R. v. Johnson Date:, 2015 BCPC 281

Citation: R. v. Johnson Date: 20150815 2015 BCPC 0281 File No: 17185-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. RANDY ARNOLD JOHNSON EXCERPTS FROM PROCEEDINGS RULING ON APPLICATION OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: S. Montgomery Counsel for the Defendant: J. Waddington K. Break, Articled Student Place of Hearing: Vancouver , B.C.

Date of Hearing: August 21, 2015 Date of Judgment: August 21, 2015 [ 1 ] THE COURT: This is an application made after the close of the Crown case and the close of the defence case. The application is made prior to the defence beginning their arguments. [ 2 ] The Crown seek to amend Count 2 of the Information. Count 2 of the Information particularized the weapon used as a bar. [ 3 ] Until the accused testified, the case proceeded on the basis of it being a bar. The video that was shown in the course of the Crown's case showed something that could have been a bar. Until Mr.

Johnson himself testified that in fact, it was a flashlight, no one knew that it was, indeed, a flashlight. Partly that was so because the manner in which he was holding the flashlight was in his closed hand. [ 4 ] Under Section 601(2) the Court can permit an amendment of the Information to conform to the evidence where there is a variance in the evidence and the count in the Information. [ 5 ] The precautions are set out in subsection (4) where one must consider the evidence taken at trial. Here, the evidence clearly is from the accused himself, saying that he had a flashlight in his hand.

He remembers picking it up but he forgot that he had it when the alleged assault occurred. [ 6 ] There was no way the Crown could have anticipated the evidence of Mr. Johnson that he had a flashlight. Mr. Johnson presumably knew this at all times prior to the case getting started. [ 7 ] The circumstances of this case really will stand or fall, not on the technicality of whether it was a bar or whether a bar includes a flashlight, which it probably does not. But the case will not turn on that technicality as charged. It will turn on the intention and knowledge that Mr.

Johnson had when he ended up assaulting the victim. [ 8 ] The gravamen of the offence is the carrying, use, or threaten to use a weapon, and the particularization in this case of the weapon being a bar, in my view, is not critical to the charge being made out. In other words, Crown has particularized the weapon as a bar. Crown takes the view that that is part and parcel probably of the charge and has to be proved by the Crown beyond a reasonable doubt. [ 9 ] I am not sure that that is the case, or the law.

However, in this particular case, the accused is not prejudiced in any way by the amendment because coming into the case from the particulars, and from all the Crown evidence, it was clear to him that he was charged with the use of a weapon, and the nature of his defence really was not in any way prejudiced because the Crown had charged the bar and he knew it was not a bar but rather, it was a flashlight. [ 10 ] In the circumstances of this case, the evidence discloses it was a flashlight.

That particularization was not and could not be known to the Crown until he testified. [ 11 ] In this circumstance, he is not misled or prejudiced in his defence by that variation, and accordingly I am allowing the amendment to take place under 601(2) at this time, and instead of saying "to wit: a bar" it will say "to wit: a flashlight." (RULING ON AMENDMENT CONCLUDED)