R. v. Richardson Date:, 2014 BCPC 328

Citation: R. v. Richardson Date: 20141028 2014 BCPC 0328 File No: 14771-2-A Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMIE STUART RICHARDSON EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: K. Torvik J. Hansen, Articled Student Counsel for the Defendant: D. Hopkins Place of Hearing: Vancouver , B.C. Date of Hearing: October 28, 2014

Date of Judgment: October 28, 2014 [1] THE COURT: Mr. Richardson is charged, and I will use the colloquial wording because the actual wording is the subject ofdispute here, he is charged with breaching some kind of undertaking that he was on on March 28th. The Crown made an application atthe start of this trial for an amendment of the Information. Obviously, somebody had perused the Information, had noticed upon perusalthat there was a change that was thought to be necessary by the Crown.

So the Crown made an application for an amendment. [2] Now, there are two ways to make an amendment, one is before the trial and one is any time during, and s. 601 of the Codegrants broad powers of amendment.

There are two important goals that are behind those provisions, and one of them is thedetermination of criminal cases on their merits where problems are fixed and "technicalities" are not allowed to derail the proceedings, assome language says and that is the language of Irwin, the case of Irwin (1998), (ON CA), 123 C.C.C. (3d) 316. [3] The Moran approach is essentially -- the gist of it is where an amendment can be granted without injustice or prejudice, then itshould be granted. Essentially, that is the upshot of the law.

A trial judge, even upon a motion for dismissal at the conclusion of theCrown's case, retains the power to amend the Information to conform to the evidence and Powell gives some precedent for that. That isour Court of Appeal in 1965, but obviously the issue of prejudice still needs to be determined and, under s-s. (4) in considering whetheror not an amendment should be made, there are a number of factors to consider.

They are the matters disclosed by the evidence; thecircumstances of the case, whether the accused has been misled or prejudiced in his defence by any variance, error, or omission, andwhether having regards to the merits of the case, the proposed amendment could be made without injustice being done. [4] Well, obviously somebody looked at this Information prior to the trial. Again, amendments were sought. Now, on theInformation that I have, I cannot recall whether the changing of the word "parkade" was made, but that is irrelevant. That is just atypographical error. [5] The Crown also sought to change the

section number referring to breaches from s. 145(5.1) of the Criminal Code to s. 145(3). The amendment was made by myself on September 24th, 2014, when we commenced this trial. The trial proceeded. The defence, Ishould note, at that point in time was opposed to any amendment being granted at such a late stage and I granted the amendment as itwas prior to the trial. [6] Certain exhibits were filed at the start of the case. One of those exhibits was the undertaking that is in question -- at least thatis asserted by the Crown to be in place at the time of Mr. Richardson's alleged breach.

That undertaking was filed as Exhibit 2 in theseproceedings. [7] That undertaking is an undertaking given to a justice or a judge and it clearly states so on the top of that document. It refers toan offence that allegedly occurred on March 3rd, 2014.

Poorly worded, the undertaking, "did commit an offence," refers to somethingrelated to replacement of an undertaking contrary to s. 503(2.2). [8] That 503(2.2) refers to a person who has entered into an undertaking under s-s. (2.1) which refer to a peace officer in charge ofrelease, may at any time before or after his appearance or promise to appear apply to a justice for an order under 515 to replace thatundertaking given by a police officer. (2.1) is given by a judge with such modifications in circumstances as required. [9] He was released on that document on March 7th, 2014.

One of the conditions that he was released on by Judge Harris, aProvincial Court judge, read, "You are not to go to the unit block of East Hastings Street," and essentially, the details of that follow,"You are not to go to the unit block of East Hastings Street." [10] The Crown case flowed and Constable Dan Petre testified that he released him on that -- he originally released him March 7th.

Constable Ann Fontaine testified that on March 28th, which is the date of the allegation that he is currently facing, that she saw Mr.Richardson on the corner of Hastings and Carrall. [11] He was charged with a breach and the Information that is before the court, 14771-2-A, reads that: Jamie Stuart Richardson, on or about the 28th day of March, 2014, at or near the City of Vancouver, in the Province of British Columbia,being bound by a condition of an undertaking entered into pursuant to subsection 499(2) of the Criminal Code, did fail without lawfulexcuse to comply with the following condition ...

There is a colon and then it reads: I understand to abstain from going to No Go 0 Blk E Hasting St., including buildings, laneways except to directly park vehicle [behind]62 E Hasting or directly access parkade though the south lane 1 E Hastings St. And that is all contrary to s. 145(3) of the Criminal Code. [12] A release by a peace officer where there is an arrest, there can be a release on a number of ways, of course, but there is one isunder -- s. 499(2) which contemplates a release from custody by an officer in charge where there is an arrest made with a warrant andthat is what s. 499(2) refers to.

The wording in the Information, as far as to what the actual condition was, also does not match thewording that is in the undertaking given to Mr. Richardson by Judge Harris on March 7, 2014. [13] The evidence flowed; there was cross-examination; there were diagrams made with respect to the scene of the corner of

Hastings and Carrall. [14] Constable Raydons testified, as well. He was cross-examined. At the end of the Crown's case, Crown closed its case with noapplications being sought at that time. [15] Mr. Hopkins for the defence stood up and made a no-evidence motion. Specifically, he argued that there was no evidence thatMr. Richardson had been released on an undertaking given to him by an officer in charge under s. 499(2) and, therefore, he could nothave been bound by any conditions relating to same. He also says that there is no evidence as to Mr.

