Her Majesty the Queen - v. -, 2016 SKPC 13

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 013 Date: January 20, 2016 Information: 46424171 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joshua Dylan Petrin Appearing: Cory Bliss For the Crown Tom Irvine, Justin Stevenson, Student-at-Law For the Constitutional Law Branch R. Claus/M. Jaspers For the Accused JUDGMENT M.D. IRWIN , J [ 1 ] Joshua Dylan Petrin hereafter referred to as “Petrin” was charged as follows: On or about the 16 th of February, A.D. 2013, did knowingly utter a threat to Dave Butler-Kildaw to cause death to Dave Butler-Kildaw, contrary to s. 264.1(1) (

a) of the Criminal Code .

The Information was subsequently amended to read “ . . . did knowingly utter a threat to Kevin Marcoux to cause death to Dave Butler- Kildaw. . .” , by application of the Crown and in accordance with the evidence given at trial. Facts [ 2 ] On February 16, 2013 Petrin was on remand at the Saskatoon Correctional Centre. On that date at about 8:30 p.m. Kevin Marcoux, a Correctional Officer at the Saskatoon Correctional Centre, was making his rounds, checking on the remanded inmates. When he approached Petrin’s cell Petrin asked to go to the Medical Unit to have his vitals checked.

Petrin then asked about a move from his current secure custody unit to a less restrictive alternative placement. Mr. Marcoux advised that the Team Leader was working on a possible move. Once the necessary paperwork was completed he would be able to see Petrin. [ 3 ] At that point Petrin stated that if he talked to Dave he’d kill him and he’d have no problem killing anyone and then went on to state he was the “hardest gangster you’d ever seen”. [ 4 ] Mr. Marcoux testified that Petrin was definitely agitated. [ 5 ] After Mr.

Marcoux completed his range check he prepared a report about the incident for his superior at the Correctional Centre. [ 6 ] At trial Mr. Marcoux testified to what he recalled were the exact words uttered by Mr. Petrin and they were as follows “if he talked to the Team Leader that he’d kill him and that he’d have no problem killing anyone else” and then he went on to state that he’s “the hardest” I believe it was “hardest motherfucking gangster you’ve ever seen and when he makes calls... phone calls he calls his real people”. Mr. Marcoux recalled that at that time the tone of Mr.

Petrin’s voice was elevated and agitated. Petrin was frustrated that he was not being moved. [ 7 ] Mr. Marcoux testified that while Mr. Petrin would have access at times to make telephone calls they could only be made to telephone numbers that had been approved by Correctional officials. He went further and testified that Mr. Petrin was frustrated that he was not able to get moved. At some later point Mr. Marcoux had a discussion with Petrin about the situation and Petrin apologized. [ 8 ] Mr. David Butler-Kildaw testified that he is an Assistant Deputy Director of Programming and as such he supervises two units.

While most of his contact with remanded inmates is through other staff members he testified that he probably had direct contact with Petrin on a total of five occasions. Mr. Butler-Kildaw testified that at his first meeting with Petrin, shortly after Petrin arrived, Petrin asked to be removed from the high security pod area to population. He also requested a cell phone or a portable phone for his cell placement. On that occasion it appeared that Petrin mistakingly believed that Mr.

Butler-Kildaw was someone else named “Darryl” and he became very belligerent, got upset and on that occasion and subsequent meetings when he was upset he always ended with some threats. Mr. Butler-Kildaw recalled a second incident where Petrin became very upset over the fact that his disclosure package arrived later than he expected even though the disclosure package was being transferred between defence counsel. Petrin, at that point, indicated that he believed that Correctional staff were against him and that he was being picked on by staff. [ 9 ] Mr.

Butler-Kildaw testified that on a later occasion the institution was having, as he described it, a lot of difficulties with Mr. Petrin complying with rules and things. In response, he attempted to sit down and have a conversation with Petrin so that some of those issues could be worked out, particularly the belligerence and his threatening attitude. He testified that unfortunately that did not go well and Mr. Butler-Kildaw testified that on one occasion when Petrin sat back and said “that after September whatever happens to me [meaning Butler-Kildaw] is my fate and it’s going to be on direction”. Mr.

