Amendments to Charges

From Criminal Law Notebook
This page was last substantively updated or reviewed June 2022. (Rev. # 81734)

General Principles

A charge sets out the formal allegation of an offence. It specifies the statutory provision alleged to be violated and some details on the form or mode in which the offence is said to have occurred.

The specific components of a charge that set out the material elements required for proof are known as the "avernments".[1] The specifics that do not set out material elements of proof are known as "surplusage".

Section 601 governs defects to an information or indictment.[2] It permits informations or indictments to be quashed or amended.

The section addresses three situations:

  1. An application of the accused for quashing an indictment as a nullity;
  2. The Crown or judge amends the indictment to correct a defect; or
  3. the Crown seeks an amendment to conform to the evidence at a preliminary inquiry or trial.

Where there is a variance between the information and the evidence on the time, place, person, or subject will still make out the charge unless those elements are vital to the defence.[3]

Mistakes to heading of indictment will not affect its validity.(s. 601(8))

Amending a Charge Not Known in Law

It is not permitted to amend a charge that it not known in law as it is void ab initio.[4]

Timing

Under s. 601(3)(b) and (c), the court may amend the form or substance of an information at any stage of the proceeding.[5]

Amendments prior to the defendant electing to call evidence will often be permitted.[6]

No New Charges

It is generally said that it is not possible to amend the charge to the effect of charging a different offence.[7]However, there is some authority that a charge can be amended to substitute a new charge where there is no prejudice to the accused.[8]

Particularization of Allegation

When proving an offence, the Crown is bound to prove the "particularlized charge" as it is worded in the information or indictment.[9]

  1. ↑ MacMillan Dictionary
  2. ↑ Section 601 specifically deals with indictable offences, but s. 795 allows it to equally apply to summary offences
  3. ↑ R v GB, 1990 CanLII 114 (SCC), [1990] 2 SCR 30, per Wilson J - variation of time
    R v Whynott, 1975 CanLII 1513 (NS CA), 27 CCC (2d) 321 (NSCA), per Coffin JA variation of place
    R v Gooderham, 2004 BCCA 248 (CanLII), 196 BCAC 168, per Thackray JA - variation to person
  4. ↑ R v B(A), 1991 CanLII 11741 (QC CA), 64 CCC (3d) 104 ("First, the record shows that at the time that counsel for the accused brought his motion on May 7th, the accused had not entered a plea. As the indictment contained offences which were not known to law at the time that it was preferred, it was null ab initio and, not only could the accused not plead to it, but Crown counsel could not have amended it: Dupont v. The Queen (1959), 123 C.C.C. 386, 28 C.R. 146, a decision of our Court of Appeal; R. v. Hunt, Nadeau and Paquette (1974), 16 C.C.C. (2d) 382 (B.C.C.A.); and R. v. Côté (1977), 33 C.C.C. (2d) 353, 73 D.L.R. (3d) 752, [1978] 1 S.C.R. 8. ")
  5. ↑ e.g. see R v McConnell, 2005 CanLII 13781 (ON CA), 196 CCC (3d) 28, per Rosenberg JA
  6. ↑ R v M(EAD), 2008 MBCA 78 (MB CA), 229 CCC (3d) 78, per Scott CJ
  7. ↑ Gunn v The Queen, 1982 CanLII 174 (SCC), [1982] 1 SCR 522, per Laskin CJ
    R v Rinnie, 1969 CanLII 979 (AB CA), 9 CRNS 81, [1970] 3 CCC 218, per Cairns JA
  8. ↑ R v Bidawi, 2018 ONCA 698(*no CanLII links) , per Fairburn JA
  9. ↑ R v Saunders, 1990 CanLII 1131 (SCC), [1990] 1 SCR 1020, per McLachlin J at page 1023 ("It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved")
    R v Daoust, 2004 SCC 6 (CanLII), [2004] 1 SCR 217, paras 21 and 22(complete citation pending)

Appellate Review

Amendments to an information is a question of law (s. 601(6)):

601
[omitted (1), (2), (3), (4), (4.1) and (5)]

Question of law

(6) The question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law.
[omitted (7), (8), (9), (10) and (11)]
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.

