R. v. Lehr, 2018 NLSC 249

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Lehr , 2018 NLSC 249 Date : December 6, 2018 Docket : 201801G1131 Her Majesty The Queen v. Joshua Lehr Before: Chief Justice Raymond P. Whalen Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 29, 2018

Summary: The self-represented Accused indicated on a number of occasions that he intended, at some later date, to file two applications. One application sought to challenge the Attorney General’s decision to proceed by Direct Indictment on the basis that this infringed the Accused’s Charter rights. The other application sought an order transferring the trial of this matter to another Province.

The Accused’s submissions to the Court were treated as a request for leave to file these applications, pursuant to Rules 11.01(2) and 11.04(2) of the Criminal Proceedings Rules of the Supreme Court of Newfoundland and Labrador . The Court found that leave to file an application in a criminal proceeding, as required by Rule 11.03, would be denied where the Intended Application is frivolous, noting that the Court should refuse to permit (or should summarily dismiss) frivolous applications to proceed even apart from the requirement of Rule 11.03.

An application will be considered frivolous where it “ clearly has no merit ” or where it demonstrates “ no basis upon which [it] could succeed ”, or where the application, even if successful, would be “ meaningless ” to the outcome of the proceeding. The Intended Application to challenge the Attorney General’s decision to proceed by Direct Indictment raised an argument that has been rejected by this Province’s Court of Appeal and the Supreme Court of Canada on a number of occasions. The Accused did not raise any considerations which would lead to a different result in this case.

The Intended Application was determined to be frivolous and leave to

bring the application was denied. The Intended Application for an order transferring this proceeding to another jurisdiction for trial was similarly determined to befrivolous and leave was therefore denied. The Accused had not pointed to any authority to permit such an order to be made. Section478(3) of the Criminal Code had no application here, as the Attorney General was not consenting and the Accused did not indicate anintention to enter a plea of guilty. Section 478(1) was determinative. Appearances: Iain R.W. Hollett Appearing on behalf of the Crown Joshua Lehr Appearing on his own behalf John D.

Brooks, Q.C. Appearing as Amicus Curiae Authorities Cited: CASES CONSIDERED: R. v. Jordan, 2016 SCC 27; R. v. Cody, 2017 SCC 31; R. v. Lising, 2005 SCC 66; R. v. Oliver (2005), (ON CA), 194 C.C.C. (3d) 92, 194 O.A.C. 284 (Ont. C.A.); Fiander v. Mills, 2015 NLCA 31; R. v. Cody, 2016 NLCA 57;R. v. Wilder, 2001 BCSC 1638; R. v. Vokey (1992), (NL CA), 102 Nfld. & P.E.I.R. 275, 323 A.P.R. 275 (Nfld. C.A.);R. v. S.J.L., 2009 SCC 14; R. v. Bjelland, 2009 SCC 38; R. v. Threinen, (SK KB), [1976] W.W.D. 83, 30 C.C.C. (2d)42 (Sask.

Q.B.) STATUTES CONSIDERED: Criminal Proceedings Rules of the Supreme Court of Newfoundland and Labrador, S.I. 2018-43;Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982,c.11; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Whalen, C.J.: INTRODUCTION [1] Mr. Lehr seeks leave to file two pre-trial applications, pursuant to Rule 11.04 of the Criminal Proceedings Rules of theSupreme Court of Newfoundland and Labrador, S.I. 2018-43 (“Rules”). In the first Intended Application, Mr. Lehr is seeking adeclaration that his rights under the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B ofthe Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”) have been breached as a result of the Crown’s decision to file a Direct Indictment. In the second Intended Application, Mr. Lehr requests a transfer of these proceedings to a jurisdiction other than Newfoundland andLabrador.

BACKGROUND [2] It is necessary to capture the history of this matter to better appreciate the applications before the Court. [3] On February 13, 2018, the Crown filed a Direct Indictment with the consent of the Deputy Attorney General charging Mr.Lehr with one count of criminal harassment and one count of uttering threats. [4] Mr. Lehr then appeared in arraignment court on March 1, 2018. At that time Mr.

