Her Majesty the Queen ) Shannon Benevides, for the Crown ) - v. -, 2015 MBPC 38

2015 MBPC 38 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN: Her Majesty the Queen ) Shannon Benevides, for the Crown ) - and - ) ) J.M.C. ) Matthew Gould, for the Accused ) ) Judgment delivered: August 12, 2015 NOTICE OF RESTRICTION ON PUBLICATION : Pursuant to s. 486.4 of the Criminal Code of Canada , no one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es). Pursuant to s.539 (1) of the Criminal Code of Canada , any evidence taken at this inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of the accused, he is discharged, or if he is ordered to stand trial, the trial is ended. CHAMPAGNE, C.J. INTRODUCTION [ 1 ] J.M.C. is charged with two counts of sexual assault and two counts of sexual interference. The allegations involve his two biological daughters; A.C. (5 years) and W.C. (4 years). The matter is scheduled for preliminary inquiry from August 12 to 14, 2015.

HISTORY OF PROCEEDINGS [ 2 ] The first court appearance for this matter occurred on July 14, 2014. The matter was remanded from time to time and on October 9, 2014 the first preliminary inquiry was set for this matter. It was originally scheduled for September 22, 23 and 24, 2015. I note that there was no formal election recorded. The Court Trial Notice has the words “preliminary hearing” added in two locations but the election appears to be for Provincial Judge as that box is checked off on the form. [ 3 ] The matter was then brought forward to December 4, 2014 to set new dates for the preliminary inquiry.

The new dates are August 12, 13 and 14, 2015. Again, although preliminary inquiry dates were set, there was no formal election recorded. The Court Trial Notice has the word “prelim” added at the top. [ 4 ] Counsel attended two case management conferences (CMC) to discuss issues related to the preliminary inquiry. The first CMC took place on December 16, 2014 and the second occurred on June 18, 2015. [ 5 ] On June 17, 2015, the Crown provided written notice of their intention to proceed under section 540(7) of the Criminal Code .

The Crown’s application was to tender four video statements and two body charts without calling A.C. and W.C. as witnesses. [ 6 ] During the CMC on June 18, 2015 counsel for the accused, indicated an intention to apply for an order that the two witnesses be produced for cross-examination pursuant to section 540(9). It was agreed that a full day would be required to hear the motions. It was also agreed that the motions should be heard in advance of the preliminary inquiry.

The date set for the motions was July 30, 2015. [ 7 ] At the conclusion of argument on the motions, I granted the Crown’s application pursuant to section 540(7) and denied the accused application to cross examine the children. I indicated that I would provide full reasons for my decision. These are those reasons. FACTS [ 8 ] On May 29, 2014 A.C. and W.C. disclosed allegations of sexual abuse to their mother, B.V. The next day the children were taken to their family doctor where they repeated the allegations of sexual abuse committed by their father.

Child and Family Services and the Child Abuse Unit of the Winnipeg Police Service (WPS) were notified. [ 9 ] On May 30, 2014 W.C. provided a videotaped statement and completed a body chart document in relation to her allegations. [ 10 ] On May 30, 2014 A.C. provided a videotaped statement and also completed a body chart in relation to her allegations.

[11] As a result of further contact from B.V., officers from the WPS Child Abuse Unit obtained a further videotaped statement fromW.C. on June 2, 2014 and also obtained a second videotaped statement from A.C. on June 4, 2014. GENERAL LEGAL FRAMEWORK [12] The Canadian Charter of Rights and Freedoms guarantees all accused the right to a fair trial. The right to a fair trial does not, ofcourse, mean that the accused is entitled to a perfect trial or even the most advantageous trial from his perspective. (R. v. Lyons [1987] 2S.C.R.) [13] This matter is not set for trial.

It is at the preliminary inquiry stage of criminal proceedings. [14] In order to properly consider the applications before the court it is important to understand the purpose of the preliminaryinquiry. A preliminary inquiry serves as a screening mechanism to determine if there is sufficient evidence to commit the accused tostand trial. [15] The test for committal to stand trial after a preliminary inquiry has a low threshold. The Crown is simply required to produce a“scintilla of evidence” on each element of the charge to support committal. (R. v.

