R v Brownson: The Interests of Justice, Prejudice, and Amending an Information
In R v Brownson, 2013 ONCA 619 [Brownson], a decision released by the Ontario Court of Appeal on October 15, 2013, the court considered the appropriateness of allowing the Crown to amend an information against an accused person at an appeal hearing. An information – analogous to an indictment – is an accusation sworn by a peace officer that informs the accused of the allegations against him or her. It plays a critically important role in ensuring that persons accused of committing a crime know the charge against them and, in turn, can build an appropriate defence based on that charge.
Driving While Disqualified
Pursuant to section 259(5) of the Criminal Code, RSC 1985, c C-46 [the Code], the fact of disqualification from driving can be proven in one of two ways: by proof of disqualification pursuant to section 259(1) of the Code or by proof of disqualification pursuant to provincial law.
Factual Background and Judicial History
The information in this case was set out by the court in Brownson at para 3 [emphasis in the original]:
That Jeffery Brownson on or about the 28th day of June in the year 2010 at the village of Marmora in the said Region, did operate a motor vehicle, to wit a 2006 yellow Bombardier ATV, while disqualified from doing so by reason of an order pursuant to section 259(1) of the Criminal Code contrary to section 259(4)(a) of the Criminal Code of Canada.
At trial, however, the evidence established that Mr. Brownson had not been disqualified from operating a motor vehicle pursuant to section 259(1); instead, he had been disqualified by reason of an automatic provincial suspension.
Nonetheless, Mr. Brownson was convicted of operating a motor vehicle – an ATV – while disqualified from doing so by reason of an order pursuant to section 259(1), contrary to section 259(4)(a) of the Code. As a result, Mr. Brownson was both sentenced to 15 days incarceration and subject to a one-year driving prohibition consecutive to any prohibition that was already in place. This decision by the trial judge was upheld by a summary conviction appeal judge.
At these two lower courts, the primary issues were as follows:
- The interpretation of section 259 of the Code: the Crown contended that it was required to establish only that the accused’s licence was suspended at the relevant time, with the source of the suspension being irrelevant. Both the trial judge and the summary conviction appeal judge accepted this position.
- R v Chuang, 2010 ONCA 555 [Chuang]: in this case, the information was almost identical to the information in Brownson. In addition, much like in Brownson, the evidence in Chuang did not establish the charge set out in the information. In Chuang, an acquittal was entered; however, the trial judge distinguished the two cases. The summary conviction appeal judge agreed with the trial judge’s analysis.
Amending the Information
At the Ontario Court of Appeal, the Crown altered the position it had taken at trial and before the summary conviction appeal judge, stating the following in their factum, as outlined by the court in Brownson at para 10:
[I]f the Crown attempts to prove that an individual was driving while disqualified, either by way of a prohibition order or a suspension resulting from a conviction, they must either properly state the correct mode of disqualification in the Information or simply state that the driver was disqualified period and then lead evidence of either mode at trial.
This statement was a clear acknowledgement that the decisions of the trial judge and the summary conviction appeal judge were made in error. The primary issues at trial, then, were no longer live issues at the Ontario Court of Appeal.
In their place, the Crown took a new position at the Ontario Court of Appeal and submitted that the court should amend the information in such a way that it would conform to the evidence led at trial. In short, it would be amended to state that the appellant’s licence was suspended by way of a provincial suspension, not an order pursuant to section 259(1) of the Code; whether this amendment should be allowed became the live issue on appeal.
Section 683(1)(g) of the Code expressly authorizes an amendment to an indictment; by way of analogy, an amendment to an information is also permitted. The section states that where the court of appeal considers it to be in the interests of justice, it may amend an indictment “unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.”
As per the Ontario Court of Appeal’s decision in R v Irwin, 1998 CanLII 2957:
I would hold that s. 683(1)(g) permits an amendment on appeal where the amendment cures a variance between the charge laid and the evidence led at trial regardless of whether the amendment materially changes the charge, substitutes a new charge for the initial charge, or adds an additional charge.
While it is clear that this section allows for a broad scope of permissible amendments, “caution must be the watchword when an appeal court considers a Crown request to amend an indictment or information and enter a conviction for a person who would be acquitted on the basis of the un-amended indictment or information” (Brownson at para 22). Such an amendment could result in unfairness, as it appears to be irreconcilable with the importance we place on the accused knowing the charge against him as set out in an information or indictment.
