HER MAJESTY THE QUEEN - v. -, 2014 MBPC 58

NOVEMBER 5, 2014 RULING BY THE COURT Citation: 2014 MBPC 58 THE PROVINCIAL COURT OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN - and - andrea giesbrecht, Accused. EXCERPT FROM proceedings, ruling by the court, before The Honourable Judge Corrin, held at the Law Courts Complex, 408 York Avenue, in the City of Winnipeg, P rovince of Manitoba, on the 5th day of November, 2014. APPEARANCES : MS. S. THOMAS and MS. D. BUORS , for the Crown

G. BRODSKY, Q.C., for the accused MR. D. GISSER and MS. A. YANG, for Civil Legal Services EXCERPT FROM NOVEMBER 5, 2014 The applicant, Andrea Giesbrecht, has brought a motion before the court for an order that a pathologist of her choice be allowed to bepresent as an observer at the autopsies of six infants which are the subject matter of charges which have been filed by the WinnipegPolice Service in this court, notably, six counts of concealing the dead body of a child with intent to conceal the fact that its mother hasbeen delivered of it, pursuant to

Section 243 of the Criminal Code, and a failure to comply with an obligation to keep the peace and be ofgood behaviour in relation to such charges as same relates to a subsisting probation order. The applicant also seeks an order permitting the video recording of the autopsies, presumably by a person or persons of its choosing. Two third parties have filed notice of motion requesting that they be allowed to intervene in these proceedings. The respondentprosecution agency, the Crown in Right of the Province of Manitoba, is not opposed to either third parties' involvement in the motion-related proceedings.

The third parties are the Office of the Chief Medical Examiner and the acting Chief of the Winnipeg PoliceService. The third parties have both requested to be granted leave to intervene as friends of the court or amicus curiae in order to makesubmission concerning the implications of the application brought by the applicant accused, Ms. Giesbrecht. The Office of the Chief Medical Examiner has further asked to be granted status as an added party to the application in order that it canaddress issues regarding the jurisdiction of this court to grant the application.

The applicant accused opposes the third parties' applications to intervene. Generally speaking, an application by a third party to intervene in any aspect of an ongoing criminal proceeding is rarely granted. That isbecause when the federal or provincial prosecution departments take carriage of a public prosecution, no one other than their agents andthe accused and his or her counsel will normally be permitted to participate in the conduct of the case. That having been related, theSuperior Courts, those whose judicial appointments are made by the federal government pursuant to

Section 96 of the CanadianConstitution, have been held to possess the inherent jurisdiction to grant intervenor status in relation to certain issues respecting criminalmatters. For example, in the case of R. v. Paul Bernardo, cited as (1995) (ON SC), 38 C.R. (4th) 229, a judge of the OntarioSuperior Court granted the murder victims' families intervenor status in the context of a motion for a publication ban made by the Crownprior to commencement of trial proceedings.

The families' application to intervene was not in relation to any substantive aspect of thetrial proper, just whether the media would be allowed to publish certain details of the proceedings. In R. v. Ross, 1994 N.S.J. No. 264, Judge Boudreau of the Nova Scotia Supreme Court observed that courts should be very reluctant togrant intervenor motions in criminal cases. The accused in that case had made a pre-trial application to have the proceedings arisingfrom a sexual assault charge stayed on the basis of alleged Charter violations and abuse of process by police investigators and Crownprosecutors.

Various police officers and Crown prosecutors applied for intervenor status in the stay of proceedings application, claiming their right toprotect their personal reputations. The third parties argued that their interest to protect their professional reputations was necessary inorder to protect their own interests and that same was, in their view, separate from the interest of the prosecuting Crown in defending thestay of proceedings application.

Notwithstanding that both groups of would-be intervenors had contended and promised that they wouldonly challenge the allegations made against them, and not the merits of the application which they all conceded was within the solepurview of the Crown, Judge Boudreau denied all the applications to intervene.

In so doing, notwithstanding his inherent jurisdiction as a federally appointed judge to grant such applications in warrantedcircumstances, he stated as follows, at paragraph 13 of his decision, quote: "These are criminal proceedings involving the liberty of the subject and not any unusual interest of the intended intervenors. Courtsshould be very reluctant to grant intervenor motions in criminal cases, except in the most unusual circumstances, and these would bevery rare indeed.

