Regina v. M.L.P. Date:, 2011 BCPC 483

Citation: Regina v. M.L.P. Date: 20110809 2011 BCPC 0483 File No: 84309-3C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION (s. 539.1 CCC) REGINA v. M.L.P / ORAL RULING ON APPLICATION OF THE HONOURABLE JUDGE DOSSA Counsel for the Crown: G. Barnes Counsel for the Accused: V. Desroches

Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: August 2, 3, 4, and 9, 2011 Date of Judgment: August 9, 2011 [ 1 ] THE COURT : The accused, MLP, is charged on Information 84309-3C with 38 counts as a result of events that occurred on December 22nd, 23rd, 25th, 29th, 30th, 31st, 2009 and January 1st, 2nd, 3rd, 4th, 5th, 7th, 8th, 10th, 2010, in Surrey, Coquitlam, and New Westminster, British Columbia. [ 2 ] The charges include 11 counts of robbery, four counts of theft of motor vehicles, four counts of possession of stolen property, namely, motor vehicles, six counts of thefts of purses, identification, other person's property, five counts of possession of stolen property, two counts of unlawfully causing bodily harm, one count of assault, two counts of failing to stop to evade civil liability, and two counts of dangerous driving, and one count of possession of a dangerous weapon, namely, a knife. [ 3 ] The accused elected to be tried by a court composed of a Supreme Court judge without a jury and requested a preliminary hearing.

The information before me was sworn on March 18th, 2011. The accused was ordered detained. The matter was set down for preliminary hearing for three weeks. [ 4 ] This is my ruling with respect to the Crown's application pursuant to s. 540(7) of the Criminal Code . BACKGROUND AND PROCEEDINGS [ 5 ] On April 1st, 2011, Crown counsel at the direction of Judge Steinberg sent a letter with a list of witnesses that were associated with the various counts. Initially, no focus hearing was scheduled because of the lack of an assigned judge.

Counsel appeared before Judge Steinberg on an unrelated robbery trial involving this accused. The matter was adjourned a number of times to follow that trial. [ 6 ] On June 16th, 2011, the matter was scheduled for a focus hearing for July 25th, 2011.

At that time, Judge Steinberg mentioned that it was open to the Crown to apply under s. 540(7) to have the statements of the witnesses filed in court so that any of those witnesses need not be called. [ 7 ] Two weeks prior to the scheduled focus hearing, ad hoc Crown counsel was assigned to this case. [ 8 ] On July 19th, 2011, she wrote a letter to defence counsel enquiring about which witnesses defence required with respect to identification and DNA which were issues that had been discussed with previous Crown counsel.

She asked for specific information regarding both of these issues, including whether negative identification where the witness had not selected the accused from a photo pack or identification of officers who put together a photo pack were required. [ 9 ] She also enquired whether the DNA witnesses included all issues of continuity and the taking of samples or only from the expert scientists with respect to their reports on the statistical probability of the findings regarding the profile they attributed to the accused. THE ALLEGATIONS [ 10 ] Crown counsel also provided a detailed

summary of each police file with a list of witnesses that had been confirmed to date and also suggested admissions of fact which could be made with respect to each of the files.

These included the negative admission of the photo pack witnesses who did not identify the accused, the continuity of the video surveillance, admissions with respect to belongings or personal property found in various motor vehicles that were stolen, admissions of the photo pack, continuity of DNA exhibits, ownership of the motor vehicles and various items of personal property. [ 11 ] Crown counsel also sought admissions of photos of the accused whenever photo packs were used, or a DNA sample of the accused from the National Data Base, that motor vehicles were registered in the names of various complainants, and the validity of all search warrants.

She sought admissions that the driving was dangerous or with an intent to escape civil or criminal liability where bodily harm was caused to the complainants without the necessity of calling any medical evidence. [ 12 ] Defence counsel replied by way of letter dated July 21st, 2011 provided July 25th, 2011 that pursuant to s. 563.3(

a) and (

b) the accused wanted evidence to be called with respect to identification and relating to the outcome of any DNA analysis. She also required the attendance of all primary investigators and all complainants and civilian witnesses with respect to identification, officers with respect to the sworn statement of the accused, and all of the officers and civilians with respect to the DNA evidence, for a total of 91 witnesses.

She said she did not require witnesses associated with the construction of the photo packs presented to the civilians, but required the civilians who viewed the photo packs. [ 13 ] Both counsel agree that this is a complex case with an intricate interconnection between the vehicles, the property, the accused's DNA and video surveillance evidence that involved 16 police agencies.