Richardson being bound by acondition, " I understand to abstain from going to No Go Zero Block East Hastings Street." [16] The Crown at that point, after a brief recess, they came back and applied under s. 601(3) of the Criminal Code, made anapplication at that time and sought two amendments, to change the

section number from 499(2) to s. 515 to conform with the evidencethat was filed which is Exhibit 2 in that regard and to change the wording of the condition in the Information to read the same andconform with the wording of the condition that Mr. Richardson was on set out in Exhibit 2, the undertaking to a judge. [17] I was given a few cases, referred to other cases from the annotations. Hubek I have looked at and Powell I have read.

Therewas a case that was referred to called Stewart (1979), (BC CA), 7 C.R. (3d) 165 (B.C.C.A); a case called also Mead,from the Manitoba Court of Appeal in 2008. [18] The defence have handed me a case, as well, called The Queen v. Charlton and Oster. That case contains obiter respecting theprejudice that could be found upon an application to seek an amendment at a late stage in the trial. [19] The question, obviously, is one of prejudice. Recently, the court in a case called Brownson, 2013 O.J.

No. 4661, that is theOntario Court of Appeal, again recognizing the authority to amend in accordance with the evidence, but in that case, elected not to amendthe charge, and this is on appeal after Brownson, who was charged with driving while disqualified by a Criminal Code prohibition order,was proved only to have been driving while disqualified by a simple licence suspension. [20] Both that case and the Irwin case make it clear when it comes to amending; the sole determinant is whether the amendmentwould prejudice the accused.

They found in that case that Brownson would have been prejudiced by the amendment because the focusof the litigation was on the allegation that there was a certain driving prohibition in place. Had the charge been different, so, too, wouldthe focus of the trial, they said. [21] Here, the focus was on Exhibit 2, obviously. That is the precipitating document upon which -- and the Crown was entitled tofile as some evidence that he was on a certain undertaking that he has breached. The Information does not refer to that undertaking.

Itrefers to something else. [22] One of the cases I was handed up by the Crown was called Hubek which also contains some obiter about the Crown -- about s.145 and how in that case there was an issue as to whether -- that 145(2)(

b) or 145(5) was the proper section. The court found in manycases the Crown has the option of proceeding under either one and there was some ambivalence or some unresolved law, inconsistentlaw, with respect to that issue, but the court just simply knows at that time, in the absence of prejudice to the accused, the court can makean amendment. They also found that any prejudice to the accused might be cured by an adjournment. [23] In this case, the case is over; the case is complete. The Crown has closed its case.

The defence made a no-evidence motionbased on what I find to be a material issue and that being the actual undertaking, the actual order that Mr. Richardson was on at the timehe was stopped. [24] Part of this case is -- I can infer from the undertaking that there was some kind of process that Mr. Richardson faced involvingsome kind of replacement of orders.

This is clear if you look at all Exhibit 2 in context. [25] So there may have been another order that was expired or changed or replaced, but the fact is, is that Exhibit 2 is not the orderthat was contemplated in the Information that he faces and he, I have to assume, conducted his defence on that basis.

It is very difficultto speculate what the defence case might have looked like had the proper order been referred to. [26] With respect to the wording of the Information itself, not only does it not comport with Exhibit 2, which again, is not the orderthat is referred to in the Information, even -- the wording does not come -- the wording is not the same, but also the wording in theInformation is just difficult to understand from just a plain English reading of it.

But in any event, I find that under the circumstances Icannot see how it could not be prejudicial to the defence at this stage, after a no-evidence motion has been made about there being noproof of the actual undertaking referred to, to grant an amendment to the Information. The amendment sought would be highlyprejudicial and cannot be made without a clear injustice being done to Mr. Richardson and his defence. [27] Now, the circumstances of the case, obviously, are important. The circumstances of this case involve an amendment that wassought and made at the start of the trial.

This is not the kind of amendment, the one the Crown seeks at this late stage, is not one thatcould only have been surmised at the end of the Crown's case. This was one that was easily detectable at a much earlier stage and itseems to me under the circumstances that the amendment should not be granted under s. 601. [28] That being the case, then, do you want me to deal with Mr. Hopkins' no-evidence motion? Are there any further submissions,Ms. Hansen, on the -- [29] MS. HANSEN: I do not have any further submissions -- [30] THE COURT: Yes. [31] MS. HANSEN: -- Your Honour. Thank you.

[ 32 ] THE COURT: Well, obviously, the motion by Mr. Hopkins is that there is no proof that there was an undertaking entered into pursuant to s. 499(2) of the Criminal Code . He is right about that. The Crown has to prove that as part of the elements of the offence. They have to prove he was bound by a condition entered into pursuant to s-s. 499(2) of the Code . [ 33 ] They did not have to particularize it that way, quite frankly.

I think maybe if asked, they would have to, but the Information could have read, "being bound by a condition of an undertaking," but it is particularized and there is no evidence of that essential element that is an averment that was made by the Crown and, for that reason alone, I will not deal with the other aspect of it, but for that reason alone, I am acceding to the no-evidence motion and Mr. Richardson should be acquitted. [REASONS FOR JUDGMENT CONCLUDED]