2015 MBPC 44, 2015 MBPC 44

Cite: 2015 MBPC 44 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Lavitt, ) for the Crown - and – ) ) Eloi Joseph Roman Catellier, ) S. Newman, Accused ) ) for the Accused ) ) Criminal Code, s. 540(9) Ruling delivered: September 9, 2015 ) RESTRICTION ON PUBLICATION: Pursuant to Criminal Code , s. 539(1) this decision is subject to an order directing that the evidence taken at this preliminary inquiry shall not be published in any document or broadcast or transmitted in any way before such time as the accused is discharged or his trial has ended. R.L.

POLLACK P.J. [ 1 ] What is the point of the Criminal Code preliminary inquiry provisions if, in this domestic violence case, the defence is not permitted to cross-examine the complainant named in the charges?

That is the question posed by Eloi Joseph Roman Catellier who stands charged with the following offences against the complainant: From January 1, 2010 to April 30, 2011 Sexual assault From December 1, 2010 to January 31, 2011 Assault with weapon From January 1, 2012 to January 31, 2012 Assault with weapon From January 1, 2011 to January 31, 2011 Assault From January 1, 2012 to January 31, 2012 Assault From December 1, 2010 to January 31, 2011 Uttering threats Application by the prosecution: [ 2 ] The Crown invokes Criminal Code, s.540(7); instead of calling the complainant as a witness they wish to tender a video recording of a conversation between that complainant and a police officer (“the conversation”).

The provision enables a preliminary inquiry judge to admit the recording: 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.

The provision is party-neutral and is therefore also accessible by the defence. [ 3 ] The prosecution tendered the conversation in a voir dire through the police officer who interviewed the complainant but the defence conceded that it meets the Criminal Code standards of credibility and trustworthiness, thus satisfying the burden of proof upon the moving party: 2. It is conceded that the proposed evidence the Crown seeks to tender can be considered under s. 540(7) .

The Crown can choose how they wish to put the evidence before the Court, the evidence meets the threshold requirement of credible and (sic) trustworthy, and if they would prefer to tender it as a statement rather than by Direct examination, they may do so. Brief and Casebook of the (Accused) Applicant re: sections 540(7) to 540(9) of the Criminal Code Therefore the conversation is admissible evidence in the preliminary inquiry. Application by the defence: [ 4 ] The defence now apply for an order requiring the complainant to appear for cross-examination. In that regard, the Code

continues in s. 540(9): The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7).

They say that this provides authority for a preliminary inquiry judge to grant the order sought. [5] The basis for the application to cross-examine is that the conversation contains insufficient information about where and whenthe offences were committed, it lacks details of the actus reus in some instances and there are other circumstances surrounding the actscomplained of that need to be explored in further discovery of the case to meet.

The prosecution response is that, once the threshold ofcredibility or trustworthiness is met, the conversation is admissible; the complainant is neither a prosecution witness nor a witnessappropriate to appear for cross-examination because that threshold has been met. Preliminary inquiries and discovery: [6] Inherent in the prosecution position is that there exists no right to seek cross-examination of the single crucial witness againstthe accused.

Inherent, too, is the likelihood that, where a credible or trustworthy witness statement is taken in a police investigation,examination for discovery at a preliminary inquiry may be subject to whether the prosecution chooses to access s. 540(7). Certainly thepolice, who already video-record most witness statements before an oath taker, are facilitating that choice. But prosecution choices havealways influenced preliminary inquiries because they have always had the discretion to limit their witnesses and exhibits so as to provideonly a skeletal case that meets the test in United States v.

Shephard, (SCC), [1977] 2 S.C.R. 1067. [7] As confirmed by the five-judge majority in R. v. Bjelland, [2009] S.C.C. 38, the will of the prosecution in this regard is notsubject to Charter of Rights and Freedoms scrutiny: 32 The appellant also says that his right to a fair trial was prejudiced because he was denied the right to cross-examine Friedman andHolland at a preliminary hearing. Cross-examining a witness at a preliminary hearing, however, is not a component of the right to makefull answer and defence.

What is protected under s. 7 is the right to make full answer and defence at trial, not the right to cross-examinea witness at a preliminary hearing. [8] It is easy to document the existence of a preliminary inquiry discovery function. Decades ago, not long after the birth of theCharter, Estey J. observed that: The purpose of a preliminary hearing is to protect the accused from a needless, and indeed, improper, exposure to public trial where theenforcement agency is not in possession of evidence to warrant the continuation of the process.

In addition, in the course of itsdevelopment in this country, the preliminary hearing has become a forum where the accused is afforded an opportunity to discover andto appreciate the case to be made against him at trial where the requisite evidence is found to be present. R. v. Skogman, (SCC), [1984] S.C.J. No. 32. Twenty years later Major J. wrote for a unanimous panel that: The purpose of the preliminary inquiry is to ensure that there is sufficient evidence to commit the accused to trial.

