2013 MBPC 2, 2013 MBPC 2

CITE# 2013 MBPC 2 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) D. Chaput, for the Crown ) - and - ) ) Nicholas Jessamine ) J. Kostiuk, for the Defence ) ) ) Judgment delivered: January 10, 2013 ) RESTRICTION ON PUBLICATION : Please note that, pursuant to s. 539 of the Criminal Code , this decision is subject to an order restricting publication in any document or broadcast or transmission in any way before such time as the accused is discharged or the trial is ended. Lee Ann Martin, P.J.

Introduction [ 1 ] On August 10, 2012, a preliminary inquiry began into several indictable weapons related offences alleged to have been committed by Nicholas Jessamine (“Jessamine”). The Crown applied under s. 540 (7) of the Criminal Code to tender videotaped statements of the complainant (D.S.) and witness (J.J.), both under 14 years of age, without the necessity of calling them. Counsel for Jessamine opposed this application, but in the event that it is granted, applied pursuant to s. 540(9) of the Criminal Code to have them produced for cross-examination.

Argument in support of the applications was heard on October 12, 2012. This is the ruling on these applications. Factual Background [ 2 ] The factual background to these applications is as follows. [ 3 ] On September 17, 2011, a 911 called was placed by D.S. who complained that his older brother, Jessamine, had pushed him and hit him in the face and threatened to get his gun if he called police; the gun had since been hidden. In the background, D.S.’s mother could be heard calling him a liar. 911 dispatched police.

Constable Zaretski was one of the officers who answered the call. [ 4 ] Zaretski testified that she and her partner found D.S. at a friend’s house. He was visibly upset and pacing back and forth but was articulate and able to provide a detailed account of what had happened to prompt his 911 call. [ 5 ] Based on this information, Zaretski, her partner and another police unit went to D.S.’s home address where other police officers were in the process of searching the house. D.S.’s mother, Roberta and his brother J.J. were outside.

Jessamine had since left. [ 6 ] The police searching the home were unable to find the gun complained of but did find the butt of a gun. Roberta was placed under arrest and D.S. and J.J. were placed in the back of the cruiser. It was then that J.J. told Zaretski that he knew where the gun was and took her to it. Hidden in a bush in the backyard nestled between a shed and a fence with a grey-black blanket wrapped around it, was a sawed-off long barrel shot gun with a cartridge clip attached to it; the butt was missing. [ 7 ] D.S., J.J. and Roberta were taken to Division 41.

Once there, both J.J. and D.S. were interviewed separately on videotape by Detective Chiborak; no discussion of the incident had taken place prior to these statements. The statements were not sworn and the children were not told that criminal charges would be laid against their brother or that if they provided a false statement, criminal charges could be laid against them. Chiborak did however explore their understanding of what it meant to promise to tell the truth. [ 8 ] In his statement, D.S. alleged that in addition to being physically assaulted, Jessamine pointed a gun to his head and threatened

him. J.J., who witnessed the assault, did not mention this. Jessamine disputes that it happened, though he admits to both the simpleassaults and the possession of the gun. Position of the Parties [9] Crown counsel asks that D.S.’s and J.J.’s statements be admitted pursuant to s. 540(7) as he says that the statements arereliable and trustworthy given the steps that were taken and the manner in which they were obtained.

He further says that defencecounsel’s s. 540(9) application should be denied as defence knows the case he has to meet and that requiring the two young witnesses totestify would add nothing to the preliminary inquiry as credibility is not at issue at this stage of the proceedings; where possible, thecourt should ensure young children are spared the stress of testifying. [10] Defence counsel disagrees. He says that the statements are not reliable as both children were highly emotional and not properlyadvised of the seriousness of providing a videotaped statement.

