500-10-004330-096PAGE: 1
S.D. c. R. / 2010 QCCA 1418COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF / MONTREAL
No.: / 500-10-004330-096
(760-01-038546-070)
DATE: / August 5, 2010
CORAM: / THE HONOURABLE / FRANÇOIS PELLETIER J.A.
YVES-MARIE MORISSETTE J.A.
NICOLE DUVAL HESLER J.A.
S. D.
APPELLANT - Accused
v.
HER MAJESTY THE QUEEN
RESPONDENT – Prosecutrix
JUDGMENT
[1]THE COURT - On appeal from a judgment rendered on January 28, 2009, by the Court of Quebec, Criminal and Penal Division, district of Beauharnois (the Honourable Odette Perron), convicting the appellant on a charge of sexual interference with a person under the age of fourteen (14) (151 Cr. C.);
[2]Having examined the file, heard the parties, and on the whole deliberated;
[3]For the reasons of Pelletier J.A., with which Morissette J.A. concurs;
[4]ALLOWS the appeal ;
[5]SETS ASIDE the trial judgment; and
[6]ORDERS a new trial.
[7]For her part, and for the reasons stated, Duval Hesler J.A. would have dismissed the appeal and upheld the conviction.
FRANÇOIS PELLETIER J.A.YVES-MARIE MORISSETTE J.A.
NICOLE DUVAL HESLER J.A.
Mtre Robert Jr. Poirier
Community legal centre of the South Shore region
Counsel for the appellant
Mtre Joey Dubois
Criminal and penal prosecutor
Counsel for the respondent
Date of hearing: / May 13, 2010.
500-10-004330-096PAGE: 1
REASONS OF PELLETIER J.A.[8]At trial, the appellant entered a plea of not guilty on the following charge:
[translation]
Between April 1, 2002 and May 31, 2002, at City A, district of Beauharnois, did, for a sexual purpose, touch a part of the body of X, a person under the age of fourteen (14), thereby committing the indictable offence set out in section 151 Cr. C.
[9]In his appeal, the appellant disputes the conviction entered by the Court of Quebec. He submits five issues for consideration, but I will only deal with the first as, in my opinion, it settles the outcome of the appeal.
[10]Here is the issue as stated by the appellant:
[translation]
(1) Did the honourable trial judge err in law by relying on a date other than the one stipulated in the indictment to find the APPELLANT- accused guilty?
[11]The case concerns a one-time incident that allegedly occurred on a futon in the appellant's apartment. During her testimony for the prosecution, the complainant situated the commission of the crime in the summer of 2001. According to her, the incident occurred during the summer holidays, when she did not have to be in school. Here are the main excerpts from her deposition as to when the crime was committed:
[translation]
CROWN EVIDENCE, EXAMINATION IN CHIEF:
Q / It happened...can you remember when the incident occurred?A / Which one?
Q / The sexual incident?
A / Yes.
Q / When was that, approximately?
A / It was during the summer because we were on...on summer holidays, I wasn't in school. It was in the summertime.
Q / Of what year?
A / In 2001 or 2002.
CROWN EVIDENCE, CROSS-EXAMINATION BY THE DEFENCE:
Q / ...of touching, you allege that it occurred at ..., in City A?A / Yes.
Q / Can you place a date on that?
A / A date, no. It happened in the summertime, Ma'am.
Q / In the summer?
A / Yes.
Q / Okay. How old were you at the time?
A / I was eleven (11) years old.
Q / Eleven (11)?
A / Yes, eleven (11) or twelve (12).
Q / You're not certain...
A / Well, eleven (11) years old.
Q / ...if it's eleven (11) or...
A / It’s eleven (11) years old. I can't recall.
Q / So the incident allegedly occurred when you were eleven (11) years old?
A / Yes.
Q / In the summertime?
A / Yes.
Q / You are also alleging that it occurred on the futon?
A / Yes.
...
Q / So, if we say that the assault took place between April 1, 2002, and May 31, 2002, it more or less corresponds to...A / Uh-huh.
Q / ...the dates?
A / In the summertime, yes. In the summertime, yes.
Q / 2002?
A / Two thousand...
Q / 2001?
A / Yes, 2001. 2001.
Q / Not 2002, but 2001?
A / Well, it happened during the summer, yes, during the summer of 2001. I was eleven (11) years old so...
CROWN EVIDENCE, QUESTIONS FROM THE BENCH:
X...A / Yes.
Q / ...you were born on ... , '89?
A / Yes.
Q / All right. To be eleven (11), it had to be before ..., 2001?
