2016 QCCA 1566, 2016 QCCA 1566

White c. R. 2016 QCCA 1566 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005922-156 (505-01-116144-136) MINUTES OF THE HEARING DATE: September 20, 2016 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. JEAN BOUCHARD, J.A. MARTIN VAUCLAIR, J.A. APPELLANT COUNSEL DAVID WHITE Mtre MARIE-PIER BOISVERT (Dubois et Associé

s) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre MARC-ANDRÉ DAGENAIS (Directeur des poursuites criminelles et pénales) On appeal from a judgment rendered on June 5, 2015 by the Honourable Judge Ann-Mary Beauchemin of the Court of Quebec, District of Longueuil. DESCRIPTION : Conviction - Art. 264.1 (1) a)

(2) a) Cr.C .. Clerk: Mihary Andrianaivo Courtroom: Pierre-Basile-Mignault

HEARING 10:32 Start of the hearing. Submissions by Mtre Boisvert. 10:35 Submissions by Mtre Dagenais. 10:53 Rebuttal by Mtre Boisvert. 10:56 Recess. 11:19 Resumption of the hearing. BY THE COURT: Judgment- See page 3. 11:20 End of the hearing. Mihary Andrianaivo Clerk BY THE COURT JUDGMENT [ 1 ] David White appeals the judgment of the Court of Quebec (the Hon. Ann-Mary Beauchemin), District of Longueuil, that found him guilty of the offence of uttering a death threat contrary to s. 264.1(1) (

a) Cr.C . [1] The issues are as follows: (1) whether the trial judge improperly permitted an amendment to the count in the indictment by changing the given name of the alleged victim of the threat prior to any evidence having been called; (2) whether the trial judge breached the appellant's right to remain silent by questioning him before any evidence was called and when he was not under oath; and, (3) whether the trial judge deprived the appellant of a fair trial by reason of her attitude during the conduct of the trial and the nature of her interventions in the examination of witnesses, thus creating a reasonable apprehension of bias. [ 2 ] It will be seen from the foregoing that Mr.

White is not challenging the trial judge's assessment of the evidence adduced at trial, during which he testified after she denied the Crown a postponement but authorized an amendment to the indictment, the effect of which was to circumvent the need for the postponement. The Court will consider the first two issues together and then examine the last one. 1.

The amendment to the indictment and the alleged breach of the appellant's right to remain silent . [ 3 ] The fact that the Crown had to apply to amend the indictment at trial is the direct result of a sequence of factors. [ 4 ] The given name of the alleged victim of the death threat that appeared in the indictment drafted in English was "Michel" Oligny. In fact, "Michel" was the given name of the alleged victim. [ 5 ] Second, Mr.

White had elected to be tried by a provincial court judge, with the result that a preliminary inquiry had not been held. [ 6 ] Third, the alleged victim of the death threat was not the person to whom Mr. White was charged with having uttered it. Rather, the Crown's case was that he made the threat to Peter Tsalamandris, someone who happened to be working as a manager at a pool hall bar on the evening in question. Mr.

White had gone there with a view to picking up some personal effects that "Mickey", who apparently was then dating his former girlfriend, Paméla Picard, would have left there for him. [ 7 ] Fourth, the case had been scheduled and called for trial on two previous occasions, but did not proceed for any reason attributable to Mr. White. [ 8 ] Fifth, the Crown had given a copy of a statement from the intended victim of Mr. White's alleged threat to his defence counsel

as part of its pre-trial disclosure obligations. [2] [ 9 ] Sixth, on the day of the trial, the Crown learned for the first time that Mr. Oligny's testimony would be necessary to establish that he was the person about whom Mr. White conveyed the threat to Mr. Tsalamandris. He had advised the Crown counsel that he would testify that a person he knew only as "Mickey" was the alleged victim of the threat. Crown counsel also learned that Mr. White would not be making any admissions of fact. [ 10 ] Michel Oligny's absence resulted in the Crown seeking a postponement, which Mr. White's counsel opposed.

In the course of the exchange on this subject between the judge and both counsel, the judge asked Mr. White's counsel what his client did for a living. Instead of his counsel, however, Mr. White answered the judge's question. Here is the text of that exchange: The Court : "…" What does your client [3] do for a living, for a job? Mr. David White : I'm a painter. The Court : And you're [4] currently employed? Mr. David White : Yes. The Court : And you're telling me you're missing work every time you come to court? Mr.

