05/02/2020 2016 ONCJ 35 (CanLII) | CanLII element defectively. They entirely omit one way in which the requisite mental element of the offence could be committed if the section had been charged in full. Therefore I do not accept the argument that s. 601 is not even engaged. It is. There is also no question that the information can be amended at this late stage in the trial, that is after the completion of submissions and adjournment for deliberations. Subsection 601(3) refers to “any stage of the proceedings”. And, that includes as late as an appeal, as in R. v. Irwin.[17] In Irwin, Justice Doherty was dealing with the power of the Court of Appeal to amend under s. 683. Justice Doherty had occasion to comment, though not directly, on amendments under s. 601(3) of the Code. He stated, at paragraph 18: Elliot[18] stands for the proposition that the court cannot substitute one charge for another under the guise of amending a defect in substance when the charge as initially laid was not defective in substance. Elliot does not address the question of the power to amend to make a charge conform to the evidence. That power of amendment is distinct from the other powers of amendment set out in s. 601 in that it is not premised on any defect in the language of the charge as initially laid, but rather on a divergence between the charge as laid and the evidence as led. (Italics and citation added.) As Justice Rosenberg stressed in McConnell and as the section states, the matters to be alleged in the amendment must have been disclosed by the evidence under s. 601(3). If that prerequisite is met, I must again, following the word “shall” in s. 601(4), consider the five factors in the subsection. This means that despite the mandatory nature of the word “shall”, subsection (3) – which begins with “subject to this section, a court shall…” – is qualified. Thus, even if the prerequisites are met, a court is not required to amend the information but must still consider “whether or not an amendment should be made” after considering the factors in s. 601(4) (a) to (e) set out above. In this case, Mr. Elliott concedes that he has not been misled or prejudiced in his defence within the meaning of s. 601(4)(d), but does argue that recklessness has not been disclosed by the evidence at trial under s. 601(3), which is the requirement for the amendment. He further argues that in the circumstances of the case referred to in s. 601(4)(c) and having regard to the merits of the case, making the amendment would cause an injustice within the meaning of s. 601(4)(e). I begin with whether the matter to be alleged in the proposed amendment is disclosed by the evidence. This proposed amendment and this case differ from the examples in which other courts have exercised the power regarding a fact such as a vehicle or a date that can easily be identified. This case involves a long trial in which the matter to be alleged is the specific mens rea of recklessness in a circumstantial case with regard to the accused’s state of mind. Very recently, after the amendment issue arose here, Justice Caldwell of the Saskatchewan Court of Appeal thoroughly analyzed s. 603 of the Criminal Code. In R. v. Koma [2015] S.J. 420 he wrote:[19] 40 In the first two circumstances, by returning to the modern principle of statutory interpretation (Re Rizzo, para. 21), I conclude that, on their plain and ordinary meaning, the words used in ss. 601(3)(b)(i) and (iii) suggest the following: … "where it appears", i.e., it need only seem apparent to the court; … "and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial", i.e., the offence alleged, when properly plead in the indictment or count, must be made out on the evidence taken on the preliminary inquiry or adduced at the trial of the accused. Therefore, the prerequisite is only that the matters to be alleged in the proposed amendment seem apparent. Justice Caldwell’s comment that the offence alleged must be made out on the evidence cannot mean that it must be proven because the section says “disclosed”. And the evidence need not be specific because the section says “the matters” (the French “les choses”). Nothing could be broader. Asked in submissions, Crown counsel did not specify any evidence referring to recklessness apart from the evidence as a whole. In written argument, she addressed knowledge and recklessness together. She submitted that Mr. Elliott knew that the complainants were harassed, or he was reckless or wilfully blind as to whether the complainants were harassed. She submitted that after he was aware that they had blocked him and wanted him to stop contacting them, he continued to send them a barrage of tweets or tweeted incessantly about them. She further submitted that his conduct prior to the period of alleged harassment was relevant to his mens rea. The matter to be alleged is the whole case; there is no evidence of Mr. Elliott’s state of mind apart from his communications to the complainants and theirs to him. Added to that is that those communications file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 14/43