Lehr indicated that he would, at some laterdate, be filing applications to move the proceeding out of the jurisdiction and to contest the Direct Indictment. [5] In an effort to ensure adherence to the timelines and principles set out in R. v. Jordan, 2016 SCC 27, the arraignment courtjudge ordered that the proceeding be case managed, and set tentative dates for an intended Crown application, and trial by jury was setFebruary 11 - March 8, 2019. The arraignment court judge also suggested setting dates for the Defence’s applications but Mr.

Lehrrequested that the scheduling be instead dealt with at case management. [6] The first case management conference came before me on May 16, 2018. Mr. Lehr indicated he was preparing up to fivepre-trial applications and again spoke specifically to the Intended Applications as alluded to at arraignment. He indicated, however, that

due to health concerns he had been unable to file the Intended Applications. Concern was raised regarding the large number of possible pre-trial applications and the delay that could result if they were not set down for hearings in a timely manner. It was noted that the onus was on the Accused to bring the applications forward, so that dates might be set for the filing of submissions and for hearings. [ 7 ] At the case management conference held June 14, 2018, it was noted that Mr. Lehr had not filed any application.

I reiterated the Courts concern regarding the potential for delay which could result from his continued failure to bring these applications forward. The Accused was advised that the Court’s Rules in criminal proceedings required a party to seek leave to file a pre-trial application once a pre-trial conference had been held. Pursuant to Rule 11.04(3), I directed that the Accused file by August 1, 2018 any supporting material, submissions and legal argument he felt necessary to determine if leave should be granted. [ 8 ] A case management conference was held on August 20, 2018. Prior to that date, Mr.

Lehr left two unexecuted and unsworn documents with the Registry of the Court. These documents could be described as an application to compel the production of records held by a number of third parties, including the Law Society of Newfoundland and Labrador, the Crown, the Royal Newfoundland Constabulary (“RNC”), and the Canadian Security Intelligence Service (“CSIS”). Nothing further had been filed with the Registry.

Again the Court extended the deadline for the Accused to file supporting material, submissions and legal argument on his Intended Applications, to September 14, 2018. [ 9 ] On October 2, 2018, a further case management conference was held. At that time, Mr. Lehr indicated that, owing to health concerns, he had not been able to file anything regarding his Intended Applications. He further indicated that he would be seeking counsel from outside of the Province to represent him on these applications. The Court stressed to Mr.

Lehr the need to proceed with his applications in a timely manner to ensure that the trial date could be maintained and asked when he thought he would be in a position to instruct counsel on these matters. Mr. Lehr was not able to provide a satisfactory answer. The matter was then set over to October 19, 2018, at which date Mr. Lehr would be required to provide the Court with the name of his lawyer. The Court, on that date, would provide further directions with respect to the Intended Applications. [ 10 ] At the case management conference held on October 19, 2018, Mr.

Lehr informed the Court that his intended counsel was requesting a few more days to review the disclosure. The intended counsel did not appear. Concerned with further delay, the Court held that Mr. Lehr’s oral submissions to the Court relating to his Intended Applications amounted to a request to seek leave of the Court to proceed with same (on this point, I note that Rule 11.01(2) permits the Court to dispense with the filing requirements set out in Rules 11 to 19 and 11.04(2) permits leave to be requested orally). Submissions on leave were to be heard relating to the Intended Applications November 22, 2018.

The Accused was given until November 9, 2018 to file any supporting materials, submissions or legal argument, as well he was invited to make oral submissions at the hearing. [ 11 ] At a further case management meeting held on October 29, 2018, Mr. Lehr’s intended counsel, again, did not appear. While Mr. Lehr submitted that his intended counsel had agreed to act on his behalf, subject to payment of his retainer, it remained unclear whether Mr. Lehr would be represented in this matter. [ 12 ] Nothing was filed by Mr.

Lehr with respect to his Intended Applications prior to the hearing of the leave applications on November 22, 2018. ISSUE [ 13 ] Should Mr. Lehr be granted leave to file an application to contest the Direct Indictment and an application to transfer the matter out of the jurisdiction of the Court? LAW When Should Leave be Granted or Denied? [ 14 ] As noted above, the Accused must seek leave of the Court to file the Intended Applications.

Rules 11.03 and 11.04 provide: 11.03 Unless otherwise specified by the Code, no pretrial applications in relation to an indictment in respect of which there has been a pre-trial conference may be filed with the court without leave. 11.04

(1) Leave to file a pre-trial application may be requested in arraignment court or by way of separate application to a judge.