Skogman (SCC), [1984] 2 S.C.R. 93) [16] A judge is required to commit the accused person to stand trial in any case in which there is admissible evidence which could, ifit were believed, result in conviction. (The United States of America v.

Sheppard (SCC), [1977] 2 S.C.R. 1067) [17] Where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing ofthe whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury, properly instructed, could returna verdict of guilty. [18] In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does sheassess credibility.

Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for aproperly instructed jury to infer guilt. This task of limited weighing never requires consideration of the inherent reliability of theevidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from thecircumstantial evidence. (R. v. Arcuri 2001 SCC 54 , [2001] 2 S.C.R. 828) [19] New preliminary inquiry reforms came into force in 2004.

The purpose of the new reforms were to promote a fair andexpeditious inquiry, to reduce the number of inquiries and their length and to minimize the extent to which complainants are subject toexamination and cross examination. These reforms are reflected in the Criminal Code of Canada.

By way of example: • After the election has been made for trial in the Court of Queen’s Bench before a judge sitting alone or a judge and jury, apreliminary hearing will only occur if the accused or prosecutor requests one, and if there is no request for a preliminary hearing, theaccused is to appear next in the trial court to have the trial date fixed. (s.536) • If there is a request for a preliminary inquiry, the requesting party is to prepare and provide the court and other party with astatement that identifies issues on which the requesting party wants evidence to be given at the inquiry and also identify the witnessesthat the requesting party wants to hear at the inquiry. (s. 536.3) • The court is empowered to hold hearings to assist with identifying issues, to consider the needs of witnesses, encourage agreementfor any matters that would promote a fair and expeditious inquiry and to record any agreed statements of facts. (s.536.4) • The parties can agree to limit the scope of the inquiry. (s.536.5) • Further powers of the preliminary inquiry Justice are set out in s. 537. [20] Shortly after these amendments the Provincial Court of Manitoba sent out a practice directive to the profession outlining theprocedures and expectations to fulfill the goal of the amendments.

The new procedures included the requirement to complete Form Aand Form B. (Appendix A). [21] Form A was designed to ensure the party requesting the preliminary inquiry identified issues and the witnesses they wished toexamine. [22] Form B was created to provide a written record of agreements and admissions of fact. [23] In May of 2007, the Provincial Court of Manitoba sent out a further notice to the profession about case managementconferences (CMC). (Appendix B) [24] The goal was to further assist the parties in identifying issues with a view to narrowing the scope of trials and preliminaryinquiries to ensure the best use of court time. [25] In July 2009, a further court notice detailed the expectation of parties as the court embarked on an expanded CMC process forall multi-day preliminary inquiries and trials. (Appendix C) [26] In March 2010, the court sent out two further directives to the profession about the CMC process.

One notice was in respect tocircuit matters that required a CMC and the second notice announced the creation of a CMC coordinator’s docket to manage and monitorall CMCs. (Appendix D) [27] The purpose of the CMC process was to ensure all multi-day trials and preliminary inquiries were reviewed in a meaningfulfashion to ensure issues were identified and the scope of the hearing was focused. The overall goal was to make the most effective use ofscarce judicial resources and limited court time. The expectation was that the parties would attend Provincial Court chambers to meet

with a judge fully prepared to discuss the case. [ 28 ] Often, these expectations were not met, resulting in further CMCs for the same matter. After conducting approximately two thousand CMCs, a careful and critical review was conducted regarding the utility of the process. Unfortunately, it became clear that the work and effort to pursue the CMCs far outweighed the benefit from this intensive process.

The result was a further notice to the profession in July 2013 suspending the mandatory CMC protocol. (Appendix E) [ 29 ] The matter before the court is an example of expectations not being met as Form A and Form B have never been completed and filed with the court. [ 30 ] Unfortunately, the two CMCs did little to identify issues, identify witnesses or in any way narrow the scope of the preliminary inquiry. The first CMC on December 16, 2014 noted one item outstanding for disclosure which was expected to be resolved immediately.