A / It's either before the ..., ...okay. Well, it's during the summer. So, summer starts in early June, well May, June. But school had just let out, so it would be in the month of June.
Q / So, June 2001?
A / June 2001.
Q / Is that right?
A / Yes.
Q / Before turning twelve (12) years old...
A / Before turning...
Q / ...while you were still eleven (11) years old?
A / Yes. Because my parents...yes, that's right, in...no. After...wait a minute. Yes, that's right. Yes, that's right. I'm sorry, I am...
Q / We're trying to establish.
A / Okay.
Q / Is that right? Very well. And it has to be summer because both you and your little sister were squarely in the middle of summer holidays?
A / Well, not my sister because she was...
Q / She wasn't in school?
A / She wasn't in school yet.
Q / She was four (4) years old?
A / But I was in school, yes.
Q / Summer holidays?
A / Yes.
Q / So, after June 20, we'll agree that classes ended around June 20, of 2001?
A / Yes.
Q / Thank you.
(Emphasis added.)
[12]Following this exchange between the Court and the complainant, the Crown had X's mother testify briefly. Essentially, the examination and cross-examination consisted in questions that had nothing to do with the case at hand.
[13]The appellant testified for the defence. While acknowledging that he received a visit from X and her little sister in accordance with his access rights, the appellant insisted on the fact that he only moved to the apartment in question at the end of September 2002. According to his testimony, it is then that he purchased the futon. As proof, he filed the purchase invoice dated September 22, 2002. The appellant surmises that X and her little sister must have visited the apartment described by the complainant after October 2002, but before March 2003, when he left the premises.
[14]The Crown prosecutor obviously noticed the variance between the time period stated in the indictment, on the one hand, and that referred to in the evidence, on the other. It is only once the case was closed, however, that he invoked subsections 601(2) and 601(4.1) of the Criminal Code. I reproduce the provisions here for greater convenience:
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.
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.
[15]In her judgment delivered from the bench immediately following closing arguments, the judge stated the following with regard to the time the offence was committed:
[translation]
I understand that X's wish to be in your presence stopped the moment the incident occurred, and I associate this event with the narrative that she gave me here today of the contact or touch, sexual in nature, that occurred after September 22, 2002. Indeed, the Criminal Code allows me to find that even if the indictment indicates one period rather than another, it is not fatal to establish that the time is slightly later than indicated in the indictment if, on the evidence, and you were the one who gave me that evidence, I can link the fact that you had a futon in your apartment to X's narrative as given to the Court.
(Emphasis added.)
[16]Thus, the judge accepted the appellant's testimony not only regarding the calendar year at issue, but also regarding the season in which the visit occurred. There is no doubt that filing the purchase invoice for the futon was determinative.
[17]The judge did not officially rule on the amendment of the indictment. Rather, she acted either as if the information had been modified, or, relying on subsection 601(4.1) Cr.C., as though it was a minor variance that did not require amendment. Whichever hypothesis corresponds to the judge's state of mind, I deem the particular circumstances of the case to require a different approach.
[18]The seminal case on the matter teaches the following:[1]
44 Accordingly, when a court is faced with circumstances in which the time of the offence cannot be determined with precision or the information conflicts with the evidence, the first question that must be asked is whether time is either an essential element of the offence or crucial to the defence. It will only be in cases where this first question is answered affirmatively that the trier of fact must then determine whether the time of the offence has been proven beyond a reasonabledoubt. If the answer to the first question is in the negative, a conviction may result even although the time of the offence is not proven, provided that the rest of the Crown's case is proven beyond a reasonable doubt.
[19]Moreover, in Vézina and Côté v. The Queen,[2] Lamer J. as he was then, wrote:
... the notion that the accused not be prejudiced by the application of the "surplusage rule" may fairly be said to be a persistent theme throughout the case-law.
[20]And so, in R v. M.M.,[3]our late colleague Proulx J.A. clearly summarized the state of the law on this issue:
[translation]
11From Vézina and Côté v.The Queen, [1986] 1 S.C.R. 2 and R. v.B.(G.), [1990] 2 S.C.R. 30, the following principles have been established and must guide the Courts when an issue is raised concerning the time when the offence is alleged in the indictment to have been committed:
1) With regard to the rule that the Crown must prove the essential elements of the charge, it is clear that the date of the offence need not be proved in order for a conviction to result unless time is an essential element of the offence;
2) It is of no consequence if the date specified in the information differs from that arising from the evidence unless the accused may be misled by the variance and therefore prejudiced in his or her defence. In other words, the prejudice caused to the offender clearly limits the application of the surplusage rule, i.e., the rule that a non-essential element need not be proved.