(2) Leave may be requested orally without filing a Notice of Application.

(3) A judge may order that a Notice of Application to request leave and supporting material be filed with the court before determining whether to grant leave.

(4) If leave is granted to file an application, the judge may also order: (

a) the date by which the application and supporting materials shall be filed;

(

b) the dates by which the parties shall file additional materials and briefs; (

c) the date for the hearing of the application; and (

d) such consequential directions as may be appropriate. [15] The leave requirement is an important tool for judicial case management. It encourages parties to bring applications to theattention of the Court in a timely manner so that they can be scheduled with an eye to the timelines imposed by and principles outlined inR. v. Jordan, 2016 SCC 27.

Where a party seeks to file an application after a pre-trial conference has been held, the Court is called uponto scrutinize whether it is appropriate to hear the application. [16] The Rules do not, however, specify the circumstances in which leave might be granted or denied and, to my knowledge, noreported decision from this jurisdiction has considered the scope of a judge’s discretion under these Rules. With that said, much has beenwritten generally about the need for judges to actively manage criminal matters by scrutinizing the potential merits of proposedapplications before allowing them to proceed.

For example, the Supreme Court of Canada, in R. v. Cody, 2017 SCC 31 stated: 38. In addition, trial judges should use their case management powers to minimize delay. For example, before permitting anapplication to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defencecounsel to summarize the evidence it anticipates eliciting in the voir dire and, where that

summary reveals no basis upon which theapplication could succeed, dismissing the application summarily (R. v. Kutynec (1992), (ON CA), 7 O.R. (3d) 277(C.A.), at pp. 287-89; R. v. Vukelich (1996), (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where anapplication is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss“applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function appliesequally to Crown applications and requests.

As a best practice, all counsel — Crown and defence — should take appropriateopportunities to ask trial judges to exercise such discretion. [Emphasis added] [17] Similarly, in R. v. Lising, 2005 SCC 66, Charron J., for the Court, stated: 34. … Provincial appellate courts have often expressed their concern over the increasing length of court proceedings. For example,counsel have referred us to R. v. Vukelich (1996), (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.), leave to appeal refused,[1997] 2 S.C.R xvi, where the importance of avoiding the inefficient use of court time was emphasized by McEachern C.J.B.C.

ChiefJustice McEachern suggested the following approach at para. 17: Generally speaking, I believe that both the reason for having, or not having, a voir dire, and the conduct of such proceedings, should, ifpossible, be based and determined upon the statements of counsel. This is the most expeditious way to resolve these problems: see R. v.Dietrich (1970), (ON CA), 1 C.C.C. (2d) 49 (Ont. C.A.) at 62; R. v. Hamill (1984), (BC CA), 14C.C.C. (3d) 338 (B.C.C.A.); and R. v. Kutynec (1992), (ON CA), 70 C.C.C. (3d) 289 (Ont. C.A.) at 301.

I suggestthat judges must be more decisive in this connection than they have been in the past because far too much judicial time is consumed bythe conduct of these kinds of enquiries. Finlayson J.A., in R. v. Durette (1992), (ON CA), 72 C.C.C. (3d) 421 (Ont. C.A.), forcefully and succinctly expressedthe same concern in the following words (at p. 440): The Supreme Court of Canada and appellate courts across Canada have been attempting in recent years to restrict the issues that go to ajury to those which have, on the evidence, an air of reality to them.

Just as we have tried to restrict the trial of an accused on the meritsto factual issues that are directly raised in the particular case, so should we strive to restrict pre-trial Charter motions to matters ofsubstance where defence counsel can establish some basis for a violation of a right. Unless we, as courts, can find some method ofrescuing our criminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will losepatience with our traditional adversarial system of justice.

As Jonathan Swift might have said, we are presently sacrificing justice on theshrine of process. 35. The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years agowhen Garofoli was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedingsbefore them.

One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the partieswhen that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court. [Emphasis added] [18] The cases above are clear authority for judges to refuse to permit frivolous applications to proceed. The reasoning is obvious.

