R. v. Gauthier Date:, 2012 BCPC 562

Citation: R. v. Gauthier Date: 20120314 2012 BCPC 0562 File No: AH53194305 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Francis Montague GAUTHIER REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H.W. GORDON Appearing for the Crown: Cst. M. L. West Counsel for the Defendant: Kristian Vicei Place of Hearing: Courtenay, B.C. Date of Hearing: June 7, 2011

Date of Judgment: March 14, 2012 [ 1 ] The issue to be addressed in these Reasons for Judgment is whether I should allow the Crown at the close of its case to amend the

section of the Motor Vehicle Act under which the Disputant is charged. It is clear from the Crown’s evidence that the Disputant was charged under an incorrect subsection of the Act. [ 2 ] The Disputant, Francis Montague Gauthier, was charged under section 172(2) of the Motor Vehicle Act of “failing to yield after stop”. The evidence clearly shows the charge should have been laid under section 172(1) of the Act. The narrative description on the ticket was correct, the stated

section number was not. In short, section 175(1) applies to the servient driver (as the Disputant was) on a through highway and section 175(2) applies to the dominant driver. [ 3 ] The Violation Ticket under which Mr. Gauthier was charged contained a correct “statement of the alleged contravention”, a requirement of section 14(4)(

a) of the Offence Act . But the

section quoted as supporting that statement was incorrect. Mr. Gauthier pleaded not guilty to the charge under section 175(2). The Crown led its evidence and closed its case. Mr. Gauthier then made a no evidence motion. [ 4 ] I queried whether, on the basis that the offence as stated in writing on the ticket was correct and that the error was in a subsection of the same section, I could not use my powers of making a conviction under a different section, based on the evidence. This would only apply of course if the evidence proved such after a full trial. [ 5 ] Although it is not the deciding factor, I point out that nowhere in the proceedings did the Crown seek to amend the

section under which Mr. Gauthier was charged. [ 6 ] I reserved my decision and invited submissions from the parties. I received one from Mr. Gauthier but none from the Crown. I also researched the matter myself. I verbally advised the parties through the Court Registry in October 2011 that I was allowing Mr. Gauthier’s motion, with Reasons to follow. [ 7 ] My research leads me to the conclusion that any discretion I may have on this issue must exercised in favour of Mr. Gauthier. This was a simple error. If the Crown had read

section 175 before trial, it surely would have concluded there was an error and amended the charge before Mr. Gauthier made his plea. Mr. Gauthier based his plea and position at trial on the charge he had to face. He hired counsel, who came from Vancouver to defend him. [ 8 ] The principle that the Crown lives or dies on the charge laid and pleaded to, should apply here. It was an error easily discoverable. [ 9 ] For these reasons, I allow Mr. Gauthier’s motion and dismiss the ticket. I find Mr. Gauthier not guilty. _______________________________________ Judicial Justice H. W. Gordon