David White : Yes, every time I come to court, I have to call off. [ 11 ] The judge then asked another question that seemed to be directed to Crown counsel or Mr. White's counsel or to both of them, since she referred to Mr. White in the third person as "the accused". Nevertheless, Mr. White answered. The Court : And if I may one more question, what's the relation between the accused and the alleged victim, Mr. Oligny? Mr. David White : Mr. Oligny was a friend of mine. Because I was … The Court : Somebody known to you ? [5] Mr.

David White : Yes, yes, we were friends at one time. [6] [ 12 ] The judge thereupon dismissed the Crown's application for a postponement. In doing so, she said this to Crown counsel: I think I've heard enough in order to reach a decision. So, Mr. David White is before the Court today for his trial that was unusually scheduled for this afternoon. I understand that there's a witness here, Mr. Tsalamandris, who came and I thank you for being here, but unfortunately, for the Crown, I don't see that the request should be granted for postponement because of the fact that it's been scheduled for trial.

I understand it's not by

summary conviction, but still it seems to be a quite simple matter. There's only one count remaining. We're talking about the charge of having a third threat to cause bodily harm to somebody by the name Michel Oligny, and that person has not subpoenaed to testify, to come to court today. And I think he should have been and especially in the light that I'm told that at the last court date, on sixteenth (16 th ) of March, Mr. Tsalamandris was here and he met with the Crown prosecutor at the time, maitre Giroux. So, she should have been aware that Mr.

Oligny's presence was necessary to show, to establish all the evidence in order to have a conviction against Mr. White on the charge as pressed and also the fact that it's the third time for trial . [Emphasis added.] [ 13 ] Crown counsel then applied to amend the count in the indictment to change the given name of the alleged victim from "Michel" to "Mickey". Counsel for Mr. White opposed the application. She reminded the judge that the Crown would not have been able to make proof of the alleged victim's identity as "Michel Oligny" through the testimony of the only Crown witness present, Mr.

Tsalamandris, and that the judge had learned of Mr. White's relationship to "Mickey" as the result of his having answered questions from her. [ 14 ] The judge explained her point of view that the application was based on s. 601 Cr . C , and that it was up to Mr. White's counsel to show that it had been made too late or caused prejudice to her client. The judge granted the motion and in so doing relied specifically

on and quoted the English language version of s. 601(4)(

b) Cr.C. that is underlined below in both languages:

(4) The court shall, in considering whether or notan amendment should be made to the indictmentor a count in it, consider (

a) the matters disclosed by the evidence takenon 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 orprejudiced in his defence by any variance, erroror 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. [Emphasis added.]

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

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

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

c) les circonstances de l’espèce;

d) la question de savoir si l’accusé a été induit enerreur ou lésé dans sa défense par unedivergence, erreur ou omission mentionnée auparagraphe (2) ou (3);

e) la question de savoir si, eu égard au fond de lacause, la modification projetée peut être apportéesans qu’une injustice soit commise. [Soulignage ajouté] [15] Here is what she said in granting the impugned amendment: THE COURT: Bon. O.K. What I know thus far from the case, I'm unable to reach the conclusion that this request for amendment of the name of thealleged victim will cause prejudice to the Defence or a miscarriage of justice. If I rely on

Section 6.01, paragraph 4, it says here: "The Court shall, in considering whether or not an amendment should be made to the indictment or a count in it considered the matterdisclosed by the evidence." So, I understand that he says that in the witness statement he refers to somebody by the name of Mickey, is that it? Mtre BLAIS (Crown counsel): That's correct.

THE COURT: "And circumstances of the case, whether the accused has been mislead or prejudiced in his Defence by any variance, error or omissionmentioned in subsection 2 or 3, or whether having regard to the merits of the case, the proposed amendment can be made withoutinjustice being done." So, I've given you opportunity, but you've not given me any material, grounds to see how it causes some prejudice to your Defence.

So,therefore, the request for amendment of the name of the (inaudible)* is accepted. ___________________________________ * Presumably the inaudible word is "victim". [16] The problem, of course, as the appellant points out, is that s. 601(4)(

b) Cr.C. was inapplicable in the circumstances since therewas not yet any "evidence taken on the trial / preuve recueillie lors du procès". In that regard, whatever statement that may have beencommunicated to defence counsel as part of the Crown's disclosure obligations did not constitute "evidence / preuve", as judgments ofthis Court[7] and the Ontario Court of Appeal have held.[8] In the latter case, Rosenberg, J.A, said this: [16] The problem for the prosecution in this case is that to rely on this part of subsection (3), the matters to be alleged in theamendment must have been disclosed in the evidence.

