R v JI, 2023 NUCA 8

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v JI, 2023 NUCA 8 Date: 20230713 Docket: 08-22-019-CAP Registry: Iqaluit Between: His Majesty the King Respondent - and - J.I. Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the bans so that it may be published. _______________________________________________________ Memorandum of Judgment _______________________________________________________ Appeal from the Decision of The Honourable Justice Watson

Dated the 9 th day of November, 2022 Filed the 20 th day of January, 2023 ( Docket: 15-22-015-CAS) ______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: Introduction [ 1 ] Following a preliminary inquiry in July 2022, the appellant was committed to stand trial on charges of incest, sexual assault, and sexual interference. He subsequently applied, pursuant to s. 573.1(1) of the Criminal Code , RSC 1985, c C-46 , to have a single judge of the Nunavut Court of Appeal (the NUCA Reviewing Judge) review the preliminary inquiry decision, and the earlier dismissal of his application for an order: (

i) requiring the complainant to appear at the preliminary inquiry to be cross-examined; and (ii) directing the attendance of additional witnesses. The NUCA Reviewing Judge interpreted the scope of his authority under s. 573.1(1) as broadly as he could but found no basis upon which he could interfere with the related preliminary inquiry decisions. [ 2 ] This is an appeal under s. 573.1(7) of the Criminal Code from the decision of the NUCA Reviewing Judge.

The appellant argues that the NUCA Reviewing Judge erred in failing to remedy the errors he maintains were made by the judge who dismissed his earlier application (the First Preliminary Inquiry Judge) and the judge who committed him to stand trial (the Second Preliminary Inquiry Judge). Background [ 3 ] The appellant’s criminal conduct is alleged to have occurred between January 1, 2019, and September 30, 2020, when the complainant was 12 to 13 years old. He was charged on October 30, 2020. The Crown elected to proceed by indictment.

The appellant elected to be tried by a judge and jury and requested a preliminary inquiry. Pursuant to s. 536.3 of the Criminal Code , he submitted a statement identifying the complainant, and a caseworker who facilitated contact between the complainant and the police, as witnesses he wanted to hear at the preliminary inquiry. The appellant identified the reliability of the complainant’s evidence as an issue to be addressed. [ 4 ] The Crown subsequently applied to change the venue of the preliminary inquiry to permit the complainant, then 14 years old, to testify by CCTV. The Crown’s application was denied.

Chief Justice Sharkey was not satisfied based on the material provided that a change in venue was justified.

He observed that “testimonial aids in [the] form of screens” would ensure the complainant did not see the appellant when she testified. [ 5 ] Following Chief Justice Sharkey’s decision, the Crown advised of its intention pursuant to s. 540(7) of the Criminal Code , to tender the complainant’s “evidence via paper.” Section 540(7) provides: 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.

On November 5, 2021, the Crown served notice on the appellant that it intended to rely on a transcribed statement given by the complainant to police on November 7, 2020. This notice was given in accordance with s. 540(8) of the Criminal Code . [ 6 ] This led the appellant to apply for an order under s. 540(9) requiring the complainant to appear for cross-examination with respect to the statement intended to be tendered by the Crown as evidence under subsection (7).

Section 540(9) states: The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross- examination with respect to information intended to be tendered as evidence under subsection (7). [ 7 ] The appellant’s trial counsel also sought more disclosure (which was not in the possession of the Crown) and requested the appearance of a considerable number of additional witnesses to be called “by the Crown or the Court” so that counsel could cross- examine those witnesses.

In oral submissions, the appellant’s counsel explained they wanted to hear from most of the witnesses to build a foundation for a records production application under s. 278.3 of the Criminal Code .

[ 8 ] The appellant’s application was dismissed on May 11, 2022, by the First Preliminary Inquiry Judge.