In the case of J.J. he pointed to his apparent lack of understanding andpromise to tell the truth. As a result, he says that the Crown’s s. 540(7) application should be denied. In the event it is granted, he asksthat his s. 540(9) application be granted as both witnesses are pivotal to the case and issues of credibility and strength of the evidenceneed to be explored. The Law Legislative Background to the Preliminary Inquiry Provisions [11]

Part XVIII of the Criminal Code sets out the procedure for preliminary inquiries.

The preliminary inquiry provisions have beenamended on several occasions but with respect to these proceedings, the most relevant amendment was Bill C-15A, the Criminal LawAmendment Act, 2001, S.C. 2002, c. 13 which came into force on June 1, 2004 (the “Amendments”).[1] The stated intention of theseAmendments was to streamline the preliminary inquiry process in the hopes of reducing the time it takes to get a case to trial, and toreduce the stress on complainants, particularly sexual assault complainants, who are often required to testify more than once.[2] [12] As a result of these Amendments, Defence counsel must now request a preliminary inquiry, setting out the issues and thewitnesses they want produced for examination.

In Manitoba, this is often done in the context of a case management conference wherefocussed discussions are encouraged between the Crown and Defence to narrow the issues and limit the witnesses that need to be called. These discussions are usually amicable and agreements are often made. That said, in those cases where agreements cannot be reached,it is trite law that the Crown ultimately decides which witnesses they call to satisfy their burden at the preliminary inquiry stage.[3] [13] S. 540(7) and (9) were included in the Amendments.

These sections allow the Crown to apply to further streamline thepreliminary inquiry process by filing “credible and trustworthy” information, that would not otherwise be admissible, subject toexamination or cross-examination where appropriate: 540

(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that thejustice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing orotherwise recorded. 540

(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examinationor cross-examination with respect to information intended to be tendered as evidence under subsection (7). The Purpose of the Preliminary Inquiry [14] Since these Amendments came into force, the courts have pondered whether the Amendments changed the twofold purpose ofthe preliminary inquiry, namely sufficient evidence for committal and discovery. The short answer is no.

The twofold purpose remains,though the scope is streamlined. [15] A review of the case law[4] indicates that the primary function of the preliminary inquiry is to determine whether there issufficient evidence for a committal. That said, the ancillary function of discovery is still very much present, and important. As stated inthe Quebec Court of Appeal decision, R. v.

M.(P.)[5]: 78...even though the justice presiding over the preliminary inquiry makes sure essentially that there is evidence that an indictable offencehas been committed, [FN 40] the accused is entitled to adequately prepare his or her trial. [FN41] This exploratory role of thepreliminary inquiry, though ancillary, [FN 42] was not diminished by Bill C-15A, despite the fact that the rules relating to disclosure ofevidence had been considerably broadened following R. v. Stinchcombe. [FN43] 79 In R. v. Francis, Rathushny J. of the Superior Court of Justice of Ontario wrote aptly on this subject: In R. v.

Sonier 2005 ONCJ 75 , [2005] O.J. No. 1234 (QL), 201 C.C.C. (3d) 572 (Ont. C.J.), at para. 8, Omatsu J. observed thatin bringing in these new amendments, Parliament did not intend to eliminate the secondary discovery function of preliminary inquiries orto convert preliminary inquiries into a paper hearing. I agree and see no reason to believe otherwise, particularly in light of the screeningdevice and discovery mechanism purposes of the preliminary inquiry as described in Hynes, supra, that appear alive and well at this timeand are reflected in the retention of

Part XVIII of the Criminal Code dealing with the preliminary inquiry and in

section 541, retaining

the right of the accused to call its own witnesses. [FN44] 80 Professor Paciocco has contested the attempts to reduce this exploratory role, which he has linked directly to the obligation to disclose evidence. He wrote the following on this subject: In other words, while there is no constitutional right to have a pretrial determination of the sufficiency of the case, if the denial of the preliminary inquiry results in inadequate disclosure there is a Charter violation.

The discovery function of the preliminary inquiry is therefore hardly secondary or ancillary according to the constitutional jurisprudence; it is the sole function to acquire constitutional support. . . . Cross-examination can turn lines of disclosure into pages of discovery, enabling defence counsel to explore information not found in what are often the selective, even skeletal statements obtained by the police.

