R. v. Downer and Tompkins Date:, 2014 BCPC 200

Citation: R. v. Downer and Tompkins Date: 20140916 2014 BCPC 0200 File No: 15798 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LORNE JEFFERY DOWNER and JASON MICHAEL TOMPKINS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: S. Harkness Counsel for Mr. Tompkins: P. Grier Counsel for Mr. Downer: P. Corbett

Place of Hearing: Port Hardy, B.C. Date of Hearing: September 16, 2014 Date of Judgment: September 16, 2014 The Application [1] Mr. Downer and Mr. Tompkins are charged together with four counts of possession of narcotics for the purpose of trafficking. The offences are alleged to have been committed on October 31, 2013. The Crown is proceeding by indictment, and neither accused haswaived his right to a preliminary inquiry. [2] The preliminary inquiry was scheduled for September 5, 2014. However, Mr. Tompkins was unable to attend for healthreasons, and the preliminary inquiry was adjourned to March 11, 2015.

The Crown is concerned that the seven-month delay inprosecution of the case, resulting from the adjournment of the preliminary inquiry, may give rise to a defence founded uponinfringement of the right of the accused to be tried within a reasonable time. At least in relation to Mr. Downer, that is a reasonableconcern. [3] The preliminary inquiry was scheduled to be held in Port Hardy, where the offences are alleged to have been committed, andwhere Mr. Downer, Mr. Tompkins and Mr. Corbett (Mr. Downer’s counsel) all reside. Mr.

Marion, who will be counsel for Mr.Tompkins at the preliminary inquiry, resides in Campbell River. [4] Ms. Harkness, for the Crown, has ascertained that, although March 11, 2015 is the first available date for a preliminary inquiryin Port Hardy, dates are available for that purpose in Campbell River in February, 2015. As a result, up to six weeks of delay could beavoided if a change of venue were ordered to Campbell River. [5] Mr. Corbett opposes the proposed change of venue, on the ground that it would be expensive and inconvenient, both for Mr.Corbett and for Mr.

Downer, to attend in Campbell River for the preliminary inquiry. Campbell River is about 3 hours’ drive from PortHardy. [6] I enquired whether the Crown would be prepared to reimburse them for the incremental costs which they would incur as aresult of a change of venue. I observe that provision for such an order is made in section 559(3) of the Criminal Code (which does notapply to preliminary inquiries), but not in section 537(1) (which applies to this application). Ms. Harkness said that, if I were disposed toimpose such a term as a condition of the order sought, the Crown would abandon its application. [7] Ms.

Harkness presents an alternative application in the event that I refuse a change of venue. She proposes that the preliminaryinquiry proceed in relation to Mr. Downer, alone, in Campbell River in February, and against Mr. Tompkins, alone, in Port Hardy, asnow scheduled, on March 11. Mr. Corbett and Mr. Grier oppose that application. Jurisdiction [8] Preliminary inquiries are governed by

Part XVIII of the Criminal Code. Section 537(1) of the Criminal Code provides that: A justice acting under this Part may: a. adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do by reason of theabsence of a witness, the inability of a witness who is ill to attend at the place where the justice usually sits or for any other sufficientreason * * * i. regulate the course of the inquiry in any way that appears to the justice to be consistent with this Act …. A “justice” is defined by

section 1 to mean a justice of the peace or a provincial court judge. [9] The first question is whether I am, at this moment, a justice acting under

Part XVIII of the Criminal Code. In the colloquialsense, I think not. I have not been, and probably will not be, the judge presiding at the preliminary inquiry. I am merely a judge hearingan application on a remand day. However, I think that the application which I have heard is a part of the preliminary inquiry, and that, inconsidering that application, I am acting under

Part XVIII. The principle was stated in R vs McIntyre [1990] AJ #217; 56 CCC (d) 52, asfollows: In

Part XVIII of the Criminal Code there is a distinction between the time when a preliminary inquiry is commenced, and the time whenit is held. A preliminary inquiry commences with the election of the accused for trial by judge alone or by judge and jury. Thereaftereverything that is done with the accused, is done "during the course of" the preliminary inquiry - see Plummer v. The Oueen (1983) (BC CA), 4 WWR 351 (B.C. Court of Appeal). However, the preliminary inquiry is not "held" until evidence is taken. [10] Mr. Corbett submits that: a. The power to order a change of venue arises under section 537(1) only when an adjournment is sought and granted. I do not

agree. It seems to me illogical to think that Parliament intended the court to have the power to order a change of venue when ordering a later date for the commencement of the hearing, but not when ordering an earlier date. b. The words “… any other sufficient reason …” in section 537(1)(

a) should be read ejusdem generis with “… by reason of the absence of a witness …” and “… the inability of a witness who is ill to attend …”. He points out that the opportunity for an earlier hearing date falls into a different class of subject-matter, and so ought not to be considered a “sufficient reason” within the meaning of the section. I do not agree.

Rather, I think that it was the intention of Parliament to identify two specific reasons for which a change of venue might be ordered, but not to preclude the possibility that other, unspecified reasons might also justify the order. [ 11 ] I conclude that I have jurisdiction to make an order under section 537(1). The Merits of the Application [ 12 ] I have found no authority in which governing principles for such an application are articulated. It seems to me that the question is closely analogous to the question of balance of convenience which often arises when the issue of choice of forum arises in civil cases.

In this case: a. The prejudice to the Crown if the application is refused is relatively small. A change of venue to Campbell River would avoid two to six weeks of the seven month delay caused by the adjournment of the preliminary inquiry. The total delay on which the accused would rely, if they were to allege an infringement of their right to a trial within a reasonable time, would be significantly longer. The Information in this case was sworn on March 11, 2014, and it is unlikely that the case can be tried before the autumn of 2015.

In that context, two to six weeks of incremental delay, which might result if I refuse a change of venue, is unlikely to be decisive. b. The prejudice to the accused if I order a change of venue is likely to be significant. I have no reason to believe the accused to possess significant means. Many of the people who appear in this court are poor. The cost of travel to the preliminary inquiry is likely to be a significant burden for them. Cost is not the only factor.

Criminal proceedings impose an emotional burden on the accused, which is exacerbated if the accused is away from home and family during important parts of the proceeding. [ 13 ] I do not think it practical to order a separate preliminary inquiry for each accused. The evidence called at each inquiry would be substantially identical. As a result, scarce court resources would be wasted by duplication of proceedings. To make matters worse, one could not exclude the possibility of inconsistent results at the two preliminary inquiries. Such an outcome would tend to bring the administration of justice into disrepute.

Disposition [ 14 ] The application is dismissed. September 16, 2014 ____________________________ T. Gouge, PCJ