R. v. Kim, 2010 ABQB 810

Court of Queen ’ s Bench of Alberta Citation: R. v. Kim, 2010 ABQB 810 Date: 20101216 Docket: 070136247U1 Registry: Edmonton Between: Her Majesty the Queen Applicant (Crown) - and - Beung Ho Kim Respondent (Defence) _______________________________________________________ Oral Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ 1. Introduction [ 1 ] This is my decision on the Crown’s application for Certiori out of the decision of the subpoena issued to Dennis Chronopoulos, in the Provincial Court of Alberta on June 23, 2010.

The grounds for the Crown’s application are that Dennis Chronopoulos has no material evidence to give for the Defence in this matter. The Defence opposes such application. [ 2 ] This decision is delivered orally, so this Court reserves the right to make any changes to the transcript of this decision as I see fit. Any changes will not affect the substance of the decision. Citations for cases and statutes as stated in this decision will not be

provided unless requested by counsel. 2. Background [ 3 ] On June 17, 2010 Mr. Kim was found guilty of impaired driving and failing to provide a sample of his breath. [ 4 ] The Crown intends to serve a Notice to Seek Greater Punishment (the “Notice”). Its intended effect is to request that the Court impose a sentence of at least 90 days incarceration upon Mr. Kim. The Defence takes the position that it is both unfair and unjust for the Crown to request that the Court impose such a sentence of incarceration for Mr.

Kim, given that his last conviction for an impaired driving offense was approximately 15 years ago in 1995. The Defence seeks relief from the Crown’s decision to tender the Notice and has subpoenaed the prosecuting Crown Dennis Chronopoulos to explain why he decided to tender the Notice and whether he has considered all of the factors required in determining a fit sentence. 3. Position of the Parties Defence [ 5 ] The Defence takes the position that the discretion exercised by the Crown allows the Crown not simply to have a say in the means (such as

summary or indictable procedure or whether a trial is heard by jury or Judge alone) but to actually control the ends, and dictate the sentence. The Defence submits that this is not a say into the process or procedure but complete control over the ultimate decision by the Court and therefore is an unusual discretion that must be exercised in a judicial manner. [ 6 ] The Defence further seeks clarification as to whether there are any further Crown policies not yet disclosed to the Defence touching on this issue. [ 7 ] With respect to the Crown policy manual as published on the Internet and in particular, the

section entitled Notice of Intention to Seek a Greater Penalty, the Defence points to the fact that the Preface to such manual also states that “Decisions made by Crown prosecutors. . . must be reached in a manner that is objective, fair, transparent and consistent”. [ 8 ] The Defence further points to the fact that in the

section of the manual entitled Notice of Intention to Seek a Greater Penalty the following is noted: · As a general principle subject to certain fairness criteria second offenders should be sentenced to a short term in jail.. .and further related conviction (sic) should result in increasingly longer jail sentences Three instances are outlined where the Crown shall tender the Notice to the Court. The first two instances are well understood:

(1) Where an offender has one previous conviction within five years, that will result in a minimum sentence of fourteen days [now thirty days as a result of amendments to the Criminal Code ]; and

(2) Where the offender has two or more previous convictions within five years then the offender will be sentenced to a minimum of ninety days [now one hundred twenty days following amendments to the Criminal Code ].

The Defence submits that Mr. Kim does not fall within either of these two categories. The third instance whereby a Notice may be tendered is less well understood and requires discretion by the Crown. That

section reads:

(3) Proof of service upon an accused of a notice of the Crown’s intention to seek greater penalty shall be put before the court to invoke a 14 day or 90 day minimum sentence in respect of all convictions. . . in which the offender has one or more previous related conviction and where the Crown prosecutor considers such an action appropriate. [ 9 ] The Defence further submits that the decision by Dennis Chronopoulos to tender the Notice has not taken into account some of the above criteria and in particular the duty to be “objective, fair, transparent and consistent”, as well as being guided by the date of previous related convictions.

