R. v. Leno, 2018 BCSC 2555

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Leno, 2018 BCSC 2555 Date: 20180611 Dockets: 39173-2; 39173-3; 39173-4 Registry: Duncan Regina v. Peter Charles Leno Ban on Publication: s. 486.4 CCC Before: The Honourable Mr. Justice Bracken Oral Reasons for Judgment re: Quashing of Subpoenas Counsel for the Crown: J. Blazina A. Pace L. Vizsolyi Appearing on his own behalf: P. C. Leno Place and Date of Trial/Hearing: Duncan, B.C. June 11, 2018 Place and Date of Judgment: Duncan, B.C.

June 11, 2018 [ 1 ] THE COURT: The application before the court is made by both Provincial Crown and Federal Crown, independent of the Crown Counsel who are prosecuting this case. The applications are to quash subpoenas that I previously issued. The subpoenas were issued at a pretrial conference, or just following it, where Mr. Leno, who is representing himself in a jury trial that is now underway, sought to have witnesses subpoenaed. [ 2 ] The accused, Mr.

Leno, is alleging that there were some difficulties with the DNA samples, such that the samples were in some way mixed up. [ 3 ] One issue in this case, which is a serious charge of sexual assault that allegedly occurred in 2003, is, first of all, whether or not an assault was committed or whether the alleged sexual activity was consensual. The allegation is that three males assaulted a 15-year- old girl, and the sexual assault consists of full intercourse with at least one of them, and possibly more than one. [ 4 ] The second issue is whether or not Mr.

Leno is one of the people who committed that assault. [ 5 ] Ms. M., who is the complainant, has testified and been cross-examined before the jury, and the jury will hear and consider that evidence in due course. [ 6 ] The second issue is a critical issue in the sense that it is determined by comparing DNA samples. The sample of DNA that was taken from the underwear Ms. M. was wearing on the night of the alleged incident revealed a match to at least one unidentified male. The underwear had been washed before the sample was taken, and there are issues that Mr. Leno will likely raise about that.

But in any event, the lab has taken the position that they have found samples. Those samples are said to be of a sufficient quality to provide an accurate analysis. [ 7 ] Several years after the alleged assault on Ms. M., Mr. Leno was charged and convicted with respect to other offences. In the course of the sentencing on those charges, Mr. Leno was ordered to produce a sample of his DNA. That sample was produced and in due course the lab matched it to the sample that was taken from Ms. M.'s underwear. [ 8 ] There is some confusion alleged by Mr. Leno with respect to the samples of DNA.

While I am not certain of the submission he is making, Mr. Leno seems to be of the view that there has been a mismatch and he suggests that the unknown DNA was left aside and the DNA that was produced in the investigation into the more recent offences was compared to his own DNA. [ 9 ] Mr. Tomlin appeared as the prosecutor on at least one of the prior appearances in this case, and he said at page 2 of the proceedings in Duncan on December 22, 2017: I think he believes (referring to Mr. Leno) that somehow the DNA was obtained off of this firearm that he was convicted of possessing.

In fact his DNA relates to a conviction for a flight from peace officer, but all that file was for was creating the DNA sample that went into the DNA database.

[ 10 ] There was an analysis done by Mr. Poon, who the Crown has assured me will be testifying. Mr. Poon has retired from the lab and has been replaced by Ms. Lee. Pursuant to the policy of the lab, when someone retires before a court case is heard, the analysis is redone. In this case I am told that Ms. Lee redid the analysis. She said in her report that she had noticed some discrepancies, but the main thrust of her report was that she agreed with the findings of Mr. Poon. [ 11 ] Mr.

Leno certainly harbours some “conspiracy theories”, and he believes there is confusion and difficulty with the samples, and there may be some, but all of that is information that can be obtained either from Mr. Poon or from Ms. Lee in the course of their evidence, as both of them will be testifying. [ 12 ] With respect to Mr. Cheeseman who was Crown Counsel at some of the early appearances in this case, the issue is whether he was removed from the case for some reason, and if he was, Mr. Leno wants to know what that reason was.

