R v Agengo, 2011 ABQB 430

Court of Queen ’ s Bench of Alberta Citation: R v Agengo, 2011 ABQB 430 Date: 20110706 Docket: 080599392Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent/Crown - and - Dallas Agengo Applicant/Accused _______________________________________________________ Memorandum of Decision on Mistrial Application of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] The background facts in this case briefly stated are that evidence was heard within a voir dire in respect of certain Charter issues and the voluntariness of statements obtained from the Applicant/Accused. Subsequently, the Court adjourned for parties to present written submissions which were to be followed by “a one day process of oral submissions” as indicated by the Court. Following a further delay necessitated by another long trial the written submissions were filed; first by the applicant and then by the Crown, in response.

However, due to an oversight the court did not go through the oral submissions and released its decision on the voir dire shortly prior to the next scheduled date since the parties written submissions appeared complete. The decision was against the Applicant/Accused. [ 2 ] On the scheduled date, counsel for the Accused made a request asking the Court to declare a mistrial since no oral

submissions were made before the Court’s ruling and the Accused had no opportunity to respond to the material filed by the Crown inresponse to the Applicant’s written brief. The court invited the Applicant/Accused on the day the request was made to make its oralsubmission for the Court to consider then on a curative basis. Issue [3] The issue presently before me is whether this is an appropriate case to grant the application by the Accused to declare amistrial on the basis that no oral submissions were made in response to the Crown’s filed materials.

Parties’ Positions Applicant [4] The Applicant’s counsel submits that she has a right and intention to present oral submissions and at the minimum, entitledto reply to the Crown’s written submission based on the principle of trial fairness and the opportunity to make full answer and defence: Rv Dresen, (NWT CA), [1988] NWTR 194 at para 3 (NWT CA) (“Dresen”).

She contends that it is an irregularity forthe Court to render judgment before full and final submissions; and that to do so is also a breach of natural justice, particularly the audialteram partem principle which requires the opportunity to be heard in full. [5] The Applicant/Accused refers to a number of authorities to justify his position. He cites R v Colley (1991),1991 NSCA 1, 105 NSR (2d) 178 (NSCA) (“Colley”) and observes that the appellate court held that the matter should not be remitted to thesame provincial court judge because of an apprehension of bias since the court had rendered a brief decision.

The Applicant also cites thecase of R v MacLean (1991), (NS CA), 106 N.S.R. (2d) 213 (NSCA) (“MacLean”) where the court adjourned forargument, and on the next scheduled date the court said it had considered submissions and had a written decision when in fact, counselhad not made formal submissions: MacLean at para 3. [6] Next, the Accused cites the case of R v Jahn (1982), 1982 ABCA 97 , 135 DLR (3d) 514, 35 AR 583 (Alta CA)(“Jahn”) and states that the Alberta Court of Appeal held that the failure to grant a litigant the opportunity to be fully heard was fatalwhen the Court below came to an adjudication without having provided an opportunity to make full and final submissions. [7] In reference to Dewey v Dawson-Moran, 2011 ABCA 45 (“Dewey”) the Applicant says that there was a misunderstandingwhere the court understood a submission by counsel to be full argument on the merits when counsel had further submissions to make andthat the Court of Appeal noted that “... the sting may be in reaching a decision, not in the reasons then given.” He goes further todistinguish the cases relied on by the Crown indicating that R v Morin, [1995] BCJ No 94 (BCSC) (“Morin”) is factually different fromthe instant case since it related to a position taken by the counsel where it was conceded that the circumstances in that case was one withoverwhelming authority to re-open a voir dire.

The Accused also distinguishhes R v Wu (ON CA), [2002] 170 CCC(3d) 225 (Ont CA) where a single comment was deemed not to raise a reasonable apprehension of bias. [8] The Applicant contends that it is not the outcome of the decision on the voir dire which was against the Accused thatprompted this application for declaration of a mistrial but the fact that oral submissions were invited but never occurred prior to therelease of judgment by the Court.

He concludes by submitting that where the Court has released Reasons for Judgment in the absence offull and final argument including, absence of any oral argument on Charter and voluntariness issues, where the matter was adjourned fora written brief and oral submissions, a reasonable observer would apprehend that any further submissions would be a mere formality. Heseeks the declaration of a mistrial and requests that the matter be set over to the next QB Appearance Court sittings for scheduling. Crown

[9] In response, the Crown submits that Colley does not stand for the principle that cases cannot be returned to the same judgefor continuation.

