Her Majesty the Queen ) Omar A. Siddiqui ) for the Crown ) v. ), 2012 MBPC 35

CITATION: R. v. Pilkington Citation No. 2012 MBPC 35 Dated: April 2, 2012 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Omar A. Siddiqui ) for the Crown ) and ) ) ) Colleen Pilkington ) Mark Wasyliw ) for the Accused ) ) ) ) Reasons for Decision delivered: ) April 2, 2012 KELLY MOAR P.J. INTRODUCTION [ 1 ] This is an Application that has been brought by the accused and is framed as seeking leave to cross-examine the affiant police officer in a Garofoli Voir Dire during the preliminary hearing.

However, having said that, this matter has proceeded in argument on the basis of whether this accused has the authority to call the said witness in the preliminary inquiry. [ 2 ] By way of background, the accused is charged with three counts of Possession for the Purposes of Trafficking under s. 5(2) of the Controlled Drugs and Substances Act along with a sole count of Possess Proceeds of Crime.

The charges arose out of a CDSA search warrant that was executed at what is said to be the residence of the accused on February 18, 2009 and an accompanying search of an automobile she was located within and arrested. [ 3 ] The accused has elected for a trial before a Court of Queen’s Bench Judge sitting alone and a preliminary hearing date was scheduled. The matter commenced before me on September 29, 2010 and could not be completed during the one day that was set by counsel.

A hearing continued on May 26, 2011 at which time the Crown called their remaining witnesses and closed the case. [ 4 ] Counsel for the accused had made oral representations during the course of the Crown’s presentation of evidence of the desire to hear from the affiant of aforementioned search warrant and again raised that issue at the conclusion of the Crown’s case.

Given the nature of the exchange between counsel, the matter was adjourned to permit counsel to file a motion and allow the Crown an opportunity to fully reply with its position. [ 5 ] Those arguments were heard by me on September 19, 2011. [ 6 ] On September 23, 2011, I indicated to counsel that I was denying the application and these are my reasons.

NATURE OF APPLICATION BEFORE THE COURT [7] As has been indicated, the accused is seeking leave to call the affiant of the search warrant for the purpose of cross-examination. It is stated by counsel for the accused that this is a witness he wishes to examine for the purpose of exploring a possibleCharter issue that may be raised at a subsequent trial, if such is ordered. ISSUE BEFORE THE COURT [8] The issue then before this court was whether the accused, pursuant to s. 541(5) of the Criminal Code of Canada, does have theright to call the affiant as a material witness in these proceedings?

DEFENCE POSITION [9] Counsel for the accused suggests that the court ought to grant leave for the defence to call the affiant as a witness for thepurpose of cross-examination. [10] It is suggested by counsel that the court, in respect to the

interpretation of s. 541(5), ought to take a generous interpretativeapproach rather than a purely legalese approach. In other words, the court ought not to take a narrow technical approach but ratherconsider the purpose of the right as the dominant consideration in any

interpretation. [11] In that regard counsel asks the court to use a functional approach in the

interpretation of that

section and keep in mind thefundamental principles of justice, including the Charter right to make full answer and defence. [12] Counsel advocates that a preliminary hearing does serve as a screening purpose and suggests there are other sub-purposes thathave been recognized in various cases, such as R. v. Drozney [2004] O.J. No. 1487, cited at Tab 8 of the Casebook. [13] In addition, counsel for the accused suggests that cases such as R. v. Hynes, 2001 SCC 82 , [2001] S.C.J. No. 80 (Tab13) and R. v.

Skogman (1984), (SCC), 13 C.C.C. (3d) 161 at 171 a case of the Supreme Court of Canada that is cited inparagraph 12 of the Ontario Court of Appeal case of R. v. Rankin (ON CA), [1995] O.J. No. 1381 (Tab 16), supportthe proposition that the relevance of the preliminary hearing is broader than committal itself.

It is a form of discovery that permits theaccused to appreciate the case and permits or gives the right to explore credibility and other defences that may be available. [14] Counsel suggests that the court ought not to let issues such as protecting a witness from cross-examination or judicial economyto dictate the basis for excluding the request to cross-examine the affiant. With respect to the latter, counsel suggests that it is onlythrough the cross-examination of an affiant that the accused can fully examine the case being faced.

