R. v. Kushimo, 2015 ONCJ 28

COURT FILE NO.: 13-1686 Citation: R. v.

Kushimo, 2015 ONCJ 28 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JOHN KUSHIMO and SHANNON PIERCE Before Justice Lloyd Dean SUE SZASZ ........................................................................................................... for the Crown SHANNON POLLOCK .............................................................................. for the both Accused RULING ON DAWSON APPLICATION 1 Before the court is an Application brought by the accused seeking leave at the preliminary inquiry to cross-examine the affiantand sub-affiant on the search warrant related to this matter (known as a “Dawson” Application). 2 Counsel for the accused submits cross-examination of the affiant and sub-affiant (two police officers) in this case is necessary toenable the Applicant to make full answer and defence.

That it is necessary for Applicant to explore in more detail the informationprovided by the affiant and sub-affiant in order to make future argument on the sufficiency of the warrant (or in other words, determineif a Charter breach has occurred). The Crown does not intend on calling the affiant or the sub-affiant as part of their case at thepreliminary inquiry. 3 This type of Application begs the question, what is the purpose of the preliminary inquiry? 4

Section 535 of the Criminal Code (“Code”) dealing with preliminary inquiries provides that the justice shall inquire into thecharge and any other indictable offence in respect of the same transaction founded on the facts disclosed by the evidence. That inquiry isdirected to the judicial determination required by s. 548, which reads: 548(1) When all the evidence has been taken by the justice, he shall (

a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence inrespect of the same transaction, order the accused to stand trial; or (

b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for theoffence charged or any other indictable offence in respect of the same transaction. 5 The threshold test is that established in U.S.A. v. Sheppard, (SCC), [1977] 2 S.C.R. 1067, that is whether theevidence is sufficient to establish that a reasonable jury, properly instructed, could convict. 6 Sections 540 and 541 of the Code set out the duties of the justice holding a preliminary inquiry with respect to the taking ofevidence and the hearing of witnesses.

Section 540 provides that the justice shall take the evidence under oath in the presence of the accused, of the witnesses called onthe part of the prosecution and allow the accused or his counsel to cross-examine them. 8 Section 541 (1) states: When the evidence of the witnesses called on the part of the prosecution has been taken down and, where required by this Part, hasbeen read, the justice shall, subject to this section, hear the witnesses called by the accused. 9 Section 541(5) of the Code states: "The justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry ..." 10 In R. v.

Girimonte, (ON CA), [1997] O.J. No. 4961, Doherty J.A., writing for the court stated at paras. 29 -32: 29 The inquiry established by

Part XVIII is a charge screening device: R. v. Tapaquon, (SCC), [1993] 4 S.C.R. 535 at545-547. It protects an accused from trial where the Crown is unable to produce sufficient evidence to warrant the accused's committalfor trial. The Supreme Court of Canada has repeatedly recognized the charge screening function as the purpose underlying thepreliminary inquiry. I will refer to three of those decisions. In R. v. Patterson (1970), (SCC), 2 C.C.C. (2d) 227 at 230,Judson J., for the majority, observed: ...

The purpose of a preliminary inquiry is clearly defined by the Criminal Code -- to determine whether there is sufficient evidence to putthe accused on trial. It is not a trial and should not be allowed to become a trial. ... 30 Similarly, in R. v.

Caccamo (1975), (SCC), 21 C.C.C. (2d) 257 at 275, de Grandpre J., for the majority, said: It is, of course, now settled law that the sole purpose of the preliminary inquiry is to satisfy the Magistrate that there is sufficientevidence to put the accused on trial and that, therefore, the Crown has the discretion to present only that evidence which makes out aprima facie case. ... 31 Finally, in R. v. Dubois, supra, at 227, Estey J., for the majority, observed: ...

It has been said numerous times that the objective of holding a preliminary inquiry is merely to determine whether there is enoughevidence against the accused to justify ordering him to stand trial. It is not intended to determine, finally or otherwise, the accused's guiltor innocence. ... 32 These authorities indicate that the justice's mandate is only to inquire into the charge for the purpose of making the determinationreferred to in s. 548.