The only other agreement from that conference was to confirm the dates for the preliminary hearing. The second CMC on June 18, 2015 again confirmed the three days for the preliminary inquiry and added another full day for the motion to be heard on July 30, 2015. It appears that there have been no agreements that might narrow issues or focus the scope of this preliminary inquiry.

SPECIFIC LEGAL FRAMEWORK FOR THE APPLICATIONS BEFORE THE COURT [ 31 ] As part of the preliminary inquiry reforms , Parliament enacted section 540(7) which allows for the reception of a broad range of evidence that would not otherwise have been admissible. Section 540(8) sets out notice requirements and section 540(9) requires the preliminary hearing justice to consider applications for examination and cross examination of any person whom the justice considers appropriate in deciding to receive otherwise inadmissible evidence. [ 32 ] These three sections are the focus of the applications before the court.

The sections read; • s. 540(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded. • s. 540(8) Unless the justice orders otherwise, no information may be received as evidence under subsection (7) unless the party has given to each of the other parties reasonable notice of his or her intention to tender it, together with a copy of the statement, if any, referred to in that subsection. • s. 540(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7). [ 33 ] These three subsections set out the framework for the admission of evidence that would not otherwise be admissible.

The test is set out in section 540(7) which requires the justice to determine if the evidence to be tendered is credible or trustworthy. I will return to this test later. [ 34 ] In this case, the notice provision in subsection 8 has been complied with and is not in issue. The accused has applied to have A.C. and W.C. appear for cross examination pursuant to subsection (9). [ 35 ] It is my view that the application to produce the children to testify is to be considered only in relation to the need to decide if the proposed evidence is credible or trustworthy.

I find support for this position in the wording of subsection (9) as it speaks to the purpose of cross-examination in relation to information intended to be tendered as evidence under subsection (7). [ 36 ] If the court finds the evidence to be credible or trustworthy and admits the evidence, it is no longer intended to be tendered and there is no need or basis for producing the witness to testify. To require any witness to appear for examination or cross-examination at that point would defeat the purpose of section 540(7) and the goal of the preliminary inquiry reforms.

CREDIBLE OR TRUSTWORTHY [ 37 ] As previously noted, when considering the test set out in s. 540(7) it is important to understand the purpose of a preliminary inquiry. [ 38 ] A preliminary hearing is not a trial and should not be allowed to become a trial. ( R. v. Hynes , 2001 SCC 82 ) Rather, a preliminary inquiry serves as a screening mechanism to determine if there is sufficient evidence to commit the accused to stand trial. The primary purpose of the hearing is to ensure that the accused is not committed to trial unnecessarily.

An ancillary purpose of the preliminary inquiry is to provide defence counsel with “discovery of the crown’s case”. ( R. v. Bjelland , 2009 SCC 38 ) [ 39 ] This “discovery” purpose of the preliminary inquiry has been significantly eroded with the evolution of the law of disclosure since Stinchcombe . [ 40 ] In the matter before the court, disclosure appears to be complete and has not been raised as a concern. The Supreme Court of Canada has confirmed that

section 7 of the Charter and the right to make full answer and defence is protected for trial and is not infringed if an accused is denied the ability to cross examine witnesses at the preliminary inquiry stage when full disclosure by the Crown has been otherwise met. ( Bjelland ) [ 41 ] The test for credible or trustworthy information has been considered in a number of cases and is set out in R. v.

Uttak , 2006 NUCJ 10 , at paragraphs 12 & 13 : “ the screening function contemplated by section 540(7) requires a determination of whether the tendered information is worthy of some belief, based upon an objective standard of reason and commonsense. If the proposed evidence on its face “might reasonably be true”

then it is credible and admissible for the purpose of preliminary inquiry. A series of purported observations that appear to be irrational, or that, lack any objective basis in fact, would not meet this standard. If a properly instructed jury, acting judicially, might reasonably conclude that the information tendered under section 540(7) is reliable, then this information becomes “trustworthy” for the purpose of this limited screening function. The assessment of trustworthiness again turns upon an objective standard, a standard based upon reason and commonsense. No more is required.

