R v Petrin, 2013 ABQB 689

Court of Queen ’ s Bench of Alberta Citation: R v Petrin, 2013 ABQB 689 Date: 20131126 Docket: 121410045Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Joshua Dylan Petrin Accused Restriction on Publication On its own motion, based on an analogy with respect to bail hearings arising from the need to refer to subsequent, serious, charges, the court makes a preliminary, without notice, order that these reasons shall not be published or broadcast until the proceedings on which the applicant is being held are ended. This ban can be revisited by either party, or any interested party, on notice.

NOTE: This decision is available from the court file. It may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Editorial Notice: The restriction on publication ended on January 27, 2014. _ ________________________________________ ______________ Reasons for Decision of the Honourable Madam Justice J.B. Veit _________________________________________ ______________

Summary [1] Relying on s. 527 of the Criminal Code, Mr.

Petrin, an accused who has been denied bail, asks the court to order that he bedelivered from the Regina Correctional Centre in Saskatchewan to the Edmonton Remand Centre in Alberta so that he can prepare for an“in person” pre-trial application to be held on December 10, 2013, at Stony Plain, Alberta a community on the outskirts of Edmonton. [2] The application is opposed by the federal Crown on the grounds that: - The court has no jurisdiction to order the Correctional Service to deliver a prisoner in advance of a court hearing; - Security reasons justify the decision to hold Mr. Petrin in Saskatchewan. [3] Mr.

Petrin’s application is denied. [4] When the “ends of justice” so require, Parliament has given superior courts the capacity to order the movement and mannerof detention of prisoners still presumed to be innocent and who are, in that sense, “prisoners of the Court”.

The need for consultationwith counsel prior to, or during, a hearing, may satisfy that test. [5] As to whether that power should be exercised in the circumstances here, the court concludes that, in addition to theprisoner’s wishes, it is also appropriate to consider all other material circumstances which may be relevant to an order for delivery of aprisoner. In that context, the court first observes that the security problem invoked by the custodial authorities is not persuasive: hadthere not been subsequent charges laid outside Alberta, the custodial authorities would have found a way to manage Mr.

Petrin withinAlberta’s custodial resources as the issues raised of the co-accused’s detention and gang membership are common security issues inprovincial custodial institutions. [6] Second, the court also notes two matters relating to this particular application. Since Mr.

Petrin’s lawyer appeared in personin Edmonton from his office in Victoria, B.C., there is no obvious need to make the order requested in order to ensure accessible,confidential, one-on-one, preparation for the December 10 hearing. [7] More generally, I agree with the approach of Corbett J. in Liard to the effect that the institutional effect of directions imposedupon the corrections services in one particular case must be considered.

Here, this principle translates into a requirement that applicantsfor a s.527(1) transfer order must satisfy the court that there is no accessible, safe, effective, opportunity for privileged communicationwith counsel by video link at the facility in which they are incarcerated. Information about that potential capacity has not been providedhere. Cases and authority cited [8] By the court: R. v Levesque [1980] B.C.J. No. 842; Auclair c Dubé (1984) (QC CS), 39 CR (3d) 398;R. v Bajada [2001] OJ No 2026; R. v D.D. 2009 ONCJ 772; R. v Liard 2013 ONSC 5457 at paras. 244-6. 1. Background [9] Mr.

Petrin was charged with drug trafficking offences in Alberta on the basis of incidents which are alleged to have takenplace in Alberta in late October or early November, 2012. He has been denied bail on those charges. [10] After he was taken into custody on the drug trafficking matters, Mr. Petrin was charged with conspiracy to murder inSaskatchewan and moved as a remand prisoner from Alberta to Saskatchewan; he has since been denied bail on the Saskatchewancharges.

The incidents which are alleged to support the conspiracy to murder charge took place in Saskatchewan at a time before thedrug trafficking charges took place. [11] Mr. Petrin is bringing an Askov application with respect to the drug trafficking charges; that pre-trial, in person, applicationwill be heard in Stony Plain, Alberta on December 10, 2013. Mr. Petrin’s lawyer, whose office is in Victoria, B.C., and who alsorepresents Mr. Petrin on the conspiracy to murder charges, attended in person in Edmonton to make this application. [12] The federal prosecutor states that the corrections officials wish to keep Mr.

