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Criminal - Indictment. R. v. K.R. [amending indictment]
In R. v. K.R. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here where the Crown sought and was granted a motion to amend the indictment (here called an 'information') to conform to the evidence:[15] The appellant argues that the trial judge erred in granting the application to amend the information at the conclusion of the Crown’s evidence. She says that in so doing, the trial judge fundamentally altered the impugned transaction, thereby transforming the case the appellant had to meet. The appellant says that by removing the element of “quid pro quo” from the original charge, whereby the Crown had to prove that monies or goods were offered for an exculpating statement, to a charge embedding three alternative actions—offering monies or goods, obtaining an exculpating statement, and/or tampering with evidence—the required connection between the offer of goods and the exculpatory statement was removed, and the deletion of the video, without more, became a route to liability. These changes, the appellant says, caused irreparable prejudice and resulted in an unfair trial.
[16] We do not accept these arguments.
[17] The power to amend an indictment or information under s. 601(2) of the Criminal Code is broad, as wide powers of amendment promote the determination of criminal cases on their merits and avoid a multiplicity of proceedings: R. v. R.S., 2023 ONCA 626, at para. 24, citing R. v. Irwin (1998), 1998 CanLII 2957 (ON CA), 38 O.R. (3d) 689 (C.A.), at paras. 9-10. Provided there is no irreparable harm to the accused and the fairness of the trial will not be adversely affected, the amendment may be granted: R.S., at para. 24, citing R. v. Bidawi, 2018 ONCA 698, 142 O.R. (3d) 520, at para. 33, leave to appeal refused, [2019] S.C.C.A. No. 145. Such amendment may be made “at any stage of the proceedings”: Criminal Code, s. 601(3). A decision to amend that is based on a determination of whether there is prejudice to the accused should not be interfered with lightly, since the trial judge is in a privileged position to determine the effect on the fairness of the trial of events happening in the courtroom: R.S., at para. 25, citing R. v. Côté, 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2, at p. 29.
[18] As set out by Doherty J.A. in Irwin, at para. 25:On a plain reading, the section contemplates any amendment which makes a charge conform to the evidence. The limits on that amending power are found, not in the nature of the change made to the charge by the amendment, but in the effect of the amendment on the proceedings, and particularly, on the accused's ability to meet the charge. The ultimate question is not what does the amendment do to the charge, but what effect does the amendment have on the accused? [19] The trial judge made no palpable and overriding error in his determination that the amendment would not cause irreparable harm to the accused. He noted that all of the alleged interactions were explored with the Crown witnesses in “considerable detail”, including the allegations with respect to the handwritten contract, the allegations with respect to the recording, and the evidence regarding shopping trips and purchases. He noted that the cross examinations were “lengthy, probing and pointed” and that defence counsel was alert to the “entirety of the evidence”. He observed that “few stones appeared to have been left unturned” with respect to the defence counsel’s approach to the evidence. He concluded that the defence had not been misled and that no prejudice was occasioned at all, let alone irreparable prejudice.
[20] This case is easily distinguished from R. v. Miners Incorporated (1949), 1949 CanLII 368 (ON CA), 93 C.C.C. 118 (Ont. C.A.), at pp. 119-120, cited by the appellant, in which separate transactions that were months apart were added to the charge. In this case, there is no violation of the single transaction rule set out in s. 581(1) of the Criminal Code, as alleged by the appellant: see R. v. Rocchetta, 2016 ONCA 577, 352 O.A.C. 130, at para. 44. The amendment did not expand the scope of the evidence. Rather, as submitted by the Crown, both the original and amended charges captured events within a week of the disclosures of sexual assault, were disclosed to the defence well in advance, and were relevant to the Crown’s theory from the outset. The amendment did not compromise the appellant’s knowledge of the case she had to meet or her ability to meet the charge. The fact that the amendment opened up additional routes to liability on the same evidence does not, without more, constitute irreparable prejudice.
[21] We would add that the failure of the defence to seek any remedial step arising from the amendment when invited by the trial judge to do so wholly undermines the claim regarding irreparable prejudice in this case. The Crown’s application was brought at the conclusion of its evidence but before the case was closed. The trial judge explicitly noted that he could adjourn “should counsel request”, and the Crown noted the possibility that witnesses could be recalled. Yet, the defence requested no remedy and simply moved for a directed verdict. Although in oral submissions opposing the amendment, counsel emphasized that cross-examination of the complainants was focused on the “quid pro quo” aspect of the original charge, had defence counsel been of the view that further cross-examination was required (in effect, that there were further stones to unturn), he would have requested that witnesses be recalled to allow that to occur.
[22] We conclude that the trial judge did not err in his determination that the amendment of the information would not cause irreparable prejudice, nor, therefore, in granting the application to amend.
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