R. v. Moore Date:, 2014 BCPC 135

Citation: R. v. Moore Date: 20140502 2014 BCPC 0135 File No: 35964-2-C; 35964-3 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COLE ANDREW MOORE ORAL RULING RE APPLICATION TO RE-ELECT OF THE HONOURABLE JUDGE P.M. DOHERTY Counsel for the Crown: S. Harkness Counsel for the Defendant: D. Evans Place of Hearing: Courtenay , B.C. Date of Hearing: April 24, 2014

Date of Judgment: May 2, 2014 [1] THE COURT: The accused, Cole Andrew Moore, is charged on Indictment 35964-C-2 with a number of drug offences from27th March 2012. These include production of marihuana, possession of marihuana exceeding three kilos for the purposes of trafficking,possession of cocaine for the purposes of trafficking, possession of heroin for the purposes of trafficking, possession ofmethamphetamine and other drugs, on an eight-count information. [2] Mr. Yeo, a very experienced criminal lawyer, appeared before this Court with his client and elected trial by Provincial CourtJudge.

At some later point Mr. Yeo got off the record and Mr. Evans got on. [3] The election of Provincial Court Judge took place July 4th, 2013, when Mr. Yeo was still counsel. A trial date of March 10th,2014, was fixed. Mr. Yeo's application to be removed as counsel was accepted on the 30th of January 2014, some months in advance oftrial. Mr. Evans then came on as new counsel, and the trial date was cancelled. [4] The accused now brings application to re-elect. No affidavit was filed by the accused to support his motion. [5] Mr. Evans made submissions. In the course of those submissions, Mr.

Evans explained the background leading up to assumingconduct of this file. [6] Shortly after Mr. Evans got on the record, he went on holidays. It is clear that he did not put his mind to a possible re-electionbetween January 30, 2014, and the very few days that passed before he commenced his vacation. Perhaps that is not fair. Perhaps itmight be better to say he had no opportunity to speak with his client during that period of time. [7] Mr. Evans was unable to meet with his client until March 2014. By then it was too late to re-elect by right, as permitted under561.2 of the Criminal Code.

The original trial date was 10th of March 2014, and therefore, the accused was not within the time limit setout by the section. [8] Crown declined to consent to the re-election. [9] The accused relies on R. v. Bennett, a decision of the Ontario Court of Justice, (1993) (ON CJ), 83 C.C.C(3d) 50. The end result of that case is noted in the headnote which states, "section 561(2) permits an application to the court for are-election notwithstanding lack of consent by the Crown." In Bennett a re-election was deemed warranted in the circumstances of thecase. [10] There are some similarities to the case at Bar.

It is noted at paragraph 2 that on November 13, 1992, Mr. Halberstadt receivednotice from his client that he wished to change counsel. On the trial date new counsel appeared, secured an adjournment, and onNovember 30 new counsel indicated he would be re-electing trial by judge and jury and would seek a date for a preliminary hearing. Crown, relying on the section, refused to consent.

It was the position of the Crown; [para. 3] [The accused] having made a valid election with the advice of counsel on September 9th, he was governed by the provisions of theCriminal Code, and that without the consent of the Crown at that time, he could not now make a re-election. [11] The issues as set out by Judge Lane are set out in paragraph 4. [1.] the jurisdiction issue. Was there a valid election and a validwaiver? [2.] Does Section 562(1) violate the right of the accused? A fundamental justice issue under Charter not raised in the case atBar.

I do not have to deal with that. [12] As Justice Toy in our province said, in Diamonti v. The Queen, (1982) 61 C.C.C (2d) 482 at 488, the issue is procedural andnecessarily incidental to the powers of any trial judge to consider this type of application. [13] The validity of the initial election is not called into question, and similarly in the case at Bar, counsel was experienced.

