R. v. Dhak, 2011 BCPC 44

Citation: R. v. Dhak, Rankin and Pabla Date: 20110117 2011 BCPC 0044 File No: 193864 C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Sukhveer Singh Dhak, Neville James Rankin and Baljit Pabla RULING ON APPLICATION OF THE HONOURABLE JUDGE C. L. BAGNALL Counsel for the Crown: M. Loda and S. Steele Counsel for the accused Dhak: E. Doricic Counsel for the accused Rankin: A. Hoem Counsel for the accused Pabla: M. Jette Place of Hearing: Vancouver , B.C.

Date of Hearing: January 10, 2011 Date of Judgment: January 17, 2011 [ 1 ] The three accused are charged with conspiring to produce a controlled substance, commonly known as ecstasy, with producing ecstasy and with possessing ecstasy for the purposes of trafficking, all as a result of events which occurred during the months of January, February, and March, 2008. [ 2 ] On arraignment, the accused elected or were deemed to have elected to be tried by a court composed of a judge and jury and a request was made for a preliminary hearing to be conducted.

In October, 2009, the hearing was scheduled for five weeks commencing January 10, 2011. [ 3 ] A number of pre-hearing conferences took place in 2010, culminating in appearances in the fall of 2010 at which the Crown indicated an intention to make the present application. Counsel all agreed to postpone the commencement of the preliminary hearing until January 24, 2011. Submissions were finally made on January 10, 2011, and I reserved my decision and indicated that I would file written reasons.

These are those reasons. [ 4 ] The Crown applies under section 540 (7) of the Criminal Code for an order allowing certain documents to be filed on the preliminary hearing of the three accused. For ease of reference I set out the

section here: 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. [ 5 ] The Crown seeks to file as evidence on the preliminary hearing an affidavit of a police officer, a number of transcripts of telephone calls which were intercepted during the investigation, a number of surveillance log notes, a number of exhibit flow charts generated during searches which took place during the investigation, and a number of Certificates of Analyst respecting some of the

items which were seized. [6] With respect to this application, the onus is on the Crown and the burden of proof is the balance of probabilities. [7] All counsel agreed that the certificates are admissible without any associated viva voce evidence being presented. With respectto the other documents, counsel for all of the accused expressed concerns about the “reliability” of the documents if admitted withoutany explanatory viva voce evidence. [8] The documents, if received, will not comprise all of the evidence presented by the Crown at the preliminary hearing.

Certainwitnesses will be required in order to identify, for example, the speakers engaged in the intercepted telephone calls. [9] Counsel for the accused submitted that, although the documents appear to be credible and trustworthy within the meaning ofsection 540 (7) of the Code, without some examination or cross-examination of the witnesses associated with the events recorded in thedocuments, there is a danger that the Court will commit the accused to stand trial on the basis of evidence which is in fact unreliable. [10] The issue identified by counsel for the accused as relevant to committal in this case has been and remains the identity of thepersons who were the subject of surveillance by the police and the identification of the voices heard in the intercepted telephone calls. [11] Counsel referred to the following cases and I have read and considered them: Regina v.

McFadden and Rao, 2010 BCPC 189 Regina v. Gill et. al., 2006 BCSC 927 Regina v. Pham, 2008 BCSC 1449 Regina v. Ciancio and Lees, BCPC, Vancouver Registry # 145694, April 18, 2005 Regina v. Anderson, 2001 BCSC 4 Regina v. S.A.B., [1998] B.C.J. No. 3087 (BCSC) Regina v. Trac, 2004 ONCJ 370 , [2004] O.J. No. 5469 (Ontario Court of Justice) Regina v. Sonier, 2005 ONCJ 75 (Ontario Court of Justice) Regina v. Hathway, 2005 SKPC 99 United States of America v. Ferras, 2006 SCC 33 Regina v. Uttak, 2006 NUCJ 10 Regina v. Alton, 2005 ONCJ 208 Regina v.

Vaughn, 2009 BCPC 142 [12] I do not consider it necessary to review these cases in the course of delivering these reasons. I hope it is not inappropriate tosimply refer to the review of the law included in my rulings in the case of Regina v. McFadden and Rao, 2010 BCPC 189, and 2010BCPC 218. [13] I will comment separately about each of the documents or groups of documents sought to be admitted by the Crown. [14] The affidavit of Constable Peeler will be admitted.

It is a sworn document and most of the assertions contained in it are notcontentious. [15] The surveillance reports from February 13, 18, 19, 20, 29, and March 4, 2008, will be admitted as credible or trustworthy. Thepolice officers who reported their observations were under a professional obligation to do so accurately and each checked the writtenrecord of those observations shortly after the events.

Those who recorded the observations reported to them were under a professionalobligation to do so accurately. [16] The exhibit flow charts respecting the search of 316 – 15130 108th Avenue, Surrey, the search of the motor home located at 10Orwell Street, North Vancouver, the search of 1956 Rupert Street, Vancouver, and the search of the accused person, Neville JamesRankin, all conducted on March 11, 2008, will be admitted as credible or trustworthy.

These documents were all created by persons whohad a professional obligation to accurately record their observations and actions. [17] Counsel have all agreed that the Certificates of Analyst should be admitted on the preliminary hearing. [18] Counsel for the accused have applied under section 540 (9) of the Code for an order that certain witnesses be made available forcross examination during the preliminary hearing. I set out that

section here: 540.

(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examinationor cross-examination with respect to information intended to be tendered as evidence under subsection (7). [19] The Crown has already indicated an intention to call one of those witnesses, Constable Briscoe. I understood as well that theCrown would be calling a witness or witnesses to identify the voices heard in the intercepted telephone calls.

[ 20 ] In light of the assertion by counsel for the accused that the sufficiency of the evidence of the identification of the accused may be an issue respecting committal on this preliminary hearing, I direct that the following witnesses also be made available for cross- examination: Constable Moller, Constable Mitchell, Constable Antonel, Constable Duckworth, Constable Vance, Constable Dodd, Constable Brandon, Constable Coutu, and Constable Sandberg. [ 21 ] Because of concerns expressed by counsel for the accused respecting the accuracy of the transcripts of the intercepted telephone calls sought to be admitted, it is my view that the recordings of those telephone calls should be played during the preliminary hearing. [ 22 ] One issue which does not relate to the substance of the applications before the Court is deserving of comment.

Counsel for the accused asked the Court to note that this preliminary hearing was expected by all counsel to take what might be referred to as a traditional shape until about six weeks prior to the first day scheduled for the hearing, when the Crown made its formal application under section 540 (7) of the Code . Counsel pointed out that if the Crown had decided to proceed in the presently suggested fashion in early 2009, when disclosure was complete, that the trial of the accused would likely have been completed by now.

I share the view of counsel for the accused that decisions about the tendering of documentary evidence ought to be made by the Crown prior to time estimates for a preliminary hearing being formulated. [ 23 ] Although the sections of the Criminal Code relating to the conduct of preliminary hearings were amended in June, 2004, I am aware that the conduct of almost all preliminary hearings to this day is exactly the same as it would have been prior to the amendments being made law. It may be that the “new” sections will be made use of to a greater degree in the future.

If that occurs, then I encourage counsel for the Crown to proceed with applications under section 540 (7), for example, as early in the process as possible. ________________________________ The Honourable C. L. Bagnall Provincial Court of British Columbia