R. v. Thomas Date:, 2012 BCPC 302

Citation: R. v. Thomas Date: 20120815 2012 BCPC 0302 File No: 202853-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FREDRICK JAMES THOMAS RULING ON APPLICATION TO AMEND INFORMATION EXCERPTS FROM PROCEEDINGS OF THE HONOURABLE JUDGE T. GOVE Counsel for the Crown: I. Sattarzadeh, Articled Student H. Magnin Counsel for the Defendant: A. Glouberman Place of Hearing: Vancouver , B.C. Date of Hearing: August 15, 2012 Date of Judgment: August 15, 2012

[ 1 ] THE COURT: The accused, Fredrick James Thomas, was arrested without warrant on August 14, 2011, and charged the following day with possession of a controlled substance contrary to s. 4(1) of the Controlled Drugs and Substances Act , the controlled substance being cocaine. He was arraigned and pled not guilty. [ 2 ] His defence was based in part on his instructions to his lawyer that he was not on the occasion of the arrest in possession of cocaine. A trial was set for today which is almost exactly a year after the offence date and I understand there are two police officers who are present as witnesses.

The trial confirmation was on July 4, 2012. [ 3 ] The Crown has made an application today to amend the Information to read "methamphetamine" where it now reads "cocaine." This is before the commencement of the trial. The Crown informs me, that on June 19, 2012, a certificate of analysis was received by the Crown and it disclosed that the substance taken from the accused on August 14, 2011 was methamphetamine. [ 4 ] I am informed that the trial confirmation hearing took place on July 4. At that time, the Crown did not apply to amend the Information.

The trial was confirmed on the basis that the Crown intended to prove that the accused possessed cocaine. [ 5 ] It was not until August 2, 2012, that the Crown sent the certificate of analysis and notice of intention to apply to amend to the accused's counsel. The accused was at this time in custody on unrelated matters and he was, in fact, there until yesterday.

He was not, as I understand it, informed of the intention of the Crown until today. [ 6 ] As I say, the Crown now applies prior to the commencement of the trial to amend the Information from "cocaine" to "methamphetamine." The Crown says, quite correctly, that the

section of the Controlled Drugs and Substances Act is the same offence, although it is pretty obvious that it is clearly a different drug. [ 7 ] The accused opposes the amendment and, if the amendment is granted, seeks an adjournment. The accused has come to court today having been released from custody yesterday to face a charge of possession of cocaine. His lawyer has prepared his defence on the basis that this is the case that he needs to meet. [ 8 ] To change a substantive offence by changing the drug in question on the opening of the trial is clearly prejudicial to the accused.

The Crown knew at the trial confirmation hearing that they had charged the wrong drug and yet made no application to amend. [ 9 ] The Crown's application to amend is denied as to grant it would greatly prejudice the accused. [RULING ON CROWN APPLICATION TO AMEND INFORMATION CONCLUDED]