– CCC

Note up: 601(6)


Defined terms: count (s. 2) and indictment (s. 2)

Motion to Quash

Under s. 601(1), the accused may object to indictment or charge by way of a motion to quash.

Amending defective indictment or count

601 (1) An objection to an indictment preferred under this Part [Pt. XX – Procedure in Jury Trials and General Provisions (ss. 574 to 672)] 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.
[omitted (2), (3), (4), (4.1), (5), (6), (7), (8), (9), (10) and (11)]
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.
[annotation(s) added]

– CCC

Note up: 601(1)

This motion must be made before a plea is entered. The motion may only be made after plea with leave of the Court.[1]

The key issue is considering whether to quash an indictment or charge would depend on whether the accused was "reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial"[2] and whether the charging document gives "fair notice of the offence to the accused".[3]

There remains little discretion to quash unless the charge is an "absolute nullity".[4] Instead, s. 601 provides for "very wide powers to cure any defect in a charge by amending it".[5]

A time frame on an information that is so broad to not permit the accused to identify the time of the transaction is a nullity.[6]

  1. ↑ R v GB, 1990 CanLII 115 (SCC), [1990] 2 SCR 57, per Wilson J
  2. ↑ R v Cote, 1977 CanLII 1 (SCC), 33 CCC (2d) 353, [1978] 1 SCR 8, per De Grandpre J, at p. 357 (cited to CCC)
  3. ↑ R v Moore, 1988 CanLII 43 (SCC), [1988] 1 SCR 1097, 41 CCC (3d) 289, per Lamer J, at p. 297 (cited to CCC)
  4. ↑ Moore, ibid., at p. 311
  5. ↑ Moore, ibid., at para 59
  6. ↑ GB, supra - citing R v Colgan for 6 years range of dates for a theft

Timing of Amendment

An application under s. 601(2) and 601(3)(b)(i) can only be made once evidence had been heard by the judge.[1]

The court has jurisdiction to make an amendment at any time up to the point of the judge rendering verdict.[2]

An amendment to conform to the evidence may be made after the motion for dismissal but should usually before the defence calls evidence.[3]

There is some instances where the amendments have been permitted after the close of the Crown case or after the defence have called evidence.[4]

  1. ↑ R v McConnell, 2005 CanLII 13781 (ON CA), 196 CCC (3d) 28, per Rosenberg JA
  2. ↑ R v Clark, 1974 ALTASCAD 59 (CanLII), 19 CCC (2d) 445 (Alta C.A.), per Clement JA
  3. ↑ R v Morris, 1964 CanLII 649 (BC CA), [1965] 3 CCC 349 (BCCA), per Lord JA
  4. ↑ R v SD, 2011 SCC 14 (CanLII), [2011] 1 SCR 527, per Binnie J
    R v CAS, 1997 CanLII 2519 (BC CA), 114 CCC (3d) 356, per Donald JA
    R v Murray, 2003 SKCA 120 (CanLII), 241 Sask R 101, per Jackson JA

Mandatory Amendments to Defects

Subject to certain limitations, where certain defects are spotted, the judge is obligated to correct them under s. 601(3).

601
[omitted (1), (2) and (3)]

Amending indictment

(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.

[omitted (4), (4.1), (5), (6), (7), (8), (9), (10) and (11)]
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.

– CCC

Note up: 601(3)


Defined terms: "indictment" (s. 2)

Amendments to Conform to the Evidence at Trial or Preliminary Inquiry

Section 601(2) provides the judge with discretionary authority to amend the information or charge to "conform with the evidence".

601
[omitted (1)]

Amendment where variance

(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 [order for particulars], 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 [order for particulars].