Bennett,paragraph 10: …an experienced counsel, called to the bar of Ontario in March 1966, who practices exclusively criminal law, and who was certified as acriminal law specialist. . . [14] I would note in Bennett that the former counsel gave evidence. That is not the case here. [15] The learned hearing judge applied the appropriate tests and found, at paragraph 12, that the election of the accused "was a validelection, amounting to a valid waiver at that time of his right to a trial by judge and jury." I so find in the case at Bar.

He goes on to sayat paragraph 13: In my view, where accused persons are represented by experienced counsel, it is a very dangerous precedent for a judge to go behind therepresentations of the counsel to assess whether what the lawyer has said in court has been fully and completely understood by his or herclient. [16] There is no evidence before this Court that the client did not completely understand the advice being given to him by Mr. Yeo.

[17] The judge sets out the rationale for considering these issues at paragraph 21 when he says: …the "collective and societal" interests of the Crown together with those of the accused. It is conceded by the applicant that the purposeof section 561(2) is to avoid last minute re-elections, discourage "judge shopping", and avoid administrative inconvenience to the court. [18] In allowing a re-election, the Court goes on to say at paragraph 22, in part: In my view, there is no further jeopardy to the state in allowing a re-election when the accused returns to court a week later to set a newdate.

The Crown gave no specific reasons for why consent was refused in this particular case and apparently have opposed thisapplication primarily to protect the integrity of the prosecutorial discretion inherent in a literal application of section 561(2). [19] At paragraph 24 he quotes R. v.

Thompson from the Saskatchewan Queen's Bench: …found that in determining whether a particular case was of sufficient merit and substance to warrant re-election in the face of a Crownnon-consent, it is the duty of the judge "to respond with such judgment as fairness and justice require..." and in assessing all thecircumstances "impinging upon the administration of justice in the area; ...fairness and the perception of fairness are paramount in theequation." Paragraph 26: Where the accused has changed counsel and in so doing has gained a greater appreciation of the benefits to be derived from a preliminaryhearing and a jury trial; where that change occurred after the fourteen-day deadline required for the Crown's consent; where new counsel,according to the customary practice, has secured an adjournment of his initial trial date; and a new [trial] date (whether for preliminaryhearing or trial) must be set in any event, fairness and the perception of fairness dictate that a re-election be permitted.

A literalinterpretation of section 561(2) in this circumstance would be arbitrary, and run contrary to the "broad and generous"

interpretation ofstatutes in light of the Charter which the Supreme Court of Canada has commended… [20] These cases represent the ground upon which that the accused wishes to found his argument for a re-election. [21] The difficulty this Court has is that I do not think Bennett is good law, considering the Ontario Court of Appeal decision in R. v.L.E., (ON CA), 94 C.C.C (3d) 228. [22] This was a decision that came after Bennett. I am not sure that the Bennett decision was even referenced. [23] Mr. Justice Finlayson notes at paragraph 26: In fairness to counsel for the accused on appeal, they did not argue that the provisions of s. 561(1)(

c) of the Code were unconstitutionalor even unfair. Their position was that the trial judge had an inherent jurisdiction to review the exercise of discretion by the court inwithholding its consent… At paragraph 27: I cannot accept this proposition. While I do not believe that the Crown has an unfettered right to withhold consent to a re-election unders. 561(1)(c), the court cannot review this exercise of statutory discretion relating to the mode of trial unless it has been demonstrated onthe record that there has been an abuse of the court's process through oppressive proceedings on the part of the Crown.

Paragraph 31, Justice Finlayson notes: I recognize that a trial judge must have some flexibility in ensuring that the prosecution does not overreach when asserting Crownprerogatives. He references a Manitoba Court of Appeal decision, Ruston, and says: Without endorsing the particular decision on its facts, I have no concern about the approach of the Manitoba Court of Appeal in Ruston,that the accused is entitled to make an informed election and should not be held rigidly to time limits which are directed in large part toensuring administrative efficiency.