Furthermore, the Defence submits that Dennis Chronopoulos has refused to state his reasons for tendering the Notice and accordingly, the Court, the public in general and Mr. Kim in particular, are owed by the Crown an explanation for the exceptional use of the Notice in the particular circumstances of this case.

Accordingly, the Defence submits that the subpoena was issued for Dennis Chronopoulos given the fact that he is the only person who can testify as to his reasons for tendering the Notice and whether he has considered the criteria outlined in the Crown’s own policy manual. [ 10 ] The Defence advised the Court that it was not alleging any prosecutorial misconduct on the part of Dennis Chronopoulos. Crown [ 11 ] The Crown takes the position that as the Crown’s policy is published on the web, Dennis Chronopoulos need not testify as to the nature of the Crown’s policy.

Further, the Crown submits that the guidelines in regards to the tendering of the Notice do not prohibit or proscribe the discretion to tender in any case, but instead indicate when prosecutors are required to tender it and being specifically where there is an absence of extraordinary circumstances. In this respect, the Crown relies upon the Court of Appeal decision in R v.

Ng , 2003 ABCA 1 , and the clear statement therein that the law would be easily circumvented if the Crown prosecutor could simply be subpoenaed and compelled to give his or her reasons under oath. [ 12 ] The Crown submits the reasonableness of the Crown’s decision to tender the Notice can be assessed based on what is already on the Court record and therefore it is not necessary for Dennis Chronopoulos, the Crown prosecutor for the trial to testify as to the basis for his decision. [ 13 ] Accordingly, the Crown submits that with the policy being a publicly accessible document and there being no obligation on Dennis Chronopoulos to articulate his reasons for exercising his prosecutorial discretion, there is no material evidence that he has to offer and as such, the subpoena issued to him in this matter should be quashed. 4.

Relevant Law A. Discretion of the Crown Prosecutor [ 14 ] In R. v. Smith , [2010] O.J. No. 3572 , the facts were that the accused advised the Crown through counsel in early 2010 that he intended to plead guilty. There were no pre-plea discussions between counsel. On March 16, 2010, the accused attended to enter his plea and was advised by the Crown that it intended to file the Notice of Increased Penalty with the Court as a result of the accused's prior convictions. The accused entered his guilty plea and facts were read in and acknowledged without qualification. His record was read in.

Among several convictions were two for Impaired Operation in 1992 and 1998. The accused brought a Charter application invoking sections 7, 9 and

Section 7 is intended to attack the discretion conferred on the Crown pursuant to s. 727(1) of the Criminal Code of Canada as arbitrary thereby depriving the accused of his liberty otherwise than "in accordance with the principles of fundamental justice".

Section 9 is intended to parallel the s. 7 argument to attack the increased penalty pursuant to s. 255(1) (a)(iii) of the Code as

arbitrary imprisonment.

Section 12 is intended to attack the increased penalty as "cruel and unusual punishment" on the grounds that a 120 day sentence is mandatory and the Court is prevented from applying sentencing principles or exercising its discretion respecting the appropriate sentence in the circumstances. The only relief requested is pursuant to s. 24(1) of the Charter "granting a constitutional exemption from the effect of the Notice of Increased Penalty". [ 15 ] In deciding the matter, O'Dea J. stated at paragraphs 21-30: 21 Discretion is an essential feature of the criminal justice system.

The existence of prosecutorial discretion does not offend the principles of fundamental justice: R. v. Ng , 2003 ABCA 1 (CanLII) , [2003] A.J. No. 489 , Alta. C.A. 22 As a matter of law, principle and policy, the Court of Appeal is not empowered to inquire into prosecutorial discretion: R. v. Power , 1994 CanLII 126 (SCC) , [1994] 1 S.C.R. 601 . 23 Prosecutorial discretion is not absolute; the courts retain a limited power of review over its exercise. Courts have a residual discretion to examine whether there was an abuse of the court's process, but only in the clearest of cases: R. v. Power , supra ; R. v.