"While it may be that Superior Courts of criminal jurisdiction have an inherent discretion to control their own process, the requestedinterventions go well beyond the limited circumstances in which such motions have been granted in the past. I am not satisfied that suchcircumstances exist in the present application." At paragraph 12, Boudreau had previously focused on what he regarded as being deficient in relation to the third parties' application,stating as follows, quote:

"In the present case, it is the prosecution of the Crown and not any specific interest of the intended intervenors which is beingchallenged. Their interests are not significantly different than those of many police officers when testifying in criminal matters or ofmany Crown attornies when prosecuting criminal charges. Only the Crown's prosecution is being placed in judicial jeopardy by theDefendant's application." In R. v. Atkinson, cited as 2005 MBQB 293, former Associate Chief Judge Oliphant observed that in R. v. Geddes,

(2005) M.J. No. 358,Chief Justice Scott of the Manitoba Court of Appeal, writing for a unanimous court, tacitly adopted the same approach, that intervenorstatus should be granted sparingly in criminal cases. In Atkinson, also a Superior Court case, the Native Women's Association of Canadaand the Canadian Association of Elizabeth Fry Societies were denied leave to intervene in the trial of a female accused charged withmanslaughter in the death of her former partner.

After observing several possible disadvantages and risks associated with such anunconventional trial process, Justice Oliphant denied the applications to intervene. It is of interest to note that a year after the Atkinson and Geddes cases, another Manitoba Court of Queen's Bench judge, this time sittingas an ad hoc member of the Court of Appeal in a case cited as R. v.

Remillard, 2006 MBCA 2, found that the formerly strict and narrowinterpretation of the intervenor rule should be broadened at least in the context of Section 36(1) of the Court of Appeal Act whichallowed for the practice and procedure of the Queen's Bench Rules to be adopted in certain circumstances. In R. v. Jenkinson, 2007 MBCA 19, a case presented by Mr.

Gisser on behalf of his client, Justice Michel Monnin of the Manitoba Courtof Appeal both cites and applies the purposive approach set out in the Remillard case approvingly, and sets out the factors to beconsidered on an intervenor application at paragraph 18 as follows: "(

i) the nature of the case; "(ii) the issues which arise; and "(iii) the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injusticeto the immediate parties." Monnin then goes on to state, quote: "... the following additional factors should be considered in relation to the likelihood of the applicant being able to make a usefulcontribution ...: "(

a) whether the intervener has a real, substantial and identifiable interest in the subject-matter of the proceedings; "(

b) whether the intervener has an important perspective distinct from the immediate parties; and "(

c) whether the intervener is a well-recognized group with a special expertise and with a broad and identifiable membership base." Having satisfied himself that one of the intervenor applicants in the Jenkinson case fell within the liberalized approach, as he describedit, as set out in the aforementioned criteria, Monnin granted intervenor status to a First Nation organization that represented 32 ManitobaFirst Nations. The subject matter of the appeal directly affected First Nations as the charge before the court involved the issue ofwhether certain provincial legislation could pertain to First Nation lands.

However, unlike the case at bar, both Remillard and Jenkinson were cases with constitutional dimensions. Remillard involved Frenchlanguage rights and Jenkinson the application of provincial laws on First Nation lands. As such, the intervenors in both cases were notadversarial in relation to the accused and, indeed, their presence was welcomed by same, rather than opposed as in our case.

It is also noteworthy, from my perspective, that both cases were only quasi criminal in nature, both being related to provincial statutes,Remillard to the photo radar provisions of The Highway Traffic Act and Jenkinson to The Non-Smokers Health Protection Act. Neithercase engaged the provisions of the Criminal Code of Canada. In R. v. Neve, a 1996 decision of the Alberta Court of Appeal, cited as (1996) 1996 ABCA 242 , A.J.

No. 570, that court had thefollowing to say in reference to the granting of interventions in criminal cases at paragraph 16, quote: "Any granting of intervenor status is discretionary, and ought to be exercised sparingly. Interventions have been permitted in criminalproceedings although normally such interventions are intended to offer a broader perspective beyond the merits of a particularprosecution. Canadian criminal proceedings, procedurally and in their purpose, must remain a simple lis between the accused person andthe accusing Crown.