However, I reject the concept that the trial judge can substitute his discretion for that of the Crownand consent to a late re-election under s. 561(1)(

c) of the Code. In my opinion, based on the authority of Turpin, a trial judge can onlysupplant or ignore the clear language of the Code when constitutional considerations are engaged. The level of intervention in this caserequired a finding that the conduct of the Crown amounted to an abuse of process. [24] Then is the case of R. v. Meister, [2014] A.J. No. 332, out of the Alberta Court of Queen's bench, a decision of Shelley J. This

was an application to dispense with the consent of the Crown under s. 561 for re-election. [ 25 ] By way of background, the accused elected trial in Queen's Bench. A preliminary inquiry did not take place due to the accused's ill health. The PI was rescheduled, cancelled again, and eventually held. [ 26 ] Three days after the preliminary inquiry, Mr. Meister re-elected to judge and jury. There was then a plea agreement, and he re- elected to judge alone. Former counsel was removed. New counsel came on. The plea agreement went nowhere, and Mr.

Meister wanted to re-elect to judge and jury. [ 27 ] The Crown refused consent. There was a challenge to the Crown's refusal, and the issue was whether Mr. Meister was entitled to make what would be his fourth election. [ 28 ] At paragraph 13, the learned judge notes: Both parties rely on the Alberta Court of Appeal's decision in R. v. Ng , 2003 ABCA 1 , leave to appeal to the [Supreme Court of Canada] refused. He then sets out the legal principles: (

i) The exercise of prosecutorial discretion is not immune from judicial review … (ii) Courts have a residual discretion to review prosecutorial discretion for: (

a) an abuse of court process; (

b) violation of fundamental principles of justice … (iii) The basis for a court to probe into prosecutorial discretion arises in the limited case of an abuse of the court's process where the prosecutor's misconduct threatens either the accused's Charter right to a fair trial or the public interest in a fair … trial … (iv) The accused bears the onus of proof, on a balance of probabilities, that the Crown's exercise of discretion amounts to … abuse … (

v) A trial judge may review a prosecutor's discretionary decision where the accused has proven on a balance of probabilities that the prosecutor exercised his discretion abusively … (vi) The Supreme Court of Canada … has not established that there is a corresponding right to a trial by judge alone … (vii) The Crown is not required to articulate the reasons for its decision to refuse consent to re-election, and the failure to provide [such] reasons … is not a basis for judicial intervention … (viii) To constitute an abuse of process, the exercise of prosecutorial discretion must be arbitrary, capricious or for improper motive … (ix) A court ought not to embark upon a review … unless there is an admission, or evidence … supported by an offer of proof [of abuse] … (

x) One of the reasons, and I am paraphrasing here, we have these limits is "to avoid judge shopping." (xi) The seriousness and gravity of the crime are … factors militating in favour of a jury trial … That does not apply here. (xii) Abuse of process in this context includes conduct impairing an accused's Charter rights …, and (xiii) There is no Charter guarantee to be tried by a comfortable court. [ 29 ] Mr. Meister had maintained his election for trial by jury for a period of approximately two years.

He only re-elected to trial by judge alone to accommodate the guilty plea. [ 30 ] The Crown took the position that there was no abuse of process and the standard for establishing abuse of process is very onerous. [ 31 ] The Alberta appellate court notes at paragraph 28: It is clear that the Court need not embark on a review of prosecutorial discretion unless there is an admission, or evidence, or an allegation supported by an offer of proof; and the Crown is not required to articulate the reasons for its decision to refuse consent to re- election … And quoting Ng . Mr.

Meister bears the onus of proving that the Crown's exercise of discretion … would amount to an abuse of process. [ 32 ] There is also the analytical approach noted at paragraph 3: Was the waiver of re-election made with the knowledge and understanding of the applicant? [No suggestion otherwise.]

