R. v. Walsh Date:, 2016 BCPC 240

Citation: R. v. Walsh Date: 20160729 2016 BCPC 0240 File No: 77979-4-C Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STEVEN CRAIG WALSH ORAL REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R. SMITH [BAN OF PUBLICATION 486.4(2) CCC] Counsel for the Crown: D. Grabavac Counsel for the Defendant: (appearing by telephone) T. Russell Place of Hearing: Kelowna , B.C. Date of Hearing: July 29, 2016

Date of Judgment: July 29, 2016 [ 1 ] THE COURT: Before me today is the matter of Steven Walsh. He pled guilty to three sexual offences back in February and May of 2015. Here we are now in the end of July 2016 and sentencing has yet to be completed. [ 2 ] Back in August of 2015, a psychiatric component to a presentencing report was ordered. I think that it was ordered again on a second occasion, by Judge Chapman, on the 27th of October 2015.

That report was never prepared because the accused, as he is entitled to do, elected not to comply with the completion of such a report. [ 3 ] However defence advises that they did go out and have their own psychiatric report prepared and they intend to use that at sentencing. But they are not prepared to disclose it to Crown prior to the Crown completing their portion of the evidence on the sentencing.

The matter has been set for five days' sentencing in December 2016, with evidence to be called. [ 4 ] In the interim, Judges Burdett and Cartwright, and in particular Judge Cartwright on the 20th of June 2016, ordered that the defence disclose a copy of the report to Crown on or before the 2nd of August. [ 5 ] The matter is in front of me today for review as to whether or not defence will be required to comply with Judge Cartwright's order. [ 6 ] Crown submits that any remedy of that order would need to be addressed in Supreme Court.

Defence relies on s. 657.3(3) of the Criminal Code , which does require the defence to give notice to the Crown of intention to rely on an expert, but does not require the disclosure of the expert report itself. [ 7 ] That 657.3(3)(

a) does allow the court jurisdiction to fix a period of time within which that disclosure of intention to call an expert must be complied with, and in fact I am a little bit unclear today whether Crown even knows who it is that is preparing this report. Do you know who? [ 8 ] MR. GRABAVAC: Yes, he has complied with -- [ 9 ] THE COURT: With that section. [ 10 ] MR. GRABAVAC: -- he has complied with that, so I have a CV and I know who it is. [ 11 ] THE COURT: Thank you. So there has been compliance with that section.

However defence says pursuant to s. 657.3(3) (c), that they are not required before the close of the Crown's case to provide the report of this expert. Defence says this applies whether it is a trial or whether it is a sentencing proceeding. [ 12 ] Crown submits that this s. 657.3(3) in its entirety deals with the trial process.

The Crown concedes that s. 657.3(1) could deal with any proceedings but not 657.3(3). [ 13 ] So the authority of the court to order the actual disclosure of the report prepared by the defence prior to the Crown concluding their evidence at sentencing is really to be determined by whether or not this s. 657.3(3) is limited to the trial process, or could also include the sentencing evidence-calling process. [ 14 ] Defence points out that, if it is disclosed in advance, then what the Crown will do will be, in advance, have their own expert look at that report and do up their own report.

In fact, that is probably correct.

That is why the Crown wants the report in advance. [ 15 ] Defence submits that the proper process is for the Crown in chief to call whatever sentencing evidence they are going to call without reference to the defence evidence and then have the defence evidence disclosed and, if they need more time, then have an adjournment to call some further defence expert evidence. [ 16 ] The problem I am having with all of this -- I think some finding of fact needs to be made with regards to this s. 657.3 and whether it does apply to the sentencing or is it limited to the trial process. [ 17 ] But here is my difficulty with this.

I think it is the trial judge that needs to make that decision. [ 18 ] I am not sure if a trial judge has been assigned to this yet or not, and so what I am inclined to do is to adjourn this and, as the administrative judge, get the trial judge assigned now so that this application for disclosure can be addressed, not by some pretrial conference judge, not by me as the administrative judge, but by the trial judge. [ 19 ] If it turns out that one of the three of us is the trial judge, then that would be a different matter.

I am not saying anyone is excluded from being the trial judge, but I am just saying I think it is the trial judge that should be making this determination with regards to the disclosure of this report. [ 20 ] I would like to adjourn this back to the judicial case manager’s (JCM) office for the purpose of fixing yet one more hour when it can be heard before the trial judge as to whether or not the trial judge will order the disclosure of the defence report or not. [ 21 ] I will definitely let the JCMs know what I am talking about with this, and I will direct them as the administrative judge to make that appointment of the trial judge now for the sentencing in December. [ 22 ] Can counsel recommend a date that I could have this next returnable in the JCM office so you would know when this one-hour window will need to be set in front of the trial judge to argue this disclosure-of-report issue.

[ 23 ] MR. GRABAVAC: Your Honour, I have proposed going to Wednesday, August 3rd, at 9:30 in the JCM's office. My friend has always appeared by -- I believe my friend has always appeared by telephone before for those. I am not sure if that works for my friend. [ 24 ] MR. RUSSELL: I'm sorry, what date did you suggest? [ 25 ] MR. GRABAVAC: Wednesday, August 3rd -- next Wednesday. 9:30 JCM. You appear by phone. [ 26 ] MR. RUSSELL: Yes, I can accommodate that. [ 27 ] THE COURT: Thank you.

So that is what I do is now adjourn it to the 3rd of August, 2016, at 9:30 before the JCM, with counsel for the accused appearing as agent for accused and by phone on that date before the JCM. I will talk to the JCM today to take steps to get the trial judge seized. [ 28 ] MR. GRABAVAC: Your Honour, when you are saying trial judge, do you mean the sentencing judge? [ 29 ] THE COURT: When I say trial judge, I do mean sentencing. I am somewhat misspeaking here but you know what I mean.

I want to get whoever is doing this seized of this application. [ 30 ] The reason I wrongly say trial instead of sentencing is because this is an unusual sentencing in the case where there is going to be evidence called, right? It is not your normal sentencing that is done on submissions. It is done with evidence called. [ 31 ] Thank you. (REASONS FOR JUDGMENT CONCLUDED)