2017 NBPC 1, 2017 NBPC 1

2017 NBPC 01 File Number: 10119205 CANADA PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MONCTON B E T W E E N: HER MAJESTY THE QUEEN - and – LOUIS R. DEBLY DECISION – VUKELICH APPLICATION BEFORE: Judge Denise A. LeBlanc AT: Moncton, New Brunswick DATE OF DECISION: January 5, 2017 APPEARANCES: Ms. Susan Y. Bour, Esq., for the Crown

Mr. Rodney J. Gillis, Q.C., and Charles M. Bryant, Esq., for the accused Louis R. Debly A. INTRODUCTION and BACKGROUND [1] On September 26, 2014, Mr. Louis Raymond Debly (“Mr. Debly”) and another individual C.K. entered into Canada at the port ofentry in St Croix NB. C.K. was the driver of the vehicle and Mr. Debly was the passenger. [2] As a result of a search of the vehicle conducted on September 26, 2014, prohibited firearms parts, which had not been reported ordeclared, were located and seized by the Canada Border Services Agency.

Further investigation conducted by the Canada BorderServices Agency and the execution of a search warrant at Mr. Debly’s residence lead to Mr. Debly being charged with 4 offences contrary to

Section 160 of the Customs Act, R.S.C 1985 c.1 (2nd Supp.) (the “Customs Act”). [3] Initially, the Information also contained a charge that Mr. Debly had committed an offence contrary to s. 94(1) of the Criminal CodeR.S.C. 1985, c. C-46 (the “Criminal Code”) but that charge was later withdrawn by the Crown. [4] Mr. Debly first appeared before the Provincial Court on August 18, 2015 and the matter was adjourned to October 6, 2015 for plea.

On October 6, 2015, he pleaded not guilty and elected to be tried by a judge and jury in regard to the offence contrary to s. 94(1) of theCriminal Code. [5] A preliminary inquiry was held on March 2, 2016 and at the conclusion of the inquiry, the Crown withdrew the charge in regard tothe alleged violation of S. 94(1) of the Criminal Code. [6] On March 11, 2016, the dates for Mr. Debly’s trial regarding the 4 offences contrary to s. 160 of the Customs Act were set toSeptember 28, 29 and 30, 2016. [7] On September 20, 2016, a Notice of Application was filed on Mr.

Debly’s behalf alleging that the provisions of s. 163 of theCustoms Act are inconsistent with the provisions of s. 7 and 11 of the Canadian Charter of Rights and Freedoms (the “Charter”). Inthe Application, it is also alleged that the Crown failed to initiate proceedings by way of

summary conviction within a reasonable timeand that Mr. Debly has not been tried within a reasonable time. The remedy sought by Mr. Debly is a declaration of invalidity pursuantto s. 52 of the Constitution Act, 1982 (the “Constitution Act”) and a stay of proceedings. [8] During the course of a management appearance held on September 28, 2016, defense counsel confirmed that the materials alreadyfiled formed the basis of Mr. Debly’s application. It was also agreed that no later than November 15, 2016, the Crown would file awritten submission, in support of its contention that Mr.

Debly’s Application should be dismissed without the necessity of a hearing andthat no later than December 1, 2016, defense counsel would file its brief in response thereto. In addition, defense counsel confirmed thatMr. Debly was waiving any delay resulting from the adjournment of the hearing scheduled for commencement on September 28, 2016. B. SUBMISSIONS OF THE PARTIES [9] In its written submission, the Crown argues that the defense has not met the threshold test contemplated by the line of authorityflowing from the British Columbia Court of Appeal decision in R. v.