Certainly, none of these cases suggest that a justice has any supervisory authority over the Crown's overall conductof the prosecution or any responsibility to safeguard the accused's right to make full answer and defence at trial. 11 Further in Girimonte, at paragraph 38, Doherty J.A. states: 38 … The fact that the preliminary inquiry may serve the discovery interests of the defence does not alter the purpose of thepreliminary inquiry or the singular nature of the justice's function at a preliminary inquiry.

Estey J. does not describe discovery of theCrown's case as a purpose of the preliminary inquiry, but rather acknowledges that defence may use it to that end. In my view, discoveryis an incidental benefit to the defence flowing from a process which requires the Crown to establish a case for committal for trial bymeans of viva voce evidence at a proceeding in which the defence is given the statutory right to cross-examine witnesses called by theCrown and to call its own witnesses.

12 In R. v. Hynes, 2001 SCC 82 , [2001] S.C.J. No. 80, Chief Justice McLachlin, writing for the majority, stated, in part, atpara. 4: The preliminary hearing is not a trial but simply a preliminary review to determine whether there is sufficient evidence to proceed totrial. 13 And further at paragraphs 30 – 33: 30 The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrantcommitting the accused to trial: Criminal Code, s. 548(1); Caccamo v. The Queen, (SCC), [1976] 1 S.C.R. 786. Thepreliminary inquiry is not a trial.

It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Itsparamount purpose is to "protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcementagency is not in possession of evidence to warrant the continuation of the process": Skogman v. The Queen, (SCC),[1984] 2 S.C.R. 93, at p. 105.

The justice evaluates the admissible evidence to determine whether it is sufficient to justify requiring theaccused to stand trial. (The trial judge cannot, with due respect to the contrary suggestion of Gushue and Green JJ.A., simply "choose notto" rely on offered evidence without first making a positive ruling against its admissibility.) 31 Over time, the preliminary inquiry has assumed an ancillary role as a discovery mechanism, providing the accused with an earlyopportunity to discover the Crown's case against him or her: Skogman, supra, at pp. 105-6.

Nonetheless, this discovery element remainsincidental to the central mandate of the preliminary inquiry as clearly prescribed by the Criminal Code; that is, the determination ofwhether "there is sufficient evidence to put the accused on trial" (s. 548(1)(a)). 32 In support of this function, Parliament equipped the preliminary inquiry with a structure that shares broad similarities with that ofthe trial court. It is conducted like a trial with regard to the presentation of evidence. Further, the preliminary inquiry is a court of record,and evidence is taken under oath in the presence of the accused.

The accused has the right to cross-examine witnesses and respond to theCrown's case. The preliminary inquiry justice, in assessing the sufficiency of the Crown's case, may rule on the admissibility ofevidence. Section 542(1) of the Code expressly includes statements made by the accused in the evidence that the Crown may call at apreliminary inquiry. The traditional rules governing the admissibility of evidence apply.

Most notably, the preliminary inquiry justicemay refuse to admit statements of the accused to persons in authority if they were not made voluntarily. 33 The preliminary inquiry is not a trial, however, and this distinction is reflected in the powers and procedure. Significantly, thepreliminary inquiry justice has no authority to grant remedies.

The justice cannot, for example, order the Crown to provide particulars ordisclosure to the defence, stay proceedings for abuse of process, compel the production of third party records, or grant relief againstinformer privilege by recourse to the innocence at stake exception: R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411; R. v.Chew, (ON CA), [1968] 2 C.C.C. 127 (Ont. C.A.); R. v. Girimonte (1997), (ON CA), 121 C.C.C.(3d) 33 (Ont. C.A.); R. v. Richards (1997), (ON CA), 115 C.C.C. (3d) 377 (Ont. C.A.). These powers are reserved forthe trial judge.

The Crown also has a discretion to lead only a prima facie case at the preliminary inquiry and rarely calls all the evidenceit plans to lead at trial: Caccamo, supra, at pp. 809-10. 14 Most recently, in R. v.

L. (S.J.), 2009 SCC 14 , [2009] 1 S.C.R. 426, Deschamps J., delivering the judgment of themajority of the Supreme Court of Canada, stated, in part, at paras. 21-23: 21 It is well established that the preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown hassufficient evidence to commit the accused to trial … However, there is no constitutional right to a preliminary inquiry or to the outcomeof such an inquiry: … Dispensing with the screening process therefore does not result in a deprivation of fundamental justice, since theaccused continues to be presumed innocent and retains the right to make full answer and defence: … 22 Similarly, although the preliminary inquiry may also allow an accused to test the credibility of witnesses and better appreciate theCrown’s evidence … such incidental benefits do not give rise to a constitutional right to this proceeding: … 23 … an accused has had a right under the Constitution to the disclosure of all relevant information that is distinct from the right to apreliminary inquiry.