It is necessary to screen out applications that have no “reasonable prospect of success” (Cody, para. 38) to avoid unnecessary delay andwaste of court time and resources and to spare other stakeholders from unnecessary and improper litigation. It follows that where anapplication is frivolous, it must be denied leave under Rule 11.03. [19] Another basis on which leave to bring an application might be denied is the situation set out in R. v. Oliver (2005), (ON CA), 194 C.C.C. (3d) 92, 194 O.A.C. 284 (Ont. C.A.).

In that case, the trial judge refused to grant a postponement ofthe trial to permit the Accused to bring a challenge for cause motion on the date on which the trial was set to begin. In that case, the trial

date had been set for over a year and the Court had imposed a timetable for the proceeding. Despite working on the proposed applicationfor almost three months, Defence counsel failed to bring the application to the Court’s attention or to request an amendment to thetimetable. In holding that the trial judge was justified in refusing the postponement, Doherty J.A. noted, “The interest of an accused inpursuing whatever avenue may assist in his defence does not trump all other interests engaged by the due administration of criminaljustice”. [20] The facts in Oliver are distinguishable from the case at bar.

I raise this simply as an example of another possible basis uponwhich a judge could deny leave to bring an application in an appropriate case. Other bases may be identified in the future. When is an application considered frivolous? [21] Having identified that leave might be denied where the application being brought is frivolous, it is necessary to define theterm. The Supreme Court of Canada and our Court of Appeal have given some meaning to frivolous in the legal context. An applicationthat demonstrates “no basis upon which [it] could succeed” (Cody, at para. 38) or which “clearly has no merit” (Fiander v.

Mills, 2015NLCA 31 at para.34) would be frivolous. A trial judge should consider whether the application “has a reasonable prospect of success”(Cody, at para. 38). Similarly an application which, even if successfully brought, would be “meaningless” (R. v. Cody, 2016 NLCA 57at para. 53) to the outcome of the proceeding, would be frivolous. The moment it becomes apparent to the Court that an application isfrivolous it should be summarily dismissed. ANALYSIS The Application to Contest the Direct Indictment [22] In his first Intended Application, Mr.

Lehr seeks to challenge the use of a Direct Indictment pursuant to s. 577 of the CriminalCode, R.S.C. 1985, c. C-46 on the basis that this procedure has breached his Charter rights. The thrust of his argument, as I understandit, is that the use of the Direct Indictment infringes his right to full answer and defence, protected by s. 7, by denying him the discoveryprocesses available at a preliminary inquiry. [23] This argument has been unsuccessfully raised before. In R. v.

Wilder, 2001 BCSC 1638, Romilly J. noted, at paragraph 29 that,“The constitutionality of s. 577 of the Criminal Code has been clearly settled in Canadian law for nearly a decade”. In fact, the questionof whether an accused person has a constitutional right to a preliminary inquiry was also previously considered by the Newfoundlandand Labrador Court of Appeal in R. v. Vokey (1992), (NL CA), 102 Nfld. & P.E.I.R. 275, 323 A.P.R. 275 (Nfld.C.A.). There, Goodridge C.J.N. stated, for the Court: 89. In R. v.

Arviv (1985), (ON CA), 8 O.A.C. 92; (ON CA), 19 C.C.C.(3d) 395 (C.A.), there wasan issue as to whether the referring of a direct indictment by the Attorney General pursuant to s. 577 of the Criminal Code was contraryto the Charter. At pp. 403 and 404 Martin, J.A., said: Mr. Rosenberg in support of his submissions with respect to the procedural aspects of an indictment preferred under s. 507(3)relied heavily on the judgment of the Supreme Court of Canada in R. v. Skogman (1984), (SCC), 13 C.C.C.(3d) 161; 11 D.L.R.(4th) 161; [1984] 2 S.C.R. 93, in which Mr.

Justice Estey pointed out in Canada the preliminary hearing hasbecome a forum where the accused is afforded an opportunity to discover and appreciate the case to be made against him at his trial(pp. 171-172). There can be no doubt that in this country the preliminary hearing does serve the ancillary purpose ofproviding a discovery of the Crown’s case. No doubt, the failure to institutionalize procedures for the disclosure of theCrown’s case has contributed to the development of this function of the preliminary hearing.