Vukelich (1996) (BC CA), 78 B.C.A.C. 113;the principles of which were endorsed by the Supreme Court of Canada in 2005 in the matter of R. v. Lising; R v Pires 2005 SCC 66, [2005] 3 S.C.R. 343. The Crown argues that Mr. Debly has failed to provide the legal basis and factual foundation for his

argument and that his application should be dismissed. [10] Defense counsel contends that the factual basis for the Application is not contested in that the subject matter of the offence occurredon September 26, 2014 and that criminal proceedings were initiated by laying an Information sworn on July 17, 2015, a period in excessof 6 months. [11] Defence counsel also contends that it has sufficiently identified the legal basis of the challenge. The legal basis is articulated as thefact that in regard to the institution of criminal proceedings of

summary conviction offences, s. 786(2) of the Criminal Code of Canadaprovides for a general limitation period of 6 months whereas s. 163 of the Customs Act sets out a limitation period of 3 years and that inorder to conform with the requirements of S. 7 and 11 of the Charter, absent exceptional circumstances, the statutory limitation periodfor

summary offences under the Customs Act ought to correspond to the limitation period set out in s. 786(2) of the CCC. C. ISSUES [12] It is well settled law, and there is no dispute amongst the parties, that there is no absolute right to a Charter voir dire and that anApplicant bears the onus of establishing a basis upon which the Court could make the order which he or she seeks. [13] The issues before the Court are therefore what threshold must be met by Mr. Debly and whether that threshold has been met in thisparticular instance. D.

ANALYSIS [14] What I have already referred to as the Vukelich line of authority stands for the proposition that there is no absolute right to aCharter voir dire and that judges have the power to decline to embark upon an evidentiary hearing at the request of one of the partieswhen that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the Court (see R. v.Vukelich (1996) (BC CA), 78 B.C.A.C. 113; R. v. Lising; R v Pires 2005 SCC 66 , [2005] 3 S.C.R. 343;258; R. v. Tingley, 2015 NBCA 51; R v.

Gillespie, 2016 NBQB). [15] The common thread and rationale for this proposition is concern over prolixity and the need for trial judges properly managing thetrial process to avoid inefficient use of court time and to strive to restrict pre-trial Charter motions to matters of substance where defencecounsel can establish some basis for a violation of a right. [16] In R. v.

McDonald 2013 BCSC 314, Justice Fitch of the Supreme Court of British Columbia wrote that a Vukelich hearing servesan important trial management goal in that it filters out proposed pre-trial applications where the circumstances, as disclosed by thesubmissions of counsel and references to supporting materials, are such that the remedy sought could not reasonably be granted. [17] In R. v. McDonald (supra) Justice Fitch also commented on how the threshold test contemplated by the Vukelich line of authorityhad been expressed in different ways at different times.

He notes that in one instance the Court held that “the threshold for embarking onan evidentiary hearing into an alleged Charter breach is low” (see R. v. Malik, 2002 BCSC 484), and in another instance, the Courtheld that “the Vukelich hearing was never intended as a tool…to prevent legitimate investigation of alleged Charter breaches when anappropriate foundation for that alleged breach can be demonstrated” nor is it intended to be used for the “protracted pre-hearingexamination of the minutiae of the accused’s proposed application” (see R. v. Tse, 2008 BCSC 867).

[18] The Supreme Court of Canada in the Lising and Pires matter, supra, the Court held that in controlling the course of proceedingsbefore them, trial judges have the power to “decline to embark upon an evidentiary hearing at the request of one of those parties whenthat party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the Court.” [19] In New Brunswick, Justice Richard of the New Brunswick Court of Appeal in the matter of R. v Tingley, (supra), wrote that“…courts have an obligation to devise tests and thresholds to prevent abusive processes. ……Thresholds are not new.

They arereflected in the “air of reality” tests courts often apply. In R v Pires; R v Lising,2005 SCC 66 , [2005] 3 SCR 343, the Courtrecognized that mandating a preliminary determination on the utility of a Charter-based inquiry is an appropriate proceduralsafeguard.” [20] And, in the matter of R v.

Gillespie (supra), in dealing with a challenge as to the admissibility of evidence obtained though theexecution of search warrants, Justice Stephenson of the New Brunswick Court of Queen’s Bench held that the onus was on the applicantto state with reasonable particularity the grounds upon which the application for exclusion was made and if he was unable to state a basisupon which the Court could potentially make an order excluding the evidence, his application could be dismissed without the holding ofa voir dire. [21] However articulated, the threshold to be met by Mr.

