R. v. Eberts, 2012 ONCJ 602

Information No. 11-5734 Citation: R. v. Eberts , 2012 ONCJ 602 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. RONALD J. EBERTS RULING ON APPLICATION BEFORE THE HONOURABLE JUSTICE G.A. POCKELE on July 25, 2012 at LONDON, Ontario APPEARANCES : P. Rollings Counsel for the Crown M. Kruse Counsel for Ronald J. Eberts WEDNESDAY , JULY 25, 2012 MR. ROLLINGS: Mr. Kruse is here on behalf of Mr. Eberts and I’m told Mr. Eberts is before the court. MR. KRUSE: Yes. Good morning, Your Honour. MR. ROLLINGS: Ms. Martin, of my office, has carriage both of the criminal code and the CDSA matter.

Apparently that has been delegated to the Provincial Crown. And Ms. Martin was here this morning, but had went home sick. She’s left me instructions, but I am told is that it is necessary for Mr. Eberts to indicate a notice of re-election to judge and jury, which I’m told it’s expected to happen today.

THE COURT: Well, actually I want a copy of this judgement formatted which I don’t do on Dragon and my colleague failed to provide me with a template, so I’m going to read it on the record. MR. KRUSE: That’s fair, Your Honour. THE COURT: I think you got a hold of it earlier, did you? MR. KRUSE: I did, thank you very much, sir. This is Mr. Eberts before the court. THE COURT: All right.

This is Ronald Ebert, he’s before the court on information 11-5734. [Madam Reporter, I’m going to indicate that I will be requesting a copy of this and I have an electronic file to give you, which is probably going to reflect 98 per cent of what I say here.] This is an application by the accused to re-elect his mode of trial, from the Ontario Court Justice to the Superior Court composed of a judge and jury.

The accused is charged with a panoply of serious criminal charges which allege that he sexually assaulted, sexually interfered with, made child pornography, and provided marijuana to his granddaughter, while she was 16 to 17 years of age, from mid-2010 to early 2011. In May of 2011, his previous lawyer, appearing by designation, elected trial in the Ontario Court of Justice. The matter was scheduled for trial in December of 2011, then, re-scheduled for two days of trial in March of 2011, was adjourned and is now scheduled for three days of trial in September of 2011.

It concerns me greatly that the alleged victim has undergone the anxiety and trauma of trial preparation and the inherent discomfort related to the anticipation of giving evidence and being the subject of cross-examination, particularly in such an apparently intimate set of allegations. If I grant this application to re-elect, she will give evidence at a preliminary inquiry and may again testify at trial. In a fair and humane system of criminal justice, this simply should not happen to any witness. Mr. Eberts retained new counsel and clearly the change in counsel has brought a change in trial tactics. Mr.

Eberts takes the position that he left the choice concerning mode of trial to his previous lawyer, without any discussion or understanding of the benefits or detriments of a jury trial. He argues that he was uninformed, and that had he been adequately informed he would never have elected trial in the Ontario Court of Justice. It’s always been my understanding that the accused has two primary decisions to make in the criminal process: first, whether to plead guilty or not guilty; and secondly, whether to testify.

The balance of the trial process is left to the defence lawyer who by education, training, and experience is better prepared to lead the accused through the somewhat arcane world of criminal justice. It would be a rare situation that the defence counsel's file would hold a series of signed consents documenting each decision made during the conduct of a criminal trial. Nothing in the argument of the defence causes me to make any conclusion that a trial with a Superior Court Judge and jury is more fair, just, or beneficial to an accused vis-à-vis a trial in the Ontario Court of Justice.

The judges in the Ontario Court of Justice are true criminal specialists since 98 per cent of all criminal matters are dealt with in this court. The continuing legal education provided to justices in this court, in quality and in annual days, far exceeds that of any other court in Canada at a provincial or federal level. On the other hand, a jury trial is a significant part of our criminal justice system, having been enshrined as a right in criminal trials in any common law jurisdiction since medieval times.

An accused has the right to be tried by his peers who render a decision, acquittal or guilt, without providing reasons that can be reviewed by an appeal court. A trial by a Superior Court Judge alone, offers the accused an opportunity to be tried by a judge, who has a background of presiding over trials involving many different areas of law. None of these three modes of trial is necessarily better, it’s simply a matter of the trial tactics and the augury of defence counsel. This is a decision that must be made without the benefit of any clear appellate decision from the Ontario Court of Appeal.

The Crown has tendered several cases where various Superior Court Judges have declined to permit an accused to re-elect trial, after the expiry of the statutory time periods. In these cases, the decisions made by the Superior Court Judges were that the trial proceeded as judge alone trials, denying re-election as a jury trial. Tangentially, the right of the Crown to deny consenting to such a re-election, as in Eberts is enshrined.