Petrin incarcerated in Saskatchewan foradministrative reasons connected to security: one of Mr. Petrin’s co-accused is also incarcerated in Alberta and Mr. Petrin is alleged tohave gang connections with gang members who are incarcerated in Alberta. It is therefore more convenient for the custodial authoritiesto have Mr. Petrin incarcerated in Saskatchewan. 2. Does s. 527(1) of the Criminal Code give to this court the power to order custodial officials to transfer remand prisoners toa specific location and to hold them there? [13] The short answer to that question is, Yes.

[ 14 ] In coming to that conclusion, I take into account the following: - Parliament has stated, in s. 527(1) that a judge of a superior court can order that a prisoner be brought before the court (b) “ if the judge is satisfied that the ends of justice require that an order be made”. [ 15 ] The statutory language is very broad and depends only on the ends of justice, which ends, of course, include an accused’s right to make full answer and defence to a criminal charge. [ 16 ] The pre-trial motion here is an “in person” motion that should be held, for the purposes of

interpretation of s. 527, as being part of the trial. Case law has interpreted s. 527 as giving that right. In Levesque , the court said: 6 It is said that the only justification for an order to be made under s. 460(5) is to secure the appearance of the prisoner to stand trial. It does not allow the judge, for purposes of ensuring that the accused receives a fair trial, to include directions made for that purpose, in an order intended to secure the prisoner's appearance in Court. I do not think this argument is conclusive.

An order may be made under s. 460(1) where "the ends of justice require that an order be made": s. 460(1)(e). Here the accused, confined in a prison, was required to stand his trial, and the Judge made an order in the usual way under s. 460(1), being satisfied that the ends of justice required him to do so. Those are the grounds upon which a judge can make an order under s. 460(1) - there are no others.

He may, therefore, where the appearance of the prisoner is required for the purpose of continuing the trial, and bearing in mind what the ends of justice call for in the case, give directions pursuant to s. 460(5). Where a trial judge makes an order to secure the appearance of the accused to stand his trial, he does so for the purpose of assuring him a fair trial. "To stand his trial" should be given a fair, large and liberal

interpretation. There is no point in securing the appearance of the accused to stand his trial unless the trial is to be a fair trial. The provisions of s. 460 should be read on that premise. 7 Counsel for the Attorney General of Canada takes a further point: under s. 460(5) the judge is empowered to give appropriate directions with respect to the manner in which the accused is to be kept in custody. Counsel says that s. 460(5) applies only to the manner in which an accused is to be kept in custody in whatever institution the Commissioner of Penitentiaries has decided he shall be kept.

Prescribing the manner of confinement does not extend to prescribing the institution of confinement. Counsel for the accused says, on the other hand, that the power to make directions with respect to the manner of confinement necessarily comprehends the power to direct that the accused be kept in an institution where he can be seen by his counsel in order that his defence may be properly prepared. This, it is said, is the reason for giving the Court power to give appropriate directions with respect to the manner in which the prisoner is to be kept in custody.

The judge may direct that the accused be provided with pencils and paper and books and proper lighting; he may require in an appropriate case that the accused be released from isolation. Counsel goes on to say that the judge may, in an exceptional case, direct that the accused be held in such a manner that he will be accessible to his legal advisers. In the case at bar the alleged offence occurred in this province. The trial is being held in the County of Westminster. The accused's counsel are in Vancouver.

Therefore, it is said, it is appropriate to make a direction under s. 460(5) that the accused be held at an institution within driving distance of Vancouver. That may entail the accused being held at Kent, but that is not because the Judge is usurping the powers of the Commissioner; it is rather that the Judge is exercising his own powers under s. 460(5) to ensure that the accused receives a fair trial. 8 Counsel for the Attorney General of British Columbia supports the position of defence counsel.

Both of them cite the difficulty defence counsel had in obtaining an assurance from the Commissioner of Penitentiaries that the accused would be transferred from Laval to Kent in sufficient time before the commencement of his trial to enable counsel to consult with him in order to prepare his defence at trial. 9 Counsel said that Judge Davies' jurisdiction depends entirely on s. 460, since he does not have inherent jurisdiction. I think the question is one of power, not jurisdiction. But however the question may be characterized, it depends on the meaning of the statute.

Judge Davies can only act on the basis of authority conferred by the Code: Doyle v. The Queen, [1977] S.C.R. 597. 10 Chief Justice MacEachern, in R. v. Newman et al., (unreported) December 17th, 1979, at the Vancouver Assizes, directed that several of the accused in that case be held at the Lower Mainland Regional Correctional Centre, though some of them were serving sentences in Kent Institution.

