P.C.J. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Robinson, 2005 NSCA 65 Date: 20050412 Docket: C.A.C. 233300 Registry: Halifax Between: Her Majesty The Queen v. Wayne Douglas Robinson Respondent Judges: Roscoe, Chipman and Saunders, J.J.A. Appeal Heard: April 11, 2005, in Halifax, Nova Scotia Held: Appeal allowed, per reasons for judgment of Roscoe, J.A.; Chipman, J.A. and Saunders, J.A. concurring. Counsel: William D. Delaney, for the appellant Brad G. Sarson, for the respondent Reasons for judgment: [1] At the conclusion of the hearing the court announced that this appeal was allowed with reasons to follow. These are the reasons. [2] The Crown appeals from acquittals entered by Judge Michael Sherar of the Provincial Court on five charges relating to the possession and storage of prohibited weapons. The Information alleged that the offences occurred on or about May 30, 2003. [3] The charges were laid after police officers who were in attendance at residence as result of fire, were advised by firefighters of the presence of two sawed off shotguns in the home. [4] At the commencement of the trial, counsel advised the trial judge that the defence had made several admissions in letter to the prosecutor and which was agreed would form part of the record. That letter, dated May 12, 2004, stated in part: Further to the above noted matter, am writing to advise you of number of admissions that the Defence is prepared to make in an effort to shorten the amount of time required for trial: The Defence is prepared to admit: 1. Date, time, and place; [5] In addition, the defence admitted that on May 30, 2003, Mr. Robinson was resident of the home where the firearms were found, that he was subject to an order prohibiting possession of firearms, and that he was not the holder of an firearms licence. As well, in preliminary discussions with the trial judge, defence counsel agreed that the firearms in question were stored without secure devices, that one of them was loaded and that one of them was stolen. It was noted that essentially the issues at trial would be knowledge and possession. [6] Two police officers testified. The first, Constable Guzzwell indicated that he had been dispatched to structure fire at house on Herring Cove Road, at 3:00 a.m. on May 23, 2003. He arrived before the fire engines. He banged on the door several times, eventually rousing an occupant and advising him to leave the house. After learning that there was dog still in the house the officer went back in with the resident to find the dog. while later he was told by member of the fire department that gun had been observed in bedroom of the house. Constable Guzzwell went back into the house with two other officers and found and removed two sawed off shotguns. [7] The second officer, Constable Dumas testified that he attended at the scene of the fire on May 23, 2003, entered the residence accompanied by Constable Guzzwell, located the firearms and photographed the weapons and two pieces of personal identification found in the bedroom, bearing the name of the accused. [8] After the close of the case for the Crown, defence counsel brought a motion for directed verdict on the basis that there was no evidence of one of the elements of the offence, that is, the date of the offence as alleged in the Information. In response, Crown counsel applied to amend the Information with respect to the date of the offence, to conform with the evidence. The trial judge, without specifically ruling on the motion to amend, granted the defence motion and entered acquittals on all charges. In discussions with counsel the trial judge remarked: THE COURT Well, if it wasn’t for the letter of May the 12th, think that you would have been out of luck, [Crown counsel]. I’m not so sure that you’re still not out of luck. But the first comment in the letter of May 12th, 2004 which also reviewed during the trial was that the Defence is prepared to admit the following date, time and place, presumably with regards to jurisdiction in the event. There is no argument made that the Crown must prove their case beyond reasonable doubt on each and every one of the elements of the offence, time being one of them. The time is admitted. There’s no argument that the accused is put to any surprise by the events which unfolded. [9] The brief decision is as follows: With some hesitation, am going to grant the Defence motion. There has not been proof of the elements of the offences alluded to in the Information before the Court sworn the 31st of May, 2003. [comments re exhibits] You are acquitted sir. [10] On appeal, the Crown takes the position that the trial judge erred in allowing the directed verdict motion even in the absence of an amendment and that the trial judge erred in failing to grant the motion to amend. The respondent submits that the trial judge granted the motion for directed verdict for insufficiency of evidence unrelated to the discrepancy in the date. It is conceded by the respondent that if the trial judge granted the motion for directed verdict because the date of the offence was not proven, there was an error of law. The respondent suggests that because the trial judge used the word “elements” that the date was not the only insufficiency. [11] The appellant relies on section 601(4.1) (which pursuant to s. 572 also applies to trials of indictable matters without jury),: 601 (4.1) variance between the indictment or 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 ... [12] In R. v. B.(G.). 