Disclosure does not assist inanswering concerns surrounding possible mistakes made by the affiant or the choice of language used by the affiant, both of which canbe explored in cross-examination. [15] The court, defence suggests, has the discretion to permit the calling of this witness and also has the authority to set out theground rules for the evidence to be enlisted from the witness. This way the appropriate concerns of Crown counsel can be answered.

CROWN POSITION [16] The Crown has taken a rather simplistic and straightforward approach suggesting that upon a reading of s. 541(5), the accused’sability to call witnesses is restricted to calling witnesses who can testify to any matter relevant to the inquiry. [17] In that regard, counsel is not asking for a blanket exclusion of cross-examination of witnesses, but rather is asking the court toconsider for what reason a witness may be called by the accused. [18] Crown counsel begins with the suggestion that a preliminary hearing itself is not a constitutionally protected right.

As such it isnot something that should be grouped into the category of right to make full answer and defence. [19] With that in mind counsel suggests that the purpose the accused wishes to call the witness is not relevant to the purpose of thepreliminary hearing. As for the proper

interpretation of the

section in question, counsel suggests that this court is bound by the decisionof the Manitoba Court of Queen’s Bench in the case of R. v. Gateway Industries Ltd., [2002] M.J. No. 280 (Tab 1). Furthermore, counselsuggests that judicial comity is owed to the decision of my sister Judge Pullan in the case of R. v. Chartrand, 2010 MBPC 52. [20] On this basis, the Crown takes the position that there is no authority for the defence to call irrelevant evidence and that is whatwould be offered by the calling of the affiant at the stage of a preliminary inquiry.

THE RELEVANT SECTIONS OF THE CRIMINAL CODE [21] Section 541(1) of the Criminal Code reads as follows: “Hearing of Witnesses – When the evidence of the witnesses called on the part of the prosecution has been taken down and, whererequired by this Part, has been read, the justice shall, subject to this section, hear the witnesses called by the accused.” [22] Under subsection 541(5), the following is said: “Depositions of such witnesses – The justice shall hear each witness called by the accused who testifies to any matter relevant to theinquiry, and for the purposes of this subsection,

section 540 applies with such modifications as the circumstances require.” [23]

Section 540 deals with the taking of evidence and specifically at 540(1) states the following:

“Taking evidence – Where an accused is before a justice holding a preliminary inquiry, the justice shall (

a) Take the evidence under oath of the witnesses called on the part of the prosecution and allow the accused or counsel for theaccused to cross-examine them; and…” ANALYSIS [24] It is important to note at the outset that the Provincial Court of Manitoba is a statutory driven court that derives its jurisdictionor powers from a statutory source. The provincial court justice does not possess any inherent powers, such as those possessed by thefederally appointed s. 96 Justices. [25] The accused has elected trial before a Queen’s Bench Judge alone with a preliminary hearing, therefore the presiding justicederives jurisdiction from

Part XVIII of the Criminal Code of Canada.

Section 535 sets out the following direction to the court: “Inquiry by justice – If an accused who is charged with an indictable offence is before a justice and a request has been made for apreliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and anyother indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordancewith this Part.” [26] A number of sections within

Part XVIII set out the process and procedure in terms of evidence to be adduced and upon all ofthe evidence heard, the justice then must determine if there is sufficient basis to order the accused to stand trial [s. 548(1)(a)] on theoffences charged or any other indictable offences shown from the same transaction. [27] If, as it is stated, that “on the whole of the evidence no sufficient case is made out” then the accused shall be discharged [s.548(1)(b)] and the matter then comes to an end. [28] What is clear from these sections is that the purpose of a preliminary hearing, as is delineated, is the determination as towhether there is sufficient evidence to commit the accused to trial on the charges before the court or any additional charges from theevidence adduced. [29] Much was made during argument that there is in fact secondary or ancillary purposes of the preliminary hearing and thoseshould be considered by this court. [30] As early as 1984, the Supreme Court of Canada in the case of R. v.