[omitted (3), (4), (4.1), (5), (6), (7), (8), (9), (10) and (11)]
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.
[annotation(s) added]

– CCC

Note up: 601(2)


Defined terms: Act (s. 2), count (s. 2), courts (s. 716), and indictment (s. 2)

Where a trial or preliminary inquiry has commenced, the crown or judge may amend the information under s. 601(2) to conform to the evidence as it comes out.[1]

There is however no power to amend under s. 601 until such time as evidence has been heard establishing the variance.[2]

Procedure

When an application to amend is made, the judge should:[3]

  1. determine whether there was a variance between the information and the evidence;
  2. determine whether the requested amendment will make the information conform with the evidence;
  3. consider the factors enumerated in s. 601(4)
Factors

The issue in determining whether to permit an amendment is whether the amendment would cause "irreparable" prejudice to the accused.[4]

Substituting Different Charges

Section 601 permits an amendment that substitutes a new charge so long as the accused is not prejudiced by the change.[5]

Vary of Time or Jurisdiction

Under s.601(4.1), variations between the evidence and the time or jurisdiction set out in the information are not materials where the indictment was preferred within the limitation period or where the matter arose in the geographical jurisdiction of the court.

Even though the difference in between the evidence and charge of when the offence occurred may not be material, the judge cannot direct a jury to disregard this difference as it may be used to assess credibility.[6]

While an information or indictment must state a time of the offence, it is not necessary that the charge be amended to conform to the evidence for a conviction to be entered unless time is "of the essence".[7]

  1. ↑ See also s. 601(3)(b)(i)
  2. ↑ R v McConnell, 2005 CanLII 13781 (ON CA), 196 CCC (3d) 28, per Rosenberg JA, at para 20
  3. ↑ R v Picot, 2013 NBCA 26 (CanLII), [2013] NBJ No 114, per Richard JA - only lists the first and third of the three steps
  4. ↑ Morozuk v The Queen, 1986 CanLII 72 (SCC), [1986] 1 SCR 31, per Lamer J
    R v Campbell, 1986 CanLII 35 (SCC), 29 CCC (3d) 97, per Lamer J
    R v Côté, 1996 CanLII 170 (SCC), [1996] 3 SCR 139, [1996] SCJ No 93, per Lamer J
    R v P(MB), 1994 CanLII 125 (SCC), [1994] 1 SCR 555, per Lamer CJ
    R v Tremblay, 1993 CanLII 115 (SCC), 84 CCC (3d) 97, per Cory J
    Vézina and Côté v The Queen, 1986 CanLII 93 (SCC), [1986] 1 SCR 2, per Lamer J
  5. ↑ R v Spilchen, 2021 NSSC 131 (CanLII), per Coady J
    R v Irwin, 1998 CanLII 2957 (ON CA), 123 CCC (3d) 316, per Doherty JA
  6. ↑ R v C(MH), 1991 CanLII 94 (SCC), [1991] 1 SCR 763, per McLachlin J
  7. ↑ R v Poirier [1989] N.B.J. No 445 ("In my opinion, no amendment was required with respect to the date. While the date of the commission of an offence must be stated in an information or indictment, it does not have to be laid according to truth unless time is of the essence of the offence.")
    R. v. Clark (1974) 1974 ALTASCAD 59 (CanLII), 19 C.C.C. (2d) 445
    R v Pawliw, 1973 CanLII 1417 (SK CA), 13 CCC (2d) 356, per Woods JA
    R v Green, 1962 CanLII 612 (ON CA), 133 CCC 294, per MacKay JA
    R v England, 1920 CanLII 377 (NB CA), 48 NBR 192

Components of the Charge

The courts have distinguished between "essential" components of allegations and those that are "surplusage". [1]

Where the evidence at a preliminary inquiry does not establish the essential elements the charge must be dismissed or amended to meet the evidence. However, if the allegation is surplusage (or incidental) to the charge then it does not need to be satisfied or modified to achieve committal or conviction.[2]

Surplusage

Where the particulars of a charge are not essential to constitute a charge, it will be a surplusage and will not need to be proven.[3]

