Crown obliged to prove particulars of date and locale as alleged in indictment

Milligan’s Criminal Law Advisor

By Jeffrey Milligan

The Yukon Court of Appeal holds that in a drug case the Crown must prove the date and locale of the offence as alleged in the indictment

The Crown does not always have to prove the particulars that it alleges in the information or indictment. Whether it must prove the particulars alleged depends upon whether those particulars are material and, very often, unproven particulars are regarded as “surplusage” that do not need to be proved. Generally, the time when the offence was alleged to have occurred and the location where it is said to have occurred are not material. See, for example, s. 601(4.1) of the Criminal Code.

But sometimes the date of the offence and the locale where it was said to have been committed are material and must be proven by the Crown. A recent decision of the Yukon Court of Appeal sheds light on when particulars as to the date and locale of the offence must be proven.

The Yukon Court of Appeal recently heard an appeal from the an acquittal entered by Chief Judge Ruddy on a single count of possessing cocaine for the purpose of trafficking “on or about August 30 2013 at or near Whitehorse, Yukon Territory”. Ruddy J. held that the Crown failed to prove the date and locale of the offence as particularized in the indictment. Those, she found, were essential elements the Crown was obliged to prove because they were necessary to the accused’s understanding of the case against him. Mr McMillan was arrested and charged as part of a wider drug trafficking enterprise between the Lower Mainland of British Columbia and the Yukon.

The Crown’s case against him was entirely circumstantial. The centre piece of the case rested on two finger prints of his found on material used to package a brick of cocaine that was retrieved on 30 August 2013 by a police agent from a residence in Whitehorse. The agent turned over the brick to his handlers and it was duly tested forensically.

That agent, a former drug trafficker, testified that, although he had met Mr McMillan in early August in Whitehorse, he was not aware of his involvement in the transaction that took place on August 30. He did not say identify Mr McMillan as someone who delivered drugs to the house in Whitehorse and did not say that Mr McMillan was even present at the residence when he retrieved the brick of cocaine. Surveillance evidence suggested that the brick of cocaine was delivered to Whitehorse some time in early August.

Mr McMillan did not testify or call evidence at his trial.

At the outset of the trial, defence counsel identified the time of the offence as an issue at the trial. In the closing submissions, defence counsel argued that there was no evidence that Mr McMillan was in Whitehorse on August 30. Counsel also argued that the evidence was more consistent with his having the package in British Columbia rather than in Whitehorse.

The trial judge held that sometimes particulars are essential to the charge and sometimes they are not. Referring to the leading case from the Supreme Court of Canada on the issue — R. v. Saunders, [1990] 1 S.C.R. 1020 — Ruddy J. noted that each count must contain enough information for the defendant to understand the allegations against him or her.

The date alleged in the averment, “on or about August 30, 2013”, was, she held, an essential element of the charge because the accused relied on it in mounting his defence. There was no direct evidence that he was in Whitehorse on 30 August and the trial judge found the evidence of the agent that he met Mr McMillan in early August to be unreliable. Because there was no cogent evidence that Mr McMillan had been in Whitehorse at a time proximate to the date alleged, she dismissed the charge against the appellant.

At the appeal, the Crown argued that the time and date of the offence were not material and relied upon R. v. B. (G.), [1990] 2 S.C.R. 30, in which Wilson J., writing for the court, held that the date of the offence is generally not an essential element of the offence of sexual assault.

The Crown also relied on s. 47(2) of the Controlled Drugs and Substances Act which permits the Crown to prosecute drug offences anywhere in Canada where the offence took place, the subject-matter of the proceedings arose, or the accused is apprehended or located.

The Yukon Court of Appeal held that this argument conflated jurisdiction with the sufficiency of pleadings. Clearly, Yukon had jurisdiction to try the case but that was not the issue. As Madam Justice Dickson, who wrote for the court, put it, at para. 20, the issue is “whether the time and place alleged were material in the circumstances and had to be proven”. The fact that the Crown had territorial jurisdiction to try the case did not relieve it of the obligation to comply with the pleadings sufficiency rule.

The Crown must prove the particulars it sets out in the averment of the information or indictment if they are either

(a) an essential element of the offence; or

(b) critical to the defence.

See R. v. B. (G.), supra, at 52.

Time and locale are not ordinarily essential elements but they will be when they are necessary for the accused to identify the transaction that gives rise to the charge. The “golden rule” is that the accused “must be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial”: R. v. Brodie, [1936] S.C.R. 188 at pp. 193-194.

The Yukon Court of Appeal held that the particulars were crucial to the defence when they were relied upon to defend the charge as particularized. Thus, the trial judge committed no error when she found that the Crown was obliged to prove that the appellant possessed cocaine for the purpose of trafficking at a time proximate to August 30 in Whitehorse, as the Crown alleged. The defence relied on those particulars in preparing and advancing his defence. Mr McMillan’s lawyer focused much of the cross-examination to suggest the poor quality of the evidence placing Mr McMillan in the Yukon at the time and place alleged. The appeal was dismissed and the acquittal was affirmed.

R. v. McMillan, 2016 YKCA 10, 2016 CarswellYukon 95