R. v. Swansburg

R. v. Swansburg Court Court of Appeal Date 1994-05-24 Citation 1994 NSCA 143 Docket CAC 02966 Judge/Registrar/Adjudicator Chipman, David (Honourable Justice); Clarke, Lorne O. (Honourable Chief Justice); Hart, Gordon L.S. (Honourable Justice) Document Type Decision Decision Content C.A.C. No. 02966 NOVA SCOTIA COURT OF APPEAL Cite as: R. v. Swansburg, 1994 NSCA 143 Clarke, C.J.N.S.; Hart and Chipman, JJ.A. BETWEEN: RALPH RAYMOND SWANSBURG ) Gregg Yeadon ) for the Appellant Appellant ) ) - and - ) ) HER MAJESTY THE QUEEN ) Denise C. Smith ) for the Respondent Respondent ) ) ) ) ) ) Appeal Heard: ) May 10, 1994 ) ) ) Judgment Delivered: ) May 24, 1994 THE COURT: The indictment is amended, the conviction is set aside and a new trial is ordered on such amended indictment as per reasons for judgment of Chipman, J.A.; Clarke, C.J.N.S. and Hart, J.A., concurring. CHIPMAN, J.A.: The appellant was convicted by a jury in Supreme Court of committing an assault upon his wife between January 1, 1967 and December 31, 1989. The problem in this appeal arises from the fact that the trial was obviously conducted on the footing that common assault (as it was formerly called) was an indictable offence during the entire period of 23 years embraced by the indictment, whereas this offence was but a summary conviction matter from July 15, 1972 to January 4, 1983. During the balance of the period, it was a hybrid offence so-called, that is an offence that could be proceeded with either by way of indictment or as a summary conviction matter. Summary conviction offences are barred by a six month limitation period. See Statutes of Canada 1953-54, c. 51, s. 23; 1972, c. 13, s. 21; 1980-1-2-3, c. 125, s. 19, s. 33; Criminal Code, s. 266, s. 786(2). The circumstances spoken of by the victim are appalling. Her testimony was that within months of her marriage to the appellant in June of 1966, he embarked upon a campaign of brutalizing her with whips, choking, pounding and verbal abuse. The victim spoke of such abuse commencing in early 1967 and continuing with periodic intermission from that time until she left the appellant in 1990. Testimony from two of her children more or less corroborated the general pattern of abuse as an ongoing and continuous characteristic of their father's behaviour towards their mother. While no attempt was made at the trial to pinpoint the abuse in point of time with any certainty, events in 1967, 1977 and 1989 were highlighted. The appellant's position at the trial was one of denial of the abuse alleged against him. His testimony indicated that there was ill will in the family and that on at least one occasion the victim had assaulted him. The trial judge charged the jury correctly on the ingredients of the offence of assault and on all of the other matters which were placed in issue at the trial. The jury returned within 25 minutes with a verdict of guilty. The appellant was subsequently sentenced to four years incarceration. The appellant appeals from both conviction and sentence. As to the conviction appeal, the grounds advanced are: 1. That the trial judge erred in not quashing the indictment, given that assault was not an indictable offence during part of the time alleged. 2. That the trial judge erred in not instructing the jury that evidence relating to assault when it was not an indictable offence was not admissible to prove the charge. 3. Such other grounds as may appear upon reading the trial transcript. As to the first ground, at no time was the trial judge's attention drawn to the fact that the offence of common assault was a summary conviction offence only during a substantial portion of the time covered by the indictment. Assuming that there was a defect apparent on the face of the indictment, no motion to quash it was made before the trial judge. That said, it was too late for the appellant to raise the point, without leave, after he had pleaded. See s. 601(1) of the Code. It is far too late to entertain this ground now. It need concern us no further. The second and third grounds raise more serious concerns. Since common assault was merely a summary conviction offence between July 15, 1972 and January 4, 1983, there was no jurisdiction to try the appellant for that offence respecting that period. Moreover, the appellant's conduct during that time period may not be evidence to support a conviction for assault in another time period. In addressing these issues it must be emphasized that it was not drawn to the trial judge's attention that during a portion of the time period alleged in the indictment common assault was not an indictable offence. Because of this, the resolution of this appeal has been made more difficult and the administration of justice less satisfactory for those most affected in this matter. Consideration must be given to the effect of the summary conviction nature of the offence of common assault between 1972 and 1983 on the appellant's trial and conviction. On its face the indictment is not a nullity. As long as any part of the time span alleged embraced a period when the offence was within the Court's jurisdiction and not statute barred, the matter could proceed. Any resulting conviction would, however, have to specify a time or times at which the Court had jurisdiction and which were within the period of limitation. In R. v. Penchard (1936), 65 C.C.C. 113, Doull, J., speaking for the Supreme Court of Nova Scotia in banco said at p. 124: "The Magistrate in my opinion had jurisdiction to hear and determine the matter of the information if any part of the time was within the six months period of