  1. ↑ R v B(G) (No 2), 1990 CanLII 115 (SCC), [1990] 2 SCR 57, 56 CCC (3d) 200, per Wilson J
  2. ↑ B(G), ibid.
  3. ↑ R v Cote, 1986 CanLII 93 (SCC), [1986] 1 SCR 2, 23 CCC (3d) 481, per Lamer J citing Ewaschuk Criminal Pleadings and Practice in Canada

Factors to Consider

Section 601(4) sets out factors the court should consider:

601
[omitted (1), (2) and (3)]

Matters to be considered by the court

(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider

(a) the matters disclosed by the evidence taken on the preliminary inquiry;
(b) the evidence taken on the trial, if any;
(c) the circumstances of the case;
(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) [power to amend where variance from evidence] or (3) [power to amend defective indictment]; and
(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

[omitted (4.1), (5), (6), (7), (8), (9), (10) and (11)]
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.

– CCC

Note up: 601(4)

The factors in s. 601(4) are mandatory considerations and a failure to consider them may invalidate the amendment.[1]

The purpose of these factors is to ensure procedural fairness.[2]

  1. ↑ R v Olson, 2004 ABPC 142 (CanLII), 368 AR 136, per Allen J, at para 26
    R v Geary, 1960 CanLII 458 (AB CA), 126 CCC 325, per H Macdonald JA
  2. ↑ Olson, supra, at para 26

Prejudice

An amendment will not be granted where the defence is prejudiced by the amendment. To be "prejudiced", the amendment must create an offence the accused was unaware of or alter the manner in which the defence is conducted.[1]

An amendment may not substitute completely separate charges or otherwise "fundamentally" change the case against the accused.[2]

However, a correction in the section number alone is permissible at any point prior to the conclusion of trial.[3]

An amendment of a merely "technical error" should be allowed so the matter can be dealt with on the merits.[4]

Under s. 601(5), where an accused is prejudiced by "a variance, error or omission" the court may adjourn the proceedings:

601
[omitted (1), (2), (3), (4) and (4.1)]

Adjournment if accused prejudiced

(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.
[omitted (6), (7), (8), (9), (10) and (11)]
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.

– CCC

Note up: 601(5)

The court should consider the materials in the possession of the defence including disclosure and evidence adduced during a preliminary inquiry.[5]

  1. ↑ R v Ali, 2008 ABCA 361 (CanLII), per Fraser CJ
  2. ↑ R v Charlton and Ostere, 1976 CanLII 1333 (BC CA), 30 CCC (2d) 372 (BCCA), per Robertson JA
  3. ↑ R v Hubek, 2011 ABCA 254 (CanLII), 513 AR 194, per curiam, at para 14
  4. ↑ R v Cousineau, 1982 CanLII 3720 (ON CA), [1982] OJ No 150 (ONCA), per Blair JA, at para 9 - court overturned judge's refusal to amend a serial number named in a charge of possession of stolen property
  5. ↑ R v Robinson, 2001 CanLII 24059 (ON CA), 153 CCC (3d) 398, per Rosenberg JA, at para 23 - context of considering sufficiency of charge

Amendment of Time, Date, or Location of Offence

See also: Time and Place

Time is normally not an essential element that the crown must prove.[1]

601
[omitted (1), (2), (3) and (4)]

Variance not material

(4.1) A variance between the indictment or a 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
(b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

[omitted (5), (6), (7), (8), (9), (10) and (11)]
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.