At the opening of the trial, when Crown counsel sought the amendment, therewas no evidence. In my view, the submissions of counsel as to what is contained in the disclosure is not evidence. [17] The Quebec Court of Appeal was faced with something of the reverse situation to this case in R. v. Callocchia (2000), (QC CA), 149 C.C.C. (3d) 215. There, the Crown sought to amend a preferred indictment at the close of its case. The trial

judge refused the amendment on the basis that the amendment should have been made at the outset of the case. Fish J.A. held as followsat para. 53: There was, as already noted, no preliminary inquiry in this case and the trial proceeded on a direct indictment. The trial judge appears tohave considered that the Crown was entitled to amend that indictment at the outset of the trial, with or without the consent of theaccused. Here, consent was sought and refused. I agree with Crown counsel that

section 601 of the Criminal Code, which governs thematter, did not authorize Crown counsel, unilaterally, to amend the indictment at that stage. [Emphasis added]. [18] I agree with this decision. It is consistent with the wording of the Criminal Code. […] [19] Another case that perhaps supports the power to make the amendment at the opening of the trial is R. v. Webber (1995), (BC CA), 102 C.C.C. (3d) 248 (B.C.C.A.). In that case, the accused was charged with being an accessory after the fact tomurder. Before his trial began the principal offender pleaded guilty to manslaughter.

Defence counsel then applied at the opening of thetrial to quash the indictment. The Crown in return asked to amend the indictment to allege that the accused was an accessory after thefact to manslaughter. The trial judge permitted the amendment. On appeal, the court held that the amendment was properly madebecause it alleged an included offence, even though no evidence had yet been heard.

The court noted at p. 256 that, "Although noevidence had been led at the time the amendment was sought, the learned judge correctly observed that [the principal offender] had nowbeen found guilty of the offence of manslaughter and that it was understood that evidence would be led that he was guilty of the offenceof manslaughter but not murder." Unfortunately, there is no other discussion of the amendment and the only case relied upon is R. v.Moore which admittedly stands for the proposition that a trial judge has wide powers of amendment.

Moore does not, however, suggestthat there is some inherent power, absent consent, outside the Criminal Code to amend at the opening of the trial. While s. 601 gives thetrial court wide powers of amendment, those powers are not unlimited and have to be exercised in accordance with the conditions setdown in that provision: See R. v. I.(J), (2000), 2000 SKCA 114 , 149 C.C.C. (3d) 422 (Sask. C.A.) at 428 and R. v. Elliott, (ON CA), [1970] 3 C.C.C. 233 (Ont. C.A.) at 237. [20] In my view, the

interpretation that is most consistent with the wording of the Criminal Code is that there is no power to amend toconform to the evidence until the evidence has been heard. In addition to R. v. Callocchia, see for example, R. v. King (1956), (ON CA), 116 C.C.C. 284 (Ont. C.A.). Admittedly, the cases are also almost universally to the effect that if the trial judgeerrs and permits a premature amendment, if the accused was not prejudiced the appeal will be dismissed, presumably by application ofthe proviso in s. 686(1)(b)(iii) or (iv) of the Criminal Code. Thus, in addition to R. v. Deal, see R. v.

Fiore (1962), (ONCA), 132 C.C.C. 213, (Ont. C.A.) and R. v. S.(C.A.) (1997), (BC CA), 114 C.C.C. (3d) 356 (B.C.C.A.) at 360 and364. But the fact that no prejudice was occasioned by the error cannot create a power of amendment outside the Criminal Code regime. [Emphasis added.] [17] In addition, Mr.

White's unsworn answer to the judge's question prior to the commencement of the trial, as well as therepresentations of Crown counsel as to the correct given name of the alleged victim, did not constitute "evidence / preuve". [18] All of the foregoing can be summarized as follows. [19] Through the Crown's negligence, a witness its counsel considered essential to the prosecution of its case – the alleged victim ofthe death threat specifically named in the indictment - was not present. [20] Prior to the commencement of the trial, the judge learned that the accused would not be making any admissions concerning theidentity of the victim of the death threat named in the indictment, and Crown counsel advised the judge that "there's a problem in theevidence without Mr.

