05/02/2020 2016 ONCJ 35 (CanLII) | CanLII are in a modern social media with specific and complex language and methods. In other words, in order to determine the prerequisite of subsection (3)(b) – whether “the matters to be alleged in the proposed amendment are disclosed by the evidence taken” – I was required to review the whole case as if the amendment were accepted. The application to amend, brought during deliberations, is not the place to decide whether this evidence establishes recklessness beyond a reasonable doubt. It need only be apparent that the recklessness alleged in the proposed amendment be disclosed by the evidence at trial. I find that it is apparent and that the requirements of s. 601(3)(b) are present. I turn to s. 601(4). The circumstances of the case include Crown counsel’s candid submission during the argument on this application that her primary position is and has always been that Mr. Elliott knew that the complainants were harassed. In view of this, I turn to the final day of the trial, July 14 (mentioned above), when oral submissions complemented the written submissions of the parties. In written submissions, Crown counsel had combined knowledge and recklessness, relying on the complainants blocking Mr. Elliott and his barrage of tweets to argue that he was aware that both complainants wanted him to stop contacting him. Mr. Elliott addressed recklessly directly, arguing that the Crown had not proven that he was aware of any risk that the complainants were harassed. Crown counsel, prior to the Court raising the issue of the counts making no reference to recklessness, in written reply took the position that Mr. Elliott was not reckless. This was corrected orally to read that he knew that the complainants were harassed but that if he did not know, he was reckless. It was at that point that both counsel agreed to leave the issue of the count to the Court. No application for an amendment was brought and there was no request for an adjournment to consider such a step. The Crown’s application for amendment followed the Court raising the matter during deliberations, as I have outlined. Those are relevant circumstances under subsection 601(4)(c). Subsection (a) has no application, and I have addressed the evidence on the trial when discussing s. 601(3)(b). As regards s. 601(4)(d), Mr. Elliott concedes that he was not misled or prejudiced in any way by the omission of recklessness from the count; he cannot point to anything he would have done differently in the trial. Although I must consider all the factors in s. 601(4), judicial authority gives such pre-eminence to this one so as to make it almost determinative. So in R. v. Coté, Chief Justice Lamer, as he then was, stated:[20] Where a charge is reparable, you repair. To the extent that the evidence conforms with the correct charge and the appellants have not been misled or irreparably prejudiced by the variance between the evidence and the informations, the defect can and should be remedied. In Irwin, supra, Justice Doherty held:[21] In my view denying the power to amend to substitute a new charge where the substitution could not prejudice the accused … would be an unwarranted windfall for the accused. And at paragraph 52, Justice Doherty referred to prejudice being the litmus test against which all proposed amendments are judged. Turning to s. 601(4)(e), “injustice” must mean something different from “prejudice” in subsection (d) on the principle of statutory interpretation that Parliament does not make the same point twice.[22] As for the merits, this case is circumstantial with respect to state of mind, which may or may not result in proof of knowledge. If knowledge is not established beyond a reasonable doubt, Mr. Elliott must be acquitted unless the counts are amended to include recklessness, in which case the Crown may establish mens rea. There is the possibility of a perception of injustice. Also in Irwin, Justice Doherty cites Chief Justice Laskin in R. v. Elliott that “It is the responsibility of the Crown and not the court to settle the charge which will be brought against the accused.”[23] Mr. Elliott could be found guilty on a charge that was amended only after the Court intervened after having adjourned for final deliberations. This, as Mr. Elliott argues, is late. The charge could have been laid without the defect, it could have been amended on arraignment or at the completion of the evidence, and this application could have been brought when I first inquired about the absence of recklessness at oral submissions on July 14, 2015. file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 15/43