R. v. C.A.C. Date:, 2011 BCPC 170

Citation: R. v. C.A.C. Date: 20110629 2011 BCPC 0170 File No: 15792-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.A.C. EXCERPTS FROM PROCEEDINGS RULING ON APPLICATION OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: T. Cockfield Appearing on their own behalf: C.A.C. Place of Hearing: Sechelt , B.C. Date of Judgment: June 29, 2011 [ 1 ] THE COURT: C.A.C. is charged with two counts of sexual touching, contrary to s. 153(1) (

a) of the Criminal Code ; two counts of sexual touching, contrary to s. 151 of the Criminal Code ; and uttering threats. [ 2 ] This is an application by Crown counsel to have the transcript of the statement provided by the complainant, T.S., to Constable Falebrinza, on January 20th, 2011, admitted at the preliminary inquiry, pursuant to s. 540(7) of the Criminal Code . [ 3 ] C.A.C., who is unrepresented, applies pursuant to s. 540(9) of the Criminal Code for an order that the complainant attend the preliminary inquiry for the purposes of cross-examination. [ 4 ] If the complainant is required to attend, then Crown counsel seeks an order for testimonial accommodation pursuant to s. 486.2(1) of the Criminal Code , and an order appointing counsel for C.A.C. for the purposes of conducting a cross-examination of the complainant, pursuant to s. 486.3(1) of the Criminal Code . [ 5 ] I will first review the procedure to be followed for these applications.

I will then review the purpose and scope of the preliminary inquiry. I will then deal with the issue of when a child witness' statement to the police can be admitted into evidence, pursuant to s. 540(7), and conclude with my rulings on the accused's application pursuant to s. 540(9) and the Crown applications for

testimonial accommodations. [6] In reaching my conclusions, I have considered the authorities provided to me by Crown counsel: R. v. Rao, 2011 BCSC 390, andR. v. Vaughn, 2009 BCPC 142, and the cases contained therein. [7] With respect to the process, it begins at the arraignment hearing when an accused elects trial in Supreme Court and requests apreliminary inquiry. At that point at the arraignment hearing, Crown and defence advise which witnesses are required. This includesany witnesses Crown intends to apply to put in evidence by way of a statement.

A time estimate is then provided based on the requiredwitnesses, and a date is set based on the tentative time estimate. [8] If Crown counsel intends to make an application pursuant to s. 540(7), they can do so at a pre-hearing application, uponproviding reasonable notice of their intention to do so and complying with the other requirements of s. 540(8). The pre-hearingapplication is to be before the judge assigned to hear the preliminary inquiry on a date in advance of the preliminary inquiry. See R. v.Rao, 2011 BCSC 390, paragraph 24, and R. v. Hathway, 2005 SKPC 99, paragraph 55.

At the pre-hearing application, the accused canapply for an order that the witness appear, and also at the pre-hearing application Crown counsel can seek orders for testimonialaccommodation and other orders related to the conduct of the preliminary inquiry. That procedure was followed in this case. [9] With respect to the purpose of the preliminary inquiry, the primary function of a preliminary inquiry justice is to determinewhether the Crown has sufficient evidence to warrant committing the accused to trial.

The preliminary inquiry is not a trial; it is rather apre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to protect the accusedfrom a needless and, indeed, improper exposure to public trial, where the enforcement agency is not in possession of evidence to warrantthe continuation of the process. See R. v. Hynes, 2001 SCC 82 , [2001] 3 S.C.R. 623, at paragraph 30. [10] 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.

Nonetheless, this discovery element remains incidental to the centralmandate of the preliminary inquiry, as clearly prescribed by the Criminal Code, that is, the determination of whether there is sufficientevidence to put the accused on trial. See R. v. Hynes. [11] In my view, the discovery function, which is the ancillary role of the preliminary inquiry, has not been eroded by theStinchcombe disclosure rules, and continues today, taking into account the 2002 amendments to the Criminal Code (Criminal LawAmendment Act, 2001 S.C. 2002 c.13). See R. v. Alton, 2005 ONCJ 208, and R. v.

Francis (2005), (ON SC), 202C.C.C. (3d) 147. What the Stinchcombe disclosure rules allow is for both Crown and defence to be able to comply with s. 536.3, 536.4,and 536.5. The Stinchcombe disclosure rules, along with those sections, allow for a more focused preliminary inquiry to occur. [12] With respect to the scope of a preliminary hearing, it is not a paper hearing. See R. v. Francis. See also s. 541 of the CriminalCode. [13] The preliminary inquiry should proceed with the court receiving evidence on matters that are in issue, recognizing that there isalso a discovery component to the hearing.