Oligny" and that "I realized there's a problem regarding the identity of the person of Mr. Oligny. So that's why Ineed Mr. Oligny." The realization about which Crown counsel spoke occurred only that very day, despite other Crown counsel havingmet Mr. Tsalamandris when the case was called on an earlier occasion. [21] In further responding to a question from the judge as to whether the problem of identification was foreseeable in the context ofexercising her discretion to grant a postponement, Crown counsel answered that "It's something new in the sense that we realized thatMr.

Tsalamandris was not able to say to the Court Mickey, it's Michel Oligny. So that's the reason…We're talking about the same person,the facts point to that person but I need someone to say that Mickey is Michel Oligny." [Emphasis added.] [22] During the course of further exchanges between both counsel and the judge, she asked what the relationship was between Mr.White and the person who the Crown ought to have but had not subpoenaed. Although the question was clearly not directed to him, Mr.White answered that he had been a friend of his. The judge pursued the matter and asked Mr.

White directly if he was someone known tohim, to which Mr. White replied in the affirmative and repeated they had been friends at one time. [23] In the course of her oral reasons, the judge stated that the presence of the alleged victim of the death threat "was necessary toshow, to establish, all of the evidence in order to have a conviction against Mr. White on the charge as pressed". [24] Therefore, to circumvent the effect of the judge's refusal to grant the Crown a postponement, its counsel sought to amend theindictment to change the name of the alleged victim, which the judge granted given the failure of Mr.

White to show any prejudice andher expressed understanding that the alleged victim's statement that the Crown had disclosed to the defence constitutes "evidence /preuve" for the purpose of s. 601(4)(

b) Cr.C. [25] Mr. White thus argues that despite the Crown's negligence in the prosecution of its case and the judge's refusal to grant it apostponement because of that negligence, she could not properly authorize an amendment to the indictment. Neither the disclosure of thevictim's pre-trial statement to him nor Crown counsel's description of the evidentiary problem he faced was a valid basis to do so. Theeffect of the judge's error was to require Mr.

White to testify to the merits of the charge as amended, which would have been unnecessarywithout the amendment, as the Crown would not have established a threat beyond a reasonable doubt that he uttered a threat to someonethe Crown's indictment described as "Michel" Oligny.

[ 26 ] Mr. Tsalamandris' testimony did not disclose that he knew "Oligny" was the family name of "Mickey", whom he described during his examination in chief as "not knowing personally". Rather, he said he was someone he had seen at the bar a few times, "but nothing more". He referred to him throughout his testimony in chief exclusively as "Mickey". His cross-examination focussed in the main on the words that Mr.

White would have used to constitute the alleged death threat without, once again, the name "Oligny" ever having being spoken. [ 27 ] As for the Crown, it acknowledges that the trial judge erred in granting the amendment when she did given that the witness statement disclosed to the defence prior to trial does not constitute "evidence". On the assumption, however, that it would nevertheless have proceeded to call Mr.

Tsalamandris as its only witness, it argues that the trial judge would have been justified upon the conclusion of that testimony, pursuant to s. 601(3) Cr.C ., to grant a renewed request for an amendment to the indictment to change the given name of the alleged victim from "Michel" to "Mickey". From that perspective, the judge's error in relying on s. 601(4) (

b) Cr.C. should therefore be considered as harmless. [ 28 ] That provision, insofar as relevant, is to the following effect:

(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) … (

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.

(3) Sous réserve des autres dispositions du présent article, un tribunal modifie, à tout stade des procédures, l’acte d’accusation ou un des chefs qu’il contient, selon qu’il est nécessaire, lorsqu’il paraît que, selon le cas : (a) …

b) l’acte d’accusation ou l’un de ses chefs : (

i) n’énonce pas ou énonce défectueusement quelque chose qui est nécessaire pour constituer l’infraction, (ii) ne réfute pas une exception qui devrait être réfutée, (iii) est de quelque façon défectueux en substance, et les choses devant être alléguées dans la modification projetée sont révélées par la preuve recueillie lors de l’enquête préliminaire ou au procès;

c) l’acte d’accusation ou l’un de ses chefs comporte un vice de forme quelconque. [ 29 ] It further contends that in any event, on the assumption the judge committed a reversible error, the Court should invoke the curative provisions of s. 686(1)(b)(iii) or (iv) Cr.C. and thus preserve the conviction by dismissing the appeal given the absence of prejudice to Mr.

White. [ 30 ] Before reaching the issue of whether an amendment should have been authorized and if so when, we first have to step back and examine whether the information the judge obtained prior to granting the requested amendment was sufficient for the purpose. That information came from Crown counsel and Mr. White in answer to questions the judge posed prior to any evidence being called. [ 31 ] I do not mean to suggest that the question she asked as to the nature of the relationship between the accused and the victim whose name was mentioned in the indictment was improper.