She found that the appellant’s requests for more disclosure and for the attendance of the additional witnesses were based on speculation and were also irrelevant to the question to be answered at the preliminary inquiry: … At best, the applicant is simply speculating on what these witnesses might say… In my view, with the exception of [the complainant], none of these witnesses relate to the preliminary inquiry's overall core purpose which is whether there's a sufficient basis to commit the applicant to stand trial. The request to call these witnesses at the preliminary inquiry is denied.

I find that the disclosure by the respondent is complete to the best of their ability.

The witnesses requested can be called by the applicant at trial. [ 9 ] With respect to the appellant’s application for an order requiring the complainant to appear at the preliminary inquiry to be cross-examined, the First Preliminary Inquiry Judge noted that amendments to the Criminal Code made by the Criminal Law Amendment Act, 2001 , SC 2002, c 13 “were intended to expedite the hearing and circumscribe the scope of the preliminary inquiry.” They are also aimed at sparing vulnerable witnesses from having to testify in court twice.

The First Preliminary Inquiry Judge observed that ss. 540(7) and 540(9) were added to the Criminal Code for these purposes.

She said that “when the Crown gives reasonable notice under section 540(8) to introduce the complainant’s statement under section 540(7) , the determination as to the credibility or trustworthiness of that statement is not conditional upon nor does it require cross-examination except in appropriate circumstances.” Citing R v Martin , 2017 MBQB 34 , rev’d on other grounds, R v CMM , 2017 MBCA 105 , the First Preliminary Inquiry Judge considered that s. 540(9) required the appellant to demonstrate that the proposed cross-examination had a realistic and reasonable chance of affecting the determination about whether there was some evidence upon which a properly instructed trier of fact could convict.

She was not persuaded that it would, stating: … I have carefully reviewed the Affidavit of [defence counsel’s legal assistant], the written and oral submissions of both parties, and the large number of case law provided. The issues outlined by the applicant are matters to be explored at trial. They all go to credibility, and some are based on pure speculation. They are not determinative of the purpose or scope of the preliminary inquiry.

It needs to be kept in mind throughout the entire decision and from beginning to end that a preliminary inquiry judge cannot typically assess credibility, reliability, or generally weigh the evidence. … Based on all the material filed and counsel's able submissions I find that it is not necessary for the respondent to produce [the complainant] for purposes of cross-examination at the preliminary hearing stage.

Both motions are to be dismissed at this time. [ 10 ] After the First Preliminary Inquiry Judge delivered her decision, the appellant’s counsel asked her to clarify whether the dismissal of his application to hear from additional witnesses also prevented him from calling the witnesses himself. The First Preliminary Inquiry Judge confirmed that her decision was “that none of those witnesses are to be called.” [ 11 ] The preliminary inquiry proceeded on July 26-27, 2022. The Crown tendered the complainant’s November statement. The police officer who took the complainant’s statement testified.

The Crown also called the complainant’s mother . The Second Preliminary Inquiry Judge’s reasons for committal were brief: … Although counsel argued the credibility or reliability of the statement which was filed under s. 540(7) , it is clear to me that [the First Preliminary Inquiry Judge] had already decided that issue, when she ordered that cross-examination of the complainant would not be allowed at the preliminary inquiry. The statement that was filed is marked as Exhibit 1.

It provides evidence upon which a properly instructed jury acting reasonably could convict. [JI] is committed to stand trial on the charges in Information #15-20-147… [ 12 ] The appellant then applied to have the decisions of the First Preliminary Inquiry Judge and the Second Preliminary Inquiry Judge reviewed by a judge of the Court of Appeal of Nunavut pursuant to s. 573.1(1) of the Criminal Code .

It states: An application for review may be made by the Attorney General or the accused, or by any person directly affected by the decision or order, to a judge of the Court of Appeal of Nunavut in respect of a decision or order of a judge of the Nunavut Court of Justice (

a) relating to a warrant or summons; (

b) relating to the conduct of a preliminary inquiry, including an order under subsection 548(1); (

c) relating to a subpoena; (

d) relating to the publication or broadcasting of information or access to the court room for all or part of the proceedings; (

e) to refuse to quash an information or indictment; or (

f) relating to the detention, disposal or forfeiture of any thing seized under a warrant or order.

