R. v. Charlie, 2017 BCSC 2523

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Charlie, 2017 BCSC 2523 Date: 20170127 Docket: 36893-13; 36893-5 Registry: Prince George Regina v. James David Junior Charlie Restriction on Publication: Pursuant to ss. 486 , 647 and 648 of the Criminal Code of Canada Before: The Honourable Mr. Justice Tindale Oral Ruling Re: Withdrawal of Consent for Judge Alone Trial to Judge and Jury Trial Counsel for the Crown: D. Payne Counsel for the Accused: D. Markovitz Place and Date of Hearing: Prince George, B.C. January 27, 2017 Place and Date of Judgment: Prince George, B.C.

January 27, 2017 [ 1 ] THE COURT: This is an application that has been made by both Crown and Mr. James David Junior Charlie, pursuant to s. 473(2) of the Criminal Code , that the consent which was previously given be withdrawn. The consent was given by the Crown for the purpose of re-electing, back on May 16, 2016, to a judge-alone trial for Mr. Charlie and others with regard to charges of first degree murder and some other charges. [ 2 ] Briefly, the trial had started in terms of various voir dires . There was a re-election by all accused to be tried by judge alone.

The trial commenced primarily in the course of the voir dires dealing with statements that Mr. Charlie had given. There were rulings on those statements ruling them admissible. Other parties have either been found guilty or entered guilty pleas with regard to other charges on this matter. [ 3 ] Mr. Charlie discharged his previous lawyer and hired a new lawyer, Mr. Markovitz, who has had discussions with the Crown and, as indicated by Exhibit 1, which is – “A Notice of Agreement to Withdraw Consent and Withdrawal of Consent”, not only Mr. Charlie but the Attorney General, through their designate, Mr.

MacDonell, (who is the regional Crown counsel in this area), has given their agreement to withdraw the consent. [ 4 ] Section 473(2) of the Criminal Code reads: Notwithstanding anything in this Act , where the consent of an accused and the Attorney General is given in accordance with subsection (1), that consent shall not be withdrawn unless both the accused and the Attorney General agree to the withdrawal.

They have agreed to that withdrawal, though it is on conditions which are found in a memorandum of agreement which has been as Exhibit 2 of this application which has been briefly outlined by Crown counsel. [ 5 ] The most important features, however, are that the rulings that have been made on the trial will be preserved and continue on any new trial, that the venue for this trial will be in Prince George, and that the accused, Mr.

Charlie, is waiving any delay from November 14, 2016, (which was the date that he applied to adjourn his trial in this matter), to the end of the jury trial, if an order is made that he be tried by a Supreme Court judge and jury. That is on the understanding that I would be the trial judge so as to preserve again the previous rulings. The previous rulings did take some considerable court time and resources to hear the evidence on those rulings. [ 6 ] The Crown has provided various authority. R. v.

Mann , 2014 BCCA 231 , at para. 23 which indicates that in order to make an order with regard to re-election, it has to be authorized by the Code . Section 473(2) appears to be the authority for that proposition. [ 7 ] The practice directive that has been marked as Exhibit 3 indicates that the Attorney General has made a practice direction that Mr. MacDonell, for instance, can provide his consent to withdraw the consent for the re-election. [ 8 ] On a plain reading of that s. 473(2) , given that both parties -- that is Mr. Charlie and the Crown, or properly the Attorney

General -- have agreed to the withdrawal, I am not sure there is a whole lot that I can do in terms of standing in the way of that. So as such, given the conditions that both parties have agreed to, I will make an order that there has been a withdrawal of the previous consent for Mr. Charlie to have his trial heard by a judge sitting alone, which was made on May 16, 2016. [ 9 ] At that point, I suppose that leaves us with a judge and jury trial on this matter. “The Honourable Mr. Justice Tindale”