[ 33 ] Assuming it is a valid waiver is there any reason to conclude that the Crown has exercised its discretion in a manner that justifies intervention by a court? [There is no evidence otherwise.] [ 34 ] There is an issue, of course, of representation and how that works when new counsel comes on and when previous counsel goes off the record. That is addressed at paragraph 35, and it is noted: (

a) When the election was made the applicant was represented by counsel. (b) [When] the applicant claims to have lost confidence in that counsel, there is no allegation that the counsel was either inexperienced or incompetent. [ 35 ] There is no suggestion that the accused lost confidence in Mr. Yeo. There is no reason given why Mr. Yeo withdrew, and it is certainly not the case that Mr. Yeo is inexperienced or incompetent. (

c) The election was made clearly and in accordance with usual court practice. (

d) Although in his affidavit of support the applicant now professes not to have understood … there is no suggestion … to believe that … he did not know and understand that he was electing to be tried by a judge alone. (

e) Without intending to be critical of new counsel, it must be observed that when he was appointed there was still sufficient time to protect the applicant's right to re-elect without the necessity of consent. [ 36 ] It is conceded that the window was very narrow. Mr. Evans came on as counsel and a few days later went on vacation. When he came back and spoke with his client, it was then too late to elect by right. [ 37 ] It was found in Mr. Meister's case that "Mr.

Meister [had] demonstrated, on a balance of probabilities, that the Crown's refusal of consent to his re-election to a jury trial would amount to an impairment of his Charter rights to that mode of trial." The … two elections were as of right and the third was a necessary step in the failed resolution agreement. Refusal at this time might be construed by a reasonable observer as an arbitrary refusal by the Crown, possibly motivated by its frustration with the earlier delays and Mr.

Meister's decision not to proceed with the plea agreement. [ 38 ] Meister differs from the other cases as noted at paragraph 48: It is [clear] to my decision that Mr. Meister's re-election request in January 2013 was solely for the purpose of facilitating a failed plea agreement, that permitting him to re-elect will have the effect of placing him back in the position he had chosen and maintained prior to that date … [ 39 ] The learned trial judge thought that that the Crown's refusal in the particular circumstance of the case constituted an abuse of process which threatened the fair administration of justice.

The re-lection was permitted. [ 40 ] I finally come to R. v. Malakpour , a decision from my bench, [2012] B.C.J. 2471 , Gillespie PCJ. This was an application for a re-election, and it is noted by Judge Gillespie at paragraph 6: Today, May 14th, 2012, is the first day set for trial of this matter. The provision within the section, s. 561, permits Mr. Malakpour 14 days prior to the commencement of the trial [to re-elect] … [ 41 ] The case that I earlier referred to, Ng , is referred to by Judge Gillespie in paragraph 8: The decision of Mr. Justice Wittman, speaking for the Alberta Court of Appeal in R. v.

Ng , is that absent conduct on the part of Crown amounting to an abuse of process, the court has no power to override the Crown's decision refusing to consent … In fact, the Crown is not required to articulate reasons for its decision. The Appellate Court goes on to say: …the Crown's refusal to state their reasons on the record did not amount to evidence of abuse of process. The onus is on the accused person who alleges an abuse to establish it.

Paragraph 11, Judge Gillespie says: So, in the circumstances, having regard to the application before me, together with the decision of Ng from the Alberta Court of Appeal, absent the Crown consenting, I do not have discretion to enter into anything other than trial before a Provincial Court judge. The accused did not change his election 14 days prior to the trial commencing.

Therefore, I have no jurisdiction to commence a preliminary inquiry and for the reasons that I have indicated, I decline to do so. [ 42 ] In the interest of comity, if nothing else, I must agree with Gillespie J. [ 43 ] In my view Meister was decided on it unique facts and is not applicable to the case I am deciding. The correct test is set out in Ng . The Applicant Accused has not shown that Crown abused its discretion to withhold consent to re-elect. [ 44 ] Motion denied. (REASONS CONCLUDED)