R. v. Price, 2017 BCSC 330

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Price, 2017 BCSC 330 Date: 20170227 Docket: 31008-2 Registry: Terrace Between: Regina v. Jeremy Peter Price Before: The Honourable Mr. Justice Punnett Oral Reasons for Judgment on Defence Application Counsel for the Crown: B. Zacharias Counsel for the Defendant: S. Narbonne S. Runyon Place and Date of Trial: Terrace, B.C. January 16, 2017 Place and Date of Judgment: Terrace, B.C. February 27, 2017 Introduction [ 1 ] At the preliminary inquiry in this matter the Provincial Court judge ruled inadmissible the statements of the accused tendered by the Crown.

The Crown proposes to tender those statements at the trial. The accused opposes such on the basis that the Provincial Court judge’s ruling while not res judicata nevertheless places an onus on the Crown to meet a threshold showing a basis upon which it seeks to challenge the preliminary inquiry court’s ruling. [ 2 ] I dismissed the defence application with reasons to follow. These are those reasons.

Background [ 3 ] The accused is charged with the second-degree murder of his father who was found stabbed in his bedroom on March 29, 2014. [ 4 ] The preliminary inquiry was held over 11 days in February, March and May 2015. The Provincial Court judge delivered his reasons for judgment on the voir dire respecting voluntariness on September 11, 2015.

I am advised that it is estimated that five days will be required for the hearing of the present application to exclude the statements of the accused. [ 5 ] Prior to the preliminary inquiry the accused advised the Crown that the voluntariness of the accused’s statements were in issue and further that the accused opposed committal for trial.

As a result the Crown called substantially all relevant evidence on the voir dire respecting voluntariness. [ 6 ] The preliminary inquiry judge found that the statements were not reliable because the will of the accused was overborne, resulting in explanations for matters that were not grounded in the accused’s memory but were instead guesses or adoption of suggestions made to him by the police. He concluded the accused was not providing reliable information and as a result the statements were not proven voluntary beyond a reasonable doubt and were excluded.

Position of the Accused [ 7 ] The accused submits that in effect by seeking to lead an already excluded statement the Crown is appealing the decision of the Provincial Court judge. He submits as a result that there should be an onus on the Crown, similar to a leave application to appeal, to show with reasonable particularity the basis for the appeal. That is, some error should be shown before the court’s time is used to revisit the question of the statements voluntariness.

Position of the Crown [8] The Crown submits that the forum of the preliminary inquiry and the test at a committal hearing defines and answers thedefendant’s application. They submit given the nature of that forum that what the defence is proposing would be a profound change inthe prosecution of criminal offences. They submit it amounts to a request by the defence that the court engage in legislating. Theyfurther submit that a ruling at a preliminary inquiry is not a final hearing and note that the Crown has no right of appeal from such aruling.

Law and Discussion [9] A preliminary inquiry judge’s rulings on the admissibility of evidence, even if in error, does not affect jurisdiction. Apreliminary inquiry judge’s decisions can only be reviewed by certiorari on the basis of lack of jurisdiction. As a result certiorari willnot lie to review an evidentiary decision. In effect there is as a result no appeal from such a decision.

It is for this reason the Crown isnot estopped from re-litigating the admissibility of a confession made by an accused and ruled inadmissible by a preliminary inquiryjudge conducting a voir dire at a preliminary inquiry. [10] In R. v. Duhamel, (SCC), [1984] 2 S.C.R. 555, the Supreme Court of Canada considered whether a voir direruling on the admissibility of a confession by an accused rendered by one judge in the first trial binds another judge in a second trialwhere the Crown seeks to lead the same confession as part of its case against the same accused on another charge.

The court concludedthat issue estoppel does not apply to voir dire rulings pertaining to the admissibility of evidence at criminal proceedings. [11] Mr. Justice Lamer, as he then was, stated: There is no doubt in my mind that if there is a bar to an extension of the doctrine of res judicata to rulings on confession voir dires, it doesnot stem from principle or logic.

