R. v. Johnny and Johnny Date:, 2013 BCPC 420

Citation: R. v. Johnny and Johnny Date: 20130611 2013 BCPC 0420 File No: 32040-6 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BLAKE BOB JOHNNNY and PERRY DICKSON WAYLON JOHNNY RULING AT PRELIMINARY HEARING RE: S. 540(7) ‘CREDIBLE OR TRUSTWORTHY’ OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: J. Dufour Counsel for the Accused B. Johnny: M. Barbour Counsel for the Accused P. Johnny: A. Kaiser Place of Hearing: Williams Lake , B.C. Date of Hearing: May 15, 2013

Date of Judgment: June 11, 2013 [ 1 ] This is my Ruling on the Crown’s application pursuant to s. 540(7) of the Criminal Code to adduce part of its case at the Preliminary Inquiry in this matter by written documents rather than vive voce evidence. [ 2 ] The Crown has tendered a binder with 24 tabs containing the following kinds of material: audio CD of police radio transmissions, Affidavits of Ownership, witness statements from 8 different civilian and police witnesses, two reports from Cpl.

Robinson who specializes in crime scene investigation (“Identification Section” report), two DNA Bank notifications concerning the two accused, various pieces of information concerning the obtaining of DNA samples from the accused and the analysis of same and proof of notice of same to the accused, a report by a collision analyst and an exhibit flow chart. [ 3 ] Crown Counsel made verbal submissions on the day this application was spoken to in court.

At my request, defence counsel have provided brief written submissions on the question of whether or not the items contained in the Crown’s “Evidence Book” are “credible or trustworthy in the circumstances of the case”: s. 540(7) . It is anticipated that, depending on how I rule on the s. 540(7) issues, counsel for the accused will be bringing their own application to examine or cross examine witnesses pursuant to s. 540(9). [ 4 ] Identity would appear to be a central issue in this case.

It would appear from my, admittedly, limited knowledge of this matter, that none of the witnesses can identify the person or persons who were present at critical points in the narrative, namely, at the point the pick up truck was stolen, at the point the liquor outlets were entered, at the point of the encounter with Mr. Leon and Mr. Jimmie at the Dairy Fields or with the police shortly thereafter. It would appear that the only evidence connecting Mr. Perry Johnny to this matter is that his DNA was found on a beer can located in the pick up truck after it was stopped using a spike belt.

Blake Johnny was found in the passenger seat but, it appears, was heavily intoxicated. [ 5 ] As a first step I will mark the Crown’s “Evidence Book” as Exhibit A (subject to argument) on this application. [ 6 ] Mr. Barbour argues that the issue of whether certain of the witnesses were under the influence of alcohol to any degree at the time they made the observations set out in their statements is not canvassed in their statements. Therefore, Mr.

Barbour argues, it is impossible for the court to satisfy itself that these statements meet the threshold test set out in s. 540(7) of being “credible or trustworthy in the circumstances of the case.” [ 7 ] Mr. Kaiser supports this submission and adds the following comments as it concerns all of the civilian statements: “The statements are not sworn testimony. There is no indication of an intention to tell the truth. There is no indication that it is complete. There is no consequence for inaccuracy or dishonesty.

The Court has not been provided with criminal records or any other records in the possession of the Crown or RCMP that would provide an indication of the trustworthiness or lack of trustworthiness of the individual. Other issues such as drinking problems, mental health issues and personal motivation will all affect credibility and trustworthiness.” [ 8 ] I agree with each of the points made by defence counsel – although I do not think that assists them on this application. I agree that when all that the court is provided with is “paper” – with unsworn, written witness statements – much is potentially missed.

Any lawyer who has experience with calling vive voce evidence from witnesses knows how different that evidence can end up being from what was expected from a review of the statement. However, Parliament has, apparently, contemplated exactly this problem and said that, in the case of a preliminary inquiry, a witness statement can be sufficient.

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. ” [Emphasis added] [ 9 ] Sworn witness statements (so-called “K.G.B. statements”) are sometimes admissible in evidence at a trial but unsworn witness statements never are except perhaps by consent. Despite that, this

section opens the door to “information that would not otherwise be admissible” and specifically includes “a statement that is made by a witness in writing or otherwise recorded.” In my view this includes unsworn witness statements such as those included in Exhibit A. [ 10 ] When assessing whether a witness statement is “credible or trustworthy” I am to consider it in the context of “the circumstances of the case”. Put another way, are there circumstantial guarantees of trustworthiness? In the case at bar, for example, when all of the items in the ‘Evidence Book’ ( Exhibit

A) are examined, each of the statements appears to fit within the same time frame and geographic sequence. They appear to be consistent with – or at least, not inconsistent with – the physical evidence in the case. The narrative that roughly emerges is of a pickup truck of a given description going missing at an approximate time and a location that is consistent with the other events described.

It is not as if the Affidavits of Ownership indicate that the pick up truck went missing in quite a different location in the province on quite a different date. [ 11 ] A pickup truck of a similar description is described by the witnesses moving from the Overlander Cold Beer & Wine Store to MacKenzie Avenue where the Huston Agencies warehouse is located, to the Dairy Fields, to the exit of the Dairy Fields and, ultimately, to the location where the spike belt was deployed and the pickup truck finally came to a stop.