Butler-Kildaw felt that this was a further threat. Mr. Butler- Kildaw testified that he had no control over the placement of Petrin and he had told him accordingly. Petrin was further advised that due to his circumstances that based on institutional policy he would remain in the high security area that he was originally placed in. [ 10 ] This case came on for trial on September 23, 2013. At the conclusion of the testimony given by Kevin Marcoux and David

[ 10 ] This case came on for trial on September 23, 2013. At the conclusion of the testimony given by Kevin Marcoux and David Butler-Kildaw, the Court heard arguments on the application by the Crown to amend the Information to substitute Mr. Butler-Kildaw for Kevin Marcoux. On October 22, 2013 a written decision was provided to both Crown and Defence granting the Crown’s requested amendment. Continuation of the trial was set for March 19, 2014. [ 11 ] On March 19, 2014 Mr. Morris Bodnar appeared as an agent for Mr. Klaus and the matter was adjourned to April 3, 2014 to set a trial continuation date.

On April 3, 2014 a continuation of the trial was set to May 22, 2014, but as the Crown had not received the transcript of the evidence to date and was unable to proceed, and the trial was then adjourned to November 6, 2014. On November 6 neither Mr. Bodnar nor Mr. Claus attended nor did either request a leave to withdraw as counsel for the accused. By November 18, 2014 Mr. Petrin was represented by Ms. Val Harvey from Legal Aid. On February 19, 2015 Mr. Petrin was represented by Mr. Kayseas from Saskatoon Legal Aid and the matter was adjourned.

At that time Petrin requested that an order be made that the Court direct a mistrial. The request was denied and the Court expressed the view that it hoped that counsel could be secured for Mr. Petrin so the matter could be concluded. [ 12 ] On April 9, 2015 Mr. Petrin made an application to have a court appointed lawyer and that was denied and Ms. Jaspar went on record as private counsel. The trial then was set for continuation on June 11, 2015 and at the resumption of the trial Ms. Jasper, on behalf of Mr. Petrin, brought an application requesting that Judge Irwin recuse himself from the matter.

Arguments were heard with respect to a Charter application with respect to the recusal of Judge Irwin. The Court at that time denied the Charter application and since the Crown had closed its case, asked the defence if they wished to call evidence. The defence elected not to call any evidence and the Court proceeded to hear argument on the charge; at the conclusion of which the Court found Petrin guilty and sentenced him to four months time served. Since Mr. Petrin was going to continue being remanded for a considerable period of time and not be in a position to pay the victim surcharge it was waived.

Decision on the Threat charge [ 13 ] The Court found that the Crown had proved the required elements for a conviction on the charge of uttering a threat to Kevin Marcoux to cause death to David Butler-Kildaw. Petrin was charged with an offence contrary to s. 264.1(1) (

a) of the Criminal Code . This Code subsection provides as follows: 264.1(1)(

a) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; [ 14 ] The actus reus of the offence charged is the uttering of the words by the accused. As provided in the testimony of Keith Marcoux “if he’d talk to Dave then he’d kill him and that he’d have no problem killing anyone else” and then he went on to state “that he is the hardest motherfucking gangster you’ve ever seen” and “when he makes phone calls he calls his real people”. Keith Marcoux went on to testify that in making the remarks Petrin’s tone of voice was elevated and agitated.

These words are unambiguous and understandable to anyone and would be regarded as a direct threat to the team leader who was David Butler-Kildaw. The Crown bears the burden of proof beyond a reasonable doubt, that the words were intended to be taken seriously, were not a jest and were meant to intimidate.

It was clear from both the evidence of Kevin Marcoux and David Butler-Kildaw that Petrin was angry and frustrated that he had not been able to move from his secure cell to a more open custodial range in the Saskatoon Correctional Centre and he blamed David Butler-Kildaw. [ 15 ] It would have been clear to Petrin that Kevin Marcoux would report to his superior, David Butler-Kildaw the threat that had been made that Petrin would kill him and that he had no problem killing anyone else and further, that he would make a telephone call to his “real people”.

Clearly these words would scare and intimidate Kevin Marcoux and David Butler-Kildaw. The words were spoken in a Correctional facility by a high security risk inmate who had previously had conflicts with the person to whom the threats were directed. Unfortunately, violence is not unknown in Correctional facilities. Petrin intended that his threat to cause death to David Butler- Kildaw was meant to intimidate or be taken seriously. In Mr. Petrin’s case, after the Crown closed its case, the defence elected to call no evidence.

The Supreme Court in R v Clement [1994] 2 SCR 785 at page 762 stated: [9] Thus the question of whether the accused had intent to intimidate or that his words be taken seriously will in the absence of explanation by the accused usually be determined by the words used, the context in which they were spoken and the person to whom

they were directed. [16] The Saskatchewan Court of Appeal in the case of R v Zarubin, 2004 SKCA 14, at para 25 stated: [25] In respect to the burden of proof as to the meaning of the caller’s words, that is whether or not they constituted a threat, thesituation is essentially the same as that with respect to the issue of identity. The trial judge viewed the words spoken in the context inwhich they were spoken and found that the Crown had made a prima facie case that they constituted a threat.

