R. v. Joseph Date:, 2013 BCPC 192

Citation: R. v. Joseph Date: 20130507 2013 BCPC 0192 File No: 150799-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES CARL JOSEPH ORAL RULING ON APPLICATION TO REOPEN EVIDENCE OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: J. MacAulay Counsel for the Defendant: G. Wool Place of Hearing: Surrey , B.C. Dates of Hearing: May 11, July 30, November 13, 2012; January 31, March 20, 2013 Date of Judgment: May 7, 2013 [ 1 ] THE COURT : I do not need to reserve with respect to this matter. The history of this proceeding goes on far too long. It

reflects a looseness in approach and a significant degree of legal manoeuvring, strategy and tactics which have little to do with thesubstantive merits of whether or not Mr. Joseph committed the Wildlife Act offences for which he was convicted by me on May the 20th,2009. [2] Mr. Wool gave notice in the commencement of this trial that he intended to deal with, one, the substantive legal issues and,two, the Aboriginal rights portion of the trial. During the course of the trial proceedings his client did not testify. He does not have totestify.

I have made that point several times in the course of reasons in the subsequent applications to reopen. At the substantive trial,the Crown has the onus of proof beyond a reasonable doubt.

In the subsequent applications, there is an evidential onus on the accused inthe Aboriginal rights portion and in respect of all of the applications to reopen there is not only an evidential onus but there is an onus onbehalf of the applicant to bring the matter before the court with evidence that would afford the court with an opportunity to make aconsidered decision. [3] The dates of hearing of the original trial occurred April 6th, 7th, 8th, 20th, 21st, 22nd, 23rd and May 20th, 2009, leading to asubsequent Aboriginal rights decision pronounced February the 3rd, 2012, following hearing dates engaged in applications to reopen anddecisions made September the 7th, 8th, 15th and the 17th of 2010, as well as applications December the 1st, 2nd, 3rd, 13th, 14th of 2010,as well as May the 2nd and July the 28th of 2011, leading to January the 5th and the 6th of 2012.

There have been subsequentapplications. From my notes, I note there was an application to reopen September the 1st, 2010, dealt with in extensive reasonsSeptember the 17th, 2010. An application to reopen December the 1st of 2010, refused from the bench. We commenced the Aboriginalevidence December 2nd and 3rd, first with a voir dire to determine the extent of the testimony permissible for Mr.

Joseph and Mr.Joseph will recall that I accepted, without reservation, the candour of his evidence and permitted him to testify on what his understandingwas from his grandmother, particularly, but as well from his experience. [4] We then had an application to reopen May the 2nd of 2011 and in the May 2nd of 2011 application I granted an adjournment toMr. Wool which permitted him to provide the materials. We as well had the difficulty of Mr. Thompson's illness and Mr. Wool said thathe wished to make an application relating to fresh evidence on May 2nd, 2011.

He had tendered Exhibit A in his application and hewanted to make a fresh evidence application at that time. He embarked on a portion of this fresh evidence application by tenderingExhibit A, the list of distribution of eagles from 1994 to 2004. Those are essentially the items at Exhibit 2 at sentence and it is at tab 3. [5] He has as well exhibited the testimony of one Joseph Thorne, as well as the testimony of a Jerome Seymour. That was all partof Exhibit B in the application for new evidence.

I pointed out in paragraph 5 of my May 2nd, 2011, reasons, the following: It is the theory of the defence based on the distribution of eagles' documentation and based on the testimony of Mr. Thorne that there wasin place at the operative time of the counts in the Indictment on which I have already found that the actus reus has been proven beyond areasonable doubt as it relates to Mr.

Joseph on the testimony and exhibits tendered before me at trial that there was no permitting systembeing followed by government officials including conservation officers in the handing out of eagles during the operative time period. [6] That was the way in which Mr. Wool expressed it. During the course of his oral recounting of the anticipated fresh evidence,Mr. Wool made reference to a retired conservation officer, one Kerry Horncastle (phonetic), without supporting affidavit material. Mr.Wool asserted that Mr. Horncastle would say to the court that he delivered numerous carcasses without permits. Mr.

Wool was,therefore, asking for an adjournment for the purpose of getting affidavits relating to the fresh evidence, which he said at that time he hadbeen seeking but had been unable to achieve in his conversations with elders over the past few years because, in particular, as it relates tothe defence of Mr. Joseph, Mr. Joseph was considered a pariah because he was associated to the killing of eagles in addition topossession of eagle parts without permit and as well as trafficking in eagle parts. [7] Mr. Wool also asserted that people refused to provide information to Mr.