This is different from the case before me, where the accused wishes to invoke his right to have a Preliminary Inquiry, which is an important pre-trial process, if he is permitted to re-elect. The only significant appellant authority which provides direction is the case of R. V. Price

(2011) Carswell NB 18 , N.B.C.A. According to the principles of precedence in the absence of an authority from our Provincial Court of Appeal, the courts of appeal of other provinces

are binding and persuasive upon me. In Price , the court held that “in this case of a s. 536.2 Criminal Code re-election, what Parliament sought to remedy was the fact that the election of the mode of trial would no longer always have to be made by an accused person after the judge had put the election in words as prescribed in s.536(2) . Henceforth, it could be made in the absence of the accused by the submission of a document in writing .

In my view, the best way to reconcile both of these provisions is to hold that under s.650.01, relating to the designation of counsel – designated counsel may elect for the accused, in his or her absence, by submitting a document expressing the choice.” This is from paragraph 18 of that decision. In coming to this conclusion, the New Brunswick Court of Appeal said that s.536 is designed to ensure that the court obtains a clear and unambiguous choice from the accused of the mode of trial and this is confirmed, because of the statutory wording read to the accused concerning the election.

Section 536.2 comes into play when the accused has designated a lawyer to appear on his behalf and "One can safely infer that an accused who will be filing a written document evidencing his or her choice will have received appropriate advice on the available modes of trial". It’s noteworthy that Mr. Eberts never filed such a form under s.536(2). In the absence of a decision from the Ontario Court of Appeal, I feel that I am bound by the decision of the New Brunswick Court of Appeal. The last issue relating to the question of re-election deals with whether Mr.

Eberts effectively waived his right to make the selection. This issue is determined by the Supreme Court of Canada decision Korponey v. Canada (A-G) [1982] v1 S.C.R.41 , which stands for the principle that a party may waive a procedural requirement which was enacted for his benefit. Clearly, the sections in the criminal code, which permit an accused to appear by his lawyer, pursuant to a direction under s.650.01 of the Criminal Code is such a benefit.

However, the validity of such a waiver is “Dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights in procedures were enacted to protect and of the effect the waiver will have on those rights in the process”. Where this principle has been dealt with by the courts, it is deemed to be a significant distinction that the accused is actually in the court when the election concerning the mode of trial was made.

In the Price decision it was held to be a significant distinguishing factor that the accused was not in attendance when the agent made the election on his or her behalf and therefore, it was not clear that the accused had waived the procedural safeguard requiring the election to be put to him in statutory terms, and that the accused was doing so with full knowledge of the right that this provision was enacted to protect and the effect the waiver would have on the right of trial by a judge and jury. This is the same situation facing Mr. Eberts.

Therefore, I rule that he did not effectively waive his right with regard to this procedural safeguard. I feel that the New Brunswick Court of Appeal has clearly indicated that in situations such as those faced by Mr. Eberts, he is entitled to re-elect. The failure to file any documentation under s. 536.2 is fatal.

While I find this decision contrary to my judicial philosophy concerning the efficient operation of the courts, and I appreciate that henceforward, an accused, in the courts in London, must attend in court for his or her election regarding mode of trial, unless the designated counsel has filed a document, under 536(2) to comply with this ruling. This variation in practice is necessary to ensure that an election concerning mode of trial is made after an accused has acknowledged in writing that he or she has given up the right to a jury trial.

My original position that an accused has only two decisions to make in the course of a criminal proceeding is now modified to include a third, the decision of an accused to waive his right to jury trial. There’s one subordinate decision relating to the use of testimonial aids. Crown counsel and defence have narrowed the issue and I was left to determine the type of testimonial aid to be used. Counsel for the defence argued that the witness testify in court, with the use of a one-way screen.

The Crown has urged me to permit the accused to testify by way of a closed-circuit television with a witness and lawyers testifying from one room, the accused and the judge receiving the signal in another.

Whatever decision I made is not binding the trial judge. For purposes of this Preliminary Inquiry, I will direct the witness testify by way of closed-circuit television. This technology ensures there is virtually no possibility of confrontation between witness and the accused. The closed-circuit room is smaller and more hospitable than the courtroom. Courtrooms are open to the public and the closed-circuit room is not. I believe the use of the closed-circuit room will lead to a more candid and open account of the evidence from this witness. That completes that ruling. Mr.

Kruse, I don’t have the Crown here, so your client now has the right to re-elect. I guess we’ll put the option to him on the record. Can we do that? MR. KRUSE: That’s fine, Your Honour. I also have an election document, whichever.... THE COURT: Under 536(2), so pursuant to the designation, you are making the choice concerning mode of trial on behalf of Mr. Eberts, who is present in court and has been advised of his options? MR. KRUSE: Yes, that’s correct. And he’s selected on this document, signed by myself, the court composed with judge and jury and we’re also requesting a preliminary hearing.

