r v. JEFFREY COLEGROVE, 2015 QCCQ 5498

R. c. Colegrove 2015 QCCQ 5498 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL «Criminal division» N°: 500-01-118229-159 DATE : June 9, 2015 ______________________________________________________________________ BEFORE THE HONOURABLE MYRIAM LACHANCE, JCQ ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

JEFFREY COLEGROVE Accused ______________________________________________________________________ JUDGEMENT ON A MOTION TO EXCUSE WITNESSES ( section 700(2) of the Criminal Code ) ______________________________________________________________________ [ 1 ] Mr.

Colegrove is charged with several offences of possession of drugs for the purposes of trafficking, possession of prohibited loaded firearms and of being at large without lawful excuse before the expiration of a term of imprisonment to which he was sentenced. [ 2 ] The accused applies for judicial interim release and bears the onus of establishing that his detention is not necessary until the end of the proceedings. [ 3 ] Subpoenas were issued to different persons including the co-accused, Mr.

Alvarado Martinez. [ 4 ] The Crown is asking the Court to quash the subpoena submitting that this testimony is not relevant to this bail hearing and that it would be inconsistent with the statutory purpose of a bail hearing. [ 5 ] Police officers also received subpoenas duces tecum but finally the defence decided not to call those witnesses. [ 6 ] The only remaining subpoena is the one issued to the co-accused, Mr. Alvarado Martinez and it is challenged by the Crown. QUESTION AT ISSUE [ 7 ] Should Mr. Alvarado Martinez be excused to testify in the present judicial interim release hearing?

CONTEXT [ 8 ] The accused submits that Mr. Alvarado Martinez’s testimony is necessary to establish that he is the one related to the house where the firearms, drugs and money were seized. [ 9 ] Defence counsel wishes to examine him in order to learn more about the origin of these items. Mr. Alvarado Martinez has never been interrogated before and the defence believes that he could give explanations about the white tags found on the different pieces of evidence. [ 10 ] Crown counsel contends that a bail hearing is not the appropriate proceeding to investigate the defence’s theory.

Procedure [ 11 ] The procedure regarding subpoenas are contained in sections 698(1) and 700(2) of the Criminal Code : “698

(1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in

__________________________________ MYRIAM LACHANCE, J.C.Q. accordance with this Part requiring that person to attend to give evidence. 700

(2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial court judge.” [ 12 ] Once a subpoena has been issued, a motion in the nature of certiorari is brought before a judge of the Superior Court to quash the subpoena.

The only person or party who can oppose its issuance is the person or party named in the subpoena. [ 13 ] But such an application is not necessary as a judge can make a determination of whether or not the evidence of the applicant is receivable on the hearing under section 700(2) of the Criminal Code to excuse the witness from attending [1] .

The test in law [ 14 ] When a subpoena or the right to call a witness is challenged, the onus is on the person who called the witness to establish that there is a real basis for believing that it is likely the witness can give material evidence [2] . [ 15 ] The test in law of what constitutes a sufficient showing of materiality to justify the issuance and sustainment of a subpoena pursuant to s. 698(1) of the Criminal Code is not to merely allege that the witness can give material evidence [3] . [ 16 ] Even if the party seeking to call a witness holds the opinion that the witness is likely to give material evidence, there needs to be evidence before the Court to show the grounds for that belief [4] . [ 17 ] A document or a testimony that may end up to be relevant to the bail application is not sufficient.

No party should call a witness to conduct a fishing expedition or to examine in the hope that something might turn up that would assist him on the issue [5] .

ANALYSIS [ 18 ] The principal purpose of a judicial interim release hearing is not to determine whether the accused is guilty. [ 19 ] The Court needs the find out what kind of person is the accused and whether he is likely to be a danger for society or to appear at trial [6] . [ 20 ] The strength of the Crown’s case is a factor to consider on the issue of granting bail but the right to call evidence has limitations [7] . [ 21 ] Where several persons are accused, one might choose at the bail hearing to denounce a co-accused as the “bad guy” and to adduce additional untested evidence for that purpose [8] . [ 22 ] If the accused does raise a defence, this becomes one of the factors the justice must assess and take this into account in analyzing the apparent strength of the prosecution’s case [9] . [ 23 ] As for a preliminary inquiry, the defence presenting a bail application is allowed to ask questions and call evidence that addresses purposes ancillary to the hearing's primary function [10] . [ 24 ] The Court can consider the weaknesses of a case, but also the defences it suggests. [ 25 ] However, as the Quebec Court of Appeal noted, a bail hearing is not a trial and it should not become one [11] . [ 26 ] A bail hearing is to be a

summary proceeding to ensure that it can be scheduled and concluded promptly [12] . [ 27 ] A bail hearing judge has the ability to control and regulate the proceeding. The court is permitted to limit, with good reason, evidence and the calling of witnesses.

The judge has an ability to determine what is or isn’t relevant to prevent unduly prolonged matter . [ 28 ] The right to test the Crown’s case, to get discovery and disclosure, and to set up the evidentiary basis for challenges at trial to the admissibility of evidence tendered by the Crown at trial will be done at the preliminary hearing, not at the bail hearing [13] . [ 29 ] Without any prior determination of relevancy to the bail application, ordering a third party to testify or produce documents to the court would not be appropriate.

At this stage of the proceeding, the Court only has an exclusive interim release jurisdiction under

section 518 of the Criminal Code to “receive and base his jurisdiction on evidence” [14] . [ 30 ] Canadian courts have an inherent and residual discretion at common law to control their own process and prevent its abuse [15] . [ 31 ] Expanded bail hearings would compromise the limited public and judicial resources if used as a method of discovery [16] . FOR THESE REASONS, THE COURT: [ 32 ] Excuses Mr. Alvarado Martinez from testifying at this hearing pursuant to s. 700(2) of the Criminal Code .

Me Philippe Vallières-RolandCounsel for the DPCP Me Franco Shiro Counsel for the accused [1] R. v. Maleki, 2006 ONCJ 401 . [6] Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21 , [2010] 1 S.C.R. 721, paragr. 52. [9] R. v. St-Cloud, 2015 SCC 27 , 2015 S.C.C. 27, paragr. 59. [10] Canada (Attorney General) v. Pedro, 2014 ONCJ 281 , paragr. 7. [11] R. c. Coates, 2010 QCCA 919 , paragr. 16. [15] United States of America v. Cobb, 2001 SCC 19 , [2001] 1 S.C.R. 587, paragr. 37.