Regina v. Beers and Beers Date:, 2014 BCPC 45

Citation: Regina v. Beers and Beers Date: 20140218 2014 BCPC 0045 File No: 78449 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FRANCIS MARIE BEERS GARY ROSS BEERS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.K. WALLACE Counsel for the Crown: O. Bick Counsel for the Defendant: D. Skogstad

Place of Hearing: Kelowna , B.C. Date of Hearing: January 20, 2014 Date of Judgment: February 18, 2014 [ 1 ] In this case, the accused are charged jointly with exactly a year ago today, unlawfully producing marihuana and possession of marihuana for the purpose of trafficking. The accused elected to have trial by judge and jury and a preliminary hearing was requested. It commenced on January 20, 2014. [ 2 ] At that time, the Court heard from two police officers who participated in the search of the accused’s residence pursuant to a search warrant.

An adjournment was required after that evidence was heard because the next witness the Crown wished to call was ill on that date. [ 3 ] At that point, counsel for Mr. and Mrs. Beers advised the Court that he wishes to call the Affiant of the Information to Obtain a Search Warrant (which I will refer to as the ITO) for the purpose of cross-examination. Crown counsel indicated he does not intend to call that person as his witness at the preliminary hearing.

It is well-established law that it is entirely within the discretion of the Crown as to which witnesses they call at a Preliminary Inquiry. [ 4 ] Crown is not opposed to Defence calling the affiant as his witness and acknowledged that he has relevant things to say.

Crown is opposed to the Defence cross-examining the officer on his affidavit at a Preliminary Inquiry and takes the position that cross- examination of an affiant of an ITO is a procedure that is specialized and dealt with in an exceptional way and is not within the jurisdiction of the judge presiding at a Preliminary Inquiry. [ 5 ] Defence argues that this is a request on the basis of R v Rao 2012 BCCA 275 for discovery to be able to frame Charter argument at trial.

Defence acknowledges he cannot make a Charter argument at this Preliminary Inquiry but argues that according to the Rao decision, he can use the Preliminary Inquiry to lay the groundwork for such an argument at trial. Analysis [ 6 ] The primary purpose of a Preliminary Inquiry, as set out

section 548 of the Criminal Code , is to determine if there is sufficient evidence to put an accused person on trial. That purpose has been described as “a screening process”. [ 7 ] Amendments to the Preliminary Inquiry process were enacted in 2004. Sections 536(4) and 536.1 provide that a preliminary inquiry occurs only if a party requests one.

If that request is made, then the party making the request must provide the court and the other party with a statement identifying the issues on which that party wants evidence to be given and the witnesses that the party wants called. [ 8 ] The amendments provide that the parties can agree to limit the scope of the preliminary inquiry or the judge can conduct a focusing hearing to narrow the issues, limit the number of witnesses and "consider any other matters that would promote a fair and expeditious inquiry". [ 9 ] As well, the judge has the power to restrict cross-examination if the judge considers it abusive, too repetitive or otherwise inappropriate.

And lastly, sections 540(7) to (9) provide for reception of evidence that eliminates the need to call viva voce evidence in certain circumstances. [ 10 ] It is recognized by the cases which examine the background to the amendments, such as the Parliamentary debates etc., that the over-arching goal of the amendments was to streamline preliminary hearings, to curb prolixity, or in some cases, to proceed without them at all. [ 11 ] Since the amendments were enacted, a recurring issue has been the ancillary role of discovery that had come to be a part of Preliminary Inquiries.

In R v Gill 2006 BCSC 927 (in which the Court cited the Supreme Court of Canada in R v Hynes 2001 SCC 82 ) the BC Supreme Court stated as follows: “Over time the preliminary inquiry has assumed an ancillary role as a discovery mechanism, providing the accused an early opportunity to discover the Crown’s case against him or her; None the less, this discovery element remains incidental to the central mandate of the preliminary inquiry as clearly prescribed by the Criminal Code : that is, the determination of whether “there is sufficient evidence to put the accused on trial”. [ 12 ] The ancillary role of the Preliminary Inquiry was most recently examined by our Court of Appeal in R v Rao 2012 BCCA 275 .

The facts in that case are that Mr. Rao and others were charged with breaking and entering a residence and unlawfully confining, robbing and sexually assaulting the occupants. The accused elected trial by judge and jury and asked for a preliminary inquiry. At trial, the Crown sought to use sections 540(7) to (9) of the Criminal Code to proceed by way of “a paper case” at the preliminary inquiry, so that the witnesses did not have to give viva voce evidence.

However the Defence asked the Court to call those witnesses for cross- examination. [ 13 ] The Provincial Court judge did not allow the application and did not permit the witnesses to be cross-examined. Her decision was upheld on appeal to the BC Supreme Court. The BC Court of Appeal reversed those decisions, and there has not been an appeal to the Supreme Court of Canada. Accordingly the Rao decision is binding upon me.