It permits the defence to correct innocent non-disclosure caused by prosecutors or police officers who fail to see the relevance of information that the accused uncovers during cross-examination, and it permits defence counsel to observe the demeanour and quality of the witnesses, factors important in the tactical decision that counsel will make. . . . [FN45] [References omitted.] 81 This ancillary role of the preliminary inquiry cannot be minimized, or even hidden, as the Crown proposes. 82 Recently, the Supreme Court pointed out the importance of cross-examination: Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth.

At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed. That is why the right of an accused to cross-examine witnesses for the prosecution — without significant and unwarranted constraint — is an essential component of the right to make full answer and defence. . . . Commensurate with its importance, the right to cross-examine is now recognized as being protected by ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms . See Osolin , supra , at p. 665. The right of cross-examination must therefore be jealously protected and broadly construed. But it must not be abused. . . . [FN46] ... 84 Let us recall, moreover, that the usual rules applicable to preliminary inquiries allow the accused to cross-examine the witnesses presented by the prosecution ( s. 540(1) Cr.C .) and to examine the witnesses the accused calls himself or herself ( s. 541 Cr.C.). Parliament thus explicitly allows the accused to test the credibility of witnesses during the preliminary inquiry.

So, that exercise cannot be characterized as irrelevant or inappropriate in the framework of subsection 540(9) Cr.C. 85 In my opinion, nothing justifies the

interpretation proposed here by the Crown, which suggests that cross-examination of a plaintiff during a preliminary inquiry be regarded as a departure from the norm. [FN47] [ 16 ] Thus, the preliminary inquiry is not only a screening process to determine whether there is sufficient evidence to warrant a committal to stand trial, it is also an opportunity for the accused to ‘discover’ or ‘explore’ the Crown’s case against him or her. The ‘discovery’ or ‘exploratory’ role is much more than just knowing the case to meet.

It includes the possibility of cross-examining witnesses, a step that is as important to Defence counsel as it is to Crown counsel. Several cases have highlighted this important aspect of the preliminary inquiry. For example, in R. v. I. (S.P.) [6] : 28...If these new sections 540(7), 540(8) and 540(9) are aggressively interpreted, as suggested by the Crown in this case, the statements will, on their face, demonstrate a prima facie case.

If the Crown is entitled to rely on those statements in lieu of calling witnesses, there will be no point in having the preliminary inquiry since the outcome will be a forgone conclusion and there will be no opportunity for Defence counsel to assess the likely case that will have to be met at trial. 29 This is particularly true in those cases where there is direct evidence and credibility is the only issue at trial.

In those types of cases, one of the main tools of the Defence is the preliminary inquiry transcript. ... 38 I am well aware of the difficulty of extracting evidence without leading from vulnerable Inuit youths in sexual assault cases, and can see the value and purpose of admitting a videotape statement to avoid this problem. Parliament has spoken and the courts have to work with the new amendments to strike a balance between protecting the witnesses and permitting the accused to understand the case he must meet.

By admitting the statement, the initial difficulties are overcome and cross-examination is more focused. This permits the Defence the opportunity to assess the quality of the evidence that it will face at trial. It will also often provide a benefit to the Crown in the form of changes of plea or exposing weaknesses in the evidence that would not be apparent until the trial . [Emphasis added] The Meaning of Credible and Trustworthy [ 17 ] S. 540(7) only allows for credible and trustworthy information to be received, on the condition that notice and a copy of any statement, be provided to the other party [7] .