Wool because of fear of reprisal and, in addition,there were people that were afraid for themselves that they would be vulnerable to a charge if they testified, all of which Mr. Woolgathered together in a circular argument and in which he theorized that it addressed the Aboriginal perspective from an Aboriginal rightof assertion. That adjournment was granted by me to enable Mr.

Wool to go and seek all of that material and to provide it. [8] It was apparent to me at that time, and I made reference to not only the Wilder decision in British Columbia, wherein Mr.Justice Romilly made reference to the decision in the Ontario Court of Appeal in Felderhof, (ON CA), [2003] O.J.4819, at paragraph 40, as well in Justice Rosenberg's decision as well as in Wilder, the trial management power. I will deal with theWilder adjournment in a moment. He said this, as quoted by Justice Romilly in Wilder, and it is apt today: I think something should be said about the trial management power.

It is neither necessary nor possible to exhaustively define its contentor its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made inwriting, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire isconducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in whichevidence is called.

The latter power is one that must be exercised sparingly because the trial judge does not know counsel’s brief. [9] At paragraph 12 on May the 2nd of 2011, I also made reference to the reopening and the tendering of fresh evidence and againI referred Mr. Wool, as well as the Crown, to the tests articulated in Palmer v. Palmer and by Justice Watt in Arabia. Notwithstandingthat direction, we again had an application to reopen July the 28th of 2011. We had another subsequent application January the 5th of2012. We had another application May the 11th of 2012 and we had another application March the 20th of 2013.

In none of thoseapplications was there supporting materials provided. [10] I have exercised from the outset of this proceeding a significant number of decisions related to affording Mr. Wool allappropriate latitude to enable him to deal with the evidence. At no time during the course of the proceedings have I ever seen anaffidavit from the person who Mr. Joseph asserts provided the eagles to him. Nor have I seen any affidavit material from the person whoprovided the eagles to that person.

Instead what we have is we have a loose assertion that since conservation officers were providingeagles to members of the Chehalis Band that it must have been those eagles which provided Mr. Joseph with these birds and that thefailure of the Crown to address those issues in the Crown's case or the failure of the Crown to link the lack of permits to significant

numbers of birds provided by conservation officers over the course of the years from 1994 to 2004 constituted a failure of the Crown toprovide to Mr. Wool and his client evidence which would have allowed him to embark on an avenue of investigation in full answer anddefence. None of that was raised during the substantive portion of this case. None of that was raised in the testimony of his client, Mr.Joseph, in the Aboriginal rights portion.

At this stage of the proceedings, therefore, on this seventh application to reopen I am of theview that there is no evidential foundation which would bring this within the clearest of cases to afford an abuse of process within thecontext of R. v. Jewitt in the Supreme Court of Canada. Moreover, for the reasons which I articulated in September the 17th of 2010, Iam of the view that the application to reopen must fail.

For ease of reference, I will provide my decision from the 17th of September of2010 and I do so for the purposes of highlighting the lack of evidence provided by the applicant and to restate the law, as described in thecases contained within my reasons in 2010. [11] Mr. Wool made an application commencing in September of 2010. There was a full day of argument on September the 7th andI adjourned for the purposes of preparing reasons on three applications.

One, an order permitting the trial to be reopened and freshevidence that was previously not available and admitted in evidence, two, that there be an order for a judicial declaration that theapplicable portions of the Wildlife Act and Wildlife Regulations that the accused was found guilty of are void for vagueness,unconstitutional and no force and effect as to Aboriginal people, and, three, an order for a judicial stay of proceedings under s. 7 and 24of the Charter of Rights and Freedoms on the grounds that the accused's right to full answer and defence was violated by the Crown'sfailure to disclose material facts concerning the conduct of former conservation officer, Richard Grindrod (phonetic).

The timing ofthose three applications was pertinent to the tests. [12] Mr. Wool, in his application in September of 2010, sought to revisit the verdicts rendered May 20th, 2009, following seven daysof trial on a 21-count Information. Crown counsel had directed a stay of proceedings on Counts 3, 4, 13, 14, 15, 16, 17 and 18 on Aprilthe 23rd, 2009, at the commencement of argument. Mr. Joseph was acquitted by the court on Counts 1, 2, 7, 8, 9 and 10. He wasconvicted on Counts 5, 6, 11, 12, 19, 20 and 21. The trial was then adjourned for the purposes of a continuation on the Aboriginal rightsissue to be raised by Mr.

Wool and the matter was set to commence on the Aboriginal rights issue in the fall of September 2010. Insteadof commencing, Mr. Wool made the applications. I say in paragraph 4 the following: On the applicable law, the trial may not be reopened on the acquittals. Mr. Wool's applications pertain then only to the sevenconvictions set out above. In addition, the stays of proceedings are now well over a year and the Crown may not recommence on thosecounts.

