Savard then contacted PK by letter confessing his sexual interest in her and seeking her assistance in dealing with his recent charge. That letter also impliedly threatened that TC’s parents would never see their daughter again. PK went to the police. Savard was charged with criminally harassing PK and NF.
Following a trial in the Ontario Court of Justice Savard was convicted and sentenced to time served of 17 months followed by three years of probation. The trial judge declined to impose a mandatory weapons prohibition and refused to make an order for Savard to provide a sample of DNA. The Crown appealed the sentence; Savard appealed the convictions: 2013 ONSC 2208.
On appeal Savard argued that the trial judge erred in two ways. First, by admitting a spontaneous utterance he made to police upon his arrest. Second, by failing to consider the exculpatory aspects of the letters written to TC and PK.
When police arrested Savard following TC’s receipt and report of the letter, officers told Savard that he was under arrest for criminal harassment. Almost immediately Savard said “is this in relation to the letter I sent to TC?”. The Crown tendered the statement at trial to show that Savard knew that the letter was problematic.
On appeal Savard argued that:
…this statement by the accused is not admissible. He does not challenge the voluntariness of the utterance, but rather argues that since an accused that is placed under arrest is entitled, according to s. 10(a) of the Canadian Charter of Rights and Freedoms, to be advised of the reasons for his or her arrest, any comment or inquiry by the accused regarding the reasons for the arrest is "protected speech" and therefore inadmissible [para 37].
Campbell J sitting as a summary conviction appeal court, noted first that defence had no authority for the proposition being advanced. Campbell J then held:
(…)in this case the accused's right to be informed promptly of the reasons for his arrest is not diminished by permitting the Crown to tender a spontaneous utterance he made during the course of the arrest process before the police were able to fully comply with their obligations under s. 10(a) of the Charter [para 45].
With respect to the second ground of appeal Campbell J went through the evidence and the findings made by the trial judge in relation to each count charged and found no error. One aspect of the communications that was argued on appeal was that the threats about NF were communicated by the accused to PK and not NF. Campbell J dealt with this argument in short shrift noting that:
The threatening conduct contained in the letter to P.K was, ultimately, brought to the attention of N.F. and her parents by a means different than that planned by the accused, in that it was conveyed to N.F. through the police investigation instead of personally through the efforts of P.K. This fact is not, in my view, of any legal consequence. As the trial judge correctly observed, the conduct of P.K., in heading directly to the police upon receipt of this letter was "perfectly reasonable" and predictable in the circumstances, and the accused was "reckless" as to what P.K. might do with this letter. As this means of communicating the threatening conduct in the letter must have been within the subjective contemplation of the accused, the conviction of the accused can hardly be set aside because his goal of communicating the threatening conduct was accomplished in a different way than he had hoped [para 87].
Savard also argued that the count in the information relating to PK did not reflect the time period in which the letter was sent. Namely the count charged read that PK was harassed between November 1, 2006 and February 1, 2008; the letter however was received by PK in July 2008. Campbell J noted that no explanation was provided for this obvious drafting error, but had no difficulty amending the information on the appeal.
Indeed, at trial, there was never any complaint or objection raised by or on behalf of the accused that the alleged threatening conduct by the accused fell outside the time period outlined in the information.
Accordingly, I have no doubt that, had any such objection been raised at trial, the information would have been amended to conform with the evidence, especially since s. 601(4.1) of the Criminal Code provides that any variance between the indictment and the evidence is "not material" with respect to the "time when the offence is alleged to have been committed" provided that the indictment was preferred within any prescribed limitation period. Of course, s. 2 of the Criminal Code defines the term indictment as including "an information or a count therein." As the information charging this offence was sworn within the six month limitation period prescribed by s. 786(2) of the Code, the language of s. 601(4.1) suggests that the issue of the timing of the offence is simply "not material."
In all of the circumstances, in my view, it is in the interests of justice to now amend the information. According to s. 683(1)(g) of the Criminal Code, which is made applicable on summary conviction appeals by s. 822(1) of the Code, the court may, where it considers it to be "in the interests of justice," amend an indictment unless the accused has been "misled or prejudiced" in his defence or on his appeal. As I have indicated, at trial the accused was neither misled nor prejudiced in relation to the manner in which the original charge was formulated, and will suffer no discernible prejudice or be in any way misled if the requested amendment is now made on appeal [paras 89-91].
The Crowns sentence appeal was granted in part. The section 109 order is not discretionary and was required by law as part of the sentence. The DNA order however was in the circumstances discretionary and Campbell J declined to interfere.
DGM