Criminal - Amending Counts. R. v. R.S.
In R. v. R.S. (Ont CA, 2023) the Court of Appeal considered the law of amending counts or indictments [CCC 601]:
(b) Governing Principles
 Section 601(3)(b) of the Criminal Code permits a trial judge to amend a count in an indictment to conform to the evidence at trial. There are a number of factors enshrined in the Code at s. 601(4) regarding what must be taken into account when considering whether to make an amendment. The factors include the evidence taken at trial, the circumstances of the case, whether the accused has been “misled or prejudiced in his defence by any variance, error or omission”, and whether the amendment can be made without injustice being done.
 The power to amend an indictment at trial is a broad one, since wide powers of amendment promote the determination of criminal cases on their merits and avoid a multiplicity of proceedings: R. v. Irwin (1998), 1998 CanLII 2957 (ON CA), 38 O.R. (3d) 689 (C. A.), at pp. 693-694. As Doherty J.A. noted in Irwin, the “litmus test” against which to assess any potential amendment to an indictment is prejudice to the accused. Provided there is no irreparable harm to the accused and the fairness of the trial will not be adversely impacted, the trial judge may exercise their power in favour of making an amendment: R. v. Bidawi, 2018 ONCA 698, 142 O.R. (3d) 520, at para. 33.
 Section 601(6) of the Criminal Code provides that the question of whether to amend an indictment is a question of law. Nevertheless, where the decision to amend is based upon a finding as to whether the amendment will cause irreparable prejudice to the defence, such a finding “should not be interfered with lightly…keeping in mind the trial judge’s privileged position as regards the effect on the fairness of the trial of events taking place in the courtroom”: R. v. Côté, 1986 CanLII 93 (SCC),  1 S.C.R. 2, at p. 29.
 ... As Côté makes plain, a trial judge’s determination as to whether a proposed Crown amendment would result in irreparable prejudice is not to be interfered with lightly, given the trial judge’s privileged position to assess the impact on trial fairness of any such amendment.
 Finally, although defence counsel opposed the Crown amendment, he did not identify any specific prejudice that would result if the amendment were made, nor did he seek to recall any Crown witness for further examination (see, for example, Bidawi, at para. 18). He simply opposed the Crown amendment on the basis that the Crown should be bound by the particulars in the original indictment.
 The circumstances here are clearly distinguishable from those in Saunders, where the accused had elected to testify, giving up his right to silence, and admitted to having imported drugs, after being advised by the court that the Crown was required to establish the existence of a conspiracy to import heroin. The accused in Saunders was therefore irreparably prejudiced by the trial judge’s subsequent instructions to the jury that he could be convicted if it were proven that he had conspired to import a narcotic of any kind.
 No such prejudice arises here since the appellant exercised his right not to testify and, instead, essentially argued that the Crown’s evidence did not establish any of the allegations beyond a reasonable doubt. The amendment approved by the court did not materially alter either the Crown or defence theory of the case and thus did not irreparably prejudice the position of the appellant.