[14] The Court of Appeal in Rao, apart from determining that the defence had the right to cross-examine the witnesses who hadprovided written evidence, also went on to consider generally the right of the defence to call witnesses pursuant to section 541(5) of theCriminal Code. It stated: “[92] The secondary or ancillary role of the preliminary inquiry has not been superseded or extinguished by the enactment of the 2004amendments.

It is apparent from the authorities to which the preliminary inquiry judge referred, and many others, that the utility ofpreliminary inquiries and, in particular, a cost-benefit analysis of their secondary or discovery function, has been a matter of debate fordecades.

The controversy was reflected in the consultations leading up to the passage of the 2004 amendments and, as is evident fromthis appeal, continues unabated. 93 What emerges from all of the debates, however, is that, despite the many arguments mustered in favour of abolishing preliminaryinquiries, some of which were articulated by the preliminary inquiry judge, Parliament clearly decided to retain the preliminary inquiry,albeit in a more streamlined form.” Case Law submitted by Counsel [15] Defence Counsel has provided several cases, in addition to Rao, for my consideration. [16] R. v P.M. [2007] QJ 2195 is, like the Rao case, a situation where the Crown objected to complainants in a sexual assault havingto be cross-examined in a preliminary inquiry.

The preliminary inquiry judge held that cross-examination was the rule in Preliminaryhearings and inhibiting cross-examination should be done only in exceptional circumstances, which he found did not exist in that case. Therefore the witnesses were called for cross-examination but by way of closed circuit television. The Crown appealed. The appeal wasdismissed. [17] R v Lena [2001] BCCA 1906, concerns charges of attempted murder and dangerous driving. Mr. Lena represented himself atthe preliminary inquiry. After the Crown had called all of its witnesses, Mr.

Lena sought to call witnesses that the Crown did not call atthe preliminary inquiry but who they intended to call at trial. Mr. Lena was not permitted to question those witnesses at the preliminaryinquiry. [18] On application to Supreme Court, his committal was quashed and the matter was remitted back to the lower court for thosewitnesses to be called. The Superior Court held that the witnesses were relevant, given the Crown’s intention to call them at trial andtherefore the Preliminary Inquiry Judge had failed to follow the mandatory provisions of

section 541 of the Criminal Code. The Court ofAppeal quoted extensively from Lena in the Rao decision. [19] The Defence provided the case of R v Forsythe (SCC), [1980] 2 SCR 268. It was decided before theamendments were enacted and therefore is not helpful. [20] In R v Boronka [2012] OJ 6263, the accused were charged with importing cocaine and possession for the purpose oftrafficking. The issue in the case was the three year delay before the trial commenced. This case is not relevant to the issue before theCourt. [21] R v Sonier 2005 ONCJ 75 , [2005] OJ 1234 was a decision where the Crown sought to extend the

interpretation ofsection 540(7) to allow the evidence of victims of robberies to be entered via their statements given to the police. The Court held that itwas not the intent of this

section to dispense with disclosure or to alter the nature of Preliminary Inquiries by turning them into paperhearings. Those findings are not helpful to the issue before this Court. [22] The last case submitted by Defence is R v Nova Scotia - Justice of the Peace [2012] NSJ 512. This case involved a Crownapplication to quash subpoenas, issued at the behest of Defence, before the preliminary hearing began.

One subpoena was for the officerwho swore the information to obtain the search warrant and the other three were for officers who provided information aboutconfidential sources. [23] The Supreme Court of Nova Scotia held that the preliminary inquiry judge was in the best position to deal with the relevance ofthe evidence and did not quash the subpoenas. The Court added that the Judge presiding at the Preliminary Inquiry might take a differentview on relevance after hearing evidence and argument at the Inquiry.

The Nova Scotia Court acknowledged the finding in R v Rao andheld that it is a proper function of a preliminary inquiry to allow the exploration of facts which could later support a Charter argument. [24] Crown Counsel has submitted the case of Pires v the Queen 2005 SCC 66 , [2005] 3 SCR 343 from the Supreme Courtof Canada as authority for the argument that the affiant for a warrant is in a different position than other types of witnesses. The accusedin that case were charged with conspiracy to traffic in cocaine and with other counts of trafficking.

The Crown relied on interceptedcommunication obtained by way of an authorization under the Criminal Code and the Defence wished to cross-examine the affiant of theITO at trial.

His application to do so was dismissed by the trial judge. [25] In Pires, the Court considered its previous decision in R v Garofoli (1990) 60 CCC (3d) where it held that counsel must obtainleave to cross-examine the affiant for the authorization and to obtain leave, the defence must show a reasonable likelihood that the cross-examination would elicit testimony tending to discredit the existence of one of the preconditions to the authorization.