limitation. If it then appeared that the offence had taken place prior to six months before the laying of the information, he should and no doubt would have dismissed the complaint. If, on the other hand, the evidence disclosed an offence within the six months period he should have made a conviction in the form directed by the order of the County Court Judge. The cases which hold that a conviction must show a time within the period of limitation do not mean that an information is necessarily bad if it alleges an offence covering a time of which some part is within and some without that period. If any part of the time is within the period the Justice may proceed with his inquiry but the conviction should set out that the offence was on a date within the time. Paley on Convictions, p. 473." In R. v. Odgers (1977), 37 C.C.C. (2d) 554 (Alta. C.A.), it was held that an indictment embracing a time period part of which was barred by limitations was to that extent defective, but capable of amendment where no prejudice was occasioned to the accused. Thus the Alberta Court of Appeal amended the indictment to embrace the time not barred by the limitation period. At p. 557 the Court referred with approval to R. ex rel. Hoddinott v. Wooster (1959), 123 C.C.C 255 (Sask. C.A.), where Penchard, supra, was quoted with approval. See also Re Parkin and the Queen (1986), 28 C.C.C. (3d) 252. The foregoing authorities make it clear that where the evidence upon which a conviction is based falls within a time not barred by a limitation period, a charge alleging an offence as also occurring at a time that is barred may be amended to conform with the evidence and a conviction entered accordingly. Such power can be exercised by a Court of Appeal under the authority of s. 683(1) of the Criminal Code: "683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, . . . (g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal." The difficulty facing the Court in this appeal is that the matter was tried by a jury. No specific facts were found - only a general verdict of guilty referable to the entire period alleged in the indictment was rendered. I repeat that the case was obviously tried on the assumption that the appellant was in jeopardy for events during the entire period of 22 years covered by the indictment. No attempt was made to distinguish between the time periods at issue here. This might have been done with some precision had counsel and the witnesses been aware of the significance of the time frames. The record does reveal some events clearly within the period of liability, but it is not possible in view of other events clearly outside that period and a number unspecified as to time, to determine on what basis the jury convicted. The Crown submitted that the evidence of the assaults during the period of limitation was nevertheless admissible, citing R. v. Duzan et al (1993) 79 C.C.C. (3d) 552 (Sask. C.A.) and Odgers, supra. In those cases however the evidence of events outside the limitation period was relevant as being explanatory of acts done within that time period. The evidence against the appellant in the period at issue here may not be admissible. It is distinguishable from the explanatory nature of the evidence admitted by the courts in Duzan and Odgers. In R. v. Halcrow (1993), 80 C.C.C. (3d) 320 (B.C.C.A.), the British Columbia Court of Appeal allowed in part an appeal from two convictions by a jury of assault causing bodily harm and three convictions for the included offence of common assault. With respect to the latter, the Court referred to the history of the offence of common assault between 1972 and 1983 and referred to the fact that two of the convictions, as here, embraced times both within and without the time barred period. As to these the Crown had invited the Court to amend the indictment to bring the counts within the time when common assault was an electable or hybrid offence. The Court declined to do so. Goldie, J.A., speaking for all of the Court on this point said at p. 355: "While this indeed could be done, I do not think it desirable in the circumstances of the case at bar. The jury was directed to consider all the evidence relevant to each count. It would be speculative to say the jury would have reached the same conclusion had it been told that to convict on the included offence it must disregard all evidence after July 15, 1972." So too it is not here possible to say with certainty that the conviction of the appellant was based on his actions during the time for which he could be tried. The conviction should be set aside and a new trial ordered. The indictment should have made clear to the appellant that he was facing allegations of conduct within the time during which assault was an indictable offence for which he could be prosecuted. I would therefore amend the indictment so as to allege assault between January 1, 1967 and July 14, 1972 and between January 5, 1983 and December 31, 1989. I would set aside the conviction and order a new trial on such amended indictment. While it may seem that the conviction of the appellant is being set aside on a technicality, this Court does not have the power to permit a person to incur criminal liability on the basis of a charge covering a time for which no liability exists. By amending the indictment as I have indicated, we can ensure that the appellant will now go to trial on a charge properly framed in accordance with law. Such an amendment does not in these circumstances prejudice the appellant. It is not necessary to address the sentence appeal. J.A. Concurred in: Clarke, C.J.N.S. Hart, J.A.