R. v. MacEvoy

R. v. MacEvoy

Although s.601 permits amendment to conform to the evidence, the court must refuse an amendment that would prejudice the accused or result in injustice under the criteria in s.604(4); here amendment from 'intent to endanger life' to 'intent to wound' at the decision stage would unfairly shift the case the accused had to meet and potentially change the defence he chose to advance, therefore the court declined to amend and entered a not guilty verdict on Count 2 as charged.

Citation
2023 NSPC 35
Parties
Crown: His Majesty the King; Accused: Ernest James MacEvoy
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
14 June 2023
Procedural Posture
Criminal / Trial — Consideration of S.601 Amendment to Count 2 and Verdict on S.244
Outcome
Count 2 (s.244) acquitted (not guilty); accused remains for sentence on aggravated assault (s.268).
Legal Topics
Charge Amendment, Specific Intent, Section 244 Criminal Code, Section 601 Criminal Code, Self Defence, Aggravated Assault, Prejudice to Accused
Source Language
English
Criminal Law Procedural Law Evidence Charge Amendment Specific Intent Section 244 Criminal Code Section 601 Criminal Code Self Defence +2 more

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Parties

His Majesty the King

Crown

Ernest James MacEvoy

Accused

Procedural Posture

Criminal / Trial — Consideration of S.601 Amendment to Count 2 and Verdict on S.244

Legal Issues

  1. 1 Whether the court should amend Count 2 under s.601 from an allegation of intent to endanger life to intent to wound
  2. 2 Whether the proposed amendment would prejudice the accused or result in injustice under s.604(4) factors
  3. 3 Whether the evidence supports the specific intent element of s.244

Ratio Decidendi

Although s.601 permits amendment to conform to the evidence, the court must refuse an amendment that would prejudice the accused or result in injustice under the criteria in s.604(4); here amendment from 'intent to endanger life' to 'intent to wound' at the decision stage would unfairly shift the case the accused had to meet and potentially change the defence he chose to advance, therefore the court declined to amend and entered a not guilty verdict on Count 2 as charged.

Court Disposition

Count 2 (s.244) acquitted (not guilty); accused remains for sentence on aggravated assault (s.268).

Orders

  • Not guilty entered on Count 2 as charged under s.244 of the Criminal Code
  • Accused to remain for sentence on the aggravated assault conviction (s.268)