R. v. S.Z., 2020 BCPC 58

Citation: R. v. S.Z. 2020 BCPC 58 Date: 20200327 File No: 108481-2 Registry: Merritt, B.C. IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.Z. BANS ON PUBLICATION: 486.4 and 517 C.C.C. RULING ON APPLICATION OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Crown: A. Duncan , via teleconference Counsel for the Defendant: J. Watt, via teleconference

Place of Hearing: Kamloops, B.C., via teleconference Date of Hearing: March 27, 2020 Date of Judgment: March 27, 2020 Introduction [ 1 ] S.Z. is charged with [omitted for publication] offences, all of a sexual nature involving four female complainants. Crown counsel, Mr. Duncan, describes the complainants as vulnerable Indigenous adults. [ 2 ] The offences are alleged to have occurred over a series of days in August 2019. The charges were sworn on September 4, 2019, and S.Z. was arrested the same day.

He sought bail but was detained on January 30, 2020. [ 3 ] On January 30, S.Z. elected to be tried by a judge and jury. He also, as he was entitled to do, requested a preliminary inquiry. The Crown did not take any position concerning the request. [ 4 ] On February 6, the preliminary inquiry was scheduled to commence on April 27 and is expected to last five days. [ 5 ] On March 23, Chief Judge Gillespie issued a notice to the profession that all in-custody trials and preliminary inquiries would be adjourned, unless counsel made application to demonstrate the urgency of the matter. [ 6 ] Mr.

Watt makes his application to demonstrate urgency on behalf of S.Z., and the Crown opposes it. Issues 1. Who bears the onus? 2. What does urgency mean? 3. What factors are relevant in deciding whether this matter is urgent? 4. Is the matter urgent? 5. What factors are relevant in deciding whether the parties can have a fair hearing? 6. Can the parties have a fair hearing? Analysis 1 . Who bears the onus? [ 7 ] Mr.

Watt argues that despite the notice to the profession requiring counsel to make an application if they consider their matter urgent, the onus should be on the Crown to demonstrate a lack of urgency. [ 8 ] The issue before the court is not one that lends itself well to the placement of the onus. However, my view is the interests of justice are best served if a holistic approach is taken involving consideration of all the factors. 2 . What does urgency mean? [ 9 ] Urgency means something that requires immediate attention or swift action. It is synonymous with critical, emergency, and highest priority. 3 .

What factors are relevant in deciding whether this matter is urgent? [ 10 ] The following is a non-exhaustive list of factors to assist in determining whether a matter is urgent: a. The nature of the hearing; b. The accused’s custodial status and whether a bail review is available; c. Is the case within or outside the Jordan guidelines; d. Will the trial complete in the time allotted; e. Is there a risk of prejudice owing to memories fading, witnesses becoming unavailable, or other types of evidence being lost; f. Is there a risk that counsel or witnesses will become unavailable; g.

Is the accused suffering from a condition that will impair his future ability to make full and answer and defence if the matter is adjourned; and h. Has the accused’s custodial status eclipsed what they would receive as a sentence if convicted. [ 11 ] A consideration not argued, but raised in others cases by the Crown, is that if the accused is convicted, the accused is liable to a further period of incarceration. In essence, there is no urgency because the accused is likely going to be doing additional time anyway. This is not a factor worthy of consideration because it displaces the presumption of innocence.

The potential for a lengthy period of

imprisonment is relevant on the tertiary ground at a bail hearing or bail review, but for different reasons. 4 . Is the matter urgent? [ 12 ] An accused is entitled to a hearing within a reasonable time, not with immediate dispatch and urgency unless there is some demonstrated proof requiring the same. [ 13 ] This court detained S.Z. on January 30. He is entitled to a mandatory bail review in approximately 30 days. [ 14 ] The matter scheduled is a preliminary inquiry. It is not a mandatory proceeding, but a proceeding that is being held solely at the request of S.Z.

Counsel expects that they can complete the preliminary inquiry within the five days allotted. [ 15 ] The matter is only seven months into the 30-month Jordan ceiling. There is no real risk of memories fading, witnesses or evidence becoming unavailable. [ 16 ] There is no indication that the time S.Z. has already spent in custody has eclipsed a time-served situation. [ 17 ] After considering all the factors, I am not satisfied that S.Z.’s preliminary inquiry is urgent. 5 . What factors are relevant in deciding whether the parties can have a fair inquiry? [ 18 ] Mr.

Watt argued that there are two steps to the analysis. The first is whether the matter is urgent, and if it is, whether it is possible to proceed. I agree. [ 19 ] Despite my findings concerning the degree of urgency, I will consider whether it is even possible for this matter to proceed. [ 20 ] Both parties, the defence and the Crown, are entitled to a fair but not a perfect hearing. [ 21 ] The matter is scheduled for a preliminary inquiry, not a trial where guilt or innocence will be determined.