[ 13 ]

Section 573.1(3) delineates the scope of a reviewing judge’s jurisdiction. Relevant for this appeal are the following grounds for review: The judge of the Court of Appeal of Nunavut may grant relief under subsection (4) only if the judge is satisfied that (

a) in the case of any decision or order mentioned in subsection (1), (

i) the judge of the Nunavut Court of Justice failed to observe a principle of natural justice or failed or refused to exercise the judge’s jurisdiction, or … (

d) in the case of a decision or order mentioned in paragraph (1)(

c) or (d), that the judge of the Nunavut Court of Justice erred in law. [ 14 ] The appellant argued that the Second Preliminary Inquiry Judge who ordered him to stand trial based on the complainant’s November statement made a jurisdictional error because she failed to assess whether the statement was credible or trustworthy as required under s. 540(7) of the Criminal Code . The appellant maintained this determination was not made by the First Preliminary Inquiry Judge who dismissed his earlier application.

The appellant also argued that both preliminary inquiry judges erred by denying him the opportunity to cross-examine the complainant pursuant to s. 540(9) and by prohibiting him from calling additional witnesses pursuant to s. 541(5). Section 541(5) states: Subject to subsection 537(1.01), the justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection,

section 540 applies with any modifications that the circumstances require. [ 15 ] Section 537(1.01) of the Criminal Code gives preliminary inquiry judges the power to “limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.” This power is given for the purposes of s. 537(1)(i), which authorizes preliminary inquiry judges to “regulate the course of the inquiry in any way” to promote a fair and expeditious inquiry in “the best interests of the administration of justice.” [ 16 ] It was the Crown’s position the appellant had “kind of conceded” that the complainant’s statement was credible or trustworthy.

In any event, the Crown argued, both preliminary inquiry judges had ruled on the question and their decisions were intelligible. Counsel also noted that defence subpoenas at preliminary inquiries were rare, and that the appellant’s concerns were trial concerns not preliminary inquiry concerns.

Finally, the Crown argued there was ample evidence to justify ordering the appellant to stand trial and no substantial wrong or miscarriage of justice had occurred. [ 17 ] The NUCA Reviewing Judge rejected the appellant’s argument that no determination had been made respecting the credibility and trustworthiness of the complainant’s November statement. Reading the decisions in the context of the record, the NUCA Reviewing Judge found that both preliminary inquiry judges implicitly made that finding.

This being the case, and contrary to the appellant’s contention, the NUCA Reviewing Judge found no jurisdictional error on the face of the decision ordering the appellant to stand trial. [ 18 ] In addressing the other alleged errors, the NUCA Reviewing Judge assumed for the sake of the appellant’s argument that his authority to review decisions “relating to a subpoena” under s. 573.1(1) (

c) applied to subpoenas issued in the context of preliminary inquiries. He went on to review whether the First Preliminary Inquiry Judge and the Second Preliminary Inquiry Judge “failed to observe a principle of natural justice or failed or refused to exercise [their] jurisdiction”, and also whether they were “wrong in law, incorrect in law to do what they did in terms of interpreting the role of ... themselves as preliminary inquiry judges [under s. 548] ... and also wrong in law in relation to the

interpretation of ss 540(7) and (9) of the Criminal Code ”. [ 19 ] The NUCA Reviewing Judge applied the correctness standard of review to these related questions.

He determined that the First Preliminary Inquiry Judge who dismissed the appellant’s application was “not outside the boundaries of” s. 548 of the Criminal Code and the goal of a preliminary inquiry to focus on the “one statutory purpose to a preliminary inquiry, namely, determining whether the accused should be committed to stand trial or discharged”, and to say, as she did, that the nature of the inquiries proposed by the appellant went to matters that “were substantively issues that a trial judge ... or a jury would have to deal with, namely, credibility and reliability of the complainant and s 278 screening ...”.