The onus is on the Crown to satisfy this burden on a balance of probabilities. [8] [ 18 ] In R. v. Uttak , [9] Judge Kilpatrick held that “information” includes a broad range of evidence:

Section 540(7) does not purport to limit its application to written statements or to statements 'otherwise recorded'. It applies to allinformation, however received. To find otherwise would defeat the clear intention of Parliament to broaden the range of evidence that isadmissible at this inquiry. A narrow

interpretation would mean that verbal statements meeting Khan requirements (R. v. Khan, (SCC), [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92), would be excluded from consideration at the preliminary inquiry becausethese verbal statements were not in writing or 'otherwise recorded'. Yet these same statements would be admissible at trial. Such a narrowinterpretation would lead to an absurd result. [19] Case law suggests that credible and trustworthy is assessed at a low threshold.

Though some cases speak of different standards,the prevailing view is that the test is whether there is a prima facie air of reality to allow a court to consider the information as evidence,not sufficient to base a conviction upon, but rather to warrant consideration as to whether there is some evidence for a jury to properlyconsider at trial.[10] As expanded on in Uttak: 12 The screening function contemplated by s. 540(7) requires a determination of whether the tendered information is worthy ofsome belief, based upon an objective standard of reason and common sense.

If the proposed evidence on its face 'might reasonably betrue' then it is 'credible' and admissible for the purpose of the preliminary inquiry. A series of purported observations that appear to beirrational, or that lack any objective basis in fact, would not meet this standard. 13 If a properly instructed jury, acting judicially, might reasonably conclude that information tendered under s. 540(7) is reliable,then this information becomes 'trustworthy' for the purpose of this limited screening function.

The assessment of trustworthiness againturns upon an objective standard - a standard based upon reason and common sense. No more is required. Questions of weight should notbe considered. [20] Though some cases have held that only intrinsic factors of the information can be considered, others have held that externalfactors may also be considered. With all due respect, I prefer this latter position on the condition that it is a limited consideration ofexternal factors for the sole purpose of determining whether the information is credible and trustworthy and not a weighing of theevidence.

In other words, is there some internal and external consistency to the information together with the usual safeguards of avideotaped statement? [21] Some indicia cited in the case law for such a determination are as follows: - How the information was obtained and whether there were any leading questions or other actions that may have tainted theinformation; - Whether the information was written down or videotaped and whether it contains all of the information or whether there are anyomissions or deletions to that information; - Whether the witness providing the information has been advised of the importance of telling the truth, and where applicable, of theconsequences of giving a false statement; - Whether the information is consistent with other information provided by the witness or with other evidence at the preliminaryinquiry.[11] The Meaning of Appropriate [22] S. 540(9) permits for cross-examination of witnesses whose evidence is received pursuant to s. 540(7) where the preliminaryinquiry judge deems it appropriate.

As clarified by the Quebec Court of Appeal in R. v.

M. (P.), this stage of the analysis comes in only ifthe preliminary inquiry judge has considered that the information being sought is credible and trustworthy pursuant to s. 540(7).[12] [23] Once again, the onus is on the applicant, usually the accused, on a balance of probabilities.[13] [24] What is “appropriate” is a matter of broad judicial discretion.[14] A review of the case law mentions various factors thatpreliminary inquiry judges have taken into consideration in determining whether cross-examination is appropriate: - Whether the statement provided by the witness was sworn; - Whether the witness was cautioned about the importance of telling the truth; - The importance of the witness to the case; - The level of detail and comprehensiveness of the statement; - Whether a motive to fabricate or misrepresent the truth is a live issue; - Whether the information is supplied by a jailhouse informant; - Whether proof of identity is based upon the information of the witness;

- Whether an allegation of sexual assault is based upon recovered memory; - Whether the videotape is of poor quality containing many inaudible comments; - Whether the transcript is of useful quality; - Whether the complainant’s account itself raises reliability concerns; - Whether the passage of time between the allegation and the report impacts upon the reliability of the evidence; - Whether alcohol consumption impacts upon the witness’s ability to recall events; - The age of the witness and whether there is any particular vulnerability. [15] [ 25 ] These factors are not however set in stone and the preliminary inquiry judge faced with such an application must remember the accused’s legitimate interest in preparing his or her defence and bringing out the insufficiency or weaknesses of the Crown’s evidence, while ensuring that the cross-examination is not abusive.