Skogman, (SCC), [1984] 2 S.C.R. 93acknowledged that: “...the preliminary hearing has become a forum where the accused is afforded an opportunity to discover and to appreciate the case to bemade against him at trial where the requisite evidence is found to be present.” [31] Madam Justice McLachlin in the Supreme Court of Canada case of R. v.

Hynes, 2001 SCC 82 , [2001] 3 S.C.R. 623(Tab 13) was very clear in her opening comments that a preliminary hearing is a preliminary review to determine whether there issufficient evidence to proceed to trial. [32] At paragraph 30 Madam Justice McLachlin clearly indicates: “The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committingthe accused to trial.” [33] However, Madam Justice McLachlin did go on in paragraph 31 to acknowledge that there has been and is an ancillary role forpreliminary hearings of acting as a discovery mechanism.

That comment was qualified so as to ensure that it was clear that discoveryremains incidental to the central mandate for the preliminary hearing that is set out in the Criminal Code. [34] In my view, it is this central mandate which has repeatedly been identified that must be at the forefront of any analysis.

Whatother issues are canvassed or brought to light during the course of determining the main issue of whether there is sufficient evidence thatexists to warrant an accused person being committed to stand trial, is simply a by-product of the process. [35] With respect to an accused calling witnesses, s. 541(5) expressly grants an accused the authority to call witnesses.

HadParliament simply indicated that the court shall hear any witness called by the accused, then that witness would be subjected to the ageold maxim that the witness offer evidence that is relevant. [36] However, s. 541(5) reads that the court shall hear each witness who testifies “to any matter relevant to the inquiry”. It is thoselatter words that must be further explored. [37] Madame Justice Duval had the opportunity to consider this very

section in the case of R. v. Gateway Industries, [2002] M.J. No.280 (QB). (Tab 1 of Crown Casebook) [38] In that case, the Crown had brought a motion seeking to quash a subpoena that had been issued requiring Crown counsel toappear as a witness for the defence during the preliminary hearing. The purpose indicated to the court in calling the witness was toexplore and prepare for a potential abuse of process motion at trial. [39] The court briefly examined the preliminary hearing process and reviewed some of the same cases being relied upon by counselat bar.

After reviewing the cases, the court concluded that s. 541(5) expressly limited the basis upon which defence could call witnessesat the preliminary hearing. [40] At paragraph 33 of that decision, the court made the following comment:

“...the defence is limited by s. 541(5) of the Criminal Code to matters relevant to the inquiry. It cannot call witnesses relevant only to thetrial or to pre-trial motions. The matters relevant to the inquiry go to its purpose, being whether there is sufficient evidence to commit theaccused to stand trial.” [41] The court was also very clear that it is defence who has the onus to show that his witness will give evidence that is material.

Asthe witness in that case was being called to deal with a potential abuse of process issue, the court quashed the subpoena that had issued. [42] That decision was noted by my sister Judge Pullan in the 2010 case of R. v. Kareem Chartrand, 2010 MBPC 52. (Tab 2 ofCrown Casebook) [43] Counsel for the accused had brought a motion seeking to cross-examine a police officer in what was termed a “Garofoli VoirDire”.

The crux of the defence argument focused on the idea that the preliminary hearing serves as a discovery mechanism for theaccused and as such, defence counsel should be entitled to call this officer as a witness in the preliminary hearing. [44] Crown counsel took the position that it is the primary purpose dealing with the sufficiency of the evidence to warrant an orderto stand trial that ought to be considered by the court in assessing this motion. The legality of the search warrant, suggested Crowncounsel, is not a matter that is relevant at a preliminary inquiry.

As a result, the motion should be dismissed. [45] After a thorough analysis, Judge Pullan felt bound by earlier decisions and dismissed the motion on the basis that leave to cross-examine the affiant can only be granted by a trial judge, a role she was not sitting as at the time. [46] Of note is the finding at paragraph 27 by Judge Pullan that: “The cross-examination of Constable Berzenji will not elicit anyevidence of probative value to an issue for consideration by the preliminary hearing judge.” [47] Although Judge Pullan chose to dismiss the motion on the basis of a Garofoli type of analysis, it is abundantly clear that sheviewed the evidence as not relevant to the proceedings. [48] Defence counsel has strongly advocated the position that the courts in Ontario have taken in reference to preliminary hearingsand the evidence adduced during that process. [49] I accept that an accused can use the preliminary hearing process as a form of discovery through the examination of witnessescalled by Crown counsel.