The preliminaryinquiry is therefore a pretrial screening procedure that also serves as a discovery mechanism to the accused: see R. v. Russell, 2001 SCC53 , [2001] 2 S.C.R. 804, 2001 S.C.C. 53 (SCC), at para 20 R. v. Skogman, (SCC), [1984] 2 S.C.R. 93 (SCC),at pp. 105-6. R. v. Savant, 2004 SCC 77 at para. 14. As recently as 2012, McLachlin C.J., in examining the issue whether a niqab ought to be removed by a preliminary inquiry witness,noted: Moreover, one of the purposes of a preliminary inquiry is to permit defence counsel to probe the strength of the Crown’s case by cross-examining its witnesses. R. v.

N.S., 2012 SCC 72 at para. 40. [9] The prosecution cited the Bjelland decision as authority for the proposition that the disclosure standard, expressed for aunanimous panel by Sopinka J.in R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, meets any objection to an inability tocross-examine the complainant. In Bjelland, key witnesses were not disclosed until after the preliminary inquiry and the defence soughtthe opportunity of pre-trial cross-examination as Charter relief.

For the four-judge majority, Rothstein J. wrote that: 36 Although the primary purpose of the preliminary inquiry is to enable a provincial court judge to determine whether an accusedshould be committed for trial, as noted by Martin J.A in Arviv, at p. 560, “the preliminary hearing does serve the ancillary purpose ofproviding a discovery of the crown’s case”. However, if crown disclosures are otherwise complete, then the accused’s s.7 right has notbeen infringed by his not being able to cross-examine a witness at a preliminary hearing.

The discovery purpose at the preliminaryinquiry has been met through other means, such as providing the accused with witness statements. [10] Disclosure certainly can be the functional equivalent of cross-examining a preliminary inquiry witness, e.g. where a witnessmerely verifies the ownership of property or identifies an exhibit that was handled and turned over to someone else.

But the defencecomplaint here is that the conversation does not provide disclosure that satisfies the Stinchcombe standard because of the general termsin which the acts complained of are described. [11] The defence correctly acknowledge that I have no Charter remedy jurisdiction. So, is there authority for me to summon a

witness – not called by the prosecutor – for cross-examination? [12] In considering an application pursuant to Charter, s. 11(

b) for a stay of proceedings in R. v. Boronka, 2012 ONSC 4952,Pomerance J. made these observations (in para. 29): I have difficulty with this approach[1] as it fails to account for the multiple purposes to be served by the preliminary inquiry. Theprimary function of the preliminary inquiry is to screen cases by determining whether there is sufficient evidence to allow the case to goto trial. This is a low threshold and will often be met by the Crown calling a minimal amount of evidence.

However, there is anotherimportant, albeit incidental, function of the preliminary inquiry, namely the discovery of the Crown's case by the defence. Theamendments to the Criminal Code that allow for streamlining of preliminary inquiries have not done away with this function. Parliamentdid not intend to eliminate the secondary discovery function of preliminary inquiries or to convert preliminary inquiries into paperhearings: see R. v. Sonier, 2005 ONCJ 75, 201 C.C.C. (3d) 572; R. v. P.M., 2007 QCCA 414, 222 C.C.C. (3d) 393; R. v. Francis (2005), (ON SC), 202 C.C.C. (3d) 147 (S.C.).

The sentence that I have underlined is the foundation of the defence position that cross-examining the crucial witness is the whole pointof electing to have a preliminary inquiry; the authorities cited, however, do not point to a jurisdiction to override Parliament’s“streamlining of preliminary inquiries” in s. 540. Manitoba’s late arrival: [13] The first decision of note in the Provincial Court of Manitoba concerning these applications came nine years after the enablingCriminal Code amendments. In R. v.

Jessamine, 2013 MBPC 2 the prosecution tendered several witness statements under s. 540(7)which Martin P.J. found to be admissible because they were credible.

In doing so, she emphasized that the evidence of two witnesses to adispute - in which it was alleged that the accused pointed a gun - was “therefore crucial” and held (at para. 29): Though credibility is not an issue for preliminary inquiry and the Crown would meet its burden for committal with the statements alone,to refuse cross-examination would be to deny Defence the opportunity to test the strength of the Crown`s case and explore the credibilityof the complainant.

As already mentioned, this purpose, though ancillary to the primary purpose of sufficient evidence for committal, isstill an important one particularly in cases such as the present. As a result, Defence counsel’s s. 540(9) Application is granted. [14] Martin P.J. quoted extensively from the Quebec Court of Appeal decision in R. v. P.M. (cited by Pomerance J. in Boronka),adopting Rochette J.A.’s analysis of the procedure to enable cross-examination in a case like this.

That procedure was first determiningadmissibility under s. 540(7) and then determining whether the applicant had demonstrated on a balance of probabilities that cross-examination of the sought witness was appropriate. While that procedure is logical and consistent with other legal doctrine in which ajudicial discretion is available once an evidentiary test has been satisfied, it is not found in s. 540. [15] Champagne C.J. recently considered a s. 530(9) application in relation to child witnesses in R. v.

