R v Mukwaaya, 2015 ABQB 777

Court of Queen ’ s Bench of Alberta Citation: R v Mukwaaya, 2015 ABQB 777 Date: 20151207 Docket: 140573536Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Charles Roger Mukwaaya Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction and Background [ 1 ] The Accused Charles Roger Mukwaaya applies to this Court for a prerogative writ of certiorari on the following grounds: (

a) The judge hearing the preliminary inquiry (“PCJ”) committed a jurisdictional error by failing or refusing to apply the rules of evidence and determine the admissibility of the Accused’s statements to the Canada Border Services Agency (“CBSA”) officers and, as a result, the committal was grounded solely on this inadmissible evidence; and (

b) the PCJ failed to consider the whole of the evidence. As a result, he committed a jurisdictional error by committing the Accused to stand trial where an essential element of the offence was not made out. [ 2 ] A preliminary inquiry was held on April 21, 2015, continued on April 24, 2015, to allow the Crown to provide further submissions, and adjourned to May 8, 2015, at which time the PCJ asked for further submissions on particular issues. [ 3 ] The evidence before the PCJ was that the Accused arrived in the customs area of the Calgary International Airport on a flight from Frankfurt, Germany on May 24, 2014.

He possessed one suitcase. Based on his answers to preliminary questioning, a CBSA

officer directed him to “secondary” examination. This further examination of the Accused and search of the suitcase revealed 2.9kilograms of heroin in a hidden compartment behind a plastic liner in the suitcase. [4] During the preliminary inquiry, the Accused argued that he should not be committed to stand trial, on the ground that hispreliminary answers to the CBSA officers were never proven to be “voluntary,” and were therefore inadmissible at the preliminaryinquiry.

As well, he argued that the Crown had failed to present any evidence supporting an essential element of the offence, viz,whether the Accused had knowledge of the drugs concealed in the suitcase.

This, he argued, was a circumstantial case and the Crownproduced no evidence on which the PCJ could draw an inference of willful blindness or actual knowledge. [5] The Crown argued that it had met its onus for committal by establishing that the Accused entered Canada, he was inpossession of the controlled substance, and he “said he had packed the bag, he was aware of its contents.” As for the voluntariness of thestatements, the Crown argued that because an individual attending at a primary inspection is statutorily compelled to answer questions,the Crown is not required to prove voluntariness of those statements.

Further, the Crown argued the Accused had not provided anyevidence to suggest that the statements were involuntary. [6] The PCJ rendered his decision on May 27, 2015. The PCJ found that the Accused’s statements were admissible and therewas sufficient evidence of the Accused’s knowledge of the heroin concealed in the suitcase to justify committal. He committed theAccused to stand trial and said the following: ... The accused was required to answer them but I have no indication that he was coerced into making those statements.

The questionsthemselves were not intrusive and/or intimidating, nor was the atmosphere in which they were asked that way. Despite the lack of a voir dire, the Court accepts that these statements were voluntary and not to be included in the category of admissibleevidence before a Court when considering the issue of committal. If I am wrong on this point then the statements could also be used aspart of the grounds for the officers to conduct the next part of their investigations.

In this circumstance, the responses given by Mr.Mukwaaya are not tendered for the truth of their contents but rather for the – for the purposes of allowing the officers to form groundsfor conducting searched authorized the Customs Act. ... Preliminary Inquiry Transcript, May 27, 2015, p 93, ll 12-23. [7] It appears to this Court that the phrase “these statements were voluntary and not to be included in the category of admissibleevidence before a Court when considering the issue of committal” was either transcribed incorrectly or the PCJ misspoke.

The word“admissible” should be replaced with “inadmissible.” Or the word “not” should be replaced with the word “ought.” Either correctionwould provide the same result. The balance of the PCJ’s decision supports this correction. The PCJ said, for example, “if thosestatements were removed or could not be used for the truth of their contents, they could still be used as evidence for which the officercould articulate grounds to proceed to the next stage of the investigation”: Preliminary Inquiry Transcript, May 27, 2015, p 94, ll 8-11. II.

Discussion [8] The starting point for this discussion is the legislation under which the PCJ was operating. Criminal Code ss 535 and 548(1)provide as follows: 535. If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiryunder subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictableoffence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part. 548.

