2011 QCCQ 661, 2011 QCCQ 661

Chun c. R. 2011 QCCQ 661 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-017422-046 DATE: 8 February 2011 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ CHUN, Sy Veng LECK, Leng Ky PENG HENG OR GOLD Inc. A & A SERVICES MONÉTAIRES Inc. Applicants v.

THE QUEEN Respondent _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] The defence has presented a motion that I should decline to hear a voir dire at which the prosecution proposes to test the admissibility of items of similar-fact evidence. The essence of the motion is that, irrespective of the outcome of the voir dire , there is a risk of undue prejudice if the trier of fact in this trial first hears and decides the voir dire as the trier of law. [ 2 ] The sweep of this motion is striking.

There is nothing in its premise to restrict its scope to questions of similar-fact evidence. Its logic would apply to questions of search and seizure, hearsay, privilege, wiretapping, confessions and more.

The risk it purports to identify would exist in any instance where a judge sitting without a jury hears evidence and argument before making a ruling of law that could entail the exclusion of tendered evidence, the partial exclusion of evidence or a limitation on the proper use of admissible evidence at trial. [ 3 ] The procedural premise of trial by judge alone is that legal questions that cannot be heard before a jury can be heard by a judge sitting alone without diminishing the fairness of the trial. This motion asserts that such questions should not be heard by the judge who hears the trial on the merits.

This motion appears to assert that the procedural premise of trials by judge alone is unsound because there is inherently an intolerable risk of contamination in the mind of the trier of fact who is also the trier of law. The orthodox theory of criminal procedure is that the accused is entitled to protection of the jury to ensure that admissible evidence is examined with an open mind upon proper instruction. Here the premise is that the judge who is the trier of fact cannot adequately achieve the same result. [ 4 ] I note parenthetically that Bill C-53 is currently in First Reading before the House of Commons.

I also note emphatically that it is not law. If enacted, it might provide some procedural basis to divide the tasks of a trial judge in a given case among two or more judges. Efficiency in the administration of cases is clearly an animating concern in this proposed legislation. In the event that it is enacted, however, it remains to be seen how it would work in practice and whether it could accommodate the kind of submission advanced by the applicants. Until that reality is upon us, two points appear obvious.

The single judge seized of a trial is stuck with the trial until he or she is functus , incapacitated or dead. Second, there is no relevant or operative authority cited by the applicants in the present motion that would allow a judge seized of a trial to defer or refer a pending matter of evidence to another judge once he or she has begun to hear the evidence. Under current law this would signify a decision to decline jurisdiction – and error. [ 5 ] Apart from the striking sweep of this motion as now filed, its legal foundation is not clear.

Is it a motion that the orthodox mode of procedure in trials by judge alone is a violation of

section 7 or

section 11(

d) of the Charter? [1] Is it a motion that this particular judge, if he hears both, cannot maintain the rigour necessary to ensure a fair trial of the voir dire and the trial as a whole? The motion is not clear in this regard and it lends itself to several

interpretations. But the two questions just asked are central to any sensible handling of the matter. [ 6 ] The first is an abstract plea for law reform - for the adoption of procedural principles that do not now exist but perhaps should apply in any trial by judge alone. The second is a specific proposition about the ability of this judge to conduct this trial in accordance

with the orthodox rules that have long been established. The practical difference between the two is that the nature of the evidence required to advance the first is different than evidence required for the second. The evidence required for the first would be evidence that there are reasons to believe that all judges sitting alone are systemically incapable of separating their functions as trier of law and trier of fact. The evidence required for the second would be evidence that there are reasons to believe that in this case the designated judge cannot separate these functions.

The second is tantamount to an assertion that the judge cannot sustain the burden of impartiality. [ 7 ] The present motion asks me to decline a jurisdiction that I not only have but that I am obliged to fulfil. [ 8 ] In the absence of admissible evidence and proof to support the first

interpretation of this motion, I will not consider it. In the absence of admissible evidence and proof to support the second

interpretation, I reject it. FOR THESE REASONS the motion is dismissed. ____________________________________ PATRICK HEALY, J.C.Q. Me Raphaël H. Schachter, c.r. Me Dominique St-Laurent For the Applicants Me Marie-Michèle Meloche Me Fabienne Simon For the Respondent Date of hearing : 7 February 2011