05/02/2020 2016 ONCJ 35 (CanLII) | CanLII Although s. 264 prohibits certain conduct “knowing that another person is harassed or recklessly as to whether the other person is harassed”, both counts allege only “knowing” – that is, only that Mr. Elliott knew that Ms. Guthrie and Ms. Reilly were harassed. Recklessness is a specific mental state that differs from knowledge as a form of mens rea. Only four charges in the Criminal Code make recklessness an element of the offence. Mr. Elliott was never arraigned on a charge alleging that he was reckless, and pleaded not guilty only to the counts as they now read. At the conclusion of the evidence, both parties made submissions in writing. Both referred briefly to the mental element of recklessness as if it were charged when it was not. When the trial continued with oral submissions on July 14, 2015 – 18 months after the trial began and more than 30 months after the charge was laid – I drew the omission to the attention of both counsel. At the conclusion of oral submissions when I adjourned the case for judgment, both parties agreed that I would determine the significance of the failure to allege recklessness. After deliberations, I determined that Mr. Elliott could not be convicted on the basis of a mental element that was not alleged when he entered his plea. I further considered my obligation under s. 601(3) of the Criminal Code to amend the charge at any stage of the proceedings if it appeared that the indictment (in this summary conviction case, the information) fails to state or states defectively anything that is requisite or is in any way defective in substance. I advised the parties of this on August 4, 2015. Mr. Elliott submitted that it was too late to amend the information, that he did not consent, and that his position was the proposed amendment could not be made without injustice being done. I then indicated that I was not inclined to amend the information on my own motion in the absence of consent, and did not do so. Crown counsel then advised that she would consider her position and the next day applied to amend the information under s. 601 on the grounds that it defectively stated one form of the mental element requisite to constitute the offence. I subsequently heard more fulsome submissions on the operation, meaning and application of s. 601 of the Criminal Code to the circumstances of this case. The relevant parts of s. 601 of the Criminal Code read: 601. (1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect. (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. (3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears (a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament; (b) that the indictment or a count thereof (i) fails to state or states defectively anything that is requisite to constitute the offence, (ii) does not negative an exception that should be negatived, (iii) is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or (c) that the indictment or a count thereof is in any way defective in form. file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 12/43