R. v. N.C.B., 2024 NSCA 22, FEBRUARY 28, 2024.
FACTS: The accused was charged with the offence of sexual assault. The indictment alleged that the offence took place “between the 31st day of December, A.D., 2002 and the 1st day of February, 2004”. At the trial, the Crown sought to have the indictment amended to reflect the complainant’s evidence as to when the offence occurred. The trial judge dismissed the application and acquitted the accused holding that the Crown had failed to prove that the offence had occurred within the time frame set out in the indictment and that to allow the amendment would cause “irreparable prejudice” to the alibi defence raised by the accused. The Crown appealed from the acquittal.
HELD: The appeal was allowed and a new trial ordered. The Nova Scotia Court of Appeal concluded that “the trial judge’s failure to amend the Indictment was based on legal error” (at paragraph 8).
Amending an Indictment and Alibis:
The Court of Appeal, after referring to R. v. P.(M.B.), [1994] 1 S.C.R. 555, pointed out that in that decision a majority of the Supreme Court held that “there is no vested right in a particular alibi. The majority further said the loss of a particular defence did not equate to irreparable prejudice…[T]he trial judge incorrectly viewed the respondent’s alibi as critical, and its loss a significant blow. This misplaced reliance caused the trial judge to focus on preserving the respondent’s defence as his primary consideration” (at paragraph 58).
The Court of Appeal concluded that “a proper application of the legal principles in the circumstances before the trial judge should have resulted in the sought amendment being granted. The trial judge’s conclusion the respondent would be irreparably prejudiced by the sought amendment was flawed. I am further satisfied this error had a material impact on the eventual acquittal given the trial judge found the Crown had failed to prove beyond a reasonable doubt the offences occurred within the timeframe set out in the Indictment” (at paragraph 61).
