R. v. Nickason

2010 BCSC 415 R. v. Nickason IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nickason, 2010 BCSC 415 Date: 20100329 Docket: 67758-4 Registry: Kelowna Regina v. Stanley Charles Nickason Before: The Honourable Mr. Justice Greyell Reasons for Judgment Counsel for the Crown: D. Grabavac Counsel for Mr. Nickason: J. Gordon Place and Date of Application: Kelowna, B.C. February 3 and 4, 2010 Place and Date of Judgment: Vancouver, B.C. March 29, 2010 [1] The Crown has applied under ss. 581 and 601 of the Criminal Code, R.S.C. 1985, c. C-46 to amend Count 5 of the Indictment [2] Count 5 currently reads: Stanley Charles NICKASON, on or about the 4th day of March, 2009, at or near Kelowna, in the Province of British Columbia, did unlawfully occupy a vehicle knowing there was a firearm, a prohibited weapon, contrary to Section 94(1) of the Criminal Code. [3] The amendments the Crown seeks to make are to add the word "motor" before "vehicle", to delete the words "a prohibited weapon" and to add after "firearm" the words "in that motor vehicle". [4] The application was made at the conclusion of the Crown's case after some seven days of evidence. [5] The position of the Crown is that the additions are required to correct typographical errors in the Count and to amend the Count to conform with the evidence. [6] The defence consents to the first and third proposed amendments but opposes the amendment to delete "a prohibited weapon" on the grounds such amendment would fundamentally alter the nature of the charge; that the application was not made until the evidence for the Crown had been called and that cross-examination was based on the Counts as presently worded, and that the Count as presently worded is a nullity and such nullity cannot be cured by amendment. Hence the defence argues there is substantial prejudice in allowing such amendment at this time in the case. The defence points out the accused made certain admissions of fact relating to the testing of a handgun found in a Mustang vehicle which he was driving based on the present wording of Count 5. [7] In pursuing the argument the Count as presently worded is a nullilty, Mr. Gordon argued possession of a firearm and possession of a prohibited weapon are separate and distinct offences under the Criminal Code. "Firearm" is defined in s. 2 while "prohibited weapon" is separately defined in s. 84(1). The definitions are mutually exclusive. One cannot be charged with an offence which involves "a firearm, a prohibited weapon" as there is no such animal - it is an either/or proposition. The Crown acknowledges that a firearm and a prohibited weapon under s. 94(1) (the section under which the accused is charged) are separate items but says that the accused has not been prejudiced in any way by the proposed amendment as it has been know since disclosure was made and from the evidence lead in the preliminary inquiry and this trial that the charge related to the firearm particularized in Count 4. The Crown says the case against the accused has never involved a knife (in particular a knife found in the back seat area of the vehicle) or any other weapon other that the handgun found on the passenger seat of the Mustang vehicle. [8] I intend to allow the Crown's application to amend Count 5. I am of the view the amendment is necessary to correct what is currently a defective count in order that the count properly reflect the evidence lead by the Crown at the trial and at the preliminary hearing. In reaching this view I have considered the factors listed in s. 601(4) of the Criminal Code. Under that section I am required to consider the matters disclosed in evidence at the preliminary inquiry, the evidence taken at trial, the circumstances of the case, whether the accused has been mislead or prejudiced and whether the amendment can be made without injustice being done. [9] It is clear the firearm referred to is the semi-automatic Walther P22 handgun referred to in Count 5. It is the only firearm at issue in this case. The evidence does not relate to any weapon which is defined as a "prohibited weapon" in s. 84(1) of the Code. The firearm was referred to at the preliminary inquiry and extensively at the trial. It was marked as an exhibit at the preliminary inquiry and in these proceedings. It was a significant factor in the manner the RCMP responded to the accused's arrest. I cannot conclude the accused is prejudiced in any manner by the amendment. If the Count was defective it was open to defence counsel to object to the wording of Count 5 before plea under s. 601(1). He did not do so. The fact the accused agreed to the admissions of fact relates to Count 4 (a charge he was unlawfully in possession of a firearm) as much as it relates to Count 5. In my view there is no injustice which arises from the amendment. Again, it was made before the accused gave evidence. Mr. Gunnerson was called by the defence and testified to the issue of whether the accused 'knew there was a firearm in the vehicle'. The accused as well testified to this issue. Both the Crown and defence called evidence at the trial and conducted extensive cross-examination on whether it was likely the accused had the requisite knowledge there was a firearm in the vehicle. [10] Accordingly I permit the Crown's application to amend Count 5 as requested. "GREYELL, J."