05/02/2020 2016 ONCJ 35 (CanLII) | CanLII (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. (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. (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. (6) The question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law. (7) An order to amend an indictment or a count therein shall be endorsed on the indictment as part of the record and the proceedings shall continue as if the indictment or count had been originally preferred as amended. (8) A mistake in the heading of an indictment shall be corrected as soon as it is discovered but, whether corrected or not, is not material. (9) The authority of a court to amend indictments does not authorize the court to add to the overt acts stated in an indictment for high treason or treason or for an offence against any provision in sections 49, 50, 51 and 53. (10) In this section, "court" means a court, judge, justice or provincial court judge acting in summary conviction proceedings or in proceedings on indictment. (11) This section applies to all proceedings, including preliminary inquiries, with such modifications as the circumstances require. Mr. Elliott opposed the application to amend on two grounds: that the section has no application because the prerequisites of s. 601(3) have not been met, and that consideration of the factors in s. 601(4) militate against allowing the amendment. I begin with the first argument since if Mr. Elliott is correct that the section does not apply, that will end the matter. He relies on R .v. McConnell,[16] in which the Crown sought an amendment that it did not need at the outset of the trial concerning the make of a car in a motor vehicle offence. The defence did not consent and the trial judge dismissed the application to amend. The Crown called no evidence. Though the facts in McConnell are very different from this case, Justice Rosenberg made several statements that offer guidance in interpreting s. 601(3). As to whether there was a defect in the information’s form, he stated: “The cases are remarkably unhelpful as to what constitutes a defect in form or substance.” But he determined that however a defect in form or substance was defined, the information was not defective because it alleged offences known to law and complied with the sufficiency requirement of s. 581. Here too, the counts are not deficient within the meaning of s. 581, and they disclose offences known to law. They are not defective in substance. The question remains whether they “fail to state or state defectively anything that is requisite to constitute the offence.” In one sense they do not, for the same reasons that they are not defective in substance. They are perfectly good counts. Nor do they fail to state something that is requisite to constitute the offence: every element of the offence is present including the mental element. But the counts do state the mental file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 13/43