Finding no jurisdictional error or error in law in the way the First Preliminary Inquiry Judge, or the Second Preliminary Inquiry Judge who ultimately committed the appellant to stand trial, handled the matter, the NUCA Reviewing Judge determined there was no basis upon which he could interfere with the impugned decisions under s. 573.1 of the Criminal Code . The NUCA Reviewing Judge dismissed the appellant’s application, as he was empowered to do under s. 573.1(4)(g).

Grounds of Appeal [ 20 ] The appellant frames his grounds of appeal as a failure by the NUCA Reviewing Judge to remedy the errors he maintains were made by both the preliminary inquiry judges. The issues raised can be summarized as follows: (

a) Did the NUCA Reviewing Judge correctly assess whether the preliminary inquiry judges made jurisdictional errors by failing to consider whether the complainant’s statement was credible or trustworthy as required by s. 540(7) of the Criminal Code ? (

b) Did the NUCA Reviewing Judge correctly assess whether the preliminary inquiry judges erred in their

interpretation of the purpose and scope of preliminary inquiries and thereby fettered their discretion under ss. 540(9) and 541(5) of the Criminal Code ? [ 21 ] The appellant’s counsel (who was not trial counsel) asks this Court to refer the matter back to the Nunavut Court of Justice, with a direction that the complainant be made available for a remote cross-examination. He makes no request in relation to the other witnesses, conceding that the disclosure the appellant received from the Crown contains the information necessary for a production of

records application under s. 278.3. Standard of Review [22] Pursuant to s. 573.1(7) of the Criminal Code: An appeal lies to the Court of Appeal of Nunavut against a decision or order made under subsection (4). The provisions of

Part XXIapply, with any modifications that the circumstances require, to the appeal. [23] On an appeal under this section, the appellate court has two questions to decide: whether the reviewing judge identified thecorrect standard of review, and whether the standard of review was applied correctly to questions falling within the scope of thereviewing judge’s supervisory jurisdiction as defined by s. 573.1(3).

On these questions, no deference is afforded to the reviewing judge:R v Hehr, 2021 ABCA 161 at paras 11-13; R v Eckstein (SM), 2012 MBCA 96 at para 13; R v Hyra (J), 2013 MBCA 59 at para 7, leaveto appeal to SCC dismissed, 35891 (7 August 2014); CMM at para 7.

Decision The complainant’s statement was found to be credible or trustworthy [24] Reasons must be read as a whole and in the context of the record: R v REM, 2008 SCC 51 at para 16, citing R v Sheppard,2002 SCC 26 at paras 46, 50 and R v Morrisey (1995), (ON CA), 22 OR (3d) 514 (CA) at 524, 97 CCC (3d) 193.Neither preliminary inquiry judge explicitly stated that they found the complainant’s statement credible or trustworthy for the purposesof s. 540(7) of the Criminal Code but this alone is not a basis upon which the NUCA Reviewing Judge could interfere with the decisioncommitting the appellant to stand trial.

Nor do isolated statements read out of context justify that result: R v GF, 2021 SCC 20 at paras69, 76; R v Stirling, 2008 SCC 10 at para 13 citing R v Davis, (SCC), [1999] 3 SCR 759 at para 103, 179 DLR (4th)385; R v Gagnon, 2006 SCC 17 at para 19. [25] The NUCA Reviewing Judge correctly considered whether the reasons of the First Preliminary Inquiry Judge and the SecondPreliminary Inquiry Judge, read in the context of the record, revealed a logical connection between the decision made and the legallycorrect basis for it. He determined that they did. The NUCA Reviewing Judge’s analysis reveals no error of law.

His conclusion that bothpreliminary inquiry judges turned their minds to the question and thus made no jurisdictional error is entitled to deference. [26] From a standard of review perspective, this ends the matter. However, for the appellant’s benefit we will say that we alsoagree with the NUCA Reviewing Judge. One of the reasons the appellant’s trial counsel made an application under s. 540(9) to cross-examine the complainant was to determine whether the statement the Crown sought to rely upon under s. 540(7) was credible ortrustworthy.