Indeed, the Quebec Court of Appeal, having considered many of the above cases, cautioned in R. v. M.(P.) that s. 540(9) only requires that the proposed cross-examination be considered appropriate: 86 When all is said and done, I do not feel it is necessary to add to the text of subsection 540(9) Cr.C . in order to render Parliament’s intent.

In allowing or disallowing the cross-examination requested by the accused, the justice will consider, on the one hand, the accused’s legitimate interest in preparing his or her defence and bringing out, at the preliminary inquiry state, the insufficiency or the weaknesses of the Crown’s evidence.

Very obviously, the justice will make sure, on the one hand that the cross-examination requested by the accused is relevant with regard to the particular situation of the person whose appearance is requested and to all of the circumstances of the case. [FN 48] If the relevance is not demonstrated, the request will be denied. 87 Once cross-examination has been allowed, it will be up to the justice, whom the law now obliges to act accordingly, to protect vulnerable witnesses, more especially young people who are presumed victims of sex crimes, against abusive cross-examination . [FN49] (See also Rao ) [ 26 ] In conclusion then, each case will turn on its own facts, but the preliminary inquiry judge must be mindful of the dual role of the preliminary inquiry, while ensuring that cross-examination is not abusive.

Though there may be some cases where some or all of the Crown’s case at preliminary inquiry can be placed before the court in paper form pursuant to s. 540(7) if the requirements set forth in that

section are met, [16] this does not appear to be the norm where the witnesses are pivotal to the case and credibility and strength of the evidence are live issues. Application of the Preliminary Inquiry Provisions to the Case at Hand [ 27 ] In reviewing the videotaped statements of both D.S.

And J.J., I am satisfied that they are credible and trustworthy information pursuant to s. 540(7): • The statements are videotaped in their entirety; • The video is of good quality in that each child can be seen and heard clearly; • The statements were taken within a very short period of time after the 911 call and there is no indication that anyone spoke to either of the children about the incident until the statement was taken.

There therefore does not appear to be any indication that their statements were influenced or tainted in anyway; • Though the children were described as emotionally charged at the time of the incident, they both appear calm during the statements; • Though the children did not take an oath and were not warned of the consequences of lying, these formalities are not required for children of this age. D.S. did demonstrate a good understanding of what it means to promise to tell the truth and did undertake to do so.

As for J.J., he appears to have some difficulty understanding this concept and in fact never promises to tell the truth. Such difficulty with the concept of truth is not uncharacteristic of 7 year olds. What is more important is the spontaneous nature of the information he offered and the answers he provided to non-leading questions; • The questions asked by Chiborak are generally open-ended and both children answer the questions spontaneously without prompting. With respect to J.J., his answers are not always clear.

As an example, he would respond yes to a question but when he explains further, the answer is really no. With respect to D.S. the answers are generally spontaneous and full and clear except with respect to the allegations concerning the gun. His voice does crack when talking about Jessamine putting the gun between his eyes, suggesting an appropriate emotional response to the event but his statement is unclear in regards to chronology and consistency.

That said, he does describe the gun and its pump action, which he would not have had an opportunity to see beforehand if Jessamine’s statement is to be believed. [ 28 ] As indicated, though there are some issues with respect to the statements, the threshold of “credible and reliable” at this stage is very low. For the reasons already listed, the Crown’s s. 540(7) application is granted. [ 29 ] As for defence counsel’s s. 540(9) application, the issue in dispute is whether Jessamine pointed the gun at D.S. The evidence of both D.S. and J.J. is therefore crucial.

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 credibility of the complainant. As already mentioned, this purpose, though ancillary to the primary

purpose of sufficient evidence for committal, is still an important one particularly in cases such as the present. As a result, defence counsel’s s. 540(9) application is granted. ___________________________________Lee Ann Martin, P.J.