Debly is a factual and legal basis upon which this Court could potentiallyconclude that there has been a breach of Mr. Debly’s Charter rights pursuant to s. 7, 11(

a) and 11(

b) of the Charter such that this Courtcould declare that s. 163 of the Customs Act is not constitutionally valid and grant a stay of proceedings. [22] In regard to the application of the threshold test, at paragraph 21 of the decision in R v McDonald (supra), Justice Fitch writes: “The rigour with which Vukelich is applied and the way in which a trial judge exercises his or her discretion in relation to such anapplication is case-specific and highly contextual.

Among the factors that will shape the exercise of that discretion are: the extent towhich the facts or anticipated evidence underlying the alleged Charter breach are in legitimate dispute; the state and clarity of the lawon the issue sought to be litigated; and the infinite variety of pragmatic considerations that will arise in a given case and suggestresolution of the application in one way or another.

What underlies the inquiry is the need to balance an accused’s fair trial interestswith the public interest in the management of criminal proceedings by foreclosing lengthy and unnecessary pre-trial applications incircumstances where the remedy sought could not possibly be granted.” [23] At the outset, it is important to note that the information in which the charges against Mr. Debly are set out was sworn well withinthe limitation period of 3 years stipulated in

section 163 of the Customs Act. [24] Thus, the factual basis of Mr. Debly’s Application as he has articulated it, more particularly that criminal proceedings were initiatedby laying an information on July 17, 2015, a period in excess of 6 months of the date of the occurrence of the alleged illegal conduct, issimply a reiteration of what he is presenting as the legal basis for his Application. [25] Reduced to its essence, Mr. Debly’s argument is that because there are different time periods for the institution of criminalproceedings of

summary conviction offences in 786(2) of the Criminal Code and s. 163 of the Customs Act, in order to conform with therequirements of S. 7 and 11 of the Charter, absent exceptional circumstances, a statutory limitation period for

summary offences underthe Customs Act, which is 3 years, ought to correspond to the limitation period set out in s. 786(2) of the Criminal Code, which is 6months. [26] Mr. Debly simply states that the limitation period set out in s. 163 of the Customs Act constitutes a breach of his rights undersections 7, 11(

a) and 11(

b) of the Charter. [27] In regard to

section 7, although Mr. Debly has not articulated how the limitation period in s. 163 of the Customs Act breaches hisrights thereunder, one can assume that the alleged breach relates to the time between the alleged commission of the offences and thelaying of the charges. [28] The Supreme Court of Canada has already held that

section 7 of the Charter does not insulate accused persons from prosecution

solely on the basis of time elapsed between the occurrence of the alleged unlawful conduct and the laying of the charge (see R v. L(WK) (SCC), [1991] 1 S.C.R. 1091. In R v. L (WK) (supra), the Supreme Court of Canada held that sections 7 and11(

d) of the Charter protect, among other things, an individual’s right to a fair trial but that the fairness of a trial is not, automaticallyundermined by even a lengthy pre-charge delay. [29] In regard to Mr. Debly’s rights pursuant to s. 11(

a) of the Charter, again, Mr. Debly has simply stated that the limitation period in s.163 of the Customs Act breaches his rights thereunder and I must assume that that the allegation is that the 3 year limitation period setout in s. 163 of the Customs Act is an unreasonable delay for an accused person to be informed of the specific offence. In R v. CancorSoftware Corp. (ON CA), [1990] O.J. No 1287 (leave to appeal to the SCC refused), the Ontario Court of Appealheld that subsection 11(

a) does not require that an individual be charged with a offence within a reasonable time of the Crown’s havingknowledge of the offence, it merely requires that once a charge is laid, the accused must be provided without unreasonable delay withthe information necessary to enable him to proceed appropriately with his defence. [30] Mr. Debly also argues that the limitation period set out in s. 163 of the Customs Act constitutes a breach of his rights under s. 11(b)of the Charter to be tried within a reasonable time. It is not clear whether Mr.