Questions of weight should not be considered.” [ 42 ] It is clear from section 540(7) that the application of the test to assess credible or trustworthy information is to be applied on a case by case basis and it is uncontested that the standard to apply is one of a balance of probabilities. ANALYSIS [ 43 ] In preparing for the applications before the court counsel agreed to provide in advance, the information that is subject of the application. I was able to review the following: • DVD and transcript of the statement from A.C. dated May 30, 2014. (exh.

A) • Body Chart completed by A.C. on May 30, 2014. (exh.B) • DVD and transcript of the statement from W.C. dated May 30, 2014. (exh. C) • Body chart completed by W.C. on May 30, 2014. (exh. D) • DVD and transcript of the statement from W.C. dated June 2, 2014. (exh. E) • DVD and transcript of the statement from A.C. dated June 4, 2014. (exh. F) [ 44 ] The Crown called two witnesses for the s. 540(7) application. The first was Detective Sergeant Jacqueline Chaput. This witness conducted the interviews of W.C. and A.C. on May 30, 2014 and also conducted the interview of W.C. on June 2, 2014.

She was called to introduce the DVDs, transcripts and body charts from those interviews. The second witness for the Crown was Detective Sergeant Kelly McCartney who interviewed A.C. on June 4, 2014. She was called to introduce the DVD and transcript from that interview. [ 45 ] Both officers detailed their involvement in obtaining the witness statements from the children. The evidence from the two officers was straightforward and uncontested. Officer Chaput described the background information she obtained before meeting with B.V. and her two children on May 30, 2014.

She then described: • Meeting with B.V. and transporting her and the two girls to Snowflake Place located at 225 Portage Avenue. This is a children’s advocacy centre that is equipped with child friendly interview rooms. • There was no conversation about the allegations during the drive or at any other time but for the videotaped interview. • A.C. was the first child interviewed.

The entire interview was recorded and the transcript that was prepared is an accurate reflection of the videotaped statement. • The entire interview for W.C. was videotaped and the transcript is an accurate reflection of the videotaped statement. [ 46 ] Officer Chaput testified that B.V. contacted the Winnipeg Police Service on June 2, 2014 with further information about this matter. Officer Chaput described meeting B.V. and W.C. to obtain further statements. The officer first interviewed B.V. to obtain background information and context about the new information.

Officer Chaput then conducted a videotaped interview of W.C. The entire interview was videotaped and the transcript is an accurate reflection of the videotaped statement. [ 47 ] B.V. contacted the Winnipeg Police Service on June 4, 2014 regarding further information from A.C. Officer Chaput was unavailable so Detective Sergeant McCartney was assigned to meet with A.C. Officer McCartney met with B.V. and A.C. on June 4, 2014 and obtained a videotaped statement from A.C. The officer testified that there was no discussion about the allegations except in the interview room with the video recording.

The entire interview was videotaped and but for a couple of inaudibles, the transcript is an accurate reflection of the interview. [ 48 ] On the voir dire, counsel for the accused agreed that the purpose of the preliminary inquiry reforms were to focus, streamline and reduce delays in getting matters to trial.

However, the accused has taken the position that cross examination of the two children is required to ensure the information that is intended to be tendered is credible or trustworthy. [ 49 ] Further, he submits that there are absolutely unique aspects of sexual assault cases generally that require careful examination before any information or evidence is received under s. 540(7) and there are absolutely unique aspects with evidence from children that need to be carefully examined.

Counsel argues there are special circumstances that need to be addressed in these types of cases through the cross examination of complainants. [ 50 ] Counsel concedes that there are other types of information that can be tendered as they are credible or trustworthy and need not be tested by cross examination, such as medical reports. [ 51 ] In this case, the accused points to a number of factors that should be the subject of cross examination in order to ensure the information is credible or trustworthy. They include: • the understanding of truth and lies;

• the understanding of a promise; • lack of specific details in describing the allegations; • unclear timelines of the allegations; • inconsistencies or contradictions in the witness statements; • leading questions by the police officers; and • outside influence or coaching of the children.