1990 CanLII 7308 (SCC), [1990] S.C.R. 30, Justice Wilson for the Court indicated that s.529(4.1), the predecessor of s. 601(4.1), was similar to the common law rule that the date of the offence need not be proven unless it is an essential element of the offence. At 38, she stated: 38 From the foregoing, it is clear that it is of no consequence if the date specified in the information differs from that arising from the evidence unless the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or her defence. It is also clear from Dossi and other authorities that the date of the offence need not be proven in order for conviction to result unless time is an essential element of the offence. Accordingly, while it is trite to say that the Crown must prove every element of the offence in order to obtain conviction, it is, believe, more accurate to say that the Crown must prove all the essential elements. The Crown need not prove elements which are, at most, incidental to the offence. [13] Justice Wilson provided several examples of cases where the time of the offence was an essential element, such as, on charge of operating plane or an automobile without valid licence where the defence is that valid licence had been in existence at the time. Obviously, the date of the offence has to be proven to fall outside the time when licence was effective. As well, where an accused defends charge by providing evidence of an alibi for the date or time period alleged, the date of the offence is an essential element. [14] Given the circumstances in which the motion for directed verdict was made, including the argument advanced by defence counsel, it is fairly obvious that the trial judge granted the motion because the Crown had failed to prove that the date of possession of the weapons was May 30, 2003 as alleged in the Information. That was an error of law. The date of the offences was not an essential element. [15] Counsel for the respondent contends however that the trial judge granted the motion for directed verdict because the evidence presented by the Crown was not sufficient to meet the required test, that is, whether there was any evidence upon which reasonable jury, properly instructed could return verdict of guilty. (see: The United States of America v. Sheppard (1976), 1976 CanLII (SCC), 30 C.C.C. (2d) 424 (S.C.C.)) [16] If that is correct interpretation of the decision, then the reasons for granting the motion are so inadequate that they do not meet the test for sufficiency of reasons because they do not provide any indication of why there was insufficient evidence. The test for sufficiency of reasons, is, as set out in R. v. Braich, 2002 SCC 27 (CanLII), [2002] S.C.R. 903, at para. [31] The test, in other words, is whether the reasons adequately perform the function for which they are required, namely to allow the appeal court to review the correctness of the trial decision. [17] If the directed verdict was not founded in the discrepancy with the date, then the appeal would have to be allowed on the basis that the trial judge erred in law by giving insufficient reasons which prejudiced the Crown’s right of appeal. [18] Although the trial judge did not actually rule on the application by the Crown to amend the Information, if the directed verdict was granted on the basis that it was too late for an amendment, that too was an error in law. Section 601(3) of the Criminal Code provides: (3) Subject to this section, court shall, at any stage of the proceedings, amend the indictment or count therein as may be necessary where it appears ... (b) that the indictment or count thereof (i) fails to state or states defectively anything that is requisite to constitute the offence, ... (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 ... [19] Section 601(4) lists the factors that should be taken into consideration on an amendment application, which include whether the accused has been misled or prejudiced and whether the amendment would cause an injustice. Here there was no suggestion that the amendment of the date would mislead or cause prejudice or injustice to the accused. There was no indication that the date of the offences was relevant to the defence. [20] In summary, the trial judge erred by granting the motion for directed verdict based on the discrepancy between the date of the offences alleged in the Information and the evidence presented at trial because the date of the offences was not an essential element of the offences. Alternatively, if the motion was granted on the basis of insufficiency of the evidence, the reasons are inadequate. Furthermore, although it was not necessary to amend the Information because the date was not an essential element, if the reason for the directed verdict was that it was too late to amend, that was also reversible error of law. [21] The appeal is accordingly allowed, the acquittals are set aside and a new trial is ordered. Roscoe, J.A. Concurred in: Chipman, J.A. Saunders, J.A.
Following the close of the Crown's case on a trial of several weapons related offences, the defence moved for a directed verdict on the basis that there was no evidence that the offences occurred on the date alleged in the Information. The Crown sought to amend the Information to change the date of the offences. Without ruling on the motion to amend, the trial judge granted the motion for a directed verdict. The Crown appealed. Appeal allowed; acquittals set aside; new trial ordered. The directed verdict should not have been granted as, in this case, the date of the offences was not an essential element of the offences. If the directed verdict was not based on the discrepancy with the date, than the appeal would have to be allowed on the basis that the trial judge gave insufficient reasons which prejudiced the Crown's right of appeal.