It is desirable that we avoid relitigation of the issue and, as in this case, the risk of conflictingdecisions. [12] Despite such lack of principle or logic Lamer J. declined to extend issue estoppel or res judicata to such rulings because asnoted above there is a lack of any basis of appeal from such rulings in criminal matters. That is, if the principle applied then both theprosecution and the defence would be bound by such rulings in subsequent proceedings without being able to challenge their validity.

He concluded: The change to the law being a major departure from the traditional approach to the doctrine in the field of interlocutory findings, I thinkthere is a burden placed upon whomsoever invites the change to satisfy this court that there is a clear advantage to the administration ofjustice in developing the law in this direction. [13] The defendant invites such a change.

The defendant submits that this case justifies a change because of the manner in which itproceeded and its facts. [14] The defendant emphasizes that by putting the Crown on notice and the fact that essentially all relevant evidence was tendered atthe voir dire on the preliminary inquiry there are good reasons this court should be bound by the preliminary inquiry judge’s ruling. [15] They submit that a voir dire on the admissibility of a statement made by an accused is a “trial within a trial” (Duhamel, at 560).

Where, as here, a full and exhaustive hearing was conducted on the issue of voluntariness, they submit re-litigation of the issue ofvoluntariness should not be permitted because:

a) The Crown was on notice that the voluntariness of the statement of the accused was in issue;

b) The Crown had a full and unfettered opportunity to, and did so present its case in the voir dire at the preliminary inquiry. [16] They submit given the thoroughness of the voir dire and the fact that the same evidence will be called at trial, permitting the re-litigation of the issue would needlessly consume limited judicial resources and raise the spectre of inconsistent decisions being reachedthat would undermine the credibility of the judicial process in the eyes of the public and the accused. [17] They argue that the preliminary inquiry judge’s ruling is owed a high degree of deference and that in the absence of an error oflaw, a reviewable error of fact, or a decision that is so clearly wrong so as to amount to an injustice, the court should not interfere.

As aresult they submit the onus should rest on the Crown to convince the court there is merit in revisiting the issue. [18] In the alternative they submit such a screening process engages the inherent power of the court to prevent the abuse of itsprocess. [19] The Crown however does not agree that the issue of voluntariness was addressed exhaustively.

Nor do they agree that a voirdire at trial on the issue of the voluntariness of a statement is in the nature of an appeal. [20] The fact that the defence put the Crown on notice that admissibility of the statements was in issue does not mean the Crown istherefore obligated to address the issue at the preliminary inquiry as if the result was a final resolution of the question.

It is for theCrown to lead evidence in the context of a preliminary inquiry bearing in mind that the burden on them at a preliminary inquiry relates tosufficiency of evidence, that is whether a reasonable jury, properly instructed, could convict, on proof beyond a reasonable doubt. [21] The thrust of the defendant’s argument is that a requirement that there be a threshold is, as they put it, “rooted in the integrity ofthe criminal process and broad based societal concerns which include bringing finality to litigation and avoiding the time and expense

inherent ‘in the re-litigation of issues’ citing R. v. P.S.M. (1992), (ON CA), 77 C.C.C. (3d) 402; R. v. Owen, 2003SCC 33, [2003] 1 S.C.R. 779 at para. 52; R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146.

They submit as well that such an approachpreserves the Crown’s meaningful access to appellate review: that is the right to apply to set aside the earlier ruling on the basis of eithererror of fact or law is maintained. [22] They submit that in this case where the thorough hearing of the matter at the preliminary inquiry addressed the issue, “re-introduction of the accused’s confession is a simple, patent attempt to re-litigate the same issue on the same evidence in the absence ofany palpable or overriding error”. [23] They argue that the proposed threshold responds to the invitation of Lamer J. in Duhamel “to satisfy this Court that there is aclear advantage to the administration of justice in developing the law in this direction”. [24] In the defence submission they note that in R. v.