The accused takes the position that all of these areas should be subject of cross examination to assist the court in determining if the information is credible or trustworthy. [ 52 ] If this was a trial, all of the areas identified by counsel would certainly be explored through cross examination as they relate to credibility, weight and ultimate reliability of the evidence which are issues to be decided by the trier of fact.

This is a preliminary inquiry and I am guided by the wording of sections 540(7) and 540(9) and the test enunciated in Uttak . [ 53 ] In considering the test, I am mindful that these are the statements of children and their evidence must be assessed in that regard. I note that the Canada Evidence Act was amended and s.16.1 provides a presumption that children under the age of fourteen have the capacity to testify and shall not take an oath or give a solemn affirmation before testifying in court.

The evidence of a witness under fourteen years of age shall be received if they are able to understand and respond to questions. The court shall require them to promise to tell the truth. [ 54 ] I am also mindful that these two young girls were asked to provide personal information about themselves and their father in a foreign environment and to complete strangers.

It is clear that all of the information provided by A.C. and W.C. was videotaped in its entirety and an accurate transcript was produced for all four statements. [ 55 ] Although more may have been done to demonstrate their understanding of truth and lies and the concept of a promise, it must be remembered that these were 4 and 5 year old girls. I did find that they both understood the difference between truth and lies and that it was important to tell the truth. Articulating the meaning of a promise to tell the truth can be difficult for anyone and next to impossible for young children.

Section 16.1(7) of the Canada Evidence Act states; “no proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.” [ 56 ] It is clear that both children were able to understand and respond to the questions, and the videos provide a good sense of their demeanor as they moved through different areas of discussion.

I did not find that the officers led the witnesses but as one would expect they were required to direct the children back to the subject of discussion. [ 57 ] Both witnesses were able to spontaneously offer more information about a matter without prompting by the officers. For example, as A.C. was completing the body chart document she identified eyes and went on to describe taking an eye test and then described taking a hearing test. (p. 29 transcript of interview from May 30, 2014.) [ 58 ] Another example occurs during the discussion of where the allegations took place.

A.C. sketches a floor plan of her home and is describing incidents and locations in the home. She indicates that she made a mistake and then goes on to state “that was when daddy touched my bits”. This was a spontaneous comment that occurred when she was thinking about locations in her home. [ 59 ] An example involving W.C. occurs at page 33 of the transcript of her statement dated May 30, 2014.

There is a discussion about her father annoying her mother and W.C. offers that he does a lot of things and then states “well he touched my butt”. [ 60 ] After a careful review of all of the videos and transcripts I found that the information provided by A.C. and W.C. is worthy of some belief based on the objective standard of reason and commonsense. The information on its face might reasonably be true, making it credible and admissible for the purposes of s. 540(7). [ 61 ] The videos are of high quality and produce a complete and accurate account of the information provided by both children.

The videos allow for an assessment of their demeanor while responding and offering information about the allegations. A properly instructed jury, acting judicially, might reasonably conclude that this information is reliable and therefore it becomes trustworthy pursuant to s. 540(7) for the limited screening function of a preliminary inquiry.

CONCLUSION [ 62 ] Having carefully considered all of the evidence, the written submissions in the motions briefs and the oral submissions, I find the proposed information provided by A.C. and W.C. to be credible and trustworthy under s.540(7) and exercise my discretion to admit the evidence. [ 63 ] Given my decision, the application by the accused to cross examine the two children pursuant to s. 540(9) is denied. [ 64 ] The following becomes evidence in the preliminary inquiry; • DVD and transcript of the statement from A.C. dated May 30, 2014 (exh.

A) will become exhibit 1. • Body Chart completed by A.C. on May 30, 2014 (exh.

B) will become exhibit 2.

• DVD and transcript of the statement from W.C. dated May 30, 2014 (exh.

C) will become exhibit 3. • Body chart completed by W.C. on May 30, 2014 (exh.

D) will become exhibit 4. • DVD and transcript of the statement from W.C. dated June 2, 2014 (exh.

E) will become exhibit 5. • DVD and transcript of the statement from A.C. dated June 4, 2014 (exh.

