R. v. Derry Date:, 2012 BCPC 64

Citation: R. v. Derry Date: 20120216 2012 BCPC 0064 File No: 27422-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYRELL LEAPER DERRY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: J. Reid Counsel for the Defendant: P. Johnston Place of Hearing: Prince Rupert , B.C. Date of Judgment: February 16, 2012 [ 1 ] THE COURT: This is the trial of Tyrell Leaper Derry on Information Number 27422.

That Information alleges that on or about the 18th day of January 2011, at or near the City of Prince Rupert in the Province of British Columbia, he did, at the trial on Information 25468 in the Provincial Court of British Columbia, commit perjury on making a false statement under oath, knowing it was false, with intent to mislead. [ 2 ] The evidence on this matter started to be called on Monday, February 13th, and concluded today, February the 16th. In total, I heard from four witnesses.

I heard from Constable Brownlee, who was the investigating officer on the original matter, and he told me of his investigation that took place on November 12, 2009, that came to trial on January 18, 2011. Of interest in the fact he stopped a vehicle, he commenced an impaired driving investigation, and arrested Mr. Derry, the accused in this case, for impaired driving, and processed him accordingly. [ 3 ] At all times Mr. Derry protested he was not the driver. It is obvious that the constable did not believe this because he persisted in his investigation, and further, he went and spoke to the passengers.

They were known to be one Oliva Brook [phonetic] and one Mr. James, subsequently who was determined to be a Mike Maskulak. He asked of them who let him drive, and their reply was, "He let himself drive," or it was ascribed to Mr. James or Maskulak. [ 4 ] So it is obvious that the constable did not believe Mr. Derry's protestations, and then the charges were laid.

[ 5 ] I have had a chance to review the original Information in this matter, which I gave at the outset as 25468, and I note that therein the Crown filed an arraignment report, which only detailed the police officers as witnesses. The Crown, in preparing their case and notifying the defence of their case, only replied upon the officers. [ 6 ] During the trial that took place on the 18th of January, the Crown proved its case and Mr. Derry, then unrepresented, took the stand and testified.

He testified in part that he was not the driver and in fact he identified a Mike James, which he subsequently corrected to be Mike Maskulak as the driver. Thus, that leads to the Information that is before me, charging him with perjury, and that he lied at the trial on the 18th day of January. [ 7 ] At the commencement of the trial, there was a short opening by the Crown. My note is, and I do not have who told me this, but the issue was, who was the driver at this trial?

Certainly that is the way that I approached the information that I heard, that that was the issue that was being dealt with. [ 8 ] The Crown, however, in submissions now takes the position that what they are saying is the false statement is that Mike Maskulak was the driver, naming Mike Maskulak as the driver, and in fact they made an application to amend the information to include that specificity to the sole count Information 27422. I denied that application for reasons previously given. [ 9 ] It is of course important for me to remind myself the Crown must always establish its case beyond a reasonable doubt.

The accused is never called upon to prove anything; the Crown must prove its case. [ 10 ] The point I have here, though, is that the Crown is estopped by way of an issue estoppel if they attempt to re-litigate a fact that has been previously found in favour of the accused. Here, Judge Krantz has, in her reasons of January 18th, 2011, conclusively found that she has a reasonable doubt that he is the driver. That cannot be re-litigated. That is the basis of issue estoppel. [ 11 ] Crown there says I should look to the fact that in the testimony of Mr.

Derry at the original trial, he named Mike Maskulak, and I should therefore take Mike Maskulak's evidence given at this trial, and I have the two of them head on with each other, that I should prefer Mr. Maskulak's evidence saying that he was not the driver over Mr. Derry's evidence that he was the driver. [ 12 ] I do not necessarily have a typical W.(D.) situation, that is, the accused has not testified, but I do have his testimony from a previous occasion, and that is what is being used against him.

So if I apply the same principles I would apply in a normal case, I would again remind myself before the accused can be convicted of an offence, the trier of fact must be satisfied beyond a reasonable doubt of the existence of all the essential elements to the offence. Then I must apply the W.(D.) principles. If I believe Mr. Derry, well, I do not necessarily have to come to that. [ 13 ] The second test is more important. If I do not know who to believe, the accused to the complainant, then I must acquit. I do not have to make a choice. [ 14 ] Well, here I have Mr. Derry saying it is Mr. Maskulak. I have Mr.

Maskulak saying, "No, it wasn't me driving." I have the police officer who does not believe Mr. Maskulak, and a police officer who believes Mr. Maskulak masquerading as Mr. James. There are enough lies here to go around for everybody. [ 15 ] The Crown did not particularize its information sufficiently that Mr. Johnson could anticipate what I think is the route the Crown has taken. Certainly I did not.

If I had been requested to grant an adjournment, I would have done so, as I said to the counsel in submissions, and then I would have awaited the Askov application that I am sure would have followed. [ 16 ] I am reminded of the case of R. v. William Peter Brass that came out of this courthouse in early 1981. In that case, Mr. Justice Locke, as he then was, spoke about the fact that justice must be done, justice must be seen to be done, and then he added a clause, and that is, "Justice must seem to be done." [ 17 ] It would be unseemly for me to convict Mr.

Derry based upon the fact the Crown has prosecuted in a shotgun fashion. There was no application made at the original trial to call rebuttal evidence when the importance of the civilian witnesses became clearly known. [ 18 ] Accordingly, stand up, Mr. Derry. I do not believe you any more than Judge Krantz did, but the law requires that I find you not guilty. [ 19 ] Thank you. (REASONS CONCLUDED)