Mahalingan, 2008 SCC 63, Chief Justice McLachlin concluded that in thecriminal context an accused “should not be called upon to answer questions already determined in his or her favour” (at para. 38). Forthis reason it was determined that the doctrine of issue estoppel and res judicata ought to have a place in Canadian criminal law, albeit ina narrow form. [25] The defendant argues that the past refusal to apply issue estoppel and res judicata to preliminary inquiries may be changing. They refer to s. 653.1 of the Criminal Code proclaimed into force on August 15,

Section 653.1 states: In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure oradmissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties inany new trial if the rulings made — or could have been made — before the state at which the evidence on the merits is presented. [26] In R. v.

Davis, 2012 ONSC 5526 at para. 14, Baltman J. characterized s. 653.1 as “a departure from previous authority from theSupreme Court of Canada to the effect that a trial judge is not bound by interlocutory rulings made at an earlier trial, even if a highercourt finds no error in the ruling: R. v. Duhamel, [1984] 2. S.C.R. 555.” [27] He then stated: 15 To date there has not been any jurisprudence interpreting s. 653.1, and in particular what the phrase "interests of justice" means inthis context. However, the identical wording is used throughout the Criminal Code and has been analyzed extensively.

Based on areview of those cases I derive the following guidance in interpreting the phrase: *The phrase "interests of justice" takes its meaning from the context in which it is used and signals the existence of a judicial discretionto be exercised on a case-by-case basis. The interests of justice encompass broad based societal concerns and the more specific interestsof a particular accused, including meaningful access to appellate review: R. v. Bernardo, (ON CA), [1997] O.J. No.5091 (C.A.) at paras. 16 and 19; *The expression takes into consideration both the interests of the accused as well as the state: R. v.

Beaulac, (SCC),[1999] 1 S.C.R. 768 *The interests of justice also encompass the integrity of the criminal process, which includes bringing finality to litigation and avoidingthe time and expense inherent in the re-litigation of issues: R. v. M. (P.S.) (1992), (ON CA), 77 C.C.C. (3d) 402 at p.411; R. v. Owen, 2003 SCC 33 , [2003] S.C.J. No. 31, para. 52; R. v. Last, 2009 SCC 45 , [2009] S.C.J. No. 45, para.16 16

Section 653.1 is clearly intended to encourage the retention of prior rulings, in order to avoid the time, expense and risk ofconflicting decisions associated with re-litigation. The wording of the

section - "unless the court is satisfied ... [previous rulings] arebinding" - indicates there is a presumption in favour of preserving rulings made at the earlier trial. The presumption is only defeated if inthe particular circumstances of the case, the court is satisfied that it would not be in the interests of justice to proceed based on theprevious rulings. [28] The Crown points out that s. 653.1 only applies to rulings made at trial, not at a preliminary inquiry.

They also note that for thecourt to include preliminary inquiry rulings as rulings binding on the court would be to legislate. [29] While a voir dire may be coined a “trial within a trial” that does not overcome the fact that the voir dire occurred during apreliminary inquiry, not a trial. The defendant is in effect inviting the court to treat interlocutory decisions at preliminary inquiries asfinal decisions and requiring the Crown to show an error of fact, law, or an error that is clearly wrong and would amount to an injusticein order to revisit the issue.

At its root this is an application of the concept of issue estoppel or res judicata to interlocutory decisions. [30] The current law is clear. While re-litigation is undesirable issue estoppel and res judicata do not apply to voir dires in criminalcases. In Duhamel, Lamer J. states: [16] There is no doubt in my mind that if there is a bar to an extension of the doctrine of res judicata to rulings on confession voirdires, it does not stem from principle or logic. It is desirable that we avoid relitigation of the issue and, as in this case, the risk ofconflicting decisions.

And, if a voir dire is "a trial within a trial" logic commands such an extension unless there are overriding reasonsnot to do so [emphasis added].