F) will become exhibit 6. [ 65 ] A final observation about applications pursuant to section 540 (7), (8) and (9). When parties are considering these applications it is important to remember the purpose of a preliminary inquiry and the purpose of the 2004 amendments to reform this process. These applications should not complicate or prolong a preliminary hearing. They were introduced to streamline the process. The test for credible or trustworthy evidence is not new. Section 518(1) (

e) of the Criminal Code has similar language that is used for the consideration of judicial interim release. It states: s. 518(1) In any proceedings under

section 515, (

e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case. [ 66 ] This type of evidence is received in many hearings every day throughout the Province of Manitoba. It allows for an expeditious hearing that balances the right of the accused with the need to carefully allocate judicial resources and court time. The information is received and considered in the most serious context, as it is used to assess and determine the liberty of the accused.

I see no reason why the preliminary hearing reforms from 2004 should not provide a similar streamlined process to consider the committal of an accused to stand trial. « Original signed by : » __________________________________ KEN CHAMPAGNE, C.J. APPENDIX “A” PRACTICE DIRECTIVE Recent amendments to the Criminal Code of Canada state: 536.4

(1) The justice before whom a preliminary inquiry is to be held may order, on application of the prosecutor or the accused or on the justice's own motion, that a hearing be held, within the period fixed by rules of court made under

section 482 or 482.1 or, if there are no such rules, by the justice, to (

a) assist the parties to identify the issues on which evidence will be given at the inquiry; (

b) assist the parties to identify the witnesses to be heard at the inquiry, taking into account the witnesses' needs and circumstances; and (

c) encourage the parties to consider any other matters that would promote a fair and expeditious inquiry. Agreement to be recorded -- s. 536.4(2)

(2) When the hearing is completed, the justice shall record any admissions of fact agreed to by the parties and any agreement reached by the parties. Agreement to limit scope of preliminary inquiry -- s. 536.5 536.5 Whether or not a hearing is held under

section 536.4 in respect of a preliminary inquiry, the prosecutor and the accused may agree to limit the scope of the preliminary inquiry to specific issues. An agreement shall be filed with the court or recorded under subsection 536.4(2), as the case may be. As a result, the following procedures will apply in the Provincial Court of Manitoba: The party requesting the preliminary hearing must file Form “A” (identifying issues and witnesses) in court when the preliminary inquiry is set.

Where a preliminary inquiry is scheduled for hearing for two or more days, or has been the subject of a s. 536.4(1) “focus hearing” application by either the accused or the Crown, a “resolution conference” will be ordered by the Court. (see Appendix ‘A’ to attached Notice to the Bar for

definitions of “resolution conference” and “focus hearing”).

A resolution conference will be scheduled in court at the time of the setting of the preliminary hearing date, and will be before the Duty Judge in Chambers. Following the completion of the resolution conference, if either defence counsel or the Crown makes or renews application for a focus hearing, or the Judge conducting the resolution conference is of the view that a focus hearing is required, that application/assessment will go to the judge before whom the preliminary inquiry is to be held for a determination as to whether to order the focus hearing.

If admissions of fact or agreements have been reached by the parties, either at the time that the preliminary inquiry is scheduled, or at the conclusion of a resolution conference or focus hearing, Form “B” (agreements and admissions of fact) is to be filed with the Clerk of the Court. If a hearing is not held pursuant to s. 536.4, the Crown and counsel for the accused may agree to limit the scope of the preliminary inquiry to specific issues. Form “B” is to be used and filed with the Clerk of Court.

Pre-Trial Hearings will continue to be ordered with respect to matters proceeding to trial in the Provincial Court, where either the trial is scheduled for two or more days, or at the discretion of the Court based on an application by the accused or the Crown.

APPENDIX “B”

APPENDIX “C” NOTICE PROVINCIAL COURT OF MANITOBA RE: Judicial Case Management Conferences Effective Monday, October 5, 2009 all multi-day cases in Winnipeg and Portage la Prairie must be the subject of a judicially presided Case Management Conference before a date may be set for preliminary hearing or trial. Judicial Case Management Conferences include all Pre-trial, Resolution and Case Management Hearings and will be subject to this protocol.

