R. v. D.B., 2016 MBPC 11

CITATION: R. v. D.B. , 2016 MBPC 11 Date: 2016 02 26 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Michael Desautels ) for the Crown ) and ) ) ) D.B. ) Sarah Inness ) for the Accused ) ) ) ) Reasons for Decision delivered: ) February 26, 2016 ROLSTON P.J. [ 1 ] At what point does an attempt by the criminal justice system to become more efficient impede the efficiency of the system itself?

That is the question that has emerged as the court considers the application of sections of the Criminal Code relating to the admissibility of prior statements at the preliminary inquiry stage of proceedings. [ 2 ] The Accused is facing several charges of gun offences. If convicted, he would likely receive a significant penitentiary term. The charges stem from an incident on August 30, 2015 where a firearm was discharged in public. The incident was allegedly witnessed by three people: H.M. (the girlfriend of the Accused), D.M. (the mother of H.M.), and S.L. (a person unknown to the Accused). The

Accused was arrested on the incident date and has remained in custody since that time. The identity of the shooter is at issue. Credibility of the witnesses will be an issue for trial. [3] The Crown is seeking to rely on section 540(7) of the Criminal Code, by filing the statements of H.M., D.M. and S.L. TheAccused moves to have the court order that the witnesses testify in the usual fashion, or in the alternative that the witnesses be requiredto appear to be cross-examined on the statements that are filed pursuant to section 540(9). [4] In order to determine the issue, the court must examine several issues.

What is the purpose of a preliminary inquiry? Whatwas the intended purpose of Parliament in amending the Criminal Code to incorporate sections 540(7) – (9)? How and why was theapplication placed before the court in this instance? The answer to each of these questions inform the court as to whether it is just inthese circumstances to allow the crown to have the benefit of the evidentiary shortcut created by section 540(7).

The Purpose of a Preliminary Inquiry [5] While all agree that the primary function of a preliminary inquiry is to determine whether there is sufficient evidence tocommit the accused to stand trial, there are two schools of thought as to whether there is an expanded role of the preliminary inquiry inthe modern Canadian court. [6] The traditional view recognizes that a preliminary inquiry serves to allow for the accused to discover the case against him orher.

The underlying basis for this position is that only the accused can fully understand their own position to the extent necessary todetermine what questions need to be asked, and how and when to ask them. Therefore, the preliminary inquiry is a necessary tool toachieve the full extent of the crown’s case despite fulsome police interviews and complete crown disclosure. This view is succinctlydescribed by Martin, P.J. in R. v. Jessamine 2013 MBPC 2, in paragraphs 14 to 16.

Subject to a 540(7) application, the traditional viewcontinues to be practiced and recognized as a valid approach in Manitoba and other jurisdictions today. That is to say, counsel isregularly allowed to use the preliminary inquiry to explore the Crown’s case without objection where live witnesses are called. [7] There is an emerging point of view that the purpose of the preliminary inquiry is limited to a determination as to whether thereis enough evidence to proceed to trial. (See R. v. J.M.C., 2015 MBPC 38, paragraphs 12 – 18).

This view is based upon the premise thatthe evolution of disclosure and the subsequent reforms to the Criminal Code, including those that have resulted in sections 540(7) - (9)have eliminated the need for discovery at a preliminary inquiry. Does Discovery Still Have a Place? [8] In order to determine whether the legal process has evolved to eliminate the ability for discovery at the preliminary inquirystage, it is necessary to examine the intention of parliament in enacting the amendments. In R. v.

Francis, (ON SC),[2005] O.J. 2864, 2005 CarswellOnt 2909, at paragraph 22 the court identified this intention: ...referred to Parliament’s intention in implementing the subsection 540 (7), (8) and (9) amendments on June 1, 2004, described in alegislative

summary named LS-410E, as a way of reducing the time it takes to bring criminal cases to trial, as a way of minimizingthe extent to which complainants, particularly those in sexual assault cases, are subject to examination and cross-examinationand as a way of narrowing the scope of preliminary inquiries [emphasis added]. [9] Several cases have referenced the fact that the secondary function of the preliminary inquiry to discover the Crown’s case wasnot specifically eliminated by Parliament when the Criminal Code was amended in 2004 (See R. v. P.M., 2007 QCCA 414, R. v. Francis, (ON SC), [2005] O.J. 2864, R. v.

Boronka, 2012 ONSC 4952, R. v. McFadden, 2012 BCCA 275 , 2012CarswellBC 1976, R. v. Sweet, 2012 YKSC 37, R. v. Hathaway, 2005 SKPC 99, R. v. Jessamine, 2013 MBPC 2). [10] It seems that if the intention of parliament was to eliminate the discovery function of the preliminary inquiry, furtheramendments would have been made to specifically spell out the end of the discovery function. Section 540(1)(

a) would be the opportuneplace to limit the purposes for which cross-examination could occur. However, section 540(1)(

a) remains the same: Taking evidence 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 the accusedto cross-examine them. It is also noteworthy that parliament also added section 537(1.1) to the Criminal Code as a part of the 2004 amendment: Inappropriate questioning

(1.1) A justice acting under this Part shall order the immediate cessation of any part of an examination or cross-examination of a witnessthat is, in the opinion of the justice, abusive, too repetitive or otherwise inappropriate. [11] Sections 540(1)(

a) and 537(1.1) imply that discovery as a part of the preliminary inquiry is alive and well, given that thepresiding justice is not instructed to order cessation of any part of an examination or cross-examination that is aimed at discovery of theCrown’s case. [12] Accordingly, based upon the parliamentary discussions, and the resultant amendments to the Criminal Code, it is evident thatthe aim of Parliament was to: • Allow the court to intervene to assist in identifying the real issues of concern (section 536.4);

• allow for an attempt to narrow the scope of the preliminary inquiry process by consent (section 536.6); • limit abusive or repetitive examination, particularly in sexual assault cases (537(1.1)); and • eliminate some witnesses by having statements filed in order to streamline and focus on the real issues (section 540(7)). A preliminary judge is also left with discretion as to whether to allow evidence to be filed pursuant to section 540(7) which states; Evidence

(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded [emphasis added]. [ 13 ] The use of the word “may” indicates that the court has discretion as to whether to allow the party to utilize section 540(7).