(Footnote omitted and emphasis added)
[21]In this case, it is an undisputed fact that the moment in time when the crime of sexual interference was committed is not an essential element of the offence. Hence, if there is a variance between the content of the evidence and the indictment, the rule is to establish if the time of the offence is a crucial element of the defence.
[22]To arrive at an adequate answer, the order in which certain determinative steps took place during the trial must be kept in mind.
[23]First, the indictment places the crime between April 1 and May 31, 2002. Here, however, is where the complainant's deposition for the evidence in chief differed from the time frame. She identified an earlier time, that of the summer of 2001. The defence did not react, and the reason later became clear: the ground it intended to argue was not affected by this minor modification in the time. On the contrary, its merits were strengthened by the fact that the complainant established a time marker, the summer holidays, that was completely incompatible with the material evidence at the defence's disposal, i.e., the date on the purchase invoice for the futon, which puts the alleged incident occurred squarely during the school year. The cross-examination was therefore circumspect, and it is reasonable to infer that the defence was satisfied with the answers given.
[24]Once the prosecution's case was closed, amending the indictment to make it conform to the evidence would have placed the commission of the crime during the summer holidays of the 2000/2001 school year. The Crown however, chose not to act.
[25]From that moment, the appellant was committed. He mounted his denial of the crime defence in a framework akin to an alibi defence, arguing that the date on the purchase invoice for the futon made it impossible for the crime to have been committed at the time alleged by the complainant.
[26]The Crown prosecutor's cross-examination did not undermine this evidence, which the appellant could therefore, until that point, believe to be exculpatory.
[27]Had the Crown, after the cross-examination, requested that the indictment be amended to make it conform to the evidence, the time alleged would have been the autumn and early winter 2002.
[28]An amendment of this nature would not merely have added an inconsequential detail, as it would have called into question the important time marker the complainant relied on to support her statement. By placing the commission of the crime in the fall or early winter, all mention of the calendar year in question aside, it would have been necessary to find that the complainant was actively attending school at the time of the incident she described, contrary to her unwavering version of the events. Such a reversal would have called into question the value of the strategy adopted during her cross-examination, where the defence had no interest in testing the credibility of the complainant on this aspect of her testimony.
[29]The debate never took place because, before the case was closed, neither the Crown nor the judge evoked the possibility of a conviction based on the defence presented by the appellant.
[30]As I mentioned previously, it was only during closing arguments that the Crown prosecutor sought to amend the indictment under subsections 601(2) and (4.1) Cr. C. For all intents and purposes, the trial judge agreed with the request by drawing on the content of the alibi defence to improve the evidence offered by the Crown. However, she stopped short of addressing the issue of the prejudice that could result.
[31]By holding against him the evidence the appellant legitimately submitted to counter the Crown's evidence, the judge, quite involuntarily no doubt, affected the fairness of the trial.
[32]The situation before her was different from that analyzed in Glenn v. R.[4] In that case, the appellant Glenn had been found guilty of both sexual assault and indecent assault committed outside the period covered by the original indictment. It should be pointed out that, contrary to the case at hand, Glenn had admitted in his defence to having committed these crimes. Our Court upheld the conviction in light of the subsequently amended dates in the indictment, while specifying the following:[5]
[translation]
4 WHEREAS the appellant made judicial and extrajudicial admissions regarding counts 2 and 3, subsequently amended as to the dates, the Court must acknowledge them and let the conviction rendered at trial stand;
[33]In the present case, unlike Glenn,[6] the appellant categorically denies the existence of the crime alleged against him, and the only purpose of his evidence regarding the time of the offence is to support his denial of the crime defence.
[34]In my view, the context here precludes a blanket application of subsection 601(4.1) Cr. C. Delaying the commission of the crime to the fall or early winter of 2002 does not constitute a minor variance in light of its effect on the way the appellant conducted his defence both during the cross-examination of the complainant and during his own testimony. The judge should not have dealt with the matter as if the indictment did not require amending.
[35]Moreover, the judge could not make a de facto amendment to the indictment without addressing the question of the possible resulting prejudice to the appellant. Subsections 601(4), (5), and (6) state:
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.
601(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.
601(6) The question of whether an order to amend an indictment or a count thereof should be granted or refused is a question of law.
[36]Thus, according to either hypothesis, I find that the fairness of the trial was affected. In my view, the defence was significantly prejudiced and the conviction must therefore be overturned. There remains sufficient evidence in the record to justify a conviction, however, so there is no call to find for an acquittal.