Debly is arguing a breach of this right based on the timeperiod of 3 years which could ultimately elapse prior to a charge being laid or whether the alleged breach is based on the time whichcould be comprised taking into account the limitation period and any period of time to end of trial. [31] In any event, a considerable body of law has developed respecting the Charter s. 11(

b) right to be tried without reasonable delay. Inthe framework set out by the Supreme Court of Canada in R. v. Morin, the first factor enunciated by the Court was the length of thedelay which required the court to examine the time from the swearing of the charge to the end of trial. [32] The decisions in R. v. Jordan 2016 SCC 27 and R v. Williamson 2016 SCC 28, both released in July 2016 by the Supreme Courtof Canada substantially changed the approach to s. 11(

b) applications and set out a new framework beyond which delay is presumed tobe unreasonable unless there are exceptional circumstances which justify it. While the new approach parts company with the Morin(supra) framework, particularly with respect to the assessment of the element of prejudice, the Court noted that the first step in decidingthe s. 11(

b) application is to determine the total length of time between the charge and the actual or anticipated end of trial. [33] The Charter only condemns an unreasonable delay running from the time a person is charged. Any argument based on time elapsedbetween the occurrence of the alleged unlawful conduct and the laying of the charge or time elapsed between the occurrence of thealleged unlawful conduct and the end or anticipated end of trial cannot succeed. [34] A similar argument to that made by Mr. Debly in this matter was made in regard to s. 110 of the Excise Tax Act, R.S.C. 1985, c. E-14 in R v. Samco Printers Ltd.

(1989) CarswellBC 1610, before the British Columbia Provincial Court. In dismissing the defendant’sargument, the trial judge in Samco relied upon the matter of R v.

Valleyview Estates et al., an unreported decision by Judge Dumas, aformer chief judge of this Court, where the impugned provision was s. 244(4) of the Income Tax Act, R.S.C. 1952, c. 148. [35] In each of the Samco and Valleyview Estates cases, the limitation period in the relevant federal statute not only set out a limitationperiod of 6 months but also provided for an extension of or alternative to such limitation period according to which charges could be laidwithin one year from the day on which evidence sufficient in the opinion of the Minister to justify a prosecution of the offence came tohis knowledge.

In addition, the provisions provided that the Minister’s Certificate as to the day on which the evidence came to hisknowledge was conclusive evidence thereof. [36] In both of those cases, the court dismissed the argument of the defendants to the effect that because they were denied the benefit ofthe limitation period in the Criminal Code for offences punishable on

summary conviction, their rights pursuant to s. 7, 11(a), 11(

d) and15(1) of the Charter were infringed. Accordingly, the Court did not grant the remedy sought by each of the defendants, moreparticularly a declaration that the limitation provision was unconstitutional. [37] In Valleyview Estates (supra), Judge Dumas remarked that although the Criminal Code provides for a 6 month limitation period interms of instituting

summary conviction offences proceedings, it is not unusual to have statutes prescribing a limitation period wellbeyond 6 months from the date the offence arose. Judge Dumas then proceeded to list several federal and provincial statutes where thatwas effectively the case as well as federal and provincial statutes wherein the limitation period related to the time where certain factscame to the knowledge of a certain person. [38] In this matter, it is argued that the longer than usual limitation period, by itself, is sufficient to deprive Mr. Debly of his rights unders. 7 and 11 of the Charter. Judge Dumas, in Valleyview Estates, concluded that it was not sufficient and I agree.

[ 39 ] I am mindful of the fact that the outline of constitutional rights are fashioned and settled through litigation of emerging, unresolved and contentious issues and that this process starts in the trial courts and also mindful of my responsibility to take considerable care to not use the Vukelich principles to stifle novel, but unsettled and important points of law.

That being said, I also recognize that trial judges must be vigilant in ensuring that criminal proceedings are kept within reasonable parameters and that unmeritorious arguments engaging scarce public resources are filtered out. [ 40 ] For the reasons set out herein, I find that Mr. Debly has failed to establish any factual or legal basis upon which this Court could potentially conclude that there has been a breach of Mr. Debly’s Charter rights which could allow the court to grant him the remedies which he is seeking.

Consequently, his Application is dismissed. [ 41 ] I leave to another day the discussion as to whether in view of the Supreme Court of Canada’s decision in R v. Lloyd , 2016 SCC 13 , the remedy sought by Mr. Debly as to a declaration that s. 163 of the Customs Act is invalid pursuant to s. 52 of the Constitution Act, 1982 is a remedy which could be granted by this Court under any circumstances. Dated at Moncton, New Brunswick, this 5 th day of January, 2017. ____________________________ Denise A. LeBlanc Judge of the Provincial Court of New Brunswick