Although the rules of evidence are the same for a preliminary inquiry as they are for a trial, there is higher degree of flexibility available to the parties on how they inquiry proceeds. [ 22 ] Mr. Watt, on his client’s behalf, says that if the evidence of the complainants at the preliminary inquiry is consistent with the statements they gave to the police, there likely would not be any argument concerning committal to stand trial. [ 23 ] The situation that we are currently facing is unique and not something we have had to confront before. By identifying a

summary of factors that I think are important in assessing whether a fair hearing can be had, I recognize the fluidity of the situation, the ever-changing technology, and the potential for the need to adjust to new normals. In other words, what may or may not pose challenges today may or may not be the same challenges we face a few months from now. Nonetheless, the following is what I currently perceive to be a non-exhaustive list of factors to consider: a. The nature of the proceeding; b. The ability of the Crown and defence to prepare to present and defend, which includes the preparation of witnesses; c.

The ability for the court to facilitate the presence of the accused and witnesses; and d. The evidentiary issues and complexity of the evidence, i.e. exhibits. 6 . Can the parties have a fair trial? [ 24 ] Despite the current inability of the court to accommodate the personal attendance of the accused, witnesses and counsel, Mr. Watt, on behalf of his client, argues that the parties can have a fair hearing. [ 25 ] Mr. Watt proposes that the judge and counsel appear by telephone and that the witnesses and S.Z. appear by video.

He concedes that if a video link for the witnesses is not possible, they can appear by telephone. [ 26 ] Although the presumption is that the accused will appear in person for their preliminary inquiry,

section 539(j.1) provides that upon the request of the accused, a judge can permit the accused to be out of court for the whole or any part of the inquiry on any condition that judge considers appropriate. The

section appears to provide the judge with the jurisdiction to require the accused to appear by video or telephone if permission is granted for him to be out of court. [ 27 ] With all inmates now making remote appearances from our institutions, one can assume that video units in the institutions have become a very precious commodity. This is evident by the lengthy delays we are already experiencing daily. [ 28 ] It may be that the overwhelming need for the equipment diminishes over time.

However, without a doubt, monopolizing a video unit for five days would be problematic both from an equipment and supervision point of view. There is no information before me what the institution’s ability is to accommodate S.Z.’s appearance by telephone. [ 29 ] It would not be possible for the witnesses to appear by video. To do so would require them to leave their homes and attend to a video unit. Depending on where they live, it would likely be the closest courthouse.

However, in light of the current public health orders to self-isolate, a direction for the witnesses to attend a courthouse would not be safe or appropriate. [ 30 ] Witnesses could appear by telephone; however, one would need to confirm the following:

• That they all have phones and minutes are unlimited; and • That their living arrangements would enable them to testify about highly sensitive information from a private location inside their residence. [ 31 ] Both Mr. Watt and the Crown suggested the possibility of witnesses testifying by telephone from a police station. For the following reasons, I do not currently consider this a reasonable option. First, it would also require the witnesses to leave the safety of their homes, and attend a front-line location.

The witnesses are not essential workers and should not be required to defy the direction of our Chief Public Health Officer, and put their health and safety at risk. Second, it presumes that the witnesses feel comfortable in a police station. One needs to be sensitive to the reality faced by some of our Indigenous people, that they do not find being in a police station, for any reason, comforting. [ 32 ] Even if the witnesses were willing to attend, we do not know whether the police would be able to accommodate them in the police station.

They too need to be cautious about their facilities becoming infected. [ 33 ] Finally, even if the witnesses were willing to attend, they would need to be escorted and supervised over five days. This would not be an appropriate use of such finite resources at a time like this. [ 34 ] Although Mr. Watt does not express any concerns about preparing for and conducting a preliminary hearing, the Crown does. [ 35 ] Mr. Duncan argues it would be unfair to require him to prepare his witnesses for court without being able to meet with them personally, and being able to offer them the assistance of a support person.

The Crown describes the complainants as vulnerable and potentially requiring professional support through the process. Because of the COVID-19 restrictions, that support is unavailable. [ 36 ] The allegations are serious, and I agree that it would be challenging for the Crown to prepare without being able to meet personally with the complainants. However, I am not ready at this point to concede that an inability to meet with witnesses in person in advance of a preliminary inquiry would result in an unfair inquiry.

It is difficult to say what our new normal might look like, and it would set a dangerous precedent to suggest that an inability to meet with a complainant would impede a fair hearing or trial. Although not ideal, the Crown could explore using FaceTime or other like services to prepare their witnesses. [ 37 ] In these unique circumstances, and without more information, I am not satisfied that a fair inquiry can be conducted on April 27. Conclusion [ 38 ] This matter is not urgent. The preliminary inquiry is adjourned for 90 days to fix a new date.

It will get priority when a new date is fixed. ________________________________ The Honourable Judge G.W. Koturbash Provincial Court of British Columbia