This case is essentially a circumstantial case as none of the witnesses are able to positively identify the accused. [ 14 ] Crown's case arises from personal property taken from civilians who are robbed and then is found in motor vehicles that are stolen and in the accused's residence when he is arrested. It also comprises DNA evidence in the motor vehicles and on personal items, including a pop can, a security club, and the accused's jacket. [ 15 ] The accused was identified by his parole officer and halfway house officer from a fan-out poster of photos compiled from the video surveillance.

[ 16 ] The robberies of personal items in motor vehicles are alleged to have occurred at various locations including offices, restaurants, parking lots of casinos and grocery stores.

The other offences such as the assault and dangerous driving arise out of the robberies and police chase. [ 17 ] Statements were made by the accused upon arrest, and the jacket worn by the accused upon arrest matched clothing worn on the video surveillance. [ 18 ] Since no further admissions or agreement with respect to the witness list were forthcoming, Crown counsel advised she would bring her application pursuant to s. 540(7) . [ 19 ] Defence counsel was going to be out of the country for the rest of the week and the matter of the hearing of the application was adjourned to the first day of the preliminary hearing.

At that time, defence counsel still required 64 witnesses for the preliminary hearing in addition to those being called by the Crown.

THE APPLICATION PURSUANT TO SECTION 540(7) OF THE CRIMINAL CODE [ 20 ] The Crown's application is pursuant to s. 540(7) of the Criminal Code of Canada that for the purpose of the preliminary hearing only the evidence of 19 complainants be admitted at the preliminary hearing is evidence in the form of previously recorded transcripts of police interviews, transcripts of photo pack interviews, and photo packs where applicable. [ 21 ] The application also seeks that the evidence of 18 civilian witnesses be admitted at the preliminary hearing in the form of previously recorded police interviews, transcripts of photo pack interviews, and photo packs where applicable, and transcripts of 9-1-1 calls. [ 22 ] The application also seeks that the evidence of Constable MW be admitted at the preliminary hearing as evidence in the form of an affidavit sworn by the officer on matters relevant to the preliminary hearing with all of the relevant documents attached and dispensing with the requirements of calling this witness at the preliminary hearing. [ 23 ] Finally, the application seeks that the evidence of three police officers be admitted at the preliminary hearing in the form of their narrative Reports to Crown counsel and/or police notes. [ 24 ] Crown counsel also provided a list of 23 witnesses comprised of 18 police officers, three DNA experts, TS, the accused's parole officer, and NG, the halfway house officer, who she intended to call. [ 25 ] A chart of the stolen motor vehicles used in the robberies and of the property and identification seized from the vehicles and the accused upon arrest was filed.

This included DNA evidence of the accused found on a pop can he was drinking from, on a security club from a motor vehicle, the accused's jacket, and the accused's camouflage shirt seen on video surveillance and when the accused was arrested.

THE POSITION OF THE ACCUSED [ 26 ] Defence counsel reduced her request for the number of civilian witnesses she required for the preliminary hearing to 30 in addition to the police officers and other witnesses that the Crown intends to call. [ 27 ] Essentially, the accused's opposition to the application under s. 540(7) is twofold. [ 28 ] Firstly, that reasonable notice for the application was not provided as required under s. 540(8); that the accused received the application and binder of documents on the day of the application; and secondly, counsel submits on behalf of the accused that the transcript of the recorded interviews of civilian witnesses by the police states that the statements had not been edited or reviewed or authenticated or the transcript is silent with respect to the declaration including a KGB statement taken of the witness, PM. [ 29 ] Further, it is submitted that there are notations in many of the transcripts of the statements that the audio was indecipherable or inaudible. [ 30 ] Defence counsel also takes issue with the photo packs shown to the civilian witnesses in their varying sizes and colour, namely, some photo packs are in black and white, and others are in colour, and some are smaller than others.

Although the photo packs are accompanied by signed forms and declarations, she states that there are no declarations that the particular photo pack was shown to the witnesses nor did the police officers who presented the photo packs proof read or reviewed the transcripts of the interview. [ 31 ] Finally, defence counsel refers to errors in the names of some of the witnesses, for example, Wal-Mart instead of W.