Ng , supra . 24 All of the cases cited by the Crown promote the view that a court should be reluctant, except in the clearest of cases, to interfere with or question a Crown's discretion lest the court will be seen as adopting a supervisory role and risk the loss of its adjudicative independence. I agree in context of pre-trial and trial issues. 25 However, the conduct of the trial and its sentencing stage are not cut from the same cloth. A court can easily lose its independence supervising the former but not necessarily the latter.

I find it difficult to imagine how the sentencing judge might lose his/her independence if he/she were to look behind the exercise of the Crown's s. 727(1) discretion since, at this point, the need to protect decisions made in the trial context is spent and the court already enjoys the ability to exercise considerable discretion at the sentencing stage. 26 R. v. O'Connor , 1995 CanLII 51 (SCC) , 103 C.C.C. (3d) 1 supports, I believe, that a discretion not connected to trial issues has differing applications.

The Supreme Court found that the Charter focused doctrine of abuse of process that is traditionally concerned with protecting the individual's interest in a fair trial can be merged with the common law doctrine of abuse of process that is focused on society's inter-est in the integrity of the justice system to create a residual category of conduct that: "does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process": 103 C.C.C., pgph 73. 27 In essence, this residual category allows the court to remedy an unfairness arising outside the trial context if the process offends the public's sense of decency and fair play.

This category does not demand a specific Charter right to have been breached (eg. - s. 9 or s. 12) but it can be individually addressed under s. 7 as an alleged abuse of process.

In my mind, if a Notice of Increased Penalty has been served where the circumstances of the accused so outweigh the protection the 120 day sentence is deemed to provide for society that the exercise of the discretion can be seen as vexatious or unfair, fundamental justice demands that the Notice ought to be open to attack and capable of being expunged pursuant to s. 24(1). 28 Since the s. 727(1) discretion is validly conveyed by Parliament, it is deserving of protection lest the avenues of attack are so broad that its value is reduced to nothing.

Any process to attack it must reflect appropriate deference to the criminal law responsibilities of Parliament that are referred to in paragraphs 76 and 77 in R. v. Latimer , 2001 SCC 1 (CanLII) , 150 C.C.C. (3d), 129 , S.C.C., particularly "... the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive. ... as to outrage standards of decency": (pgph 77).

29 If an accused decides to attack the exercise of this discretion, the onus would be on him to produce an evidentiary record that offers sufficient proof that clearly evidences how the circumstances of the accused outweighs the protection the 120 day sentence is deemed to provide to the public - and this onus should be met before a response is demanded from the Crown. A Charter application and record is required that will go far beyond the boilerplate applications seen frequently in sections 8, 9 and 10 applications at trial and cannot be allowed to turn into a fishing expedition.

A detailed affidavit from the accused is a must and he must offer up his best evidence failing which his application should be summarily dismissed. Unlike Sanghara and Cordero, I am of the view the court cannot intervene without a formal application and without an adequate offer of proof. 30 If the Applicant succeeds in offering sufficient sworn evidence to meet his onus, the court is then in a position, in my mind, to demand that the Crown justify the decision taken - effectively to re-tip the scales in favour of the public interest.

This will result in a hearing that can occur on the record supported by viva voce evidence or by affidavit. In this hearing, the Applicant is required, as is the case in most Charter applications, to prove the alleged abuse of process on a balance of probabilities. Since there is no lesser alternative to a mandatory minimum sentence, the remedy would be granted if the court is satisfied, on the evidence presented, that the 120 day sentence will offend the public's sense of decency and fair play having regard to the circumstances of this accused. [ 16 ] In R. v.