We were shown no case where an intervention was permitted when its stated purpose was to argue the merits of theappeal itself. Where intervention is sought on a point of law, that should be defined with particularity, rather than in vague and elusiveterms."

Most intervention applications involving criminal cases arise at the appeal level, not the pre-trial or trial level, and most successfulapplications engage issues of significant public interest which are related to substantive legal issues which go well beyond the case itself,often, as I have previously related, matters with a constitutional dimension. Neve was a case that involved an application by The Canadian Association of Elizabeth Fry Societies, The Disabled Women's Network,The Women's Legal Education and Action Fund, the Native Women's Association of Canada, and the Alberta Civil LibertiesAssociation.

All of these organizations applied to intervene on the side of the appellant, who was appealing an indeterminate sentenceimposed after a finding that she was a dangerous offender. All of the applicants were welcomed by the accused as they proposed toargue that Charter issues pertained to her case, issues that had not been raised at the trial proceedings. The applications for interventionwere accordingly denied, as the issues were perceived by the court to be repetitive of the arguments that the appellant herself would bemaking at the hearing of her appeal.

The Neve decision was cited with approval by the Manitoba Court of Appeal at paragraph 5 of the Geddes decision, a case that Ipreviously referred to. One of the major reasons for judicial denial of intervention applications relates to a concern that the fairness of the proceeding would beaffected by the accused having to face more than one adversary. As Associate Chief Justice Morden of the Ontario Superior Court put itin R. v.

Finta, cited as (1990) (ON CA), 1 O.R. (3rd) 183, quote: "A criminal proceeding in which the accused person is obliged to respond to submissions of more than one prosecutor lacks theappearance of fairness." An additional fairness concern which runs along the same lines has further motivated Superior Courts to exercise their discretion to grantintervenor status sparingly. This concern relates to the accused person not having to respond to hypothetical issues that are not properlyrelated to proceedings themselves and which are not relied on by the Crown in its prosecution.

In other words, it would be unfair to putan accused person in the position of having to respond to issues that are not an inherent or integral part of the case filed by the provincialCrown. It is trite law that an applicant seeking to become an intervenor must convince the court that its submissions will bringsomething both relevant and additional to the proceedings that the parties themselves will most probably not be able to provide to thecourt.

In the context of our case, I am of the view that this is highly unlikely as the Crown can almost certainly embrace and expound upon anylegal concern that is relevant to either of the intervenor applicants and probative to the motion. The fact of the matter is that counsel forthe prosecution and the Office of the Chief Medical Examiner are essentially members of the same branch of the provincial government,one being attached to civil matters and the other criminal proceedings. The distinction between them does not amount to a significantdifference as they both work for the same boss.

They are both Crown attorneys. As such, it is very difficult for me to appreciate how the process of these proceedings will be improved or advanced by virtue of theOCME being added as a party to these proceedings. There is no reason why Mr. Gisser cannot, as counsel for the OCME, make hisclient's views known to Ms. Thomas and Ms. Buors, his departmental colleagues. And, of course, if they are satisfied that hisinformation is relevant to the matter at hand, the accused's motion, they can impart such information to the court in the course of theirsubmissions.

I now turn to the question of whether a Provincial Court judge, being a creature of statutory and not constitutional creation, has the powerto add intervening parties in the absence of a clear enabling statutory provision providing such authority. The issue is of considerableimportance as the jurisdiction of federally appointed Superior Court judges to make such rulings has been determined to lie in theirinherent jurisdiction arising from their constitutionally mandated status arising from

Section 96 of the Constitution Act of 1867. In 1983 the Supreme Court of Canada was called on to contend with this general subject in McEvoy v. Attorney General for NewBrunswick, cited as (1983) (SCC), 1 S.C.R. 704. In McEvoy, the Supreme Court determined that federal andprovincial governments even acting in concert cannot confer Superior Court jurisdiction upon a court presided over by a provinciallyappointed judge. The principle source of jurisdiction of the judges of the Provincial Court of Manitoba is found in

Section 7 of The Provincial Court Actas enacted by the provincial Legislative Assembly. Unlike judges of the provincial Superior Courts, the judges of the Provincial Courtonly have such jurisdiction as is conferred by statute.