Again, he wants to believe that there is some conspiracy in the background that is leading to a Crown presentation of evidence that has either been misidentified or in some other way falsified. [ 13 ] There is another allegation with respect to Mr. Cheeseman suggesting that he has falsified documents, but again, there is nothing one way or the other to substantiate it. [ 14 ] The law that Ms. Vizsolyi has referred me to is R. v. Baltovich (Finkle v. Ontario) , [2007] O.J. No. 3506 , a judgment of Mr. Justice Watt, as he then was, of the Superior Court of Justice in Ontario.

He noted that, first of all, the statute provides for a subpoena to be issued to anyone who is likely to give material evidence in a proceeding to which the Act applies, being a Criminal Code prosecution. [ 15 ] Para. 23 of the decision in that case was referred to, which is the decision of R. v. Blais , reported at 2008 BCCA 389 , he was quoted as saying: The statutory terms “is likely to give material evidence” refers to a probability, not a mere possibility or something that exists only in the fevered imaginings of the party seeking the subpoena.

Something is likely if it is probable, not merely possible. [ 16 ] Mr. Leno, in the course of representing himself in a very serious case with some serious and difficult complications, seems to see and hear things through a filter that only allows what he wants to believe, and only those things which are helpful to his case or harmful to the Crown's case seem to pass through that filter. [ 17 ] In my view, there is nothing that would be relevant in the evidence of Mr. Tomlin. Mr. Tomlin appeared in court.

Everything that was said in his appearances can and, I think, has been reduced to a transcript that can be reviewed by the court. There is nothing with respect to the prosecution of the other offence that Mr. Leno has raised before the jury as being tied somehow to the DNA sample that could usefully be learned from Mr. Tomlin. [ 18 ] With respect to Mr. Cheeseman, again there is nothing to suggest he was removed from the case, as Mr. Leno has used that term. Simply, he is not prosecuting this part of it.

That is not uncommon and it does not warrant any further inquiry, nor does it require an explanation from the Crown in any way. There is nothing to suggest he has falsified any documents or has any relevant evidence to provide. [ 19 ] Ms. Morono and Ms. McCorrin were simply people who wrote form letters in response to a Freedom of Information request. [ 20 ] Of those four witnesses who are under subpoena, there is nothing, in my view, that can satisfy the test set out by Mr. Justice Watt in Baltovich and adopted by our Court of Appeal in Blais .

Those subpoenas are quashed. [ 21 ] The last subpoena was to Sergeant Swain. Sergeant Swain, worked at the North Cowichan/Duncan RCMP Detachment. When the match was noted on the unknown sample from this case, that is the sample from Ms. M.'s underwear, to the known sample taken from Mr. Leno following the court order to obtain a sample, the lab sent a note to the North Cowichan Detachment that was directed to Sergeant Swain.

Sergeant Swain did only one thing with that information; he passed it on to Staff Sergeant Marsden, who I gather is likely the administrative NCO for the North Cowichan/Duncan Detachment. [ 22 ] There is nothing in the evidence or material, or even in Mr. Leno's submissions, that would suggest to me what Sergeant Swain may have to say, if anything, about this case. Mr. Leno raises the issue that either he or Staff Sergeant Marsden may have access to the exhibit locker, and that may be so.

But there is nothing to suggest that anything was done, or even could be done, to deal with the evidence that was critical to this case with respect to the DNA evidence. Therefore, Sergeant Swain's subpoena is quashed as well. [ 23 ] With respect to Mr.

Leno's request made in the course of his submissions here that Staff Sergeant Marsden be added to the list and a subpoena issued to him, again, using the standard that is the test in Blais and Baltovich , there is nothing I have heard, or that I am likely to hear, that would justify the issuance of a subpoena to Staff Sergeant Marsden in the context of this case. “J. K. Bracken, J.” The Honourable Mr. Justice Bracken