R. v. Ravandi & Henareh Date:, 2012 BCPC 432

Citation: R. v. Ravandi & Henareh Date: 20121113 2012 BCPC 0432 File No: 202860-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AGHASI SALAMAT RAVANDI ESFANDIAR HENAREH RULING ON DEFENCE APPLICATION FOR SEVERANCE OF THE HONOURABLE JUDGE MEYERS Counsel for the Crown: M. Namazi & I. Sattarzadeh Counsel for the Accused Salamat Ravandi: C. Elden (as Agent for P. Rankin) Counsel for Accused Henareh : C. Elden (as Agent for R. Claus) Place of Hearing: Vancouver , B.C.

Date of Hearing: November 13, 2012 Date of Ruling: November 13, 2012 [1] THE COURT: Mr. Ravandi and Mr. Henareh are charged jointly with importing opium into Canada, possession of opium forthe purpose of trafficking and then Henareh has a separate charge on the same day of possessing opium. Everything allegedly occurredbetween March 9, 2011, and March 11, 2011, in Richmond. [2] The two were jointly charged in an Information laid September 1, 2011.

They appeared in Court on October 25, 2011 and atthat time, both counsel indicated that the trial would be taking place in the Provincial Court of B.C., that the election would be trial byProvincial Court Judge, not by Judge and Jury or Supreme Court Judge alone. [3] This was October 25, 2011. Then what happens, is that on October 19, 2012, this is a year later, a formal re-election isannounced as the intention of Mr. Claus, who is acting for Henareh. At that time, Mr. Rankin, who presumably had some advancednotice of this from Mr.

Claus, indicated that he did not want his client to be forced to have a Judge and Jury trial. He wanted to stay withhis previous election of Judge alone in Provincial Court. I indicated at that time that I believed that the law was that if there are twopeople charged together and one elects Supreme Judge alone or a Judge and Jury in the Supreme Court, and the other one elects for atrial in the Provincial Court, that the one who elects a trial in the Provincial Court, must have a preliminary inquiry and go to the HigherCourt, as per the election of the co-accused. Mr.

Rankin took issue with that, so I said that we would adjourn for the purpose ofargument. That was last week. [4] Mr. Rankin presented his arguments that: (

a) the Provincial Court at the time of taking an election, had the discretion toeffectively sever the two accused by allowing a trial in Provincial Court for one and a trial in the Supreme Court for the other one. Mr.Rankin, of course, was acting for Mr. Ravandi. Mr. Claus supported Mr. Rankin's application and said that he was of the view as well,that in his legal opinion, there could be separate elections received and recorded, and the effect of those two separate elections would bein effect, to the severance of the two accused. He was content that his client, Mr.

Henareh, could and would have a preliminary in theProvincial Court followed by a Supreme Court Judge and Jury trial and that Mr. Rankin's client, Mr. Ravandi, would have his trial herein Provincial Court. [5] The Crown opposed the Application supported by both accused. [6] The Crown provided me with a number of authorities which I have read and considered as well as the sections of the CriminalCode that are applicable here. The cases that I rely on Sher v. The Queen, 2012 ONSC 4783, R. v. Litchfield, (SCC),[1993] 4 S.C.R. 333, R. v. August, (BC SC), R. v. Legg, (NS SC), R. v. Bukmeier, (BC SC), R. v.

Fleedom [phonetic], 2009 BCCA 279 [sic].

Crown provided a number of other cases, but the cases mentioned, arethe ones that are most influential in coming to my Decision. [7] The sections of the Criminal Code relating to both elections, re-elections, and then the application of severance are thesesections: 530, 536, 536(4.2), 591, 591(3), 591(4), 565, and 567. [8] When those sections, along with the cases that I have cited, are read together, it becomes clear that the law is as follows, in myopinion: first, that joint trials should be encouraged and, except in exceptional circumstances, should be heard as one trial. I think Iforgot to say R. v. August.

If I did, that was outlined in R. v. August, (BC SC). [9] The sections that deal with elections basically are intertwined with severance, simply because if different elections by each ofthe co-accused are permitted, the result is, in practical terms, a severance occurs. [10] When we deal with the sections that set out the procedures to be followed when there is a higher election by one accused thanthe other, then that, in my view, requires, as a mandatory provision, that both accused are forced to go to the higher election. This isconfirmed in the case law when we read R. v. Litchfield and R. v. Sher.

In both of those cases, it is very clear that the trial judge at theelection stage is not a trial judge until there is an election by both people that place the trial in the Provincial Court. Until there is a trialJudge, there cannot be any application for severance. Any application for severance is premature until there is a trial judge. [11] What those cases say is that if two accused elect differently, a preliminary inquiry must be held and then if there is a committal,both are committed to stand trial in the Supreme Court, be it before Judge alone or Judge and Jury in the Supreme Court.

A trial Judge,then, would be the Supreme Court Judge. The accused who wanted the election of a trial before Provincial Court Judge, then would beat liberty to apply for a severance. The case law sets out on what grounds the severance will or will not be granted, but R. v. Legg clearlyholds that the application for a severance before a preliminary inquiry is held, is premature. [12] Counsel for Mr. Ravandi argues that the judge who takes an election has the discretion to refuse to order both accused to betried in the Court of the higher election. The case law and the sections of the Code, particularly under

Part XVIII that deal with electionsand preliminary inquiries, do not support Mr. Rankin's argument. Mr. Rankin's argument is that there is a discretion in the ProvincialCourt, to separate the trials by acceding to a different election by one accused from the other so as to place one trial in Provincial Courtand a preliminary inquiry, for the other accused, in that Provincial Court. [13] A reading of the procedures under 536(4.2) of

Part XVIII, clearly do not allow any discretion whatsoever to the ProvincialCourt Judge and Litchfield, which I have cited before, at page 22 of that Judgment, as well as Sher at paragraph 32, are clear in outliningthat there is no jurisdiction for the Provincial Court to do that. The cases hold that the Criminal Code sets out the mandatory rules aboutelections and re-elections before them and there is no discretion for a Judge of Provincial Court, to vary from those mandatory sections. [14] Mr.

Rankin is free, of course, at some time later, should there be a Committal, to make his application before a Judge of theSupreme Court, be it pending a Judge alone trial or a Judge and Jury trial. The arguments that Mr. Rankin has made for severance really

are arguments that have to be made in that forum and not here. [ 15 ] The unfortunate

part in all this, is that the preliminary inquiry was set almost a year ago and that there was no indication from anyone, until just a couple of weeks ago that it was going to be argued that one accused wanted to re-elect. [ 16 ] The Crown has assured me that on November 20, 2012, when the matter is set for the preliminary for both individuals, it will go ahead as scheduled.

All witnesses are here and available and that the evidence that will be called is all set and ready to go; both accused are free on bail pending a trial and so presumably, any adjournment request would have had to be made by defence counsel, prior to today in order to potentially adjourn the case should Mr. Rankin or Mr. Claus have felt it necessary to have some more time given their hopeful application to have a Judge and Jury trial for one accused and a Provincial Court trial for the other. [ 17 ] So there will be no adjournments.

The prelim will take place November 20, 2012, and that will be in accordance with the election that was made last year. There will be a trial in the Supreme Court before a Supreme Court Judge and Jury, should there be a Committal of one or both accused. [ 18 ] November 20 will be the commencement of a prelim here. [ 19 ] All right. That is the decision. (RULING CONCLUDED)