Picot to be a “very warm and charismatic gentleman” and enjoyed the attention he was getting from him. So he “began to trust him” and considered him “like a best- friend.” At one point, Mr. Picot took him on a day trip to Bathurst. The complainant recalled Mr. Picot lived in the rectory and was able to provide a general description of the place. He recounted that on one particular afternoon he had been invited to visit Mr. Picot in his apartment at the rectory. Mr.

Picot played a music album from Saturday Night Fever , which he had just purchased, and made a comment “to the effect he enjoyed the movie so that’s why he bought the album.” He described how Mr. Picot was sitting in a “big padded” chair and how he invited the boy to join him there. He sat on Mr. Picot’s lap, like a child would sit on a Santa Claus at a shopping centre, and Mr. Picot put his arms around him. The complainant testified that at some point Mr.

Picot “placed his hand down my trousers and touched my penis.” The complainant does not recall all that happened afterward, only that he “objected to being touched like that.” He remembers eventually leaving the rectory never to return. [9] Under cross-examination, the complainant steadfastly maintained the incident in question occurred after his family had moved to the Catherine Street home and after he had started grade eight at L.E.R.

He was not positive of the year, stating, however, he was “comfortable” saying 1978 because he believed he was thirteen years old when he started grade eight and would have turned fourteen in November of 1978. No one raised the glaring inconsistency between this and the complainant’s earlier very firm assertion he had celebrated his 13 th birthday at L.E.R.

The complainant testified he did not skip any grades, but he was very uncertain of the dates when he started and finished any particular grade, answering “No sir I’m not” when asked if he was positive he started his grade eight in the fall of 1978, and “Yeah, I guess” when it was suggested he had finished grade eight in June of 1979. [10] After the prosecution closed its case, Mr. Picot’s counsel revealed his client’s intention to put forth an alibi defence. In the aftermath of this, the prosecution asked to re-open its case so that it could show that the complainant had

miscalculated the years by one, and that it was in 1977, not 1978, when he enrolled in grade eight at L.E.R. [11] Mr. Picot’s lawyer opposed the motion. During his argument, he stated the Saturday Night Fever movie had been launched on December 14, 1977, and argued that, as a result, if the incident occurred in the fall, it would necessarily have been the fall of 1978. However, he revealed he was going to establish that from the end of August, his client was no longer in Dalhousie. [12] The judge denied the prosecution’s request, so the trial resumed with the testimony of Mr.

Picot, who explained he had been assigned to the parish in Dalhousie starting at the end of July 1975, where he remained as a priest until the end of August 1978, when he went on to pursue advanced studies in Ottawa. He produced a document in support of his testimony, which was eventually admitted into evidence. No one has taken issue with the trial judge’s eventual finding that Mr. Picot in fact left Dalhousie at the end of August 1978. [13] In direct examination, Mr. Picot’s testimony focused almost exclusively on his absence from Dalhousie in the fall of 1978.

As to the complainant’s allegations, he gave but a flat denial. [14] In cross-examination, however, Mr. Picot made some critical admissions.

He confirmed having known the complainant as a boy through the Scout movement; he did not deny he might have taken the complainant on a road trip to Bathurst after getting to know him, stating such an event was quite possible; he confirmed features of the complainant’s description of the rectory, and in particular admitted to having a large room in his apartment wired with a sophisticated sound system; he confirmed his love of music, and agreed he had likely bought the Saturday Night Fever album and played it for the complainant. [15] Once all the evidence was heard, the prosecution moved to amend the information to broaden the dates of the alleged offence.

Crown counsel submitted the judge had the power to amend the information to conform to the evidence. He argued there was no real prejudice to the accused because the exact date is not a key ingredient of the offence and Mr. Picot was not relying on a total alibi. In addition, he pointed out that Mr. Picot had effectively admitted much of what the complainant had described. For his part, Mr. Picot’s counsel opposed the motion to amend. He argued Mr. Picot would be prejudiced.