The Chief Justice said: • " I am concerned only with the conduct of the trial and I am only concerned with ensuring as best I can that these accused receive a fair and proper trial." In that case the accused, being held at Kent, were being driven in to the Court House in Vancouver each day and then back to Kent each afternoon. This meant that they were on the road for 4 or 5 hours a day.

The Chief Justice said: • "I do not regard it as reasonable to expect them to withstand the rigours of a trial, arduous as that is for counsel, let alone for the accused, if they are in a regime that requires them to be on the road as it were for up to 4 to 5 hours minimum per day in addition to the usual length of time in Court, and ... I would order that they be moved for the period of the trial to the Lower Mainland Regional Correctional Centre." Chief Justice McEachern's order entailed the transfer of the accused from a federal to a provincial institution.

He based his decision on his inherent jurisdiction to ensure that the accused received a fair and proper trial and that they were able to make full answer and defence to the charge they faced. I think the powers that a County Court Judge may exercise are, like those of a magistrate, entirely statutory. But the judgment of Chief Justice McEachern indicates why

Section 460 should be given a fair, large and liberal

interpretation, so that trial judges will be able to make effective orders under s. 460(5). 11 All of the considerations that I have cited call for s. 460(5) to be interpreted so as to uphold the order of Judge Davies if that is not inconsistent with the language of s. 460(5) itself. I do not think it is. - ( s. 460 referred to in this judgment is the predecessor of s. 527 and its wording is the same as that of the current section.)

[ 17 ] The principles articulated in Levesque apply here: were I satisfied that Mr. Petrin could only have effective, safe, privileged communication with his lawyer in sufficient time to prepare for the December 10 hearing if Mr. Petrin were transferred to the Edmonton Remand Centre, I have the power to make an order for his transfer from Saskatchewan to Alberta for that purpose. [ 18 ] Similarly, in Auclair , Fortin J. said: 2 Le requérant doit subir son procès le 31 mai 1984 devant un Magistrat de la Cour des Sessions de la Paix, district de St-François, sous une accusation de vol, tel que prévu aux articles 283

a) et 294

a) du Code criminel . Dans l'attente de son procès les autorités l'ont transféré de l'établissement de détention de Sherbrooke à l'établissement Leclerc de St-Vincent de Paul, à Montréal. 3 Le requérant, par son procureur, a demandé au juge intimé une ordonnance suivant l'

article 460 C.cr . pour être conduit à l'établissement de détention de Sherbrooke sans retard afin de lui permettre de préparer une défense pleine et entière. À l'audience, le juge intimé a déclaré ne pas avoir juridiction pour accorder cette demande telle que formulée. 4 En principe, le pouvoir judiciaire n'a pas juridiction dans l'administration des établissements de détention et l'

article 460 C.cr . a pour but d'autoriser un juge à ordonner qu'un prisonnier soit amené devant la Cour pour y subir son procès. Cependant l'accusé doit non seulement être présent physiquement mais encore doit-il être prêt à subir son procès à la date fixée par le juge. 5 La Charte canadienne des droits et libertés spécifie qu'un accusé a droit d'avoir recours à l'assistance d'un avocat et de bénéficier d'une défense pleine et entière ( articles 10 , 11 et s.). Il tombe sous le sens commun qu'un accusé doit avoir un délai raisonnable pour préparer sa défense et le droit d'en discuter avec son procureur.

Si l'accusé est prisonnier dans un établissement éloigné du palais de justice et est ramené à la prison locale la veille de son procès il pourrait être justifié, le matin de l'audience, d'obtenir une remise, ce qui pourrait perturber sérieusement l'administration de la justice, surtout en matière de procès devant jury. Une collaboration intelligente s'impose entre les diverses autorités. 6 Au surplus, le sous- paragraphe (5) de l'

article 460 C.cr . édicte ce qui suit : • "Lorsque la comparution du prisonnier est requise aux fins de l'alinéa

(1) a) ou b), le juge ou magistrat doit, dans l'ordonnance, donner des instructions appropriées sur la manière •

a) dont le prisonnier doit être tenu sous garde, s'il est renvoyé pour subir son procès;" 7 Nous sommes d'opinion que dans l'interprétation de cet

article un juge a juridiction pour ordonner au directeur d'un établissement de détention, premièrement d'amener devant la Cour, à la date où sa présence est requise, un prisonnier, et, deuxièmement, s'il est détenu en dehors du district, d'indiquer dans son ordonnance qu'il soit amené à la prison commune de ce district, près du palais de justice, dans un nombre de jours raisonnable précédant la date du procès afin de lui permettre de préparer sa défense et d'être ainsi présent physiquement et prêt légalement à subir son procès.