(1) When all the evidence has been taken by the justice, he shall (

a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence inrespect of the same transaction, order the accused to stand trial; or (

b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for theoffence charged or any other indictable offence in respect of the same transaction. [9] The test for committal was articulated in the Supreme Court of Canada decision in United States of America v Shephard, (SCC), [1977] 2 SCR 1067, which McLachlin CJ more recently articulated in R v Arcuri, 2001 SCC 54, [2001] 2 SCR828 [Arcuri], when she said the following: The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judgeconsidering a defence motion for a directed verdict, namely, "whether or not there is any evidence upon which a reasonable jury properlyinstructed could return a verdict of guilty": Shephard, supra, at p. 1080; see also R. v.

Monteleone, (SCC), [1987] 2S.C.R. 154, at p. 160. Under this test, a preliminary inquiry judge must commit the accused to trial "in any case in which there isadmissible evidence which could, if it were believed, result in a conviction": Shephard, at p. 1080. Arcuri at para 21. See also R v Deschamplain, 2004 SCC 76 at para 17 [Deschamplain]. [10] When undertaking this task, the judge hearing the preliminary inquiry must conduct a limited weighing of evidence if theCrown is relying on circumstantial evidence. In Arcuri, McLachlin CJ said the following: ...

The judge [hearing the preliminary inquiry] must therefore weigh the evidence, in the sense of assessing whether it is reasonablycapable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask

whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judgeasks only whether the evidence, if believed, could reasonably support an inference of guilt. Arcuri at para 23. See also R v Campbell (1999), (ON CA), 140 CCC (3d) 164 at para 6 (Ont CA). [11] The Supreme Court of Canada also provided reviewing courts with guidance on their scope of review when considering anapplication for a writ of certiorari.

In R v Russell, 2001 SCC 53 , [2001] 2 SCR 804 [Russell] at 814, McLachlin CJ for thecourt said the following: The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensivereview, today certiorari runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term'jurisdiction' being given its narrow or technical sense": R. v.

Skogman, (SCC), [1984] 2 S.C.R. 93 (S.C.C.), at p. 99.Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunalcommitted an error of law or reached a conclusion different from that which the reviewing court would have reached.

Rather certioraripermits review "only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach ofthe principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction": Skogman, supra, at p. 100 (citing R. v.Forsythe, (SCC), [1980] 2 S.C.R. 268 (S.C.C.)). [12] What is the extent of a jurisdictional error that will permit a reviewing court to issue a writ of certiorari?

The followingprovide examples of when a judge hearing a preliminary inquiry commits a jurisdictional error: • if the judge hearing the preliminary inquiry does not observe a mandatory provision in Criminal Code s 548: Forsythe v TheQueen, (SCC), [1980] 2 SCR 268 [Forsythe] at 271-72; • if the judge hearing the preliminary inquiry commits the accused person to trial without “at least ... some basis in the evidenceproffered for the [judge hearing the preliminary inquiry’s] decision to commit”: Dubois v The Queen, (SCC), [1986] 1SCR 366 at 377; • if the judge hearing a preliminary inquiry commits the accused person to trial “when an essential element of the offence is notmade out”: Deschamplain at para 23; and • if the judge hearing the preliminary inquiry fails to consider the “whole of the evidence” as required by Criminal Code s 548(1)(b): Deschamplain at para 18. [13] Questions concerning the admissibility of evidence are questions of law.

If the judge hearing the preliminary inquiry makesan error concerning a question of admissibility of evidence, this would be an error of law that would not be subject to review oncertiorari, as it is not a jurisdictional error: Forsythe at 272; Quebec (Attorney General) v Cohen, (SCC), [1979] 2SCR 305 at 310, 46 CCC (2d) 473. In R v Goa, 2012 ONSC 2344 [Goa] at para 16, Fragomeni J said the following: The preliminary inquiry justice was tasked to determine the voluntariness of a statement.

Following a voir dire as to the admissibility ofthe statement, the justice ruled that the Crown had proven the voluntariness of the statement beyond a reasonable doubt. This ruling wasmade within the scope of his jurisdiction presiding at the preliminary inquiry. I agree with the legal principles enunciated in Gallant andin the Court's thorough review of the relevant caselaw on the issue.

This was an evidentiary ruling that does not go to jurisdiction.Evidentiary rulings made at a preliminary inquiry are beyond the reach of judicial review, whether the ruling is right or wrong (Gallantat para. 50). [14] In the case at bar, the PCJ did not make a ruling on the voluntariness of the Accused’s statement following a voir dire. Rather,he made the ruling after hearing evidence during the preliminary inquiry itself. In R v Janda, 2003 CarswellOnt 358, [2003] OJ No 326(Sup Ct Jus) [Janda], Campbell J was considering a situation not unlike the situation before this Court.