– CCC

Note up: 601(4.1)

Section 601 "codifies the common law rule that the date of an offence need not be proven unless it is an 'essential element' of the offence pursuant".[2]

Where the time specified on the information is not consistent with the evidence and time is not an essential element of the offence, then the variance is not material and a conviction may still hold.[3]

Time will be essential where:

  1. there is alibi evidence,[4]
  2. the age of the complainant is an essential element,[5]
  3. age of a party is relevant to a defence,[6]
  4. the age of the accused as an adult,[7]

Where there is a variance between the date of the offence on the information and the evidence it is a misdirection to instruct a jury to disregard the variance.[8]

  1. ↑ R v KM, 2008 CanLII 1540 (ON SC), per Hill J, at para 132
  2. ↑ R v P(MB), 1994 CanLII 125 (SCC), [1994] 1 SCR 555, per L'Heureux-Dubé J dissenting on another issue
    see also R v B(G), 1990 CanLII 114 (SCC), [1990] 2 SCR 30, per Wilson J - 601 was replacing the former s. 732(4) that had identical language
  3. ↑ B(G), ibid.
    R v Robinson, 2005 NSCA 65 (CanLII), 196 CCC (3d) 557, per Roscoe JA, at para 12
  4. ↑ R v B, R, 1999 CanLII 1670 (ON CA), 139 CCC (3d) 77, per Rosenberg JA, at paras 1, 6 to 9, 17 to 18, 20 to 22, 27
    R v Oziel, 1997 CanLII 549 (ON CA), [1997] OJ No 1185 (CA), per curiam, at para 4
  5. ↑ KM, supra, at para 132
  6. ↑ KM, supra, at para 132
  7. ↑ R v C(G), 1996 CanLII 6634 (NL CA), 110 CCC (3d) 233, per Marshall JA, at pp. 274-8
    R v Daniels, (1995), 136 Sask R 57 (Q.B.)(*no CanLII links) , at paras 1, 3, 8
  8. ↑ R v C(MH), 1991 CanLII 94 (SCC), [1991] 1 SCR 763, per McLachlin J

Form of the Record

In Part XX relating to jury trials, any amendments should be made to the indictment with no reference to the original indictment:

Form of record in case of amendment

625 Where it is necessary to draw up a formal record in proceedings in which the indictment has been amended, the record shall be drawn up in the form in which the indictment remained after the amendment, without reference to the fact that the indictment was amended.
R.S., c. C-34, s. 553.

– CCC

Note up: 625

Amendment on Appeal

An indictment may be amended on appeal to conform to the evidence so long as the accused is not "mislead" or "prejudiced".[1]

  1. ↑ R v Brownson, 2013 ONCA 619 (CanLII), 7 CR (7th) 327, per MacPherson JA

Procedure of Amendments

Procedure

Where an amendment is granted, the judge must endorse the indictment or information. [1]

601
[omitted (1), (2), (3), (4), (4.1), (5) and (6)]

Endorsing indictment

(7) An order to amend an indictment or a count therein shall be endorsed on the indictment as part of the record and the proceedings shall continue as if the indictment or count had been originally preferred as amended.
[omitted (8)]

Limitation

(9) The authority of a court to amend indictments does not authorize the court to add to the overt acts stated in an indictment for high treason or treason or for an offence against any provision in sections 50 [assisting alien enemy to leave Canada, or omitting to prevent treason], 51 [intimidating Parliament or legislature] and 53 [inciting to mutiny].
[omitted (10)]

Application

(11) This section applies to all proceedings, including preliminary inquiries, with such modifications as the circumstances require.
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.
[annotation(s) added]

– CCC

Note up: 601(7), (9) and (11)

Mistakes

601
[omitted (1), (2), (3), (4), (4.1), (5), (6) and (7)]

Mistakes not material

(8) A mistake in the heading of an indictment shall be corrected as soon as it is discovered but, whether corrected or not, is not material.
[omitted (9), (10) and (11)]
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.

– CCC

Note up: 601(8)

"Courts"

601
[omitted (1), (2), (3), (4), (4.1), (5), (6), (7), (8) and (9)]

Definition of court

(10) In this section, "court" means a court, judge, justice or provincial court judge acting in summary conviction proceedings or in proceedings on indictment.
[omitted (11)]
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.

– CCC

Note up: 601(10)

See Also

  1. ↑ section 601(7) ("An order to amend an indictment or a count therein shall be endorsed on the indictment as part of the record and the proceedings shall continue as if the indictment or count had been originally preferred as amended.")
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