She points out that the MOSAIC declaration of the interpreter states that the language interpreted was Chinese without specifying whether it was Cantonese or Mandarin. [ 32 ] Defence counsel referred to the decision of R. v. McFadden and Rao , 2010 BCPC 189 , Bagnall P.C.J. of August 10th, 2010 to which I shall refer in more detail later, that the request for the disclosure in the case of the defendant MLP is not an examination for discovery. She referred to McFadden , supra, which quotes an

article of Mr. Justice Martin at para. 36 that: [36] The preliminary hearing gives defence counsel the opportunity to test the strength and weaknesses of the Crown's case, to form a judgment as to the mental makeup or personality of the witnesses, to discover those parts of the case that are vulnerable to attack at the trial, and also those areas where he must tread warily. R. v. Skogman (1984), 13 C.C.C. (3d) 171; 72 S.C.C. [ 33 ] And further:

That although the preliminary inquiry judges are not permitted to determine the credibility of the witnesses, one might hazard to say that the ancillary purpose of discovery has lately become to eclipse the primary purpose of sparing the accused the gross indignity of being placed on trial in circumstances where there is simply insufficient evidence to justify holding the trial at all. [ 34 ] Crown counsel submits that full disclosure has been made to defence counsel including audio statements of most of the civilian witnesses and complainants. [ 35 ] After the focus hearing on July 25th, 2011, Crown counsel faxed a letter on July 27th with a list of the complainants and civilian witnesses she would be relying upon in her application.

A copy of the application and index of the binder of the statements was faxed to defence counsel on July 29th, 2011.

Her office called defence counsel's office on July 29th, 2011 asking if she wished to send a courier to pick up the binder which was declined. [ 36 ] She pointed out that despite defence counsel's statement that she was going to be out of the country and not available any day that week for the focus hearing, she was seen in Vancouver by Crown counsel on two to three of those days. [ 37 ] Regarding the transcripts of the civilian witnesses that have not been edited or reviewed or authenticated, Crown counsel submits that all of the police officers who took these audio statements are going to testify at the preliminary hearing and can be cross- examined on this issue.

Where a portion of the transcript states indecipherable or inaudible, the audiotape can be played in court if necessary.

Crown counsel says that she will ensure that the particular officers have proof read the transcripts and compared it to the audio including the KGB statement that she says was likely taken because the complainant is elderly and suffered multiple fractures in the incident. [ 38 ] Crown counsel admits that none of the civilian witnesses identified the accused in the photo pack and in some instances identified a different person. [ 39 ] The other issue with respect to translation and misspellings are not relevant to the issue of identification.

She points out that defence counsel has not shown that any portion of the transcript is inaccurate or not properly transcribed. [ 40 ] Finally, defence counsel made an application pursuant to s. 540(9) that five of the civilian witnesses for which no audio recording was provided be made available for cross-examination. THE LAW [ 41 ] Crown counsel referred to the decisions of R. v. McFadden and Rao , 2010 BCPC 218 , Bagnall P.C.J., upheld on appeal, R. v. Rao , 2011 BCSC 390 , Brown J., with respect to the preliminary inquiry, and the decision of R. v.

McFadden and Rao , 2010 BCPC 189 , August 10th, 2010, Bagnall, P.C.J., and R. v. Dhak, Rankin and Pabla , 2011 BCPC 44 , Bagnall P.C.J. with respect to s. 540(7) applications by the Crown. [ 42 ] In the McFadden , supra , decision with respect to the s. 540(7) application, Bagnall P.C.J. in allowing the application concluded: A preliminary hearing is meant to be an expeditious charge-screening mechanism. The accused may benefit from the opportunity to discover the Crown case at a preliminary hearing, but such discovery will be that which is incidental or ancillary to the primary purpose of the hearing.

The proposed documents were all self-explanatory. The content of each of the documents provided support and context for one or more of the other documents that as a group the documents were credible or trustworthy within the meaning of s. 540(7) of the Criminal Code . [ 43 ] In that decision, Bagnall P.C.J. reviewed the law under sections of the Criminal Code relating to preliminary inquiries which were amended in 2004 as follows: Inquiry by justice 535.

If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

Statement of issues and witnesses 536.3 If a request for a preliminary inquiry is made, the prosecutor or, if the request was made by the accused, counsel for the accused shall, 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, provide the court and the other party with a statement that identifies (

a) the issues on which the requesting party wants evidence to be given at the inquiry; and (

b) the witnesses that the requesting party wants to hear at the inquiry. [ 44 ] In McFadden , supra , the Court referred to a number of decisions since the new amendments of which I will highlight only a few. [ 45 ] In R. v. Gill , [2006] B.C.J. No. 1378 (B.C.S.C.) , Groberman J. (as he then was) had the occasion to consider the purpose of a preliminary hearing after the amendments became law. He said at paras. 19, 23 and 24: [19] The Criminal Code Amendment Act 2001 , S.C. 2002, c. 13, amended

Part XVIII of the Criminal Code in a number of ways. When those amendments came into force on June 1, 2004, preliminary inquiries ceased to be automatic. The new regime is very much directed at limiting the issues at a preliminary inquiry to those that are genuinely at issue.