In that case, the judge hearing thepreliminary inquiry admitted 2 of the accused’s statements without entering into a voir dire, and without any objection by anyone. Theaccused argued that there was no evidence of the offence apart from the accused’s statements, which were inadmissible because therewas no voir dire to establish voluntariness of the statements. Campbell J found that because there was no express waiver of the holdingof a voir dire, and because silence or lack of objection does not constitute a waiver, the judge hearing the preliminary inquiry admittedthe statements in error.

After providing excerpts from Russell and Forsythe, to which this Court referred earlier, Campbell J said thefollowing: Because the error in admitting the statement in evidence without a voir dire was not jurisdictional, there is no basis for certiorari and theapplication must be dismissed.

Janda at para 20. [15] The Ontario Court of Appeal upheld Campbell J’s finding by saying that it agreed with him “on the first point that this was anerror within the jurisdiction and therefore not subject to certiorari”: R v Janda, 2003 CarswellOnt 4441, [2003] OJ No 4248 at para 1. [16] The Accused cites R v King, 2011 ABQB 162, 511 AR 322, 276 CCC (3d) 371[King], for the proposition that if the exclusionof inadmissible evidence would have resulted in “no evidence” on an essential element of the offence, the reviewing court may quash thecommittal. This Court does feel that King’s finding is so broad.

The facts which formed the foundation of the application for a writ ofcertiorari are that the judge hearing the preliminary inquiry conducted a voir dire to determine if a police officer was qualified to testifyas an expert on various matters, including the

interpretation of language and the jargon of telephone calls that had been interceptedpursuant to a wiretap that had been obtained and whether his evidence was admissible. The accused persons argued that the officer’sevidence should not be admitted as its prejudicial effect outweighed its probative value because his

interpretation was based on a limitedreview of the intercepted calls and started with the assumption that the conversations were about drug trafficking. The officer had not

reviewed all of the intercepted telephone calls, only those calls that had been identified for him by the lead investigator. Ultimately, thepreliminary inquiry judge admitted the officer’s evidence.

She stated that she did not believe she had the jurisdiction as a preliminaryinquiry judge to make a finding that the officer’s evidence should be excluded due to concerns about the sufficiency of materials hereviewed and that concerns about the sufficiency of the foundation for his opinion go to weight. [17] On review, Strekaf J said that the judge hearing the preliminary inquiry must undertake the balancing exercise or “cost-benefitanalysis” that the Supreme Court of Canada articulated in R v Mohan, (SCC), [1994] 2 SCR 9 at 20-21.

She found thatthe judge hearing the preliminary inquiry had not undertaken that task in determining the admissibility of the officer’s evidence. Had thejudge hearing the preliminary inquiry undertaken that task, she might have committed an error in law, but not a jurisdictional error thatwould have been subject to the issuance of a writ of certiorari.

However, because the judge hearing the preliminary inquiry had not evenundertaken the “cost-benefit analysis,” Strekaf J found that the judge hearing the preliminary inquiry committed an “error of jurisdiction,reviewable by certiorari”: King at para 32. [18] In the case at bar, the PCJ did not commit such an error. He did not hold a voir dire to determine the admissibility of theAccused’s statements to the CBSA officer. As Campbell J held in Janda, this is an error in law but it does not go to the PCJ’sjurisdiction.

In fact, the PCJ analyzed the evidence before him, and determined that the Accused’s statements were admissible. In otherwords, he exercised his jurisdiction albeit erroneously. This is not the type of matter that would be reviewable. [19] The Accused further argues that there is no evidence as to the Accused’s knowledge that the suitcase the Accused broughtinto Canada contained heroin, absent the inadmissible questions that the CBSA officer posed. This Court disagrees. The PCJ said thefollowing: ... The evidence left would show that Mr.

Mukwaaya was in the customs hall and presented an E-3-11 form to the customs officer.Whether or not there was any other admissible evidence as to whether he had been in the country or not, it is entirely possible for a trierof fact to infer from this evidence that Mr. Mukwaaya had been out of the country and was seeking to enter Canada at that time. Otherexplanations may present themselves at trial but the trier of fact could still draw such an inference. Further, the totality of the evidence would remain that Mr.

Mukwaaya was in possession of a suitcase in a customs hall that had 3kilograms of heroin secreted into a hidden area of that suitcase. He was presenting himself to a second customs officer with – with thebag in his possession. The answer he gave to the questions from Constable Lee might not be [allowed] for the truth of their contents, butthe Curt [sic] still has evidence that Mr. Mukwaaya presented himself to the officer with the red suitcase.