He repeated that the Saturday Night Fever movie had been released on December 14, 1977, and that since the complainant had testified the incident had occurred in the fall, he had to mean the fall of 1978, being a

time when Mr. Picot was no longer in Dalhousie. [16] The trial judge’s ruling on the motion to amend the information is reported at 2011 NBPC 4 , 376 N.B.R. (2d) 202 . The judge set the stage by summarizing the situation as follows: [TRANSLATION] […] Mr. Lapointe [who waived his right to have his identity protected in a publication ban] 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. 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. [paras. 3- 4] [17] The judge noted that s. 601 of the Criminal Code allows a court to amend an information to conform to the evidence, and pointed out that in considering whether or not an amendment should be made, the judge must consider a number of factors, including whether the accused has been misled or prejudiced in his defence.

He underlined that, with regard to the date of the offence, s. 601(4.1) provides that a variance relating to the time of the offence is not material so long as the prosecution was brought within any prescribed period of limitation. The judge phrased the key issue as whether the amendment should be made considering [TRANSLATION] “the

fact the accused is relying, at least in part, on the defence of alibi” (para. 9). Thejudge examined both the nature of an alibi defence and the rule of “expediency” thatrequires the defence to disclose an alibi early in the process lest it face the danger anegative inference might be drawn if there is insufficient time to investigate it. [18] The judge faulted Mr. Picot’s counsel for not disclosing the alibi earlier inthe process, stating that he was [TRANSLATION] “seeking to gain the advantage ofthe alibi defence without suffering the consequences of his failure to disclose” (para.15).

He concluded defence counsel [TRANSLATION] “had a duty to disclose it to theCrown” (para. 18), having earlier observed that [TRANSLATION] “the failure todisclose eliminated the possibility of a correction” (para. 16), meaning that thecomplainant might have realized his error regarding the date. [19] Having said this, the judge then reminded himself that in deciding whetheror not to amend the information, he must consider all of the evidence. He continuedas follows: [TRANSLATION] How important is the date of the offence? I quote from page 53 ofR. v.

B. (G.), (SCC), [1990] 2 S.C.R. 30, a decision of Wilson, J.: Accordingly, when a court is faced with circumstances in which the time of theoffence cannot be determined with precision or the information conflicts with theevidence, the first question that must be asked is whether time is either an essentialelement of the offence or crucial to the defence. It will only be in cases where this firstquestion is answered affirmatively that the trier of fact must then determine whetherthe time of the offence has been proven beyond a reasonable doubt.

If the answer tothe first question is in the negative, a conviction may result even although the time ofthe offence is not proven, provided that the rest of the Crown's case is proven beyonda reasonable doubt. ... Indeed, the date of the offence is not generally an essential element of the offence ofsexual assault. It is a crime no matter when it is committed. The exception of course, as I mentioned earlier, is alibi.

See page 51 of the samedecision: Another circumstance which has been held on the authorities to make the time of thealleged offence critical is when an accused defends the charge by providing evidence

of an alibi for the date or time period alleged. To hold otherwise would be to deny anaccused the right to make full answer and defence. R. v. B. (G.) does not deal with a motion to amend an information, but it provides areview of the caselaw concerning the importance of the date of the offence. Inprinciple, it is of no consequence if the date specified in the information differs fromthat arising from the evidence. It is only where the time of the offence is critical andthe accused may be misled by the variance (and possibly prejudiced in his or herdefence) that the time of the offence is material.

The date of the offence need not evenbe proven in order for a conviction to result unless time is an essential element of theoffence (see R. v. B.(G.) at page 49).

This is consistent with s. 601(4.1) which providesthat a variance between the indictment and the evidence is not material with respectto the time of the offence. [paras. 21-23] [20] Turning to the matter at hand, the judge concluded that [TRANSLATION]“alibi was not critical to the defence in this case,” explaining that the[TRANSLATION] “alleged incident could have occurred during the period coveredin the information, notwithstanding that the accused was absent for a certain periodof time” (para. 27). He therefore concluded that Mr.