Section 7 of The Provincial Courts Act, titled Jurisdiction, reads as follows: Every judge has jurisdiction throughout Manitoba and (

a) shall exercise all the powers and perform all the duties conferred or imposed upon a judge by or under any Act of the Legislatureor of the Parliament of Canada; (

b) has all the power and authority now vested by or under any Act of the Legislature in a magistrate, two justices of the peace sittingtogether, or a juvenile, youth or family court or a judge thereof; (

c) may exercise all the powers and perform all the duties conferred or imposed on a magistrate, provincial magistrate, or one or morejustices of the peace under any Act of the Parliament of Canada; (

d) may exercise the jurisdiction conferred upon a magistrate under

Part XIX of the Criminal Code of Canada; and

(

e) is ex officio a justice of the peace and commissioner for oaths. As a matter of historical perspective, there were no provincial statutory courts until roughly the last 40 to 50 years, a period when allCanadian provinces moved to replace municipally organized systems of local police courts, often referred to as magistrate courts, withindependent police separated courts called Provincial Courts. When these changes began, the magistrate courts were at the bottom of athree-level trial court structure. In Hudson Bay Mining and Smelting Co., Limited v. The Honourable Judge Robert G.

Cummings, cited as 2004 MBCA 182, Mr.Justice Martin Freedman had to deal with a jurisdictional issue arising in the context of The Fatality Inquiry Act, the issue being whethera Provincial Court judge presiding at an inquest proceeding had the necessary jurisdiction to order production of certain internaldocuments in inquest counsel's possession.

Hudson Bay Mining and Smelting was specifically seeking an order that inquest counsel, anagent of the Attorney General of Manitoba, provide them with copies of the transcripts of his tape-recorded interviews of all potentialinquest witnesses, all of which had already been transcribed. Crown counsel argued that the inquest judge had no inherent jurisdictionand needed express legislative authority to do what was being requested by Hudson Bay Mining and Smelting.

In Hudson Bay Mining and Smelting, Justice Freedman found that even judges of a statutory court, quote: "... have powers intrinsic to all judges when they carry out their functions, and specifically, all powers which are necessarily incidental tothe carrying out of their functions." At paragraph 23 of his decision, he described such powers as being, quote, "found by necessary implication in the legislation." Basically, he was saying that even a statutory court had power over its own process, that is to say, to control their own procedures in theabsence of an express statutory provision to the contrary. Mr.

Gisser's client, the Office of the Chief Medical Examiner, has encouragedme to use such implied power to appoint it as a party to this proceeding. In R. v. Duncan, cited (1995) (BC CA), 130 D.L.R. (4th) 99, leave to appeal to the Supreme Court of Canadadismissed (that decision is cited at 1995 SCCA No. 252), the British Columbia Court of Appeal held that the power to confer intervenorstatus was not ancillary to a Provincial Court judge's power under the Criminal Code.

In the course of her reasons, Justice Prowse said,at paragraph 34, quote: "In my view, however, the proposed intervenors are not asking the Provincial Court to adapt an existing procedure but, rather, tocreate a new procedure not found in the Code and which, on its face, is antithetical to the notion of a criminal trial as a process involvingonly two parties ... the Crown and the accused.

While superior courts have been held to have the power to grant intervenor status, eitherby virtue of their inherent jurisdiction, or pursuant to legislative authority, there is no such authority to grant intervention in theProvincial Court, and I am not prepared to infer it." The Supreme Court of Canada took a similar tack in the case of R. v. Mills (1986) (SCC), 1 S.C.R. 863.

In Mills, thatcourt determined that a Provincial Court judge sitting at a preliminary inquiry was not vested with statutory jurisdiction to deal withCharter-related relief and that absent specific legislative authority to do so, it was not a court of competent jurisdiction. Similar reasoning also prevailed in R. v. Seaboyer, cited at (1991) (SCC), 2 S.C.R. 577, where that court ruled that aProvincial Court judge presiding at a preliminary inquiry was not cloaked with jurisdiction to determine the constitutionality of anevidentiary provision of the Criminal Code under

Section 52 of the Charter. Mr. Gisser argued that Justice Freedman in Hudson Bay Mining and Smelting had essentially created a corollary to the determinationmade in Duncan, Mills, and Seaboyer based on whether the power in question -- in our case, also the power to confer intervenor status --was required as a matter of practical necessity for the court to accomplish its purpose. In other words, Mr. Gisser has encouraged me tofind that it is a practical necessity, as that term was used by Justice Freedman, to grant his client intervenor status.