Has the Accused Been Misled or Prejudiced in his Defence or Appeal?
For the majority, MacPherson J.A. stated that when considering a Crown request to amend an indictment or information at the appeal stage of a criminal proceeding, “the court must focus carefully on the precise qualifying words of s. 683(1)(g) of the Criminal Code, and ask this question: has the accused been misled or prejudiced in his defence or appeal?” (ibid at para 23).
In this case, the majority found the answer to this question to be “yes” at both the trial stage and at the appeal stage. The trial itself was very short. The Crown called only one witness, the arresting officer, and established that the appellant was disqualified from driving due to a provincial suspension, but not by virtue of a prohibition pursuant to the Criminal Code, as this prohibition order had expired. The information, then, incorrectly stated that the appellant was arrested for driving while disqualified pursuant to section 259(1) of the Code. The cross-examination of the arresting officer by the defence was brief; the defence ultimately submitted that “the evidence led at trial did not conform to the facts specified in the information. The Crown now concedes, and this court accepts, that this was true” (ibid at para 28).
Problematically, it is impossible to know what the defence would have asked the arresting officer in its cross-examination had the information been correctly particularized. Certainly, he would not have focused his cross-examination on the incorrect particularization in the information. Therefore, to the extent that the appellant relied on the information while formulating his defence, he was prejudiced. The court went on to state that the prejudice bar should not be “set very high in a case where the Crown seeks to amend an information on appeal, especially on a second appeal” (ibid at para 30).
The court also found that the appellant would be prejudiced on appeal if the information were to be amended, as the Crown only raised the possibility of amending the information once this case reached the Court of Appeal. This resulted in a “late-breaking curve ball” (ibid at para 33) that caused prejudice to the appellant, who had prepared a factum addressing the two issues contested in the two courts below – the interpretation of section 259 of the Code and the Court of Appeal’s decision in Chuang – rather than the issue of amending the information. As per the court at para 34:
By raising the issue of amendment on appeal, the Crown has made it more difficult for the appellant to prove that he has been prejudiced. For the defence to demonstrate concrete prejudice on appeal, the defence would need to essentially re-try the underlying case and demonstrate how the appellant could have conducted himself differently at trial, and how this could have affected the trial outcome. This task is made more difficult by the time that has passed between the trial and this second appeal, and the additional expense and effort that the defence would need to incur in order to determine prejudice at trial several years after the fact.
As such, the appeal was allowed by the majority and the conviction was set aside, with a verdict of acquittal entered.
Epstein J.A. disagreed with the finding that the amendment to the information would have caused prejudice to the appellant and, as such, would have allowed the Crown to amend the information.
First, Epstein J.A. found that “speculation about a possible defence position does not constitute prejudice that would preclude this court from amending the information” (ibid at para 38), particularly in light of the fact that the defence was unable to identify anything that they would have done differently at trial if the information had properly identified the suspension as being the result of provincial law and not the Criminal Code. While the bar to prejudice is low, it “must be more than mere conjecture” (ibid at para 49).
Second, Epstein J.A. did not see the amendment as being material, as it would change nothing other than the label applied to the offence. The charge, as was originally laid, required the Crown to prove that the appellant was driving a motor vehicle and was doing so with a suspended licence. The proposed amendment would not change these two requirements.
Third, Epstein J.A. found that denying the amendment was an “unwarranted windfall for the appellant” (ibid at para 52), as he knew that the Crown’s evidence – based on its disclosure – was directed at showing that his disqualification was the result of a provincial suspension. He came to trial, though, attempting to defeat the charge on a technicality.
This case provides important guidance for both Crown prosecutors and appeal judges. It carefully sets out the rather low threshold required to demonstrate that one would suffer prejudice – in one’s defence or appeal – if the Crown was permitted to amend an information by an appeal judge. In doing so, it will likely ensure that appeal courts will exercise great caution in allowing such an amendment. The court’s finding in Brownson will also likely result in Crowns pursuing an amendment to an information or indictment at trial, rather than delaying the undertaking of such a strategy until they are before an appeal court.