Court File and Parties

Ontario Court of Justice

Date: 2018-11-13

Court File No.: Brampton 3111 998 16 15743

Between:

Her Majesty the Queen

— and —

Pritpal Lehl

Before: Justice G.P. Renwick

Heard on: 13 November 2018

Reasons for Judgment released on: 13 November 2018

Counsel

S. Weinstock — counsel for the Public Prosecution Service of Canada

A. Abassi — counsel for the defendant Pritpal Lehl

Judgment

RENWICK J.: (Orally)

[1] Mr. Lehl is before the court for an alleged possession of Diacetylmorphine (Heroin) for the purpose of trafficking. On 20 April 2018, this two-day preliminary hearing was set. I can only assume, that on 20 April the Defendant was put to his election and requested the preliminary hearing, although, neither the Information, nor the Warrant of Remand have noted the election and request. Counsel for the Defendant submits that at all times it was well understood that the Defendant wanted a preliminary hearing. The prosecutor has not taken issue with this submission.

[2] For the first time, today, the prosecutor has made it clear in light of an expert report it has had since sometime in May 2018 that it would not be proceeding against Mr. Lehl for the offence as charged, but seeks to prosecute him for the hybrid offence of possession simpliciter under s. 4(1) of the Controlled Drugs and Substances Act. The prosecutor has also for the first time on the record indicated that it wants to proceed summarily.

[3] In light of the fact that the six month limitation period to proceed summarily has lapsed, the prosecutor seeks an amendment to the Information, in order to make its election today. The prosecutor's request, if granted, would have the effect of turning the preliminary hearing into a trial in the provincial court, presumably starting today.

[4] The Defendant opposes the Crown's request, however it is styled. The Defendant was always prepared to have a preliminary hearing and argues against any remedy which would change the proceedings without the Defendant's consent.

[5] The prosecutor relied on R. v. D.E.M., 2014 ONCA 496, to support its position that the Crown has nearly an unfettered right to determine the mode of proceeding on hybrid offences. This case is not completely helpful, because as it stands, the Defendant is facing a straight indictable offence.

[6] As well, the prosecutor relies on our Court of Appeal's decision in R. v. Bidawi, 2018 ONCA 698. Again, the question in that case is dissimilar to the application here. In that case, at issue was whether or not the limitation found in s. 786(2) of the Criminal Code prevented amending the Information where it would "institute" summary conviction proceedings.

[7] In this case, the issue is not whether or not the prosecutor has the ability to amend the Information, the issue is whether or not the amendment should be granted.

[8] For the following reasons, I am not persuaded that it is appropriate to amend the Information as requested:

i. The Defendant has not prepared for a trial;

ii. The Defendant has not instructed counsel to proceed with a trial and counsel has advised that there are potential Charter applications that could be brought, but counsel wants the preliminary hearing to explore this;

iii. As recent as 05 October 2018, the matter was addressed in court and the Defendant was not advised of the prosecution's desire to seek to amend the charge and to proceed immediately to trial; and

iv. There were many judicial pre-trials, appearances, and discussions between counsel where this issue could have been discussed. For whatever reason, the request is being made at the last moment.

[9] In my view, in light of the fact that the Defendant has requested a preliminary hearing, it would be unfair to permit the amendment sought in the circumstances of this case.

[10] I also note that s. 561 of the Code requires written notice and in some cases consent when the Defendant wishes to re-elect his mode of trial. This is to prevent surprise to the prosecution. It seems entirely inappropriate to have a different standard when there was nothing preventing the prosecution from notifying the Defendant of its intention in a timely way. For these reasons, the prosecution's application to amend the charge on the Information is denied.

Released: 13 November 2018

Justice G. Paul Renwick