During the hearing before the First Preliminary Inquiry Judge, the appellant’s counsel stated: … there will be four issues to determine today and to a large extent they are interrelated.

The first is the use of the complainant’sstatement to the police … pursuant to Section 540(7) of the Criminal Code, and directly related to that is whether or not she should berequired to attend for cross-examination, either as a witness of the Crown, or as a witness of the Court … [27] Contrary to the appellant’s contention, the First Preliminary Inquiry Judge was specifically asked to consider whether thestatement could be considered credible or trustworthy without the complainant being cross-examined.

Consequently, we cannot read thestatement made by the Second Preliminary Inquiry Judge about the First Preliminary Inquiry Judge having “already decided” the issue asinaccurate. The Second Preliminary Inquiry Judge fairly recognized that the question about the credibility and trustworthiness of thecomplainant’s statement was inherent in what the First Preliminary Inquiry Judge was asked to decide. It is also evident that the SecondPreliminary Inquiry Judge turned her mind to the issue.

She concluded that the complainant’s statement “provides evidence upon which aproperly instructed jury acting reasonably could convict.” This is a clear indication she was satisfied the statement met the “credible ortrustworthy” threshold. The appellant’s other questions were correctly reviewed [28] The NUCA Reviewing Judge was also correct in his selection and application of the correctness standard of review when heconsidered whether the First Preliminary Inquiry Judge and Second Preliminary Inquiry Judge erred in the other ways alleged by theappellant.

While the examination and cross-examination of witnesses at preliminary inquiries may serve an ancillary discovery functionin some cases (R v Rao, 2012 BCCA 275 at paras 72-73, citing R v PM, 2007 QCCA 414 at para 86, leave to appeal to SCC dismissed,32051 (25 October 2007)), the NUCA Reviewing Judge correctly observed that preliminary inquiries have one statutory purpose; that is,to decide whether the Crown has sufficient evidence to warrant committing the accused to stand trial.

That this is the core or primaryfunction of the preliminary inquiry is well established: R v Hynes, 2001 SCC 82 at paras 30-33; R v Russell, 2001 SCC 53 at para 20; R vSazant, 2004 SCC 77 at para 14; R v SJL, 2009 SCC 14 at paras 22-24; R v Bjelland, 2009 SCC 38 at para 36. [29] Following R v Stinchcombe, (SCC), [1991] 3 SCR 326, 8 CR (4th) 277, the role of the preliminary inquiry asa form of disclosure has been significantly reduced: Bjelland at paras 35-36; SJL at paras 23-24; CMM at para 13. Amendments to theCriminal Code reflect this.

The NUCA Reviewing Judge was correct when he said that Parliament has signaled its intention to limit therole of preliminary inquiries, or put another way, “to start cutting back on ... the use of preliminary inquiries and in this instance cuttingback on how they operate and what kind of evidence can be used”. As the Manitoba Court of Appeal stated in CMM at para 6: These provisions [540(7) and (9)] and others, such as section 537(1.1), were changes made to the rules of evidence for preliminaryinquiries introduced by the Criminal Law Amendment Act, 2001, SC 2002, c 13.

Parliament’s intent was to, without abolishing thepreliminary inquiry altogether, streamline its use; reduce pre-trial delay; minimize inappropriate questioning of witnesses, particularly

sexual assault complainants; and provide the Crown with “an alternative method” of presenting its case than by the ordinary course ofcalling viva voce evidence (R v Rao, 2012 BCCA 275 at para 62; see also R v M (P) (2007), 2007 QCCA 414 , 222 CCC (3d)393 (Qc CA) at paras 68-73; and R v Vasarhelyi, 2011 ONCA 397 at para 44). [30] The legislative scheme gives preliminary inquiry judges broad discretion to determine how to proceed in the circumstances ofeach case having regard to the purpose of the preliminary inquiry process as rationalized by Parliament.