A Case Management Conference will also be required when deemed necessary by the assigned circuit judge for circuits points conducted out of Winnipeg, when requested by counsel or otherwise as directed by the Court. Counsel who will represent the Crown and the accused at the preliminary hearing or trial must appear personally at the Case Conference with their file and be prepared to discuss aspects of the case including but not limited to the following: · Possibility of resolution · Elections · Preliminary matters · Disclosure (sufficiency of)

· Potential for Charter or other motions · Potential for voir dire · Evidentiary issues · Number of witnesses and the nature of the anticipated testimony · Expert witnesses · Time required for preliminary hearing or trial · Other issues such as security, special needs etc.

The goals of the Case Management Conference include: · Assisting counsel in resolving the matter without the need for a hearing · Focusing the issues to ensure the most efficient use of court time and counsel's time · Assisting counsel in determining the amount of court time required for the hearing Ultimately it is the Court's hope that backlogs regarding multi-day matters will be reduced.

Implementation Details A calendar in Outlook has been established and will be viewable to Judges, Judicial Support Staff, the Trial Coordinator's Office (TCO), Pre-trial Coordinators (PTC's), Court Clerks, Crown Counsel (Provincial) and Support Staff. While we continue to work on providing access to the Federal Crown and Defence Counsel, they are outside the managed environment and we have been unable to achieve this at this point. Editing ability in order to book a Case Management Conference will be provided only to the TCO and PTC's. .

Case Management Conference dates will only be confirmed by the TCO upon receipt of the materials required by the Court for the hearing. The Court requires counsel to provide the police

summary, at a minimum, but counsel are encouraged to provide whatever information will assist the Court in conducting a meaningful Case Management Conference. The Court Office will continue to provide a copy of the Information(

s) to the Court. Any material provided by the Crown by email to the TCO will be copied into the Outlook calendar and forwarded to Chambers for printing or emailing to the presiding judge. There will be five available slots at 9:00 a.m. and five available slots at 1:00 p.m. daily for Case Management Conferences and other hearings which may include decisions, bail applications, and Conditional Sentence breaches. Case Management Conferences will not be held when Courts are closed for Judicial Education and Court Business meetings.

There will be two slots available at 9:00 a.m. and two slots available at 1:00 p.m. during the summer and winter rotas. The Duty and Backup Duty Judges will no longer be responsible for conducting these hearings. Judges will be assigned on a weekly and rotating basis. Each Judge will be assigned approximately one week every six weeks.

Judges are expected to remain seized of a matter once a Case Conference has been conducted and are expected to follow up with counsel in writing or through further Case Management Conferences until any outstanding issues are resolved and/or the matter is ready to proceed to preliminary hearing or trial. The TCO will manage the scheduling of all multi-day matters. Counsel will not be able to reserve dates except with the approval of the Case Management Conference Judge.

The Case Management Conference Judge will only reserve dates when the matter has been fully considered at the Case Management Conference and an agreement has been reached (approved by the Case Management Conference Judge) regarding the amount of time required. That is not to say that all pre-trial matters must be resolved but the parties must be ready to proceed to hearing. All preliminary hearing and trial dates will be provided by the TCO and reserved until the matter is adjourned to the date and the required paperwork is filed by counsel.

A Case Management Conference memorandum will be prepared by the Case Management Conference Judge. The memorandum will be provided to counsel as well as to the Preliminary Hearing or Trial Judge. ISSUED BY: Original signed by Raymond E. Wyant, Chief Judge

(Manitoba) DATE: July 8, 2009 APPENDIX “D” DIRECTIVE PROVINCIAL COURT OF MANITOBA RE: Case Management Conferences: Non-Resident Judge Assigned to Preliminary Inquiry or Trial There are occasions when a resident judge from one judicial centre has a conflict with respect to a preliminary inquiry or a trial, and a non-resident judge is assigned to preside over the matter in that centre or one of its designated circuit points. In such circumstances, the matter will automatically be subjected to the case management conference (CMC) process.

In addition to this process, the parties will now be required to participate in a final CMC within a reasonable time immediately prior to the start of the preliminary inquiry or trial. This will ensure that no last minute issues have arisen which may affect the commencement of the hearing, and thus avoid the unnecessary attendance of the visiting judge and court party on the day of the hearing.