A preliminary hearing is not, of course,the only way of providing disclosure or discovery of the Crown’s case. The constitutional standard which a criminal trial must satisfy under s. 7 of the Charter is the standard encompassed by theconcept ‘the principles of fundamental justice’. The so-called ‘right’ to a preliminary hearing is not elevated to a constitutionalright under the Charter. The ‘right’ to a preliminary hearing under the Code may be displaced by the Attorney- Generalpreferring an indictment under s. 507(3) which, as we have previously stated, does not per se contravene s. 7 of the Charter. 90.

In essence there is no constitutional right to a preliminary inquiry. No Charter question arises where there has been no preliminaryinquiry if there has been full disclosure. [24] More recently, in R. v. S.J.L., 2009 SCC 14, Deschamps J., for the majority of the Supreme Court of Canada, stated atparagraph 21: 21. … there is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry: R. v. Ertel (1987), (ON CA), 35 C.C.C. (3d) 398 (Ont. C.A.), leave to appeal refused, [1987] 2 S.C.R. vii; R. v. Moore (1986), (MBCA), 26 C.C.C. (3d) 474 (Man. C.A.). … [25] Similarly, in R. v.

Bjelland, 2009 SCC 38, the Court held that an accused has no constitutional right to a particular form ofdisclosure, such as the ability to cross-examine witnesses at a preliminary inquiry. The majority, there, stated that “What is protectedunder s. 7 is the right to make full answer and defence at trial, not the right to cross-examine a witness at a preliminary hearing” (para.32). [26] From the foregoing, it is clear that, so long as there has been full disclosure by the Crown, there is no constitutional right to a

preliminary inquiry. I find there is no basis on which the Accused’s Intended Application to challenge the Direct Indictment couldsucceed. The Intended Application is frivolous and leave is denied. The Application to Transfer the Proceeding Out of the Jurisdiction [27] In his second Intended Application, Mr. Lehr seeks an order that this proceeding be transferred out of this jurisdiction, so thathis trial may be heard in another Province. Mr. Lehr has not pointed me to any source of authority which would permit me to make thisorder. The reason underpinning this request appears to be a belief on the part of Mr.

Lehr that there is widespread bias in theNewfoundland and Labrador justice system. [28] The offences with which Mr. Lehr is charged are criminal harassment and uttering threats. Both are alleged to have beencommitted wholly within the Province of Newfoundland and Labrador. [29] I note

section 478 of the Criminal Code, which provides, in relevant part: 478(1) Subject to this Act, a court in a province shall not try an offence committed entirely in another province. …

(3) An accused who is charged with an offence that is alleged to have been committed in Canada outside the province in which theaccused is may, if the offence is not an offence mentioned in

section 469 and (

a) in the case of proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of thatGovernment, if the Attorney General of Canada consents, or (

b) in any other case, if the Attorney General of the province where the offence is alleged to have been committed consents, appear before a court or judge that would have had jurisdiction to try that offence if it had been committed in the province where theaccused is, and where the accused consents to plead guilty and pleads guilty to that offence, the court or judge shall determine theaccused to be guilty of the offence and impose the punishment warranted by law, but where the accused does not consent to plead guiltyand does not plead guilty, the accused shall, if the accused was in custody prior to appearance, be returned to custody and shall be dealtwith according to law. [30] This

section makes clear that an offence committed entirely within one province cannot be transferred to another province,except where the Attorney General of the Province consents and the accused intends to enter a guilty plea in the other jurisdiction. Thatexception has no application here. [31] The only case I have been referred to on this issue is R. v. Threinen, (SK KB), [1976] W.W.D. 83, 30C.C.C. (2d) 42 (Sask. Q.B.).

There, the Court similarly held that it had no jurisdiction to transfer the trial of the matter outside ofSaskatchewan. [32] Accordingly, I find that I have no jurisdiction to grant the order requested in the Intended Application. There is, therefore, nobasis upon which the Intended Application to transfer the charges outside the jurisdiction of the Court could succeed. The IntendedApplication is frivolous and leave is denied. CONCLUSION [33] In conclusion, I find that Mr.

Lehr’s Intended Application to challenge the Crown’s decision to proceed by Direct Indictmentand his Intended Application to transfer his proceeding out of this jurisdiction are frivolous. Leave to bring these applications is denied. _____________________________ Raymond P. Whalen Chief Justice