That the Nova Scotia Court of Appeal did not remit the case to the same judge because it determined that on the factsspecific to that case, it was obvious that a reasonable person might arrive at the conclusion that there was a reasonable apprehension ofbias on the part of a provincial court judge who made certain statements while refusing the defence the opportunity to make oralsubmissions. [10] The Crown notes that in applications for certiorari from preliminary inquiry committals, which are similar to the presentmatter, it is not unusual for cases to be returned to the same preliminary inquiry judge to hear further evidence or submissions: R vBayne (1970), (AB CA), 74 WWR 561, 1970 CarswellAlta 105 at para 29 (Alta SC, App Div); R v Pearson (1957), (AB KB), 117 CCC 249, 1957 CarswellAlta 25 (Alta SC, App Div) [11] Further the Crown refers to R v Giroux, 2003 ABQB 1010 at para 41, 349 AR 146, where the Court held that the “propercourse” is to remit the matter back to the same preliminary inquiry judge for continuation of the Preliminary Inquiry in order to allow thedefence to call additional evidence.

It also cites R v Nightingale, 2003 ABQB 1054 at para 26, 352 AR 50 where the Court dismissed acertiorari application and commented that: .. if, in fact .. there was a denial of fundamental justice in relation to the conduct of the preliminary inquiry, ... the accused should havethe opportunity to go back to the preliminary inquiry judge and make that particular point. (Emphasis added) [12] The Respondent additionally refers to R v Sazant, 2004 SCC 77 at para 27, [2004] 3 SCR 635 where the Supreme Courtremitted a case back to the preliminary inquiry judge “to consider the sufficiency of the evidence in the light of” its reasons. [13] The Crown Respondent submits in its conclusion that the proper procedure in this matter is to set a new date for oralsubmissions in the voir dire for the Court to consider along with the written arguments/submissions.

Analysis [14] The Supreme Court of Canada enunciated the test on a mistrial application in R v Burke, 2002 SCC 55 at para 75, [2002] 2SCR 857 (“Burke”) thus: In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent amiscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to theaccused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in acriminal case.

This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of thepublic and bringing the guilty to justice. See also, R v Selvanayagampillai, 2010 ONCJ 278 at para 7. [15] The Supreme Court has also held that in general, the principle of natural justice and specifically the audi alteram partem rulehas no absolute requirement of according persons entitled to its benefit an oral or in-person hearing before the ultimate decision-maker:Hoffman-La Roche Ltd v Delmar Chemicals Ltd, (SCC), [1965] SCR 575 at para 23, 50 DLR (2d) 607.

Further it isrecognized by the courts that frequently, the requirement to give a hearing is satisfied by providing an opportunity to make writtensubmissions: National Aviation Consultants Ltd v Starline Aviation Ltd, [1973] FC 571 at para 13, 1973 CarswellNat 43. [16] Admittedly in the sphere of criminal law or where Charter rights are involved, the requirement of fair hearing is more

stringent than in civil matters.

That said, I also note that the Courts have observed that while it is customary to do so, there is no provision in the Criminal Code requiring the trial judge to afford either the Crown or the defence the opportunity to reply to the second submission and that such procedure is not prescriptive: Dresen at para 3 . [ 17 ] In granting or denying an application for mistrial based on the alleged breach of this principle the Court is invited to take into consideration the peculiar facts and circumstances of each case in order to assess “whether there is a ‘real danger’ of prejudice to the accused or danger of a miscarriage of justice” in the matter: Burke at para 74 .

This was the approach adopted in the cases cited by the Accused: see, Dresen at paras 4-5 ; Colley at para 4 . [ 18 ] I agree with the Crown that the facts of Colley is quite different from the present case. In that case, the Nova Scotia Court of Appeal refused to remit the case back to the same provincial court judge because the appellate court determined that the facts of that case indicated that there was an allegation that at the preliminary inquiry “Counsel for Mr.

Colley requested to make submissions with respect to the charges but was not allowed to do so by the learned Provincial Court Judge”: Colley at para 4 . In the present matter, this court did not at any stage reject a request from the applicant’s counsel to make a submission.

Instead, the court explained the oversight concerning its earlier indication to go through oral submission and stated that it is ready to hear further oral argument from counsel in the voir dire and thereafter consider all of the written and oral submissions before make a ruling. [ 19 ] Further, I note that the MacLean case referred to by the Applicant can be distinguished on its facts in the sense that there were no formal submissions in that case; whereas in the present case, this Court had before it the formal, filed written submissions by both the Applicant/ Accused and the Crown Respondent which it reviewed and considered before making its decision in the voir dire . [ 20 ] The Applicant cites Jahn and referred to the fundamental principle that a litigant ought not to be deprived of his right to have his case fully heard.

However, he failed to comment on the relevant factor of the peculiarity of each case as the Alberta Court of Appeal observed in the same case that: 24 This rule was confirmed in the civil action of Felker v. Felker , [1946] O.W.N. 368 (C.A.) , where judgment was given by the trial judge after all the evidence had been led but without inviting counsel to submit argument . The Ontario Court of Appeal held that by adopting this course the trial judge erred, and disposed of the appeal by ordering a new trial.