Neither the preliminary inquiryjudges nor the NUCA Reviewing Judge decided otherwise. [31] The First Preliminary Inquiry Judge described the appellant’s request to have a multitude of witnesses called for the purposeof obtaining information for a potential s. 278.3 application as “way beyond the purpose and the scope of the preliminary inquiry” and“completely inappropriate.” The appellant says this conveyed an unacceptably narrow view of the purpose and scope of the preliminaryinquiry.

However, he overlooks that the First Preliminary Inquiry Judge’s statements were made in a context where further disclosurewas neither necessary nor available. [32] As noted by Fairburn JA, albeit in obiter, in R v PS, 2019 ONCA 637 at para 41, citing R v B(E) (2002), (ON CA), 57 OR (3d) 741 (CA), 162 CCC (3d) 451, leave to appeal to SCC dismissed, 29082 (12 December 2002): ... an appropriately limited cross-examination to set an evidentiary foundation for a third party records application will sometimes beconsistent with the discovery function of the preliminary inquiry. The question is one of relevance.

As Cronk J.A. said, at para. 49, “whatis necessary … is a determination of the relevance of each proposed question having regard to the purpose of the preliminary inquiryprocess” (emphasis in the original). Here, the appellant already had sufficient information to bring a s. 278.3 application and included in the list of proposed witnesses wereindividuals who had not yet been identified. In this respect, the appellant sought further investigation.

While the Crown has an obligationto make reasonable inquiries of other state agencies once it becomes aware that certain records exist, the Crown is not required toinvestigate the existence of records at the defence’s request: R v Awashish, 2018 SCC 45 at para 25 citing R v McNeil, 2009 SCC 3 atpara 49.

There is no fundamental error of law in the First Preliminary Inquiry Judge’s conclusion that what the appellant was requestingin relation to subpoenas for additional witnesses was irrelevant to the core purpose of the preliminary inquiry. [33] The First Preliminary Inquiry Judge also decided that a cross-examination of the complainant was not required to decide thather statement could be admitted under s. 540(7). Further, the First Preliminary Inquiry Judge was not persuaded cross-examination wasnecessary to determine whether there was sufficient evidence to commit the appellant to trial.

The appellant has acknowledged that theissues he sought to address in cross-examining the complainant (and some of the other witnesses) were matters a trial judge or a jurywould have to deal with.

His argument was that it was “important to know what the case at trial is likely to be.” The appellant’s requestsfor an order requiring the complainant to attend the preliminary inquiry to be cross-examined (s. 540(9)) and for permission to calladditional witnesses (s. 541(5)) came down to a decision about whether, in all the circumstances, it was appropriate to grant the reliefsought for the ancillary purposes proposed.

The First Preliminary Inquiry Judge decided it was not. [34] The NUCA Reviewing Judge was careful to note that the decision prohibiting cross-examination of the complainant andlimiting the number of witnesses to be called at the preliminary inquiry involved an exercise of discretion that was beyond the scope ofhis review. We agree. [35] The appellant was given fair notice of the procedure the Crown intended to follow and the evidence it intended to rely upon.He was given a full opportunity to make his arguments.

The First Preliminary Inquiry Judge’s decision to limit the evidence in theappellant’s case to what was relevant to the core purpose of the preliminary inquiry was neither a fettering of discretion nor ajurisdictional error. There was no breach of a principle of natural justice or failure of jurisdiction in the exercise of discretion to refuse theappellant’s requests: see Awashish at para 23; CMM at para 10. Conclusion [36] The appeal from the decision of the NUCA Reviewing Judge is dismissed.

Appeal heard on the 16th day of June, 2023 Memorandum filed at Iqaluit, Nunavut this 13th day of July, 2023 Authorized to sign for: Slatter J.A.

Authorized to sign for: Feehan J.A. Kirker J.A. Appearances: G. Wool For the Respondent R. Clements For the Appellant