The requisite knowledge of thesuitcase contents could be inferred from the weight of the heroin and its effect on the suitcase, in this case in terms of the feel, thespongy-like panel, and the appearance, the obvious bulge when the suitcase was divested of its legitimate contents. Therefore, the Court concludes that there is some evidence on which a trier of fact properly instructed could convict Mr.

Mukwaaya ofthe charge of importation of heroin and accordingly I commit him to stand trial on that charge.” Preliminary Inquiry Transcript, May 27, 2015, p 94, ll 11-30 [emphasis added]. [20] The Accused argues that these factual findings are incorrect. This Court disagrees. The CBSA officer testified concerning allthe facts the PCJ found. The timing of the CBSA officer’s discovery of the heroin, and how it was found is something best left to thetrial judge.

The PCJ, however, committed the Accused to trial based on the fact that there was “some evidence.” It is not the role of thisCourt to parse the PCJ’s analysis of the evidence. As the Ontario Court of Appeal said in R v McFarlane, 2004 CarswellOnt 2075 atpara 2, [2004] O.J. No. 2108, a “court reviewing the propriety of a committal order should not interfere with the order if there is ‘someevidence’ or ‘a scintilla of evidence’ respecting each essential element of the offence charged.” This is such a case. III.

Conclusion [21] Accordingly, the Accused’s application for this Court to issue a writ of certiorari is dismissed. [22] This ruling deals with the substance of this matter. However, the Accused also raises other issues that this Court will verybriefly address. He says that the PCJ did not consider the whole of the evidence when committing the Accused to trial and did notprovide adequate reasons.

This Court has reviewed the Preliminary Inquiry Transcript in its entirety and finds no basis on which theAccused can make these arguments. [23] The Accused also raises a concern that the Crown did not comply with Criminal Code ss 540(7) and 540 (8). Thoseprovisions deal with a justice hearing a preliminary inquiry and provide as follows:

(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justiceconsiders credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwiserecorded.

(8) Unless the justice orders otherwise, no information may be received as evidence under subsection (7) unless the party has given toeach of the other parties reasonable notice of his or her intention to tender it, together with a copy of the statement, if any, referred to inthat subsection. [24] These provisions do not deal with the type of statements that were before the PCJ, viz, statements provided by the Accusedhimself. It deals with evidence that is otherwise inadmissible, such as hearsay evidence.

In R v McFadden, 2012 BCCA 275 at paras 62-63, 288 CCC (3d) 507, 94 CR (6th) 109, Prowse JA for the majority said the following: I agree with the preliminary inquiry judge that s. 540(7) is intended to provide the Crown with an alternative method of presenting itscase at the preliminary inquiry, by filing "information" which would not previously have been admissible, as long as the preliminary

inquiry judge is satisfied that the information is credible or trustworthy. The

section does not displace the Crown's right to call viva voce evidence; nor does it require the Crown to proceed on paper. Rather, it gives the Crown an additional method of proceeding, taking into account such things as the nature of the case, the apparent reliability of the evidence and, presumably, considerations arising from any discussions with defence counsel.

The latter considerations are relevant in that it is open to defence counsel to request the attendance of Crown witnesses whose evidence is to be tendered under s. 540(7) for cross-examination pursuant to s. 540(9). … In my view, the preliminary inquiry judge was correct in concluding that, in some cases, the entirety of the Crown's case can be placed before the court in paper form pursuant to s. 540(7). She found that this was such a case and, insofar as that decision concerned the admissibility of evidence, she cannot be said to have acted without jurisdiction or in breach of the principles of natural justice.

Questions concerning the admissibility of evidence are not jurisdictional questions; nor are questions concerning the credibility or trustworthiness of that evidence. [ 25 ] Again, in this case, the PCJ was dealing with the Accused’s statements, not hearsay statements, or a paper record. The PCJ ruled that the Accused’s statements were admissible and, as such, they were not the subject of Criminal Code s 540. This Court has already addressed the admissibility or inadmissibility of the Accused’s statements. Heard on the 6 th day of November, 2015.

Dated at the City of Calgary, Alberta this 7 th day of December, 2015. K.D. Yamauchi J.C.Q.B.A. Appearances: Robert Constantinescu Public Prosecution Service of Canada for the Crown Kim Arial Karen Molle Law Office for the Accused