In fact, i even think the doctrine could be extended in such cases beyond its actual application to criminalmatters so as to introduce "mutuality" (i.e. a finding being a bar not only to Crown's but to the accused when adverse to his interest)....Bethat as it may, I do not think it desirable that we should extend the doctrine, with or without "mutuality", to such findings. … [18] To begin with, I cannot see the doctrine develop so as to include the findings on the voir dire held at preliminaries. Indeed when

considering the voir dire per se, "the trial" within a "trial" is no less a "trial" because it is held in the course of a preliminary. But there isone major reason against the extension: there is no appeal, and error is generally subject to limited review. This is sufficient to deal withthat aspect. [31] In R. v. Banwait, 2010 ONCA 869 at para. 145, the Ontario Court of Appeal stated: 145 Concerning the first issue, the Supreme Court of Canada has repeatedly held that the doctrine of issue estoppel does not apply tostatement voir dires: R. v. Mahalingan, 2008 SCC 63 , [2008] 3 S.C.R. 316; R. v.

Duhamel, (SCC), [1984] 2S.C.R. 555. Accordingly, the Crown is not barred from seeking to introduce a statement ruled inadmissible in a prior proceeding, and theduty of a trial judge presiding on a subsequent voir dire is to consider the admissibility issue afresh based on the evidence adduced in thesubsequent proceeding. Moreover, the judge presiding at the subsequent hearing does not owe deference to factual or credibility findingsmade at an earlier hearing. [32] The concepts of issue estoppel and res judicata arise where the decision in question was final.

In addition, the state has the rightto prove its case a trial (Mahalingan, at paras. 49 and 55). A voluntariness ruling on a voir dire during a preliminary inquiry is not a finaldecision. [33] Even if the defendant’s submission is correct and the extension of the law proposed is correct, in this instance at the time of thepreliminary inquiry the Crown proceeded on the basis that it had the right to litigate the issue of voluntariness at trial.

The defenceproposal would render the preliminary inquiry final, not preliminary with respect to the issue. [34] The defence submission also emphasizes alleged efficiencies that support the effective administration of justice by saving thetime and expense inherent in the re-litigation of issues. However, even if the defence submission were supported by current law, thedefence has not satisfied the burden that there is a clear advantage to the administration of justice.

For example, the trial would becomein part an appeal with the court addressing the issue of the preliminary inquiry court’s determination of voluntariness. In addition, if sucha ruling may be binding on a trial court preliminary inquiries would likely become longer, consuming greater judicial resources.

Thedefence position would allow the Provincial Court to make what is tantamount to a final decision regarding the admissibility of evidenceat a trial in the Supreme Court and therefore would result in the Provincial Court usurping the role of the Supreme Court. [35] With respect to the argument that abuse of process is applicable the defence has not met the high threshold the doctrinerequires. In Mahalingan, McLachlin C.J. for the majority stated: 42 The remedy of abuse of process may or may not provide protection against relitigation of a particular issue.

Abuse of process is abroad, somewhat vague concept, that varies with the eye of the beholder. Traditionally, it has been reserved for obviously egregiousabuses of the Crown power, and this Court has said that successful reliance upon the doctrine will be extremely rare -- only in "a processtainted to such a degree that it amounts to one of the clearest of cases": Blencoe v. British Columbia (Human Rights Commission), [2000]2 S.C.R. 307, 2000 SCC 44, at para. 120.

To date, the doctrine has not been much used to protect against relitigation, and indeed there isauthority for the proposition that relitigation, without more, simply does not reach the threshold required for a finding of abuse ofprocess: Bradford & Bingley Building Society v. Seddon, [1999] 1 W.L.R. 1482 (C.A.), at pp. 1492-93. To protect parties fromrelitigation, [page339] abuse of process would need to be cast in a less discretionary form than it now takes.

Therefore, considering thehigh threshold for proof and the unpredictability of its operation, it is unlikely that the doctrine of abuse of process adequately achievesthe fairness goal that underlies the doctrine of issue estoppel. [36] In light of the conclusions I have reached I need not address the alleged errors raised by the Crown with respect to thepreliminary inquiry judge’s ruling. [37] The application of the defence is dismissed. “Punnett J.”