Having done so, it was noerror to say that there was then a burden upon the defence to raise at least a reasonable doubt, and, in the absence of any evidence fromthe defence, conviction would ensue. [17] The Court finds that Petrin is guilty as charged. In terms of sentence, the Court took into account that at some time after thethreat was made Petrin apologized to Kevin Marcoux for his remarks.

Additionally, Petrin was understandably frustrated and angered bybeing confined to his cell for no less than 23 hours per day and by his feelings that he was being picked upon by institutional staff.Despite his bravado, Petrin was limited in carrying out his threats since he was being held in a secure cell and was shackled when he metdirectly with Corrections staff . Because of the nature of the serious charges that Petrin is facing his time in remand will be lengthy. Accordingly, the Court sentenced him to four months time served and the victim surcharge was waived.

Charter application [18] Petrin, through his counsel, filed a Charter application under s. 11(

d) of the Charter of Rights and Freedom requesting thatJudge Irwin recuse himself from the proceedings against Petrin. [19]

Section 11(

d) of the Charter of Rights and Freedoms provides as follows: Proceedings in criminal and penal matters: 11 Any persons charged with an offence has the right (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; [20] Once a breach of the Charter is alleged the onus falls upon the applicant to prove on a balance of probabilities that a breachhas actually occurred. At Mr. Petrin’s trial before Judge Irwin the defence presented no evidence that the trial was not conducted beforean impartial tribunal or that Judge Irwin was biased and not impartial, but rather focused their argument that Petrin’s trial was not heardby an independent tribunal.

The defence advanced the application on two grounds: 1. Temporary Judge Irwin does not have security of tenure with respect to adjudicating this matter; temporary Judge Irwin iscontinuing to hear this case only because of the decision of an appointing authority that occurred mid-trial; 2.

Insofar as temporary Judge Irwin has been appointed a temporary judge for the purpose of continuing to preside over ongoingproceedings, including this proceeding, this is not a purpose for which the appointment of a temporary judge is authorized by legislation. [21] Dealing first with the issue was to whether Judge Irwin had security of tenure with respect to the continuation of Mr. Petrin’strial.

The Supreme Court of Canada in the case of Valenti v The Queen, (SCC), [1985] 2 SCR 673 considered thequestion as to whether a judge of the Provincial Court (Criminal Division of Ontario) was an independent tribunal within the meaning ofs. 11(

d) of the Canadian Charter of Rights and Freedom. The Supreme Court found that the Ontario Provincial Court, CriminalDivision Ontario met the criteria to be an independent tribunal. The Supreme Court of Canada in the case Reference Re Remuneration ofJudges of the Provincial Court of Prince Edward Island et al v The Attorney General of Prince Edward Island et al,

(SCC) , [1998] 1 SCR 3, reaffirmed that judicial independence is a principle that extends to all courts, not just superior courts which are protected by ss. 96 to 100 of the Constitution Act, 1867 . [ 22 ] As stated by Lamer, CJ at para 106: 106 The historical origins of the protection of judicial independence in the United Kingdom, and thus in the Canadian Constitution , can be traced to the Act of Settlement of 1701 . As we said in Valente , supra , at p. 693, that Ac t was the “historical inspiration” for the judicature provisions of the Constitution Act, 1867 .

Admittedly, the Act only extends protection to judges of the English superior courts. However, our Constitution has evolved over time. In the same way that our understanding of rights and freedoms has grown, such that they have now been expressly entrenched through the enactment of the Constitution Act, 1982 , so too has judicial independence grown into a principle that now extends to all courts, not just the superior courts of this country. [ 23 ] The above case also established that the three core characteristics of judicial independence are: 1. Tenure 2. Financial security; and 3.

Administrative independence [ 24 ] Judicial independence has also two dimensions: the individual independence of a judge and the institutional or collective independence of the Court of which that judge is a member. The Supreme Court also held that while Provincial Courts are in effect statutory bodies, in light of their increased role in enforcing the provisions and in protecting the values of the Constitution, Provincial Courts must enjoy a certain level of institutional independence. . . .

I am well aware that provincial courts are creatures of statute, and that their existence is not required by the Constitution. However, there is no doubt that these statutory courts play a critical role in enforcing the provisions and protecting the values of the Constitution.