In order to comply with this Directive, it is expected that counsel will, no earlier than five (5) days prior to the date of the hearing, either by teleconference or in person, participate in one final CMC to ensure that all issues have been addressed and to confirm that the preliminary hearing or trial is expected to proceed as scheduled.

ISSUED BY: “Original signed by” __________________________________ Chief Judge Ken Champagne (Manitoba) DATE: March 22, 2010 DIRECTIVE PROVINCIAL COURT OF MANITOBA RE: Case Management Conference Coordinator’s Docket Commencing April 15, 2010 a Case Management Coordinator’s Docket will sit every Thursday at 2:00 p.m. in Courtroom 302 presided over by Laurie Desrochers, the Case Management Coordinator. The Case Management Coordinator will be responsible for monitoring matters which have been the subject of a Case Management Conference (CMC).

Once a CMC date has been confirmed with the Trial Coordinator’s Office, the matter should be adjourned to the next Case Management Coordinator’s Docket two weeks from the date of the CMC. It is expected that when the matter appears on the Case Management Coordinator’s Docket, dates for preliminary inquiry or trial which have been previously confirmed with the Trial Coordinator’s Office will be set unless:

© The Case Management Judge has determined that a further CMC is required and the matter is being adjourned to the next Case Management Coordinator’s Docket two weeks from the date of the next CMC; © The matter is resolved and is being adjourned to a sentencing date; or © The Case Management Judge has authorized an adjournment in advance.

Counsel are not required to appear for the Case Management Coordinator’s Docket where the Case Management Coordinator has been provided with a sentencing date, remand date authorized by the Case Management Judge, or the previously confirmed preliminary inquiry or trial date along with a trial slip signed by the accused no later than 3:00 p.m. on the day prior to the appearance . Individuals with a personal appearance requirement must appear. If counsel request an adjournment that has not been authorized by the Case Management Judge, a further CMC must be arranged before the adjournment will be permitted.

The Case Management Coordinator may be reached as follows: Email: pctrialcoordinators@gov.mb.ca Telephone: 945-4460 Cell phone: 451-0848 Fax: 948-2717 ISSUED BY: “Original Signed by” __________________________________ Chief Judge Ken Champagne (Manitoba) DATE: March 30, 2010 APPENDIX “E” NOTICE PROVINCIAL COURT OF MANITOBA RE: Case Management Conference PROTOCOL sUSPENDED BY CHIEF JUDGE Effective immediately the Case Management Protocols dated July 7, 2009, March 22, 2010 and March 30, 2010 are suspended until further notice.

A Case Management Conference (CMC) will only be held if requested by counsel or required by the Court. Initial CMCs which are already scheduled may be cancelled with the consent of both Crown and defence by contacting the Trial Coordinator’s Office (TCO). If one party wishes to cancel an initial CMC and does not obtain the consent of the other party, a request may be made to a judge in the Administrative Court. Second or subsequent CMCs presided over by a judge who is seized may only be cancelled with the permission of the CMC judge. Counsel may contact TCO to request permission to cancel a seized CMC.

Counsel requesting a CMC may obtain a date by accessing the Courts Website. Dates agreed to by counsel must be confirmed by TCO. TCO will continue to update the website with 9:00 a.m. and 1:00 p.m. dates when the Duty Judge is available to hear the CMC. CMCs

may also be scheduled for the Duty Judge out of the Administrative Court. If a CMC is required by the Court then the presiding judge will become seized of the CMC and request a date on which the seized judge is available to hear the CMC from TCO. If the judge requiring the CMC is unable to preside over the CMC then a date before the Duty Judge may be requested from TCO. All matters currently appearing on the CMC docket which no longer require a CMC may be set for hearing at the next appearance. If counsel are unable to set a hearing date a four week remand on the CMC docket will be permitted to arrange dates.

If dates are not set at the next appearance then the matter will be remanded to the Administrative Docket for counsel to appear before a Judge to set the date. ISSUED BY: “Original signed by:” Ken Champagne, Chief Judge (Manitoba) DATE: July 2, 2013