The witnesses give somewhat consistent descriptions of the pick up truck involved and of the type of clothing worn by the occupants of the truck. [ 12 ] It is not as if the statements are referring to apparently quite separate events happening at some other time or some other place. There is a coherence to the items in the ‘Evidence Book’ even if they fall far short, as a whole, of proof beyond a reasonable doubt of any one of the counts on the Information.

[ 13 ] In my view the fact that the witness statements tendered in this case fail to address the points raised by Mr. Barbour and Mr. Kaiser does not mean that they fail the test for admissibility set out in s. 540(7) . In enacting that

section Parliament was signaling a new approach to how evidence would be heard at preliminary inquiries. Parliament contemplated that the regular rules of evidence would no longer always be determinative of admissibility. The new determinant of admissibility is “information” that is “credible or trustworthy within the circumstances of the case”.

Clearly, by specifically allowing written or recorded witness statements, Parliament also contemplated that not all evidence admitted would have been subjected to the test of cross examination. [ 14 ] The witness statements of Edge, Wakefield, Leon and Jimmie are unsworn and they fail to cover the degree to which the witnesses observations were affected by alcohol and they fail to cover issues such as the criminal record, if any, of the witness, mental health issues, bias, personal motivation or any of the many other issues that can effect credibility at a trial.

However, on their face and “in the circumstances of the case” – in the context of other evidence contained in Exhibit A – they appear to me to be “credible or trustworthy”. I find that this threshold has been established on a balance of probabilities. [ 15 ] As for the other materials in Exhibit A, Mr. Kaiser argues that the statements of the RCMP officers (this would include the statements of Csts. Bezaire and Hendrickson at Tabs 12 and 13 and the reports of Cpl. Robinson and Cpl.

Erickson at Tabs 14, 15 & 23) cannot be assessed for credibility or trustworthiness because the Crown has failed to include any information about their disciplinary record(s), if any. [ 16 ] The Crown does, of course, have a standing obligation at common law to disclose records “relating to findings of serious misconduct by police officers involved in the investigation against the accused…where the misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused”: R. v. McNeil, 2009 SCC 3 , at ¶ 15 .

I will assume the Crown has already complied with that obligation. [ 17 ] If a police witness has a disciplinary record that does not relate to this investigation or which could not reasonably impact on the case against the accused then, of course, this falls outside the Crown’s disclosure obligation and the onus would shift to defence counsel to bring an application for third party records before the trial judge to obtain such information. (Of course, it may be difficult for the accused to develop an evidentiary basis for such an application if there is no opportunity to ask the police witness questions – however, I think this is an issue better canvassed on an s. 540(9) application.) [ 18 ] In my view, the police statements contained in Exhibit A (including the reports of Robinson and Erickson) appear to be “credible or trustworthy”.

I find that the test set out in s. 540(7) has been met on a balance of probabilities. [ 19 ] Counsel have not raised an issue with the other materials in Exhibit A. I have reviewed each item and I find that each meets the test in s. 540(7) . [ 20 ] In

summary, I find that the contents of Exhibit A are admissible in evidence at the preliminary inquiry pursuant to s. 540(7) . I therefore direct that Exhibit A be marked as Exhibit 1 when the preliminary inquiry commences. [ 21 ] Based on counsel’s comments when this matter was last spoken to, I anticipate that the next step is an application by each of the accused to examine or cross examine some or all of the witnesses referred to in Exhibit 1, pursuant to s. 540(9). If such an application(

s) is filed then I direct that counsel file brief written submissions rather than setting aside court time for oral submissions. [ 22 ] In hopes of assisting counsel to streamline their submissions I can say that, from what I know of the matter at this point, I would be inclined to find that cross examination of the witnesses Edge, Wakefield, Leon and Jimmie would be “appropriate” at least for the reason raised by Mr. Barbour – the effect of alcohol on the ability to observe and recall events. To be quite clear: defence counsel need only state that they wish to cross examine these witnesses.

They do not need to argue the point further. It will be for Crown to dissuade me as it concerns these witnesses. [ 23 ] I can also say that I would be inclined to grant reasonably wide latitude to defence counsel to “discover” these witnesses on the alcohol issue and other issues. I am inclined to believe that would be “appropriate” given the very real issue of identity in the case of each accused. [ 24 ] As it concerns other witnesses, defence counsel will need to argue their 540(9) case more fully. Crown can respond. The timing of submissions will hinge on when the preliminary inquiry is scheduled to commence.

If it is still 3 months or more away, I propose that each party have two weeks to file their submissions. I will then attempt to provide a ruling within 2 weeks. I hope that this will result in the 540(9) process being concluded in under 2 months. If the preliminary inquiry is scheduled to commence sooner than about 3 months from now then I rely on counsel to shorten up the time frame for their submissions accordingly and I will attempt to do the same as it concerns my ruling. ________________________ E. L. Bayliff Provincial Court Judge