Picot [TRANSLATION] “wouldnot be misled or prejudiced in his defence” by an amendment to the information,pointing out that any defence of alibi [TRANSLATION] “landed in his lap at the lastminute with the unanticipated testimony that circumscribed the date of thecommission of the offence to the fall of 1978” (para. 28). [21] In the result, the information was amended by replacing the date ofJanuary 1, 1978, with that of July 1, 1975, [TRANSLATION] “the date on whichCharles Picot moved to Dalhousie.” [22] Counsel then made their final arguments and, on May 5, 2011, courtreconvened for the verdict.

The reasons for conviction are reported at 2011 NBCP 19, 2011 NBPC 19, 373 N.B.R. (2d) 366. [23] In his assessment of the evidence, the trial judge found the complainant’stestimony regarding the possible date of the incident was incorrect. He noted thecomplainant’s admission that he suffered from memory problems. The judgeconsidered and weighed these factors but nevertheless believed the complainant’saccount of the event. He found the complainant to have been sincere, and was

impressed by his candour in admitting the limitations of his recollection. The complainant was given credit for not having tried to fill in any gaps in his testimony with conjecture. Instead, he simply admitted he did not recall certain details of events that had taken place over 30 years ago. The judge noted the details that were clearly recalled were those one would expect would be remembered by someone who had suffered the indignity of an assault of this type. He found the complainant had not exaggerated the incident, which he had described as a single episode of touching.

In making his credibility findings, the judge also noted Mr. Picot had himself confirmed portions of the complainant’s testimony. [24] On the other hand, the judge did not believe Mr. Picot’s blunt denial of the incident. He characterized the accused’s testimony as often vague and more of an attempt to speculate than to relate his actual recollection. The judge also considered some of the accused’s testimony as implausible, such as his statement that all youths in the Dalhousie area had an open invitation to come to the rectory to socialize. The judge noted that very little of Mr.

Picot’s testimony related to his relationship with the complainant. The testimony was brief, and focused particularly on the fact Mr. Picot had left the Dalhousie area in August of 1978. [25] The judge applied the law to the facts, reminding himself of the presumption of innocence and the burden on the prosecution to prove the offence beyond any reasonable doubt. He followed the analysis set out in R. v. W.(D.) , recognizing that a criminal trial is not a process of preferring the testimony of one witness over that of another. In the end, the judge concluded the offence had been proven beyond a reasonable doubt.

III. Issues on Appeal [26] Mr. Picot appeals his conviction alleging that the judge erred in (1) amending the information, (2) holding that the time of the offence was not crucial in the circumstances, (3) concluding the alibi was not critical to the defence, (4) holding the defence had to disclose its alibi to the prosecution, and (5) considering that the disclosure of the alibi defence would have enabled the complainant to correct his testimony rather than enable the authorities to investigate its reliability. IV. Analysis

[27] As stated at the outset, Mr. Picot does not challenge the judge’s credibilityfindings, nor does he claim the verdict is unreasonable. He disputes only the judge’sruling in favour of amending the information. [28] At trial, no one took issue with what was described throughout this case asan “alibi.” Mr. Picot testified he was not in Dalhousie after the end of August 1978and adduced some document to support his contention. No one focused on whetherthe document actually proves an alibi, and no one attacked the credibility of Mr.Picot’s testimony on that point. The judge accepted as a fact Mr.

Picot was not inDalhousie in the fall of 1978. For the purposes of these reasons, I need say nothingfurther on this point and will consider that Mr. Picot had an alibi for the periodbeginning at the end of August 1978. [29] As in most appellate analyses, it is important to determine the applicablestandard of review. That determination is informed by the nature of the questionunder appeal: here the amendment of an information to conform with the evidence onthe question of time.

Section 601(6) provides that “[t]he question whether an order toamend an indictment or a count thereof should be granted or refused is a question oflaw”. In light of this, it follows the standard of review is one of correctness. [30] I will first address the last two grounds of appeal, being whether the trialjudge erred in holding the defence had to disclose its alibi to the prosecution, and inconsidering as a factor that this disclosure might have enabled the complainant tocorrect his testimony. [31] The law on disclosure of an alibi defence is summarized in R. v.