The note in the report explains the ratio of the judgment in the following statement [p. 369]: At the conclusion of the argument, The Court delivered judgment orally, allowing the appeal and directing a new trial, on the sole ground that the trial judge had pronounced judgment before according to counsel the right to present argument , and that the defendant had thus been deprived of her substantive right to have her case fully presented. (Emphasis added) The facts in the present case differ from that in Jahn and Felker .

The Court in this present action did invite counsel to submit arguments and had the benefit of the written arguments/submissions of both parties before it, prior to making its decision. A review of the decision confirms detailed references to the salient submissions by both parties on all the issues that were raised in evidence and in arguments. [ 21 ] In Dewey , which is a decision that relates to civil litigation, I note that the context of that decision is both relevant and material. The Court of Appeal observed that: (

i) there was a “four lines” submission made by the counsel which led to some uncertainty and misunderstanding as to whether that is truly a submission on the merits (para 9); (ii) the four lines in question opened with an explanation where the appellant’s counsel said expressly that he understood that he was being asked if he had more to say on “the preliminary issue” (para 10), and (iii) after the judge had given his reasons, he suggested that counsel for the appellant would have no more to say and no cure was attempted by the judge (para 11).

In the present matter, the Court had the benefit of comprehensive written arguments from both the Accused and the Crown on the merits of the issues on voir dire ; secondly, both counsel before this Court had a clear understanding that they were writing their briefs on the merits of the issues and were neither uncertain about the real nature of the issues at stake nor misunderstood it; and thirdly, after the Court had given its reason due to the oversight, it did not suggest that “counsel would have no more to say”, instead it attempted to cure the oversight by inviting the counsel for the Accused to make her submissions.

In effect, the context of the present case is quite different from that in Dewey .

[ 22 ] It seems unclear to me what the counsel for the Accused seeks to make out of the issue of characterizing the decision as “Reasons for Judgment”. Nonetheless, I will observe that there is no uncertainty as to what the Court’s ruling deals with in that decision. In other words, both the Applicant and the Crown made written submissions that were specific to the voir dire and were very aware that a decision was to be made in respect of the voir dire arguments subsequent to the hearing of evidence on certain Charter issues and the voluntariness of statements obtained from the Applicant/Accused.

Thus, a purely technical and generic characterization should not undermine the substance of the Court’s decision dated March 16, 2011. [ 23 ] Significantly, with reference to the issue of bias, the Federal Court of Appeal in Collins v Canada , 2011 FCA 171 at para 11 , recently held that: The simple fact that judges render a judgment which is unfavourable to a party cannot in itself result in a conclusion of bias. Were it otherwise, no judgment could ever be issued. A reasonable apprehension of bias must be shown to exist either in the judgment itself, in the comportment of the judge or by some other means.

I have closely reviewed the judgment ...

The reasons for this judgment are considered, balanced and sound, and no bias whatsoever can be found in them . ( Emphasis added ) From this perspective, the counsel for the applicant/accused has not demonstrated that the reasons given for my decision on the voir dire or that certain statements made by this court show, exhibit or suggest a reasonable apprehension of bias. [ 24 ] Based on my consideration of the question of whether I need to declare a mistrial in order to prevent a miscarriage of justice in the instant case and an examination of the surrounding circumstances involved here, balanced with other relevant factors, I am satisfied that there is no likelihood or danger of a miscarriage of justice present in this matter for prevention; neither is there any ‘real danger’ of prejudice to the accused given the reality and substance of the written submissions made and filed by his counsel in this Court prior to my decision dated March 16, 2011. [ 25 ] I conclude that this is not an appropriate case to declare a mistrial as the Applicant/ Accused has neither met the test set out in Burke nor demonstrated a reasonable apprehension of bias on the Court’s part.

I hold that based on existing jurisprudence reviewed above and the peculiar facts of this case, the oversight in relation to oral submissions from parties is curable by allowing counsel to make oral submissions, in addition to the filed written submissions, for the Court’s consideration. Disposition [ 26 ] In the result, the application for mistrial by the Accused is denied. Counsel for both the Applicant/Accused and the Crown should appear before me in Court by 10:00 a.m. on Friday, September 16, 2011 prepared to make further oral submissions for the Court’s consideration and for the completion of this matter.

Applications dealt with orally on April 4, 2011 and in writing with materials filed on April 14 and 29, 2011. Dated at the City of Edmonton, Alberta this 6 th day of July, 2011.

Donald Lee J.C.Q.B.A. Appearances: Deborah R. Hatch for the Applicant/Accused Brenda Gaunt for the Respondent/Crown