It was a question, however, that should have been asked exclusively to and answered exclusively by Crown counsel. Whatever such an answer from counsel (assuming she knew the answer to the question) may have been, however, it would not constitute "evidence/preuve" either. [ 32 ] To the extent Mr. White began to answer it, the judge should have stopped him in his tracks, even in the absence of an intervention of his counsel. Obviously, we do not have a video recording of the exchange, and the transcript does not provide an explanation of why the questions and answers proceeded as they did.

[ 33 ] The judge, however, had an overriding duty to ensure that Mr. White's right to remain silent on matters of substance enjoyed the same protection it would have had after the Crown had begun to call its evidence. If it is inconceivable that a judge would ask a question to an accused who was not in the witness box relating to the nature of his relationship with the alleged victim after the Crown had begun its case, it is all the more so before the Crown even begins its case, especially when the accused's answers provide information that the Crown's only witness present was unable to supply. After all, Mr.

Tsalamandris hardly knew "Mickey", and did not even know his family name. Nowhere in his testimony, whether in chief or in cross-examination, did he ever mention the family name of "Oligny". [ 34 ] To be sure, Mr. White's counsel was slow off the mark by failing to intervene. That is secondary, however, to the judge having allowed Mr. White to respond to questions that should only been asked to and answered by Crown counsel. With respect, the judge erred in accepting to have Mr. White answer her question on the subject of the relationship between Mr.

White and the victim named in the indictment, even if she later said she "put aside whatever he told me". [ 35 ] The judge should not have been informed by Mr. White prior to the commencement of the Crown's case of the information he supplied as to his relationship with "Michel" Oligny, which the Crown could not and did not prove through the only witness it had present to testify, Mr.

White would not have had to testify. [ 36 ] If the amendment had been refused, as it should have been at that stage, counsel for the Crown concedes before us that it is entirely a matter of speculation what Crown counsel would have done at trial, but it is nevertheless unlikely the Crown would have proceeded given Crown counsel's comments that been have reproduced in paragraph [20] above, as the Crown's evidence would have been limited to that of Mr. Tsalamandris. [ 37 ] It follows that these two grounds of appeal, taken together, are well-founded. 2.

The judge's attitude and conduct during the trial that created a reasonable apprehension of bias. [ 38 ] In light of the Court's conclusion on the first two grounds of appeal, there is no need to address the appellant's third ground of appeal in any depth, beyond saying that standing alone, it would not have succeeded. 3. The application of the curative proviso of s. 686(1)(b)(iii) or (iv) Cr.C [ 39 ] The trial judge's error in authorizing an amendment to the indictment before any evidence was heard is not disputed.

The Crown nevertheless asks the Court to apply the curative proviso of either s. 686(1)(b)(iii) or (iv) Cr.C [ 40 ] First, it is doubtful that s. 686(1) (b)(iv) Cr.C . can be made to apply. [ 41 ] As we have seen, the Crown's submission hinges on a series of assumptions that make it difficult in the circumstances to conclude that they would have occurred.

Indeed, it would have to be presumed that confronted with a refusal of the trial judge to amend the indictment prior to the commencement of the trial, Crown counsel would nevertheless proceeded and would subsequently presented a motion to amend without causing a prejudice to the accused, keeping in mind that the postponement the Crown had sought had already been found to cause him prejudice. [ 42 ] With respect to s. 686(1) (b)(iii) Cr.C ., again on the assumption Crown counsel would have proceeded, its application may be refused even in the absence of actual prejudice to an accused where a prejudice to the appearance of the due administration of justice would result.

Such was the case in R. v. Kusk , [9] where the Alberta Court of Appeal was confronted with an illegal cross-examination of an accused by Crown counsel in a sexual assault case coupled with an improper summation to the jury by Crown counsel, which the Court found rendered the curative proviso inapplicable. So it is in this instance. [ 43 ] The Court therefore concludes that this is not a proper case to apply the curative proviso of either s. 686(1) (b)(iii) or (iv) Cr.C . 4.

Disposition FOR THESE REASONS, THE COURT : [ 44 ] ALLOWS the appeal; [ 45 ] SETS ASIDE the verdict of conviction; [ 46 ] SUBSTITUTES a verdict of acquittal. ALLAN R. HILTON, J.A. JEAN BOUCHARD, J.A.

MARTIN VAUCLAIR, J.A.