Martin , 2005 MBQB 185 , McCawley J., considering the argument raised by the appellant that because under s. 727(1) the minimum sentence under s. 255(1) (

a) of the Criminal Code becomes a matter of prosecutorial discretion in the sense that, in the event that the Crown gives notice of its intention to proceed by way of a second offence, the minimum 14 day jail sentence becomes mandatory and consequently, the sentencing judge has no jurisdiction to consider other sentencing options. In this respect, the appellant further argued that this precludes a judge from considering what a fit and proper sentence would be taking into account such sentencing principles as the circumstances of the offence and of the offender, and proportionality.

Accordingly, the appellant argued, that the Crown becomes both prosecutor and ultimate decision maker and usurps a function which is the preserve of an independent, non-partisan judiciary. In the end result, McCawley J., in not accepting such argument had this to say at para. 50: Similarly, I do not accept the portrayal of the Crown as both prosecutor and ultimate decision maker in invoking the notice provision of s. 727 of the Criminal Code as accurate.

Because it is Parliament that fixed the 14 day mandatory minimum sentence which is brought into play with the exercise of Crown discretion under s. 727 of the Criminal Code , and it is the minimum sentence only, it is incorrect to say that the Crown both prosecutes and determines the sentence. Obviously, it is open to the sentencing judge in any given case to increase the minimum in accordance with the purpose and principles of sentencing. B. Right to Subpoena the Crown Prosecutor [ 17 ] In R. v.

Heyden 1998 CarswellOnt 5840 McIsaac J., in discussing the right to subpoena a Crown prosecutor in a case where they are involved stated at paragraph 12: 12 From these authorities, it would appear that counsel at trial are competent to testify, but this will only be permitted where their evidence is "absolutely essential" because of the disqualification that flows from such a situation: See R. v. Jacquith and Emode , [1989] Crim. L.R. 508 and 563 cited with approval by Watt, J. in R. v. Clancey, supra , at p.44. A very useful catalogue of the appropriate considerations on this issue is developed by L.

Côté, J. in R. v. Kyling (May 8, 1996), Doc. C.S. Montréal 500-72-000509-941 (Que. S.C.): · counsel are both competent and compellable as witnesses; · a subpoena should only be issued where the person is likely to give material evidence; · there exists a general tendency that courts are reluctant to permit counsel conducting a case to become witnesses in the proceedings; · it is undesirable, unless absolutely essential, for counsel to be called to testify as no counsel should give evidence in a criminal trial if it can be avoided;

· it is even a counsel's duty under the Quebec Code of Deontology (Art. 3.05.06) to anticipate the circumstances which might lead to the necessity to give evidence, and where such a situation is anticipated, counsel should withdraw from the case; · courts must inquire into the relevance and the necessity of counsel's evidence; · the applicant bears both the evidential and persuasive burden of proof; · the disruption of the proceedings that follows from counsel becoming a witness must be considered; is counsel's evidence relevant and necessary to decide the issue at stake? [ 18 ] In R. v.

Trang , 2002 ABQB 744 (CanLII) , [2003] 4 W.W.R. 257 , Binder J., in discussing the threshold for permitting the subpoena of Crown Counsel stated at paragraphs 377- 389: 377 At the outset, it is important to note that the McClure/Brown and Regan tests are not engaged at this stage of the analysis. These tests would only be engaged in the event it were determined that the threshold for calling Ms. Tomljanovic had been met, and solicitor-client privilege were asserted during her cross-examination and a stay of proceedings were sought thereafter.

Nevertheless, it is clear from a review of the case law that a higher threshold than arguable issue (i.e. debatable - Oxford) applies to subpoena of Crown counsel. 378 In Durette , Defence counsel made a Charter application under s. 11(

b) with no allegation of impropriety on the part of the Crown.

Finlayson J.A. for the majority held that in such a case, the court may inquire into the sufficiency of the Crown's explanation for its exercise of discretion (in that case, the decision of the Crown to split the alleged conspirators into two groups with the accused in the second group being tried only after the first group of accused had been tried), but an evidentiary hearing is only justified if there is a tenable allegation of bad faith (i.e. one that can be maintained or defended against attack or objection - Oxford), supportable by the record or an offer of proof.