But the Crown’s duty in this respect does not extend to producing a witness for discovery … Consequently, theincidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance: …

15 In the case of R. v. Dawson, (ON CA), [1998] 123 C.C.C. (3d) 385 and in the case of R. v. Drozney (2004), (ON SC), 184 C.C.C. (3d) 311, the Ontario Court of Appeal ruled that a preliminary hearing judge has jurisdiction togrant or refuse leave to allow the accused to cross-examine on the Information. And that the accused has a right to use the preliminaryinquiry to test the Crown’s case, to get discovery and disclosure, and to set up an evidentiary basis for challenges to the admissibility ofCrown evidence at trial.

Of significant importance, in my view, is that in both of those cases the judge at the preliminary inquiry refusedto allow the cross-examination of a witness called by the Crown. 16 The case before me is not a circumstance where the accused wishes to cross-examine a witness called by the Crown in order toestablish an evidentiary foundation for the seeking of a remedy at trial or at a pre-trial motion.

The accused seeks to use the preliminaryinquiry process as a discovery mechanism related to a witness which they seek to call. 17 It may be that there remains some discovery aspect to a preliminary inquiry in the broad latitude of cross-examination of awitness presented by the Crown, and that situation is covered in s. 540, which for ease of reference I again reproduce here the relevantpart: s. 540 (1) Where an accused is before a justice holding a preliminary inquiry, the justice shall (

a) take the evidence under oath of the witnesses called on the part of the prosecution and allow the accused or counsel for theaccused to cross-examine them. 18 This right to cross-examination allows the incidental discovery referred to in Hynes, L (J.S.), Dawson and Dorzney. Conclusion 19 It is my view that the plain language of s. 541 (5) limits the range of witnesses who might be called by the defence on apreliminary inquiry; “the justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry ...".

Inmy view, evidence respecting denials or infringements of an accused’s Charter rights is not “relevant to the inquiry,” as that phrase isused in s. 541(5). Discovery for the defence of issues relating to the Charter is not “relevant to the inquiry” within the meaning of s.541(5). What is clear to me is that the discovery function of a preliminary inquiry is limited to the provision of wide latitude in cross-examination of witnesses presented by the Crown. If discovery alone ever were a basis for the admission of evidence at a preliminaryinquiry, it is no longer. It is “incidental”, if it occurs at all.

As stated in the Supreme Court decisions of Hynes and L. (S.J.), the scope ofthe preliminary hearing should be related to its primary purpose. Although it has an ancillary discovery purpose, the inquiry is notintended to constitute a wide ranging process of discovery. The defendants are entitled to cross-examine any witnesses called by theCrown and are not limited in this cross-examination to issues (subject to the principles enunciated in cases such as Dawson) raised in thedirect examination, but may examine with a view to establishing an evidentiary foundation respecting trial issues.

In my view, thatwould be in line with the Court of Appeal’s rulings in Dawson and Drozney. But in calling its own witnesses, the defence is limited by s.541(5) of the Code to matters relevant to the inquiry. It cannot call witnesses relevant only to the trial or to pre-trial motions. The mattersrelevant to the inquiry go to its purpose, being whether there is sufficient evidence to commit the accused to stand trial. 20 Further, while a preliminary inquiry includes the right to test the case to be met; its function is not as an investigative tool, eitherfor the Crown or the defence.

Witnesses, for either side, cannot be subpoenaed to testify unless they are likely to give material evidence.Nor is a preliminary inquiry a mechanism to obtain Crown disclosure. The inquiry is, rather, a screening device to ensure that the onlycases that proceed to trial are those where a reasonable jury, properly instructed, could convict. The right of the accused to call witnessesis directed toward that screening purpose. The accused is entitled to present relevant evidence to demonstrate that a reasonable jury,properly instructed, could not convict.

The purpose of the Application before the court is not to present evidence relevant to thedetermination as to whether the accused should stand trial. 21 The Application is dismissed. Released January 20, 2015 Justice Lloyd Dean