J.M.C., 2015 MBPC 38 andmade these rulings: 35 It is my view that the application to produce the children to testify is to be considered only in relation to the need to decide if theproposed evidence is credible or trustworthy.

I find support for this position in the wording of subsection (9) as it speaks to the purposeof cross-examination in relation to information intended to be tendered as evidence under subsection (7). 36 If the Court finds the evidence to be credible or trustworthy and admits the evidence, it is no longer intended to be tendered andthere is no need or basis for producing the witness to testify.

To require any witness to appear for examination or cross-examination atthat point would defeat the purpose of s. 540(7) and the goal of the preliminary inquiry reforms. (emphasis by Champagne C.J.) The Chief Judge correctly described how, once credibility or trustworthiness is determined, the Criminal Code “reforms” disable cross-examination of what used to be thought of as essential preliminary inquiry witnesses; that it took Manitoba prosecutors so long to accessthem is interesting[2].

Conclusion: [16] In the case before me, upon the admission that the information in the conversation is credible and trustworthy, those “reforms”limit my jurisdiction to considering the “information” only; with great respect for the R. v. P.M. appeal panel, I find no source ofjurisdiction with respect to the witness who provided that information. And there is no other source of authority enabling me to put upthe witness for cross-examination.

Therefore, in my respectful opinion, Martin P.J. exceeded her jurisdiction in Jessamine by grantingan examination for discovery without specific authority, either in the statute or by necessary implication: R. v. Doyle, (SCC), [1977] 1 S.C.R. 597, 602. [17] The Defence application under s. 540(9) is made with candour; they wish to cross-examine at large upon each count in theinformation.

In couching their request within the subsection, however, it becomes tantamount to amending it to read: 540(7) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for: (

a) examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7), or (

b) cross-examination for discovery if, in the opinion of the justice, the information contains inadequate disclosure. This Court has no jurisdiction to read (the underlined) missing words into a statute. Accordingly, I am without jurisdiction under s.540(9) to grant the defence application to order the complainant to appear for cross-examination. Some observations:

[ 18 ] It has not been my experience that counsel in this jurisdiction waste time in preliminary inquiries. In his J.M.C. decision, Champagne C.J. outlined his and his predecessor’s responses to preliminary inquiry reform. In pointing out that “it became clear that the work and effort to pursue the CMCs far outweighed the benefit from this intensive process (para. 28)”, the Chief Judge was referring to the extra burden on the same complement of judges that existed prior to the 2004 Criminal Code amendments.

While it may not be obvious to those unfamiliar with preliminary inquiry practices, Manitoba counsel have distinguished themselves in narrowing the issues and limiting the witness lists for those hearings. Without wishing to seem immodest, I think that it is fair to give some credit to the efforts of the Provincial Court bench in promoting those practices. Of course, these efforts did not include frequent applications to prevent cross-examination of key witnesses. [ 19 ] The prosecution casebook contains the decision of Faulkner C.J. Terr. Ct. (as he then was) in R. v. Morgan, 2006 YKTC 79 .

It contains this cynical view of the role of defence counsel (at para. 21): What Defence counsel really mean when they speak of testing credibility at the preliminary hearing is that they want a chance to have a free run at the complainant. At its most benign, the intent will be to develop a record of the complainant’s story at the preliminary hearing that, with luck, the complainant will contradict at trial.

At the other end of the spectrum, the purpose is to intimidate the witness, making her less willing or less able to undergo the ordeal a second time at trial. [3] Contrary to Faulkner C.J.’s skepticism, preliminary inquiry judges are not without Criminal Code authority to keep the questioning relevant and to prevent the “free run” from getting out of control: 537(1.1) A justice acting under this Part shall order the immediate cessation of any part of an examination or cross-examination of a witness that is, in the opinion of the justice, abusive, too repetitive or otherwise inappropriate.

While the witness experience cannot be made pleasant for the complainant, judges know what is expected of them when a cross- examiner is being abusive and cases in which a witness needs absolute protection should be rare. [ 20 ] What is clear to any court watcher is that frequent resort to preliminary inquiry evidence on paper or digital audio will result in less discovery than what the defence bar has been used to; indeed, it may prompt a need to accommodate more and lengthier trials.

Until recently it was practically unheard of for the prosecution to attempt to prevent crucial witnesses like the complainant from testifying at a preliminary inquiry (other than by preferring an indictment). It is with reluctance that I have arrived at my jurisdictional ruling because its result is in discord with the unanimity of distinguished jurists who have continuously proclaimed the importance of preliminary inquiry discovery, including McLachlin C.J. ( R. v. N.S. ), Estey J. ( R. v. Skogman ), Major J. ( R. v. Savant ), Martin J.A. ( R. v. Arviv ), Rothstein J. ( R. v. Bjelland ), Pomerance J. ( R. v.

Boronka ) and Martin, P.J. ( R. v. Jessamine ). “Original signed by” R.L. POLLACK P.J.