. . . [23] ... I do not interpret the amendments as changing the fundamental nature of a preliminary inquiry. Its statutory function remainsthat of screening charges to determine whether there is sufficient evidence to put the accused on trial. Any discovery function remainspurely ancillary. The sole purpose of the amendments was to place limits on preliminary inquiries.

The amendments did not serve toexpand the purpose or scope of preliminary inquiries. [24] It may well be that, as a matter of convenience, the defence is allowed at a preliminary inquiry to explore matters that do not goto the question of whether or not an accused should be committed for trial. That is often done without objection by the Crown. Wheresuch exploration occurs, however, it is a matter of indulgence and not of right. [46] Recently, in R. v. Bjelland, 2009 SCC 38 , [2009] S.C.J.

No. 38, the Supreme Court of Canada had this to say aboutthe discovery function of a preliminary inquiry: [32] The appellant also says that his right to a fair trial was prejudiced because he was denied the right to cross-examine Friedmanand Holland at a preliminary hearing. Cross-examining a witness at a preliminary hearing, however, is not a component of the right tomake full answer and defence.

What is protected under s. 7 is the right to make full answer and defence at trial, not the right to cross-examine a witness at a preliminary hearing. [47] Bagnall P.C.J. concluded in McFadden, supra, that: [35] From all of these cases, and in particular, those that are binding on me, the following might be distilled. A preliminary hearing ismeant to be an "expeditious charge-screening mechanism," as indicated by the Chief Justice in Regina v. Hynes. Discovery may result ata preliminary hearing, but it is not a discrete purpose of a preliminary hearing.

The accused may benefit from the opportunity to discoverthe Crown case at a preliminary hearing, but such discovery will be that which is incidental or ancillary to the primary purpose of thehearing. The words "incidental" and "ancillary" connote something quite different than a purpose independent and separate from theprimary purpose of a preliminary inquiry. [48] I adopt the reasoning of Bagnall P.C.J. in McFadden, supra.

INTERPRETATION OF SECTION 540(7) OF THE CRIMINAL CODE [49] The

section in which the application is made reads as follows: 540.

(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but thatthe justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing orotherwise recorded. [50] With respect to the application, the onus is on the Crown and the burden of proof is on a balance of probabilities. [51] In McFadden, supra, Bagnall P.C.J. noted that: [40] ... the phrase "credible or trustworthy" is also used in section 518 (1)(

e) respecting evidence which may be received on a bailhearing. Judge Whelan in Regina v. Hathway, [2005] S.J. No. 837 quoted from Regina v. McCormick, 2005 ONCJ 28 , [2005]O.J. No. 390, in saying that the evidence tendered must have: ...a prima facie air of reliability to allow a court to consider it as evidence, not sufficient to base a conviction upon, but rather to warrantconsideration as to whether there is some evidence for a jury to properly consider at trial. [52] He continued at para. 42: [42] This

interpretation is strengthened by a consideration of the subsection in the context of the entire section. It is clear from areading of section 540 (1) that Parliament contemplates that viva voce evidence may be tendered by the Crown on a preliminary hearing,and of course, that is what ordinarily occurs in this jurisdiction.

Subsection (7) simply allows an alternative method of presentingevidence, providing that the Court is satisfied of the credibility or trustworthiness of the evidence. [53] And at para. 45: [45] It appears clear that Parliament explicitly intended the new sections as, among other things, a means by which the evidence ofwitnesses could be considered by the judge presiding at a preliminary hearing, without the witnesses being required to give viva vocetestimony. [54] In McFadden, supra, the Crown had applied under s. 540(7) of the Code to adduce evidence in the preliminary hearing which isotherwise inadmissible.

The Crown sought to file segments of the police investigation, file statements of potential witnesses includingthe occupants of the residence in question, and reports prepared by experts respecting analysis of DNA found in various locations.

TheCrown did not intend to present any viva voce evidence in support except for the documents sought to be filed as evidence in thepreliminary hearing. [55] Bagnall P.C.J. concluded that the binder of documents sought to be tendered as evidence on the preliminary hearing included 35separate documents including police reports, statements of witnesses, forensic reports and exhibit logs. The documents she said were allself-explanatory. The contents of each of the documents provided support and context for one or more of the other documents.