We are then dealing with the seven counts on which I rendered a verdict of guilty as to the substantive law on the strict liabilityoffence provided for by the Wildlife Act. [13] My reasons are reported in [2009] BCPC 187 as to conviction. My remarks today, my remarks in September of 2010 can onlybe considered in light of my findings in those reasons and the nature of the evidence tendered before me at trial. [14] The applicable law. In R. v. Lessard, [1976] 30 C.C.C. (2nd) in the Ontario Court of Appeal, Mr. Justice Martin discussed therole of a trial judge and the limits of the discretion to reopen the case.

He said, I quote: I see no reason why a trial Judge who has made a finding of guilt on disputed facts is not also empowered to vacate the adjudication ofguilt at any time before the imposition of the sentence, although it is a power which, I cannot stress too strongly, should only beexercised in exceptional circumstances and where its exercise is clearly called for. [15] The analysis is further enhanced by the decision in Palmer v. The Queen to which I have referred. It is [1979] CanLII 8 in theSupreme Court of Canada, (SCC), [1980] 1 S.C.R. 759 at page 775. Mr.

Justice McIntyre, as he then was, set out theprinciples for introduction of "fresh evidence." He said:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases. [16] He makes reference to McMartin v. The Queen. McMartin v. The Queen is (SCC), [1964] S.C.R. 484. Thesecond point of Justice McIntyre:

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [17] What is significant about that is that Mr. Wool has brought no evidence before the court, in my view, that is capable of belief inthe sense of credibility that the eagle parts possessed by his client were from conservation officers. Nor has the evidence been maderelevant in the sense that someone on the Chehalis Reserve got the eagles from a conservation officer and provided them to Riva Leon(phonetic) who then provided them to Mr. Joseph. There is no affidavit to that effect, nor is there a foundation in the context of the

whole of the evidence advanced at trial. It is not appropriate to reopen a case where counsel has clearly been in a position to have beeninstructed who the source of the eagles was by his client prior to the whole of the trial and not led that evidence in the course of the trialproper. It would not have required the accused to testify. Others could have come forward to say that the eagles provided to Mr.

Josephwere obtained at the Chehalis Reserve, they were not permitted, they were simply provided to the people for the purposes of social orceremonial purposes. [18] I am further of the view that the analysis of the Ontario Court of Appeal in R. v. Kowall, [1996] 180 C.C.C. (3rd) 481 providesfurther strength as to the test to which I have just referred in the case at bar. In Hayward, the Ontario Court of Appeal provided that oncethe trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhancedinterest in finality.

It is not clear from Hayward that the test is the test as outlined in Palmer v. Palmer but after quoting from Palmer andthe four points outlined by Justice McIntyre, the court in Hayward said this: These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmercriteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial.Counsel must make tactical decisions in every case.

Assuming those decisions are within the boundaries of competence, an accused mustordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then thejudge must consider whether to carry on with the trial or declare a mistrial. [19] Now, I point out that that is an interesting set of facts. The issue of due diligence has not been addressed in this applicationexcept by Mr. Wool in this context. He says he was not aware of the distribution lists until they were disclosed to him in January of2013.

He says that distribution lists disclose evidence which would have afforded him with an avenue of defence but there is nothing inthe distribution lists that refer to the provision of large numbers of eagles to the Chehalis Reserve except the testimony of Mr. Thorneand Mr. Thorne's testimony is not at the requisite time of the possession of the eagles in the case at bar. [20] To the extent that we are dealing with due diligence and the authorities contained within the due diligence test, I am of the viewthat the test must really be that outlined by Mr. Justice Holmes, as he then was, in R. v.

Bajwa, [2004] B.C.S.C. 1127, and the decision inthe Ontario Court of Appeal in R. v. Arabia, 2008 ONCA 565 , [2008] 235 C.C.C. (3d) 354 where Mr. Justice Watt discussedKowall, made reference to the British Columbia Court of Appeal decision in R. v. M.(E.B.), 2002 BCCA 278 , [2002] 165C.C.C. (3d) 39 and the British Columbia Court of Appeal at paragraphs 37 and 38.

It is a circumstance where the reasons that I havegiven in September are just as applicable to the case at bar and the application today, as well as my findings with respectful to the factualoutlines contained within paragraphs 26 through paragraph 36 of my September 17th, 2010, reasons. [21] In the result, I am of the view that Mr.

Wool has not made the evidential onus to prove that this is the clearest of case providingfor an abuse of process, nor am I of the view that he has made a case that there should be permitted at this point in this proceeding areopening of the evidence of the trial proper on the substantive issues. (RULING CONCLUDED)