Finlayson J.A.'s statement in Durette has been widely followed on this point.

Thus, a tenable allegation of bad faith supportable by the record or an offer of proof is the minimum which is required before a court can embark upon an evidentiary hearing into the Crown's exercise of its discretion. 379 The following passage of Craig, J. in Stupp is often cited on the particular issue of subpoena of Crown counsel (at 121): In my opinion, when a subpoena or the right to call a witness is challenged as here, it is not sufficient for the party proposing to call the witness to merely allege that the witness can give material evidence; but rather the onus is on the accused in this case to establish that it is likely that Brian Johnston can give material evidence.

That is particularly applicable where, as here, the accused takes the extraordinary step of seeking to call Crown counsel as a witness. If Brian Johnston is called, he obviously cannot continue as counsel at the preliminary hearing and other counsel will be required to pick up the pieces of a long and complicated preliminary hearing. It is an interference with the judicial process which can only be contemplated in unusual cases.

In my opinion, an accused person should not be permitted to call Crown counsel to conduct a fishing expedition or to examine in the hope that something might turn up that would assist him on the issue; but rather counsel must satisfy the judge that there is a real basis [i.e. actually existing - Oxford] for believing that it is likely the witness can give material evidence. If it is otherwise, preliminary hearings and trials can be interrupted at random; and the administration of criminal justice could be seriously impaired.

That is particularly so where, as in this case, there are extensive police investigations.

If the investigating officers seek legal advice during the course of the investigation, then Crown counsel in all such cases may be put under subpoena in an attempt to establish abuse of process. 380 The Quebec Court of Appeal in Gervais agreed with the reasoning in Stupp to the effect that there must be a real basis for believing that it is likely Crown counsel can give material evidence, and further expounded on the policy factors underlying this statement. 381 The Ontario Court of Appeal in Harris also approved of Stupp , concluding that it is not sufficient to sustain the subpoena that the witness "may have" evidence material to the case.

Rather, the burden was on the respondent to establish that counsel was likely, or

would probably have evidence material to the issues raised. [ 19 ] In R. v. Le , 1997 CanLII 14936 (AB KB) , 197 A.R. 341 , Bielby J., in discussing an application to quash a subpoena to have a Crown prosecutor testify stated at paragraph 29: 29 In Visca v. Sanchez (September 30, 1996, Ont. Gen. Div.) Madam Justice Dunnet considered the issue in the context of an application to quash two subpoenas directed to federal prosecutors. She referred to the decisions of Re Strupp (1982) 1982 CanLII 1897 (ON SC) , 70 C.C.C. (2d) 107 , R. v. Harris (September 2, 1994, unreported, Ont. C.A.) and R. v.

Durette (1992) 1992 CanLII 2779 (ON CA) , 72 C.C.C. (3d) 421 in making her decision to quash the subpoenas because the accused had not established that it was likely the potential witnesses could give material evidence; it was not sufficient to merely make allegations to that effect but the accused must show some basis for suspecting the Crown's choice of conduct, must make some tenable allegation of mala fides on the part of the Crown, supportable on the record before the court or by an offer of proof from the accused. See also R. v. Cocelli (September 25, 1996, Ont. Gen. Div.). 5.

Analysis [ 20 ] Applying the principles enunciated in the above cases and in applying the criteria as set out in R. v. Heyden , to the circumstances before me, the following conclusions can be made: 1. Dennis Chronopoulos is competent to testify. As to whether or not the subpoena should be issued on the basis that Dennis Chronopoulos is likely to give material evidence, I am satisfied with his affidavit evidence that any information concerning the Crown’s policy with respect to the Notice is that it is a public document and is available on the Internet for any party to review.

Furthermore, any determination as to the reasonableness of the Crown’s decision to tender the Notice can be assessed based on what is already on the Court record and therefore it is not necessary for Dennis Chronopoulos to testify as to the basis for his decision. 2. Dennis Chronopoulos is compellable by the subpoena to testify, but this should only be permitted where his evidence is "absolutely essential" because of the disqualification that flows from such a situation: See R. v. Jacquith and Emode , [1989] Crim. L.R. 508 and 563.