The only limitation on this is that the evidence must be “credible or trustworthy”, but the court is not limited to only those instances where the evidence is “credible and trustworthy”. If Parliament intended that evidence be accepted in all applications pursuant to section 540(7) where the evidence was deemed “credible and trustworthy”, mandatory language such as “shall” would have been used. [ 14 ] When should the court exercise discretion to decline the application?

If the purpose of amendments to the Criminal Code is to allow for focus and streamlining of cases rather than to eliminate discovery, it follows that sections 540(7) – (9) should be applied only where the result is consistent with the aim of the legislation. The Circumstances in this Case [ 15 ] Both parties have acknowledged that the witnesses at issue are central witnesses in the Crown’s case. The Crown has candidly indicated that the witnesses are “ready to testify” in the event that the court orders them to do so. This is not a situation where the court is dealing with any reticent or vulnerable witness.

In other words, this is not a sexual assault case, or a case that is tantamount to such a case, where there is a concern to the impact of testifying on the witnesses. [ 16 ] The history of this case is relevant to the section 540(7) application. This matter was before the court for just less than one month prior to the preliminary inquiry date being set, with the accused having been taken into custody on August 30, 2015, and preliminary inquiry dates being set on September 28, 2015. No bail application has been made and the Accused remains in custody.

It is noteworthy that neither counsel appears to have complied with

section 536.3 of the Criminal Code , such that no statement outlining the issues and witnesses to be dealt with was filed. There was no case management meeting held. Two days were reserved for hearing after the accused requested a preliminary inquiry. Based upon representations from counsel, it is evident that the intention of the crown at the time the matter was set was to call the witnesses they now seek to eliminate using section 540(7) .

On January 5, 2016, just over seven weeks prior to the preliminary inquiry, the Crown sent a letter to Defence counsel advising of its intention to proceed by way of a section 540(7) application for the evidence of the witnesses at issue in this motion as well as other evidence that Defence has agreed to. The Crown has also indicated a willingness to call the police officers who took the statements from the witnesses at issue, to show that the witness statements are “credible and trustworthy”. What was once a relatively straightforward preliminary inquiry has become decidedly unfocused and complicated.

If the court accedes to the Crown’s application, the end result is that court time is either wasted (if the statements are simply admitted) or days are utilized hearing witnesses that are collateral to the issues that should be focused on to achieve the ends of the preliminary inquiry (committal and/or discovery). For example, if the witnesses are ready to testify, the evidence of the police officers who took their statements is unnecessary, since the credibility and trustworthiness of their evidence will be dealt with by the trier of fact by assessing what they say and how they say it at trial.

How does calling these officers now achieve any of the goals of Parliament in enacting sections 540(7) – (9)? The hearing is not focused on the issues for trial. No court time has been saved. Matters are not simplified. In short, the case has not been streamlined. [ 17 ] Submissions were made at the outset of this motion as to what the proper procedure is when a party wishes to proceed by way of a section 540(7) application. Streamlining cases is the responsibility of all members of the criminal justice system.

The court has instituted a number of practices to facilitate the 2004 amendments to the Criminal Code ( see R. v. J.M.C. , supra ). While the accused is not entitled to a perfect hearing, or the most advantageous trial, as identified by Champagne, C.J. in J.M.C. , everyone in the system benefits from a timely and straightforward approach by the Crown. The party who wishes to rely on evidence pursuant to section 540(7) must given notice pursuant to section 540(8). The onus is on that party to show that (

a) the evidence should be received pursuant to section 540(7) and, (

b) that the evidence is credible and trustworthy. It defeats the purpose of the streamlining function of sections 536 – 540 of the Criminal Code to set a preliminary inquiry date where court time is set aside for an entire case to be called, only to provide notice seven weeks prior to the hearing. Dates are lost and it is unfair to an accused person (particularly when the accused is in custody), who made an election for a preliminary inquiry on the basis that relevant evidence would be called in a manner conducive to cross- examination and discovery.

While there may be instances that arise necessitating a later section 540(7) application, the timing of the Crown’s motion should be considered in determining whether the application will be granted. Had the Crown indicated prior to the Accused’s election for preliminary inquiry that they intended to proceed with a section 540(7) motion, the Accused would have been able to make an informed decision as to whether to contest the section 540(7) application by filing a motion or simply elect for trial.

Preferably, counsel would have also been in a position to identify those witnesses that could be dispensed with, and those witnesses that focus the hearing on the relevant issues for trial, as intended by Parliament. [ 18 ] At the end of the day, no focusing of the matter before the court was undertaken in advance of the hearing.

It would be improper to attempt to focus the hearing at this juncture and eliminate the discovery function of the preliminary inquiry when time has already been set aside to hear the entire case given that the Accused has elected for a preliminary inquiry with the expectation that relevant witnesses would testify. [ 19 ] Accordingly, the Accused’s motion is granted. The evidence of H.M., D.M. and S.L. may not be filed as evidence.

“Original signed by:” _________________________ ROLSTON P.J.