Shefound that read as a group the documents were credible or trustworthy within the meaning of s. 540(7) of the Code and the documentswere admissible on the preliminary hearing. [56] I now turn to the application to the case at bar.

[ 57 ] Section 540(8) states: 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. [ 58 ] Counsel for the defence submits that service of the application and binder on the day of the hearing of the application is not reasonable notice under s. 540(8). [ 59 ] The focus hearing in this matter was not held until a week prior to the commencement of the preliminary inquiry for various reasons including the lack of an assigned judge, defence counsel or Crown counsel appearing on different matters regarding this accused, and adjourning the focus hearing.

Defence counsel was not available on any dates after the focus hearing until the date of the preliminary inquiry. [ 60 ] Crown counsel faxed a copy of the letter listing the contents of her application on July 27th and faxed a copy of the application and index of the binder on July 29th. She had previously provided full disclosure of the documents in the binder including audio recordings for most of the civilian witnesses. [ 61 ] Normally, the issue of notice can be dealt with by way of granting a short adjournment.

In this case, however, the accused is in custody and time has been set aside for the preliminary hearing and neither wants an adjournment. [ 62 ] For the foregoing reasons and in the circumstances of this case, I am satisfied that the accused had reasonable notice of the Crown application under s. 540(7) as contemplated under s. 540(8). [ 63 ] I turn now to the objections of defence counsel with respect to the Crown's application. [ 64 ] In McFadden , supra , the Crown did not intend to call any viva voce evidence and was allowed to file the segments of the police investigation, file statements of police witnesses, and expert reports with respect to DNA analysis. [ 65 ] In this case, the Crown seeks to file copies of previously recorded statements of police interviews, transcripts of photo pack interviews and photo packs where applicable, and 9-1-1 calls, as well as the affidavit of Constable MW and the evidence of three police officers in the form of their narrative report to Crown counsel and their police notes. [ 66 ] Crown intends to call most of the police witnesses who conducted the interviews as well as the DNA experts and some witnesses with respect to identification. [ 67 ] Defence counsel will have an opportunity to cross-examine the police officers as to whether they have proof read the interviews and compared the transcripts to the audio statements as to the accuracy of the transcripts. [ 68 ] Defence counsel has not shown that any portions of the transcripts are inaccurate when compared to the audio recordings, or there is any issue with the integrity of the statements, or that they are improperly transcribed. [ 69 ] I find that the evidence listed under the four parts of the application ought to be tendered as evidence in the preliminary hearing as follows: • Under

Part 1, the evidence of the 19 complainants to be admitted at the preliminary hearing is evidence in the form of previously recorded transcripts of police interviews, transcripts of photo pack interviews and photo packs where applicable. • Further, the evidence of the 18 civilian witnesses under

Part 2 be admitted at the preliminary hearing as evidence in the form of previously recorded transcripts of police interviews, transcripts of photo pack interviews and photo packs where applicable, and 9-1-1 calls. • Further, the evidence of Constable MW under

Part 3 be admitted at the preliminary hearing be admitted as evidence in the form of an affidavit sworn or affirmed by him individually on matters relevant to the preliminary hearing with the relevant documents attached, dispensing with the requirement of calling this witness at the preliminary hearing. • Finally, the evidence under

Part 4 of the application of the three named police officers be admitted at the preliminary hearing as evidence in the form of their narrative report to Crown counsel and/or police notes. [ 70 ] These documents were all created by police officers or persons who had a professional obligation to accurately record the interviews, observations, and actions. The documents are self-explanatory.

The contents of these documents provide support and context from one or more of the other documents. [ 71 ] I find that Crown counsel has discharged its burden on a balance of probabilities and provided a prima facie basis or case that the documents are credible or trustworthy, and that as a group I find that the documents are credible or trustworthy within the meaning of s. 540(7) of the Code .

The documents are admissible at the preliminary hearing. [ 72 ] Defence counsel's application pursuant to s. 540(9) to cross-examine five of the civilian witnesses for whom no audio recording of the recorded transcripts of police interviews was provided is denied. [ 73 ] Counsel will have the opportunity to cross-examine the police officers who conducted the recorded interviews and confirm with the officers they have reviewed the transcripts and compared them to the audio recording, and if necessary to seek to hear portions of the audio recording played in court.

Then if there is an issue at that time she is at liberty to renew her application. (ORAL REASONS FOR JUDGMENT CONCLUDED)