Given that I am of the opinion that such information can be obtained elsewhere, and the disruption to the Crown’s case, I fail to see where the facts at hand can be characterized as “absolutely essential”. 3. As stated previously, the Defence takes the position that the discretion exercised by the Crown allows the Crown not simply to have a say in the sentence imposed but to have complete control over the ultimate decision by the Court and therefore is an unusual discretion that must be exercised in a judicial manner.

I reject the contention by the Defence that the serving of the Notice has the effect of binding the Court and usurping the Court’s authority in the sentencing of Mr. Kim. In this respect, by section 727(1) of the Criminal Code , Parliament has granted a degree of discretion to the Crown in regards to the sentence imposed. As previously stated in R v. Smith , at para. 28: Since the s. 727(1) discretion is validly conveyed by Parliament, it is deserving of protection lest the avenues of attack are so broad that its value is reduced to nothing.

Any process to attack it must reflect appropriate deference to the criminal law responsibilities of Parliament that are referred to in paragraphs 76 and 77 in R. v. Latimer , 2001 SCC 1 (CanLII) , 150 C.C.C. (3d), 129 , S.C.C., particularly "... the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive. ... as to outrage standards of decency": (pgph 77). 4.

In my mind, the Crown in serving the Notice is merely exercising its statutory discretion as provided by Parliament in section 727(1) of the Criminal Code . Although the Crown in serving the Notice may have input into the range of the sentence, it is the Court who will have the ultimate say in the decision in regards to the sentence is to be made, see R. v. Martin . At this point, under the third instance of the Crown’s policy whereby a Notice may be tendered the material words are, “and where the Crown prosecutor considers such an action appropriate”.

To me this dictates as to how the Crown will exercise its statutory discretion. The determination as to what considerations the Crown prosecutor has taken into account in determining whether or not to serve the Notice should be part of the Crown’s case at either the forthcoming Charter application or in any event, at the sentencing hearing.

To allow the Defence to require that the Crown prosecutor who has had conduct of the trial to be called as a witness for the purpose of testifying as to any information concerning the Crown’s policy with respect to the Notice and in particular, why the Crown is exercising its discretion in the case at hand,

would only serve to undermine the protection that the Courts have upheld in regards to the discretion accorded the Crown by Parliament in section 727(1) of the Criminal Code and the reasoning behind the exercise by the Crown in cases such as the case at bar. As stated previously, in regards to the Court of Appeal decision in R v. Ng , 2003 ABCA 1 , to permit such an event to transpire would only result in the law being circumvented by requiring that the Crown prosecutor be subpoenaed and compelled to give his or her reasons under oath as to why the Crown is now exercising such discretion. 6.

Conclusion [ 21 ] Based upon the evidence provided to this Court and after considering the circumstances surrounding this matter and the relevant case law, I fail to see where Dennis Chronopoulos has any material evidence to give for the Defence in this matter and as such, it is not absolutely essential that Dennis Chronopoulos give testimony in this matter.

For that reason, I hereby grant an Order in the nature of Certiori , quashing the subpoena issued to Dennis Chronopoulos, filed in the Provincial Court on June 23, 2010. [ 22 ] With respect to costs, at the outset of this application the Crown advised the Court that if successful, it would not be seeking costs. Accordingly, each party shall bear their own costs of this application. Heard on the 15 th day of December, 2010. Delivered Orally the 15 th day of December, 2010. Dated at the City of Edmonton, Alberta this 16 th day of December, 2010. Don J. Manderscheid J.C.Q.B.A.

Appearances: Elizabeth Wheaton for the Applicant (Crown) Bob H. Aloneissi Beresh Cunningham Aloneissi O’Neill Hurley for the Respondent (Defence)