This has been served on the Crown. I do have an affidavit of service as well, Your Honour. THE COURT: We don’t need the affidavit of service... MR. KRUSE: That’s fine. THE COURT: ...we just file that with the information. Now, Mr. Kruse that then opens up a whole different stream in this matter to which brings into play 536 of the Criminal Code , 540 and also the new rules. So I’m just going to run through them briefly for you. It was your client requesting the Preliminary Inquiry, so he is required to prepare a statement of issues. If you don’t have one today, I’ll need one in the near future. MR.

KRUSE: I do have one, Your Honour. I had it faxed to your office yesterday – maybe it wasn’t received. THE COURT: Hasn’t caught up here. MR. KRUSE: I can provide it right now. It’s been served on the Crown as well, sir. THE COURT: Okay. MR. KRUSE: Here is another original. THE COURT: All right. Good. So, the next issue then, is a focus hearing. I’m the Preliminary Inquiry Judge and I’m ordering that a focus hearing take place.

Judge in a focus hearing is tasked with three duties to assist in identifying issues upon which evidence will be given; to assist in identifying the witnesses to be heard; and to encourage the parties to consider any other matters that that would promote a fair and expeditious inquiry. We don’t have Ms. Martin here. We can’t do a focus hearing today without her. And the second reason for that is: a playing field on focus hearings changed on July 1 st , 2012, when the criminal rules came into place. In rule 4.3 codifies a focus hearing.

The party requesting the focus hearing has the duty of filing and serving the statement of issues and witnesses. In rule 4.3(a), the requesting party is tasked for each witness on the list with providing a synopsis of his or her evidence, your understanding; an explanation why the testimony is necessary at the Preliminary Inquiry; and an estimate of the time required to examine the witness. I am left with the impression that there’s only one primary witness, but if there’s more that’ll have to be flushed out. MR. KRUSE: Yes, Your Honour. THE COURT: Okay? MR.

KRUSE: I can indicate I haven’t provided that synopsis, but I will do that. I’m actually requesting one other witness as well. THE COURT: All right.

MR. KRUSE: I’ll flush that out. THE COURT: Just want to remind counsel that under the rules we’ve been given, other powers, if they’re any disagreements regarding this inquiry, the hearing on the record, the focus hearing has to be on the record and it may result in the judge making binding orders for the conduct of the inquiry. There’s rules concerning admissions, but that’s the lay of the land. I don’t know the position the Crown is, whether they intend to comply with the request to produce this witness, if they want to use for video statement. I don’t know if there is one or not.

We’re scheduled to pick up this matter when, in September or December? MR. ROLLINGS: My file shows from Ms. Martin that September 24 is supposedly the Preliminary Inquiry date and as a result we are no longer requiring and we can vacate the dates of September 25 and 26 because this had been set for three days for trial apparently once before. THE COURT: Yes. MR. ROLLINGS: So September 24 th apparently, has been determined to be the appropriate day for the Preliminary Inquiry. THE COURT: Okay. So, Mr. Kruse, I’m going to give you a week or so, to try and work out whatever you can work out with Ms.

Martin and if she’s the designated Crown, then she has to appear at the focus hearing and we’ll set up a focus hearing. It may be short, it may be long, it’s up to the two of you. MR. KRUSE: That’s fair, Your Honour. THE COURT: Okay. MR. KRUSE: Just in terms of the one date, I’m hopeful it can complete in one day. I expect it will – this will be the complainant and whether (unintelligible). THE COURT: I may vacate the last day, right now. MR. KRUSE: I was going to.... THE COURT: And when I get to the focus hearing... MR. KRUSE: That’s fair. THE COURT: ...then we’ll look at the second day. MR.

KRUSE: Thank you, Your Honour. THE COURT: But I was going through my file on the approaches to a Preliminary Inquiry and I’ve seen the Crown do some interesting requests in these natures and this type of offences, so we’ll see what happens. MR. KRUSE: Yes, thank you. THE COURT: The trial-coordinator will contact maybe sometime next week looking to arrange a focus hearing. MR. KRUSE: Thank you very much, Your Honour. THE COURT: Okay. ... PROCEEDINGS CONCLUDED **********

Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, Sue Robertson , (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. v. Ronald J.

Eberts in the Ontario Court of Justice (Name of Case) (Name of Court) held at 80 Dundas Street, London, Ontario (Court Address) taken from Recording 2311_80_CR3_20120725_093636 , which has been certified in Form 1. by Sue Robertson. (Date) (Signature of Authorized Person(s)) Legend : [ sic ] - Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) - Indicates preceding word has been spelled phonetically Transcript ordered: July 26, 2012 Transcript completed: August 22, 2012 Transcript delivered: August 25, 2012