See s. 536.2 of the Criminal Code. [14] Examination and cross-examination of witnesses should occur subject to s. 540(7) and 540(9). [15] So what should occur when, as in this case, Crown counsel seeks admission of the statement made by the complainant, who is achild, to a police officer? Essentially the complainant is the case against the accused, although I acknowledge that the complainant'smother is also a required witness.

That said, the case against the accused really comes down to the complainant's evidence. [16] So the question is, would I be prepared to order an accused to stand trial based on a statement, assuming the requirements of s.548(1)(

a) have been met? That is essentially the test is USA v. Sheppard. [17] The answer to that question is yes, in certain circumstances. Those circumstances are when the Crown has proven, on a balanceof probability, that the statement is either credible or trustworthy. At a minimum, that means that the child understood the importance oftelling the truth, and the statement was not a product of leading questions.

I have reviewed the statement, and I am of the view that it isnot a product of leading questions. [18] In terms of assessing the complainant's understanding of the importance of telling the truth, this is the exchange between thecomplainant and the officer [as read in]: Officer: Um, so one of the things that I want to tell you is that, um, everything that I say to you today is going to be the truth. Complainant: Mm-hmm. Officer: Uh, I promise that whatever I say to you is the truth and that there are no secrets here and that we can talk aboutanything that we want.

Complainant: So how long do you think it's going to take? Officer: Um, not very long. Complainant: Mm-hmm. Officer: Why, are you worried about how long it's going to take? Complainant: No. Officer: Okay. But I want you to promise me that whatever you're saying, it's going to be the truth too.

Complainant: Mm-hmm. Officer: Is that a promise? Complainant: Yes. Officer: Okay. Complainant: On my soul. Officer: On your soul. You're the sweetest thing. Complainant: No, I'm really not. Officer: You're just being sweet because you just met me? Complainant: No. Well, 'cause everybody in my school thinks I'm a dick. Officer: Really? Complainant: Yeah. [ 19 ] In my view, that exchange does not support a finding that the complainant understood the importance of telling the truth. When asked to promise to tell the truth, the complainant's response was equivocal.

The officer then asks if it is a promise, and the complainant's response prompts a further request by the officer. The complainant then remarks the promise is on his soul, to which the officer responds the complainant is so sweet, and concludes with the complainant denying he is sweet, and relating what other people think of him. [ 20 ] That, to me, calls into question whether the complainant understood the importance of telling the truth.

The officer failed, in my view, to ensure the complainant understood that this is a serious matter, that it should be taken seriously, that he should tell the truth, the whole truth, and that it was not okay to tell even one lie.

Nor did the officer discuss with the complainant what the consequences are for one who lies. [ 21 ] I therefore find that the Crown has failed to prove on a balance of probabilities that the statement is either credible or trustworthy, and the application is denied. [ 22 ] With respect to C.A.C.'s application, pursuant to s. 540(9), that the complainant appear for the purposes of cross-examination, I would have granted it. The complainant is essentially the case against the accused, and the areas of proposed cross-examination, motive to lie, and circumstances surrounding the taking of the statement are relevant.

Also, cross-examination of the complainant in the circumstances of this case fulfills the ancillary role of discovery which is part of the preliminary inquiry. [ 23 ] Pursuant to s. 486.2(1) , the complainant T.S. is to testify outside the courtroom by closed circuit television, as I am satisfied that the accused has not shown that the interests of justice require otherwise. [ 24 ] Finally, pursuant to s. 486.3(1), C.A.C. shall not personally cross-examine T.S., and I appoint counsel to conduct the cross- examination as, again, I am satisfied that the accused has not shown that the interests of justice otherwise require. [ 25 ] MR.

COCKFIELD: Thank you, Your Honour. [ 26 ] THE COURT: So, C.A.C., what that means is that Mr. S. will be present at the preliminary inquiry. He will testify, be questioned by the Crown first, and then there will be cross-examination. You will not be able to do it personally. A lawyer will be appointed to do that cross-examination. And Mr. S. will not be in the courtroom. He will testify outside of the courtroom. [ 27 ] C.A.C.: Will they be using video images to transmit his presence into the courtroom? [ 28 ] THE COURT: That's correct. (RULING CONCLUDED)