Inasmuch as that role has grown over the last few years, it is clear therefore that provincial courts must be granted some institutional independence. [1] [ 25 ] Judge Irwin was appointed to the Provincial Court of Saskatchewan in March, 1988 and retired from the Provincial Court as a full time judge having reached the mandatory retirement age on March 31, 2014. Prior to his retirement as a full time judge, Judge Irwin was appointed on February 24, 2014 by the Lieutenant Governor and Council as a temporary Provincial Court Judge pursuant to Order in Council 58/2014.

As the term temporary judge suggests, a temporary judge does not sit full time, but rather sits when required by the Court. Section 17(1) of the Provincial Court Act, 1998 provides that a person appointed pursuant to s. 17(1) [a temporary judge] is deemed to be a judge and “may exercise all the powers of a judge appointed pursuant to this Act ”.

The trial of Petrin came on for hearing before Judge Irwin on September 23, 2013 at which time Judge Irwin was a full time sitting judge of the Saskatchewan Provincial Court. [ 26 ] However, because of a variety of circumstances, the case was not concluded until June 11, 2015 at which time Judge Irwin’s status was as a temporary judge. [ 27 ] The defence contends that Judge Irwin did not have security of tenure at the time that he heard the continuation of Petrin’s case on June 11, 2015. [ 28 ] There was no break in Judge Irwin’s status to act as a judge of the Provincial Court of Saskatchewan.

A temporary judge, such as Judge Irwin, has the same guarantee of tenure as a full time judge of the Provincial Court. Once appointed to the Saskatchewan Provincial Court, either as a full time judge or a temporary judge according to the Provincial Court Act , the appointed judge cannot be

removed from the court or from the list of temporary judges until the individual asks to be removed from the list (s. 18(3)), the individual dies, (s. 18(4)(c)) the Judicial Council recommends the removal for cause following a full inquiry, (4). [ 29 ] Section 15(1) of the Provincial Court Act applies to both temporary judges and full time judges and provides that: Protection against removal from office 15

(1) A judge shall not be removed from office unless: (

a) a hearing has been held pursuant to

section 58; and (

b) the council has recommended the judge’s removal pursuant to s. 62. [ 30 ] It is only after such a hearing before Judicial Council that the Council can recommend the removal of a temporary judge from the list. [ 31 ] The applicant advanced the argument that Judge Irwin did not have the necessary tenure in the Petrin case since “the appointing authority, namely the Chief Judge, had discretion whether to assign the case to Judge Irwin and consequently Judge Irwin lacks security of tenure for this particular case. [ 32 ]

Section 8 of the Provincial Court Act, 1988 , outlines the powers and duties of the Chief Judge. Powers and duties of chief judge 8 In addition to his or her powers and duties as a judge, the chief judge may:

a) designate a particular case or matter, or category of cases of matters, with respect to which a particular judge or particular justice of the peace must act; [ 33 ] This power to designate cases to a particular judge is consistent with the institutional or collective independence of the court. It is the responsibility of the Chief Judge to assign cases in the most effect and efficient manner, a large part of which is assigning particular judges based on location and availability.

It is not the Executive or the Legislature who should or can direct the Chief Judge in the assignment of cases. [ 34 ] The applicant takes the position that s. 17(1) of the Act limits the Chief Judge in his or her ability to appoint a person from the temporary judges list only if a judge is or expected to be absent from his or her duties or in the opinion of the Chief Judge, additional judges are urgently required to meet the business of the court. Temporary judges 17

(1) Subject to subsection (1.2), the chief judge may appoint a person from the list complied pursuant to

section 18 to act in the place and exercise the powers of a judge where:

a) a judge is or expects to be absent from his or her duties pursuant to this Act; or

b) in the opinion of the chief judge, additional judges are urgently required to meet the business of the court. [35] An essential core characteristic of judicial independence is administrative independence which includes not only theadministrative independence of a judge, but more importantly the institutional or collective independence of the court. It is unlikely thatthe legislature in adopting s. 17(1) intended that the Chief Judge would be limited in his appointment of a temporary judge to handle aparticular case, particularly if it offends the powers and duties of the Chief Judge pursuant to s. 8(

a) of the Provincial Court Act, whichpermits the Chief Judge to designate a particular case or matter to a particular judge. However, on June 11, 2015, the day that Petrin’scase continued, both of the conditions, which the applicant contends, limited the power of the Chief Judge to appoint Judge Irwin, wereactually met. On that day Judge Donna Scott was absent because of illness and an additional judge was required to meet the “business ofthe court”. [36] On the day of the continuation of the Petrin trial, Judge Irwin was the only judge who could preside over the continuation ofthe Petrin case.

