Regina v. Malakpour Date:, 2012 BCPC 417

Citation: Regina v. Malakpour Date: 20120514 2012 BCPC 0417 File Nos: 87933-1K and 87933-4KB Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SAFA MALAKPOUR ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GILLESPIE Counsel for the Crown: J. Fogel and M .Wolf Counsel for the Defendant: G. Botting Place of Hearing: Port Coquitlam , B.C. Date of Hearing: May 14, 2012

Date of Judgment: May 14, 2012 [1] THE COURT: Section 561(2) is the

section that deals with the right to re-elect, it states: An accused who elects to be tried by a provincial court judge or who does not request a preliminary inquiry under subsection 536(4)may, not later than 14 days before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so after thattime with the written consent of the prosecutor. [2] The information before the court is ten counts and was sworn on January 12th, 2012. [3] There was an appearance in Port Coquitlam Provincial Court February 23rd, 2012, in courtroom 6, where Judge Spence waspresiding on that date. [4] The court has had the benefit of the DARS, which is the Digital Audio Recording System, tape played today. [5] Mr.

Botting, who is counsel today, was counsel on that date, as well. Mr. Botting, at that time waived the reading of theelection for this information, Information 87933-K1, and elected Provincial Court trial. He then waived the reading of the informationand entered pleas of not guilty at that time. [6] Today, May 14th, 2012, is the first day set for trial of this matter. The provision within the section, s. 561, permits Mr.Malakpour 14 days prior to the commencement of the trial. The commencement of the trial, pursuant to the case R. v.

E.(L.), (ON CA), [1994] 94 C.C.C. (3d) 228, is the first day set for that trial, which is today. [7] The case of R. v. Ng, 2003 ABCA 1 , [2003] 173 C.C.C. (3d) 349, is a decision of the Alberta Court of Appeal, and itdeals with a situation where an accused person, having elected trial with judge and jury, re-elects, or wishes to re-elect to judge alone. Inthat case, the Queen's Bench judge, in Alberta, permits the accused to re-elect, notwithstanding the Crown did not consent. An appeal istaken by Crown on that matter. [8] The decision of Mr. Justice Wittman, speaking for the Alberta Court of Appeal in R. v.

Ng, supra, is that absent conduct on thepart of Crown amounting to an abuse of process, the court has no power to override the Crown's decision refusing to consent to a re-election in that particular case for trial to judge alone, and further, there is no requirement for the Crown to provide reasons on the recordfor their reasons for withholding consent on that re-election. The Crown's failure to do so is not a basis for judicial intervention. In fact,the Crown is not required to articulate reasons for its decision.

Further, the Court of Appeal in Alberta goes on to state that the Crown'srefusal to state their reasons on the record did not amount to evidence of abuse of process. The onus is on the accused person whoalleges an abuse to establish it. The onus is on that person on the balance of probabilities. [9] In R. v. Ng, the Court of Appeal in Alberta also found that there must be an admission, or evidence, or an allegation with offerof proof to warrant an inquiry into whether the Crown's exercise of discretion amounted to an abuse of process.

Absent any evidence,admission, or allegation with offer of proof, it was inappropriate for the court to inquire into that. [10] Mr. Justice Wittman ultimately found that the Court of Queen's Bench, overriding the Crown's decision not to consent to thetrial being judge alone, lost jurisdiction and the proceedings were a nullity. Accordingly, a new trial was ordered.

Verdicts beingrendered on a nullity amounted to the court not having jurisdiction to render those verdicts. [11] So, in the circumstances, having regard to the application before me, together with the decision of Ng from the Alberta Court ofAppeal, absent the Crown consenting, I do not have discretion to enter into anything other than trial before a Provincial Court judge. The accused did not change his election 14 days prior to the trial commencing. Therefore, I have no jurisdiction to commence apreliminary inquiry and for the reasons that I have indicated, I decline to do so.

We will commence with the trial. (ORAL REASONS FOR JUDGMENT CONCLUDED)