C'est, à notre avis, "donner des instructions appropriées sur la manière dont le prisonnier doit être tenu sous garde aux fins de subir son procès". [ 19 ] Roughly speaking, the reasons articulated by Fortin J. state that it is merely common sense that an accused must be given reasonable time to prepare his defence and consult his lawyer, and, for that purpose, that he may have to be brought to a prison near the courthouse a few days before his trial in order to enable him to prepare his defence in order to be ready for the trial on the date fixed for trial.

Trial adjournments in order to allow the opportunity for consultation are not either in the public interest nor in the interest of the prisoner.

It should be noted, however, that, while the court upheld the power of a superior court judge to make the order requested, it did not in fact make the order requested because the prisoner’s application was not formulated in a way which satisfied the requirements of the Code. - The distinction between a remand prisoner and a convict is alluded to in Bajada : That decision dealt with the use of restraints in pre-trial motions, i.e. when an accused person – one who is presumed to be innocent – can be brought into a courtroom in handcuffs.

The judge in that case held that while there was a general presumption that a prisoner would enter the trial court unrestrained, and while there was no such presumption with respect to a pre-trial court, it was unreasonable and unnecessary in that particular case to insist that the accused be handcuffed behind his back in the specific case. It was in that context that the judge said: - From the time of his arrest until the time he is produced before a judicial officer, the prisoner is in the custody of the police. Once he is produced to a judicial officer, he moves to the custody of the Court.

In the past, the jails were jails of the Court. This may no longer be true but the remand prisoner remains a prisoner of the Court. Only upon his sentence does the prisoner pass from the custody of the Court to the custody of corrections officials.(I observe in passing that the conclusion in Bajada that the presumption of innocence can be interpreted differently in pre-trial motions than at trial, has been criticized as not correctly interpreting the decision of the Ontario Court of Appeal on this issue: see D.D. ) [ 20 ] In

summary on this issue, while a superior court does not generally have jurisdiction over the place and manner of detention of prisoners, at least those prisoners who are convicts, it does have the power under s. 527 of the Code with respect to remand prisoners to order that they be brought to a specific prison and be held there prior to and during a trial. 3.

Here, should the order requested be made? [ 21 ] The short answer is, No. [ 22 ] I agree with the principle expressed by Corbett J. in Liard to the effect that before making an order under s. 527 in a particular case, all of the circumstances of the situation, including the effect on the entire pre-trial custodial system must be considered.

[ 23 ] Here, the Crown’s argument that security reasons justify the detention of the accused in Saskatchewan is not persuasive. Custodians are regularly called upon to deal with co-accused prisoners and gang connection problems in the institutions. Had it not been for the fact that the accused was subsequently charged with other crimes in Saskatchewan, this accused would have been kept in an Alberta institution according to the best security management techniques that could be devised. [ 24 ] Mr.

Petrin is, of course, correct in stating that he has a right to make a full answer and defence to the Alberta charges and, in that context, that he has the right to privileged, i.e. secure, confidential, and private consultations with his lawyer. The issue before this court is, therefore, whether the ends of justice require that Mr. Petrin be moved to the Edmonton Remand Centre in order to achieve those ends of justice. [ 25 ] I have not been persuaded that Mr. Petrin has met that burden.

First, his B.C. lawyer appeared in person in Alberta in order to make the request; on the face of it, there is therefore sufficient funding available to the defence to allow Mr. Petrin’s lawyer to travel interprovincially for consultation. More generally, however, Mr. Petrin has not provided the court with any evidence concerning the availability of accessible, effective, secure, privileged communication opportunities with his lawyer by video link. It is conceivable that today’s technological capacity would allow such communication and that resort to such communication would, on the one hand, allow Mr.

Petrin to exercise his constitutional rights, and, on the other, would not impinge upon what are presumably limited resources to serve the constitutional rights of all other remand prisoners. [ 26 ] In

summary then, although this court has the power to make the order requested, in the particular circumstances here, the court has come to the conclusion that the exercise of that power is not justified on this application. Heard on the 18 th day of November, 2013. Dated at the City of Edmonton, Alberta this 25 th day of November, 2013. J.B. Veit J.C.Q.B.A. Appearances: J. Bialowas, Public Prosecution Service of Canada, Alberta Regional Office for the Crown Robert C. Claus for the Accused