New & Notable: Deciding the matter on the merits

Nicole Hubek forgot to attend her trial.   She was charged with assault with a weapon.  She apparently just forgot about it.  As a result of missing her trial date a warrant was issued for her arrest.  She was subsequently charged with failing to attend.  The specific charge read as follows:
On or about the 2nd day of June 2004, at or near Calgary, Alberta, bein a person named in an appearance notice that was confirmed by a justice, did fail, without lawful excuse, to attend court in accordance therewith, contrary to section 145(5) of the Criminal Code of Canada.

Hubek was convicted at trial on that charge.  She appealed successfully based on an argument that she had been charged under the wrong section - 145(5) as opposed to 145(2).
The Court of Appeal reversed that ruling and restored the conviction: R v Hubek, 2011 ABCA 254.  In doing so it offered the following conclusion:
On its proper interpretation, there is no ambiguity in s. 145(5). By its express terms it applies to "the time and place stated" in the appearance notice, and it also expressly applies to attendance "in accordance therewith", which includes appearances under Form 9 "thereafter as required by the court". The Crown in many cases like this has the option of proceeding under either s. 145(2)(b) or s. 145(5). 
We observe, in any event, that the summary conviction appeal judge should not have assumed that an error in reciting the proper section in the information was automatically fatal. Where errors of that type occur, amendment of the information is available under s. 601 of the Criminal Code, in the absence of any prejudice to the accused that cannot be cured by an adjournment of the trial: R. v. Sourwine (1970), 72 W.W.R. 761 at pp. 764-6, 10 C.R.N.S. 380 (Alta. Dist. Ct.); R. v. Royka (1980), 52 C.C.C. (2d) 368 at p. 371 (Ont. C.A.); R. v. Carey, 2011 MBQB 174 at para. 28. Where it appears an information charges an offence under an incorrect section of a statute, the Crown should be given the opportunity to apply to amend prior to the conclusion of the trial. In this case, that did not occur; the alleged error in the information was raised for the first time during the summary conviction appeal [paras 13-14]; [emphasis added].
DG Mack