Cleghorn, (SCC), [1995] 3 S.C.R. 175, [1995] S.C.J. No. 73 (QL). The issue inthat case was whether a statement made by the mother of an accused was sufficientdisclosure. For the majority, Iacobucci J. stated as follows: As stated above, the consequence of a failure to disclose properly an alibi is that thetrier of fact may draw an adverse inference when weighing the alibi evidence heard attrial (Russell v. The King (1936), (SCC), 67 C.C.C. 28 (S.C.C.), at p.32.) However, improper disclosure can only weaken alibi evidence; it cannot excludethe alibi.

My colleague correctly notes that the rule governing disclosure of an alibi isa rule of expediency intended to guard against surprise alibis fabricated in thewitness-box which the prosecution is almost powerless to challenge. Again, as notedby my colleague, the development of the rule since its formulation in Russell showsthat the rule has been adapted to conform to Charter norms. As such, disclosure isproper when it allows the prosecution and police to investigate the alibi evidencebefore trial. The criteria of timeliness and adequacy are thus evaluated on the basis of

whether a meaningful investigation could have been undertaken as a result ofdisclosure. The flexibility of the standard is demonstrated by the fact that neitherdisclosure at the earliest possible moment, nor disclosure by the accused him- orherself is required in order for the criteria to be met. Third party disclosure issufficient. [para. 4] [Emphasis added.] [32] On this point, the Court was unanimous in Cleghorn.

The majority andminority reasons parted company only on the question of whether, on the facts of thatcase, the information said to constitute the alibi had provided the authorities withsufficient particulars so as to enable them to meaningfully investigate. [33] In law, there is therefore no obligation on an accused person to disclose analibi defence to the prosecution. The trial judge initially recognized this as hereviewed the decision of this Court in R. v. G.P.M. (1996), (NBCA), 171 N.B.R. (2d) 311, [1996] N.B.J. No. 4 (QL), which applies Cleghorn.

However,the judge went astray when he held that defence counsel [TRANSLATION] “had aduty to disclose [the alibi defence] to the Crown” (para. 18). The trial judge reasonedas follows: [TRANSLATION] In my opinion, Mr. Lemieux had a duty to disclose the existence ofthis alibi to the Crown. If Mr. Lemieux had revealed this defence, the police couldhave investigated further. Maybe the complainant would have realized that he was inerror; maybe not. We cannot guess what would have happened.

But one thing iscertain: the failure to disclose eliminated the possibility of a correction. [para. 16] [34] In my view, there was no such duty on defence counsel. As the statement oflaw from Cleghorn demonstrates, the failure to give timely and sufficiently detailednotice of the alibi might have serious consequences in assessing the value of thedefence. It does not, however, make the evidence inadmissible. It follows that there isno duty to disclose.

Furthermore, since there was no duty to disclose the alibi, itfollows that the consequences which might have flowed from such disclosure, such asthe complainant correcting his testimony, are irrelevant considerations indetermining whether or not to amend the information. [35] Although I find error in the judge’s reasoning, I find none in his ultimate

decision to amend the information. In other words, the error was harmless. I find no merit to the first three grounds of appeal, which I will now address together. [36] The motion to amend fell to be determined in accordance with the criteria set out in s. 601 of the Criminal Code and the governing interpretative case law. The relevant portions of s. 601 read as follow: Amendment where variance 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. […] Matters to be considered by the court

(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; Modification en cas de divergence 601.

(2) Sous réserve des autres dispositions du présent article, un tribunal peut, lors du procès sur un acte d’accusation, modifier l’acte d’accusation ou un des chefs qu’il contient, ou un détail fourni en vertu de l’article 587, afin de rendre l’acte ou le chef d’accusation ou le détail conforme à la preuve, s’il y a une divergence entre la preuve et :

a) un chef de l’acte d’accusation tel que présenté;

b) un chef de l’acte d’accusation : (

i) tel que modifié, (ii) tel qu’il l’aurait été, s’il avait été modifié en conformité avec tout détail fourni aux termes de l’article 587. […] Ce que le tribunal examine

