R. v. Gear, 2022 BCPC 141

Citation: R. v. Gear 2022 BCPC 141 Date: 20220615 File No: 36756-1 Registry: 100 Mile House IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALAN EDWARD JR. GEAR REASONS FOR JUDGMENT RE APPLICATION OF THE HONOURABLE JUDGE M. STANFORD Counsel for the Crown: J. Dufour Counsel for the Defendant: G. Wool Place of Hearing: 100 Mile House , B.C. Date of Hearing: March 22, April 8, May 6, 2022 Date of Judgment: June 15, 2022

[1] THE COURT: This is an application by the defence to reopen the trial before a verdict. I am told that following a trial, Mr.Gear read about his case on Facebook and in the local paper. This led to him attempting suicide and resulting hospitalization, anadmission to the Psychiatric Unit in Kamloops, B.C. I am told that while his medications were being adjusted, an alleged assaultoccurred on what I heard was another inmate -- but perhaps that was about a patient in the hospital, Mr. Wool? [2] CNSL G. WOOL: Patient, yes. [3] THE COURT: Yes.

A patient at the hospital while he was "sleepwalking." He has subsequently been charged with thisoffence. The application to reopen is to allow Mr.

Gear to be able to testify about his experience, firstly based on the fact that he is avulnerable person; that this is characterized as "fresh evidence" to allow the court to draw an adverse inference against the Crown forapproving these charges and second this is evidence of the impartiality of the police in properly investigating this new charge. [4] Thirdly, this evidence would speak to a fair trial from the defence's perspective that he doesn't leave the courthouse feeling hewas not heard or that the court doesn't care about him if this application is dismissed by not permitting him to testify about hisexperience.

And fourthly, it was submitted that the right for him to make full answer and defence includes letting him give evidenceeven if it is irrelevant. [5] Crown is opposed to reopening based on authorities that set out the test that the proposed evidence is relevant to a material issueand would prejudice the Crown and require a further delay in terms of the conduct of the trial.

The Crown has submitted that if therewas an allegation of Crown abuse of process in their prosecutorial discretion, this would require an adjournment on their part. [6] Crown argues that the proposed evidence is not relevant to this trial in that: (1) it occurred well after the fact; (2) it is unrelated to the assault on Mr.

Nichol that allegedly occurred two years ago now;(3) the evidence did not exist at trial, it is therefore not fresh evidence related to it; (4), that the issue at trial here is credibility between the accused and the complainant;(5) fresh evidence doesn't mean any evidence; and(6) any issue of the police investigating on this new charge is unrelated to the investigation of the matter on this trial. Essentially, Crown argues this is not new evidence.

It is collateral and unrelated to the issues of this trial. [7] Authorities were provided by both parties; essentially, Crown setting out the test for reopening and defence's authority related tofair trial from the perspective of the accused. [8] I have reviewed and considered all of the authorities that were provided. I find guidance in R. v. Hayward, Ontario Court of Appeal. And, of course, the overriding principle of an accused's right to a fair trial at all stages of the proceedings. Hayward states that the trial judge has a discretion to permit either party to tender further evidence.

In exercising this discretion, thecourt must (1) consider whether the proposed evidence is relevant to a material issue. If it is not relevant, it ends there. (2) potentialprejudice to the other party; and (3) the effect of reopening on the orderly and expeditious conduct of the trial. [9] Defence gave full submissions as to why his client would want to be heard today. However, I am not satisfied the submissionsrelated to proposed evidence is or are related to a material issue in this case. The issue I need to consider at trial will be credibility.

Theproposed evidence, as submitted, is about police and Crown conduct related to an event that occurred after submissions were closed. The proposed evidence focuses on events that occurred subsequent to this trial and that resulted in a charge unrelated to the present trial. None of this, in my view, is relevant to a material issue in the trial before the court today.

It is solely related to issues of a new charge ofa new assault. [10] Accordingly, I dismiss the defence's application to reopen essentially on its merits and having determined this, the proposedevidence is not relevant to a material issue, I need not consider potential prejudice to the Crown, nor the orderly and expeditious conductof the trial. [REASONS CONCLUDED)