It is also fairly clear that counsel for the accused is not restricted only to matters “relevant to the inquiry”during the course of the cross-examination of Crown witnesses. [50] In R. v. Drozny, [2004] O.J. No. 1487 (Tab 8 of defence Casebook), the court was dealing with a situation in which the Crowncalled a series of witnesses and during cross-examination of those witnesses, defence counsel took the opportunity to explore otherCharter related matters.

That line of questioning was objected to by Crown counsel and the court agreed, thus ending any furtherquestioning on issues not relevant to the preliminary inquiry. [51] On appeal, Mr. Justice Dambrot acknowledged at paragraph 15 the following: “...an accused has the right to use a preliminary hearing to test the Crown’s case, to get discovery and disclosure, and to set up theevidentiary basis for challenges to the admissibility of evidence tendered by the Crown at trial.” [52] The court went on to review the existing case law and adopted the reasoning from the case of R. v.

Dawson and Dawson(1997), (ON CA), 123 C.C.C. (3d) 385 in which the court allowed cross-examination that was focused on theexploration of “matters that may be relevant to Charter issues at trial.” [53] In the case of R. v. George, (ON CA), [1991] O.J.

No. 1704 (O.C.A.), (Tab 11 of defence Casebook), theaccused conceded the issue of committal and sought to cross-examine the officers on issues related to the validity of the search warrant.The preliminary hearing judge ended that line of questioning after an objection by Crown counsel and that decision was appealed. [54] On appeal, the Ontario Court of Appeal quoted from the decision of Moldaver J., in the case of R. v.

Cover (1988), (ON SC), 40 C.R.R. 381 2 (pp. 383-384), as follows: “The accused does have a right to use a preliminary inquiry to test the Crown’s case, to get discovery and disclosure, and to set up theevidentiary basis for challenges at trial to the admissibility of evidence tendered by the Crown at trial. It is irrelevant that a voir dire was waived at the preliminary hearing.

Notwithstanding any waiver of a voir dire, the accused still retainsthe right to test the Crown’s case and pin down witnesses on areas that might be relevant at trial.” [55] The Ontario Court of Appeal held that there was no jurisdictional error committed when the preliminary hearing judge chose tolimit the questions posed by defence counsel. [56] What I take from these cases is that an accused is entitled to cross-examine Crown witnesses at a preliminary hearing on issues,such as potential Charter defences, that may have no bearing on the decision a preliminary hearing judge must make on the issue ofcommittal. [57] An accused is entitled to explore the case against while also examining any potential defences with the witnesses called by theCrown.

It is not a carte blanche type of scenario as it is still subject to the discretion of the presiding justice. The questions posed muststill be subject to the guiding factor of relevance and subject to the state of the law as it relates to informants and the like. DECISION [58] Having considered the materials filed by both counsel, the oral submissions made and upon a review of the many cases filed, I

find myself bound by the decision of the Manitoba Court of Queen’s Bench in the case of R. v. Gateway Industries . I thus find: 1. That in general, the calling of witnesses along with the breadth of examination-in-chief and cross-examination is always subject to the courts discretion to permit. 2. That in this case, the Crown chose not to call the officer in question during the course of the preliminary hearing. 3. The calling of witnesses by defence counsel in a preliminary hearing is subject to s. 541(4) of the Criminal Code . 4.

It is the accused who bears the onus of satisfying the court that the witness will testify to matters relevant to the inquiry. 5. That the primary purpose for defence counsel wanting to call this officer was to explore issues related to a possible Charter infringement that could be advanced at a future trial. [ 59 ] On that basis I find that the defence has not met their onus of showing that the proposed witness would testify to matters relevant to the inquiry and does not fall within the ambit of s. 541(5) . The motion is therefore dismissed. Original signed by: KELLY MOAR, P.J.