(4) Le tribunal examine, en considérant si une modification devrait ou ne devrait pas être faite :

a) les faits révélés par la preuve recueillie lors de l’enquête préliminaire;

b) la preuve recueillie lors du procès, s’il en

(

c) the circumstances of the case; (

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

e) whether, having regard to the merits of thecase, the proposed amendment can be madewithout injustice being done. Variance not material

(4.1) A variance between the indictment or acount therein and the evidence taken is notmaterial with respect to (

a) the time when the offence is alleged tohave been committed, if it is proved that theindictment was preferred within theprescribed period of limitation, if any; or (

b) the place where the subject-matter of theproceedings is alleged to have arisen, if it isproved that it arose within the territorialjurisdiction of the court. est;

c) les circonstances de l’espèce;

d) la question de savoir si l’accusé a été induiten erreur ou lésé dans sa défense par unedivergence, erreur ou omission mentionnéeau paragraphe (2) ou (3);

e) la question de savoir si, eu égard au fondde la cause, la modification projetée peut êtreapportée sans qu’une injustice soit commise. Divergences mineures

(4.1) Une divergence entre l’acte d’accusationou l’un de ses chefs et la preuve recueillieimporte peu à l’égard :

a) du moment où l’infraction est présuméeavoir été commise, s’il est prouvé que l’acted’accusation a été présenté dans le délaiprescrit, s’il en est;

b) de l’endroit où l’objet des procédures estprésumé avoir pris naissance, s’il est prouvéqu’il a pris naissance dans les limites de lajuridiction territoriale du tribunal. [37] Determining whether or not to amend the information did not require acomplicated analysis. It simply required the judge to (1) determine whether there wasa variance between the information and the evidence, and (2) consider the factorsenumerated in s. 601(4). No one argued there was no variance, so the first step wasmet.

As for the second, the only factor from s. 601(4) in issue was whether theaccused would have been misled or prejudiced in his defence. [38] The analytical framework for determining the question is informed by R. v.B. (G.), (SCC), [1990] 2 S.C.R. 30, [1990] S.C.J. No. 58 (QL). Inthat case, three appellants were acquitted after a trial judge refused a motion toamend an information, and then concluded the date a sexual assault had beencommitted upon a young child had not been proven beyond a reasonable doubt. Boththe Saskatchewan Court of Appeal and the Supreme Court of Canada held the trialjudge had erred.

Writing for the Supreme Court, Wilson J. conveniently summarized

her conclusions on the legal principles that govern amendments: 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. [para. 43] [39] There is no suggestion here that time was an essential element of the offence. As Wilson J. pointed out in B.(G.) , “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 [was] committed” (para. 45). In my view, the same applies to the indecent assault with which Mr. Picot was charged.

The only real question in addressing the first three grounds of appeal is therefore whether proof of time was crucial to the defence. I conclude it was not. [40] As Wilson J. discusses in B.(G.) , there may be instances where the effect of an amendment could take away an alibi defence. In such cases, it may be that time can be said to be crucial to the defence. However, as a general proposition, “[t]he fact that an accused may have an alibi for the period (or part of the period) described in an indictment [or information] does not necessarily or automatically ‘freeze’ the dates

specified in that indictment”: R. v. P.(M.B.), (SCC), [1994] 1 S.C.R.555, [1994] S.C.J. No. 27 (QL), at para. 17. [41] This last-mentioned case has some factual similarities to the present one. As here, the defence disclosed its intention to prove an alibi after the prosecution hadclosed its case. Unlike the situation here, however, the judge in P. (M.B.) allowed theprosecution to recall a witness to correct her testimony regarding the time of theoffence, after which the judge amended the indictment.

A simple majority of theSupreme Court found the judge had erred in allowing the prosecution to re-open itscase after the defence had announced its intention. On that basis alone, theconvictions stood to be quashed. The majority made some general comments on thequestion of the amendment, but eventually observed that the appeal could bedismissed without considering that issue. As for the minority, they would haveallowed the appeal on the basis that it was neither improper for the judge to allow theprosecution to re-open its case nor to allow the amendment.