The SupremeCourt of Canada held that the trial judge was right in Garofoli to refuse leave to cross-examine the affiant because the trial judge hadconcluded that the cross-examination would not advance the inquiry and there was ample basis to grant the authorization and no need toset it aside. The Court in Pires confirmed that the Garofoli test still applies for this type of application and by inference, that this

examination is to occur at trial. [26] The Court went on to state in Pires that the two interests which weighed against permitting cross-examination of an affiant as ofright (at trial) were the concern over the prolixity of proceedings and the need to protect informants.

While protection of informants wasnot raised as an issue by the Defence in the case at bar, the fact that the amendments to the Preliminary Inquiry process were enactedprecisely to prevent prolixity (or extension to an unnecessary length) of these hearings is pertinent. [27] The Crown also submitted the case of R v Wilson 2011 BCCA 252, a 2011 decision of our Court of Appeal, as support for theprinciple that the Rao decision only stands for what was actually decided and that Rao does not say that Defence can call the affiant andcross-examine him on the affidavit.

In short, the Rao case did not decide anything about cross-examination of an affiant Other Case Law [28] The Court came across three other cases that focus on cross-examination of an affiant at a Preliminary Inquiry. In R v T.P.[2006] NJ 278, the accused were charged with offences contrary to the Controlled Drugs and Substances Act. They elected a jury trialand in the course of the preliminary inquiry, the Crown filed wiretap authorizations but did not call the affiant of the Information toObtain.

At the completion of the Crown's case, counsel for the accused applied to the Court for an order that the Crown be compelled tocall the affiant and that the Defence be allowed to cross-examine him on his affidavits. The Defence applications were dismissed and the Court stated: 28

Section 536.3 of the Criminal Code is designed to limit the scope of the preliminary inquiry. It does not have the effect of requiringthe Crown to call every witness listed by the accused in his or her notice. The

section assumes that counsel preparing such a notice willdo so in good faith and with a concern for the proper use of court resources. It assumes that counsel will not file such statements in aperfunctory manner and simply list every witness found in the disclosure provided by the Crown. Such an approach to

section 536.3 bycounsel would not be consistent with their responsibility as officers of the court to promote the appropriate functioning of the trialprocess. [29] The same facts were considered in R v Pilkington 2012 MBPC 35. In that case the accused was also charged with possession forthe purpose of trafficking which arose after execution of a search warrant.

The Crown called its witnesses and the Defence sought leaveto cross-examine the affiant of the search warrant at the preliminary hearing. [30] The Court held the primary purpose for defence counsel wanting to call this officer was to explore issues related to a possibleCharter infringement that could be advanced at a future trial.

On that basis, the Defence had not met their onus of showing that theproposed witness would testify to matters relevant to the inquiry and therefore did not fall within the ambit of section 541(5). [31] My sister Judge Mrozinski, in the recent case of R v Malenfant, Nelson Registry #23534, also dealt with the issue of Defencecounsel seeking to question the affiant of an ITO in a drug case and was called as a Defence witness.

The Crown objected to thequestioning on the basis that firstly, the Defence had not made a Garofoli application and secondly on the basis of informer privilege. [32] The Court held that the Rao decision is authority for the proposition that the preliminary hearing may be used for discovery. InJudge Mrozinski’s view, contrary to the judge in Pilkington, this included matters with respect to Charter issues and that the Defencemight have been able to explore Charter issues depending on the outcome of a Garofoli application.

However the Defence in that casedid not have that evidence for such an application and therefore was not entitled to question the affiant. Decision [33] I agree with the Crown that the Rao decision does not address cross-examination of an affiant.

The Supreme Court of Canadahas set out the proper procedure for such cross-examination in the Garofoli and Pires cases, where the application was not part of apreliminary inquiry but at trial. [34] I find that in effect, Defence in this case is attempting to conduct a Garafoli cross-examination at this preliminary inquiry todetermine whether the warrant meets Charter requirements. In 1986, in the case of R v Mills, (SCC), [1986] SCJ 39, theSupreme Court of Canada held that a magistrate or Provincial Court judge sitting at a preliminary hearing is not a court of competentjurisdiction to deal with these issues.

The Defence cannot get in through the back door what he cannot get in through the front door. [35] Furthermore I find that the 2004 changes to the Preliminary Inquiry sections of the Criminal Code were, as the Court of Appealstated, enacted to streamline this process. The Defence is seeking in his application to broaden the scope of the Preliminary Inquiryprocess from what it has been, which is counter to the intention of the legislation. I find this type of examination is properly conductedin the trial court, not at a Preliminary Inquiry. [36] The application is denied. ____________________________________

The Honourable Judge A.K. Wallace