R. v. Randle Date:, 2011 BCPC 66

Citation: R. v. Randle Date: 20110222 2011 BCPC 0066 File No: 30738-3 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARIN ANDREW RANDLE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: R. Hawkins Counsel for the Defendant: G. J. Wool Place of Hearing: Williams Lake , B.C.

Date of Judgment: February 22, 2011 [ 1 ] THE COURT: I am giving these reasons orally after the conclusion of argument on the application of the Crown to proceed by way of the provisions of the reformed preliminary hearing sections of the Criminal Code , which reforms came about as a result of the 2004 amendments. [ 2 ] The Crown initially applied, as I understood it, to proceed by a straight paper case, that is without witnesses, but in submissions, the Crown has amended their position somewhat to indicate that they intend to call one witness, an undercover operator, and then as well, file what would be called a confession, in some circles, of the accused made to a Mr.

Big. This is a Mr. Big sting. As well, the Crown has agreed to produce a transcript of the Mr. Big scenario, conversation, wiretap, whatever you want to call it, within 30 days and give a copy to the Defence. [ 3 ] In response, Mr. Wool, as he properly should, says, well, I cannot really stop the Crown it is their preliminary inquiry.

Says the Defense, I may, however, wish to reserve my right to make application to call evidence or to argue the committal or to do whatever else is available to me. [ 4 ] I think it is important for me to note for the record that the amendments, as they took place in 2004, have drastically altered the way in which preliminary inquiries are conducted. In the past, certainly those of us who practised before the amendments and those of us who practised even before the Charter , were well aware of the full answer and defence component of a preliminary inquiry.

In my view, that has been taken away by parliament in these amendments. A preliminary inquiry since the advent of Stinchcombe , and the

disclosure requirements and the decision of Mr. Justice Groberman in R. v. Gill (2006 BCJ No. 1378 BCSC); Her Honour JudgeRounthwaite in Cramer [2007] BCJ No. 2499 BCPC; Her Honour Judge Bagnall in McFadden and Rao (2010 BCPC 189 and 2010BCPC 218 PCBC), all indicate that the focus of a preliminary inquiry has changed. [5] As I said in my preliminary remarks to counsel, particularly Mr.

Wool, if the Crown wished to direct indict, there would be noright to a preliminary inquiry; that just requires the consent of the Attorney General. [6] If the accused did not request a preliminary inquiry, which is now a requirement, there would not be one, and there would be anorder to stand trial and the accused could not complain about that. [7] If there is a request for a preliminary inquiry, the rules are very specific, and the direction of Her Honour Judge Baird Ellanwhen she was the Chief Judge May 31st, 2004, makes it plain that the provisions of the

section must be complied with before anyarraignment hearing is concluded and before any dates are set. (I provided a copy of that to counsel.) [8] There is a provision now in the Code that allows the justice presiding at a preliminary inquiry to conduct a focus hearing, and thepurpose of the focus hearing is set out in s. 536.4. It can be convened at the instance of the prosecutor or the defence or the justice.

Iconvened it as the justice who will conduct a preliminary inquiry in this matter. [9] The reason for the focusing is to assist the parties to identify the issues on which evidence will be given at the inquiry.

Next, itis to assist the parties to identify the witnesses to be heard at the inquiry taking into account the witnesses' needs and circumstances andto encourage the parties to consider any other matters that would promote a fair and expeditious inquiry. [10] A focused preliminary hearing is by definition less than a full preliminary hearing because it identifies witnesses; it identifiesissues. [11] In a case called Cheang and Om (2009 BCPC 363 , 2009 BCPC 0363), I held and gave reasons on the fact that after afocused preliminary hearing is held, the fact that committal will occur is a foregone conclusion because such things as identity are nolonger at issue or jurisdiction or other factors.

That seems to be the tenor of the Act. [12] Now, the powers that are given to a justice at a preliminary inquiry set out in s. 537, some of them exist from a time in the past,for example, 537(

f) allows: A justice acting under this Part . . . [to] grant or refuse permission to the prosecutor or his counsel to address him in support of thecharge, by way of opening or summing up or by way of reply on [any] evidence that is given on behalf of the accused; [13] Further, sub (

i) allows the justice to: regulate the course of the inquiry in any way that appears to the justice to be consistent with this Act and that, unless the justice issatisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of factor agreement recorded under subsection 536.4(2) or agreement made under

section 536.5; [14] As well, s. 1.1 under 537 provides: A justice acting under this Part shall order the immediate cessation of any part of an examination or cross-examination of a witness thatis, in the opinion of the justice, abusive, too repetitive or otherwise inappropriate. [15] Justices now are given sweeping powers and there is law that interprets s. 541(5) to say that the only evidence that is relevant tothe inquiry is evidence that would go to whether or not the accused should be committed to stand trial (See R v Earhart 2007 BCSC1965). [16] As I have said, this is a focused preliminary inquiry and it will be conducted as such.

Nothing in the Act leads me to believe thatI have to have the agreement of counsel, but I can and I do impose the terms as I have set out. So therefore, the Crown will be allowed toproceed in the manner that they wish; that is, they may proceed under 540(7). Although, I take it, you are going to have the officertestify under oath or affirmation? [17] MR. HAWKINS: I will have him under oath. [18] THE COURT: So we won't have a credible or trustworthy issue? [19] MR. HAWKINS: No. [20] THE COURT: Okay. That is fine. [REASONS CONCLUDED]