Those judges“underline[d] the difficulty of children pinpointing the exact time of incidents whichhave occurred several years before, but which they are able to define in terms ofother contemporaneous matters” (para. 52). [42] The ratio of P.(M.B.) has no application to this appeal because, in thepresent case, the trial judge refused to allow the prosecution to re-open its case. P.(M.B.) certainly does not stand for the proposition that the subsequent amendmentwas not proper.

To the contrary, the four dissenting judges would have specificallyruled the amendment proper, while the majority judges, though not technically rulingon the question, recognized this as well. In any event, it is B.(G.) that sets out theprinciples governing amendments, not P.(M.B.). [43] This is not one of those cases where the individual circumstances of theparticular case would require greater precision as to time because of a paucity ofother factual information to identify the transaction. At all material times, Mr.

Picotwould have been aware that what he had to defend was an allegation he hadindecently assaulted the complainant during the period he was a parish priest inDalhousie. He would have known the incident could not have occurred after he hadmoved to Ottawa. As he admitted, he knew the boy and did socialize with him in hisapartment. In other words, there were other contemporaneous factors in theinformation provided to Mr.

Picot that would have allowed him to identify thetransaction that was the subject of the charge. [44] First, the complainant clearly recalled the music from the Saturday NightFever album being played at the time of the incident and Mr. Picot saying he hadrecently seen the movie. No one challenged this testimony. Without objection from

Crown counsel, defence counsel informed the Court the movie had been launched on December 14, 1977. It follows that Mr. Picot would have been aware from this fact that the transaction had allegedly occurred after December 14, 1977. [45] Second, the complainant clearly recalled celebrating his 13 th birthday when he was a student at the L.E.R. Again, this evidence went unchallenged.

Since he was born in November 1964, simple mathematics places him at that school for his 13 th birthday in November 1977. [46] Third, the complainant testified not having missed any grades and having entered grade 8 at the L.E.R. school. He graduated in 1982, when he would have been seventeen years old. Since he turned seventeen while in grade 12, by simple subtraction it is obvious he turned sixteen while in grade 11, fifteen while in grade 10, fourteen while in grade 9 and thirteen while in grade eight.

Thus, he entered grade eight when he was twelve years old in September 1977 and turned thirteen in November of that year. [47] From the evidence, it is therefore abundantly clear the complainant moved with his family to the Catherine Street address in the summer of 1977. He entered grade eight in September of that year and, together with his brother, joined the Scouts, where he met Mr. Picot. Sometime after December 14, 1977, and before Mr. Picot left Dalhousie for Ottawa at the end of August 1978, the complainant was the victim of an indecent assault at the hands of Mr.

Picot, in the manner found by the trial judge. The alibi for the period after August 1978 was simply not crucial to the defence at all. The complainant did not unequivocally establish dates between which he alleged the offence had been committed. Close scrutiny of the complainant’s testimony reveals he was simply not sure of the actual year, but he was certain it was after he had started grade eight at L.E.R. because it is only after that time that he met Mr. Picot.

The year 1978 was put to him in cross-examination and he simply indicated his “comfort” with it in the belief that was the year he entered grade eight. It was only then that the alibi became somewhat relevant, but it lost all relevance when the trial judge accepted as a fact the complainant simply erred in his calculation of the year. [48] In

summary, the facts established at trial revealed the offence could only have been committed between December 14, 1977, and the end of August 1978. The information should have been amended accordingly because, on an examination of the factors set out in s. 601(4), the amendment could not possibly prejudice Mr. Picot in his defence or create an injustice. While the amendment made at trial may technically have been overly broad because it extends the period back to 1975, this, of itself, could not possibly have caused Mr. Picot any prejudice. The broad-reaching

amendment as to time was simply a reflection of the fact that time was neither an essential element of the offence nor crucial to the defence. V. Disposition [49] For these reasons, I would dismiss Mr. Picot’s appeal. _________________________________ J. C. MARC RICHARD, J.A. WE CONCUR: ___________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ___________________________________ B. RICHARD BELL, J.A