With the greatest of respect to counsel, I do not agree with this argument. Justice Freedman's recognition of and conferral of disclosurepower on an inquest judge, while a practical necessity in such context, cannot in my view be equated with a judge's appointment of thirdparties in a criminal proceeding. To use a time-worn and admittedly somewhat hackneyed expression, Mr. Gisser's position is based noton apples and apples, but on apples and oranges. The Hudson Bay Mining and Smelting and Duncan cases involved different issues.

A disclosure order being truly incidental to a judge'sjurisdiction as a presiding officer at an inquest is a matter of practical necessity; while an order granting intervenor status in a criminalprosecution proceeding is something altogether different in scope and substance. While disclosure power and orders are, for instance,necessary to give effect to jurisprudence created by the Supreme Court of Canada in R. v. Stinchcombe and R. v. O'Connor, such is notthe case with respect to the granting of intervenor status in criminal cases.

Indeed, there is no provision in the Criminal Code permittingcourts to grant intervenor status in criminal proceedings and this court was not referred to any case in which intervenors were grantedstanding in a Provincial Court criminal trial proceeding when submissions were made by Mr. Gisser or regular prosecuting Crowncounsel who supported his client's motion.

In the absence of any legislative provision enabling the Provincial Court to grant intervenor status to private parties, I therefore conclude that a judge of the Provincial Court does not have jurisdiction to grant such status in a criminal proceeding. As a final observation, I wish to once again paraphrase a quote from Justice Prowse in Duncan , from the third-last paragraph of her decision. Quote: "...

I do not think that a power to grant standing to an interested outsider to ... make argument on [an] issue raised by the defence is either incidental or necessarily incidental to the power to hear the charges against Mr. Duncan." Since both the Office of the Chief Medical Examiner and the Winnipeg Police Service have also alternatively requested appointment as amicus curiae, also often referred to as friend of the court, I will now turn my attention to those applications.

All the case law on the subject suggests that such non-party intervention should only be allowed, absent the permission and consent of the actual original litigants, when a decision in the case may affect the rights of the non-party applicant. It is exceedingly rare for intervenors to be appointed at the trial stage of proceedings. This is to be expected as most often intervenors are not simply acting altruistically. Their goal is usually to influence the court in making its decision, not just to assist the court as a neutral well-intentioned party.

Usually amicus curiae are appointed by the Superior Courts as a matter of their inherent jurisdiction in circumstances where the court feels that they will provide a viewpoint which the court believes is necessary and will otherwise be lacking. An example would be the appointment of counsel to represent the interests of an unrepresented accused in relation to a complex sentencing or Charter issue in a criminal proceeding. It is my view that a statutory court lacking inherent jurisdiction has no more authority to appoint an amicus than it has to appoint a third party.

Moreover, the appointments of amicus curiae in the context of criminal proceedings are only related to trial fairness in relation to the actual parties, and not extraneous issues that do not involve practical necessity. Examples are the appointment of counsel to cross- examine a vulnerable person or child complainant when an accused is unrepresented and it is necessary for him to test the complainant's testimony by way of cross-examination. Such authority was actually codified by Parliament by way of an amendment to the Criminal Code

Section 486.3 in 2005. Another commonplace example is the appointment of counsel to make a submission on a complex area of the law where the court feels that an unrepresented accused would be incapable of providing any necessary assistance to the court. Put succinctly, the role of amicus in criminal proceedings is to ensure fair treatment in relation to the accused, the person who is being prosecuted by the state. As such, I do not perceive either applicant as legally qualifying for the role of amicus curiae in the context of these proceedings.

Of course, I am sure that the prosecuting Crown will be happy to address any issues that bear on these proceedings on their behalf, and I encourage the applicant counsel, Ms. Carswell and Mr. Gisser, to communicate their concerns to either Ms. Thomas or Ms. Buors in such regard. That is the decision of the court. (EXCERPT CONCLUDED) Judge B. Corrin, P.C.J.