The Chief Judge did not have the authority to assign the case to any other judge. When Judge Irwin began to hear theevidence he was seized with the case. Judge Irwin could not waive jurisdiction to continue the case to any other judge nor could theChief Judge remove the case from Judge Irwin.

Section 669.1(1) and 669.1(2) of the Criminal Code provide: Jurisdiction/Adjournment 669.1(1) Where any judge, court or provincial court judge by whom or which the plea of the accused or defendant to an offence wastaken has not commenced to hear evidence, any judge, court or provincial court judge having jurisdiction to try the accused or defendanthas jurisdiction for the purpose of the hearing and adjudication.

(2) Any court, judge or provincial court judge having jurisdiction to try an accused or a defendant, or any clerk or other proper officer ofthe court, or in the case of an offence punishable on

summary conviction, any justice, may, at any time before or after the plea of theaccused or defendant is taken, adjourn the proceedings. Only if no evidence has been heard or if the judge is unable to continue can the trial be heard by another judge. [37] The issue of when a judge is seized has been considered by Saskatchewan Courts. In the case of R v Cataract (sub nonSaskatchewan Attorney General) v Saskatchewan (Provincial Court Judge), 1994 SKCA 4616 , 125 Sask R 196 (Sask CA). Inthat case, the Saskatchewan Court of Appeal found that the initial judge, having accepted a guilty plea after hearing a

summary of theevidence, was seized with the case within the meaning of s. 669.1. Since the judge was able to continue with the matter the case couldnot be waived, the initial judge was seized. In Gunn v Parker (SK KB), 1990 8 Sask R 12, (QB), Justice McDonaldfound that once the trial judge began to hear evidence he was seized with the matter. Even though the original judge declared a mistrial,the Court held that the original judge must continue hearing the case.

In R v Balicki, (1961), (SK KB), 131 CCC 331(Sask QB), Chief Justice Bence, held that the trial judge being able to continue with the trial could not waive jurisdiction to anotherjudge even though an allegation of bias had been made. The New Brunswick Supreme Court, Appeal Division, has ruled similarly inReRamsay (NB CA), 1972 8 CCC (2d) 188, the Court answered the question whether a Chief Judge has the power totake a matter away from a judge who has begun to hear evidence. The New Brunswick Court held that the Chief Judge did not have anysuch power.

In that case the Crown challenged a trial judge’s ability to decide a second case when counsel had agreed that evidencewould be heard on one trial and then applied to a second trial which was being held the same day. The Crown argued that the initial trialjudge had pre-judged the evidence since on the first trial he had accepted defence evidence and acquitted the first accused.

In responseto a request of the Crown the Chief Judge purported to remove the case from the original trial judge and assign it to himself to be heard. [38] The Court unanimously held that the Chief Judge lacked any power to move the matter from the trial judge to himself. TheAppeal Court based its decision on its understanding of what was then s. 499(2) of the Criminal Code, which is now s. 669(1) and 669(2)of the Criminal Code. 13 Section 499(1) [of the Criminal Code[ provides for a transfer of jurisdiction where the magistrate “dies or is for any reason unable tocontinue”.

Such a reason could be illness, absence, disqualification or other justifiable cause. In the order or request of the Chief Judgedoes not constitute such a reason. The Chief Judge, appointed by the Province, has administrative duties and functions. He should notand cannot interfere with the judicial discretion of a provincial judge acting as a magistrate under the Criminal Code.

14 As magistrate, the deputy judge may disqualify himself if he considers he may be prejudiced or biased in any case, or this Court mayprohibit him from trying a case if it considers he is or may appear to be biased. The Chief Judge had no such authority. No other reasonis suggested for the transfer of jurisdiction than bias on the part of the Deputy Judge. The desire for a conviction on the part of the Crown does not constitute a legitimate reason for the transfer of jurisdiction. [emphasis added][2] [39] Judge Irwin having heard evidence was seized with the matter and was able to continue. Accordingly, his service was withinthe meaning of s. 17(1)(

b) of the Act “urgently required to meet the business of the court”. Accordingly, since no other judge could hear the case, the application of Petrin was denied and Judge Irwincontinued to hear the trial which ultimately led to Petrin’s conviction. _________________________ M.D. Irwin, J [1] Reference Re Renumeration, supra para 126 [2] Re Ramsay, (NB CA), 1972 CarswellNB 71, 8 CCC (2d) 188