R. v. Young Date:, 2011 BCPC 421

Citation: R. v. Young Date: 20111110 2011 BCPC 0421 File No: 86997-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GLENN JOSEPH YOUNG ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE de COUTO Counsel for the Crown: A. Yusuf Counsel for the Accused: A.K. Hoem Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: November 10, 2011 Date of Judgment: November 10, 2011 [ 1 ] THE COURT: With respect to the matter before this court, it involves the accused, Glenn Joseph Young, who is in court today on a charge wherein he is jointly charged with a Scott Shefton Warner (phonetic), with break and enter of a dwelling house. [ 2 ] They are, as I indicated, jointly charged, and with respect to their first appearance, I am advised by the Crown, Mr. Yusuf, that they did in fact appear at the same time on the same date and the same place.

But because each went out retaining their own counsel, and in an effort to accommodate counsels' calendar, the matter then proceeded such that each individual accused appeared on separate days before the court in response to the charge. [ 3 ] Mr. Young is now represented by Mr. Hoem, who has advised that his client had made an election. I might add that with respect to that election, both accused have made the same election; that is, to be tried by a superior court judge without a jury. Mr.

Young made that election as noted on the record of proceedings of the court on September 6th, 2001, and the co-accused Warner, on November the 7th, 2001. [ 4 ] The difference, which is the subject matter of the argument and submissions this afternoon, and what is in issue, is that Mr. Young, at the time of his election, did not request a preliminary hearing while Mr. Warner, at the time of his election on November the 7th, did request that there be a preliminary hearing held.

[ 5 ] Mr. Hoem, on behalf of his client, argues that when his client elected for judge alone and did not request a preliminary inquiry on September the 6th, the provisions relating to elections under s. 536 of the Criminal Code kicked in and applied to his client.

Subsection (4.3) provides: If no request for a preliminary inquiry is made under subsection (4), the justice shall fix the date for the trial or the date on which the accused must appear in the trial court to have the date fixed. [ 6 ] He argues on the basis of that subsection that it is the right of his client to have a trial date fixed and bypass the preliminary inquiry. [ 7 ] One can understand that position because, as I understand it from what counsel has said, Mr. Young has been ordered detained while the co-accused is not.

Clearly by virtue of the fact that his liberty has been deprived and he remains in custody, there is in fact a real issue with respect to Mr. Young's matter proceeding to trial as quickly as possible. Mr. Hoem argues that that is, in fact, his right under s. 11(

b) of the Charter which provides that any person charged with the offence has the right to be tried within - not right away - but within a reasonable time. [ 8 ] Mr. Warner's next appearance is scheduled for November the 30th for an arraignment hearing. As a result, the conflict has arisen between the interests of Mr. Warner and Mr. Young, and on the part of Mr. Young having to remain in custody while he awaits the outcome of Mr. Warren, and thus the application. [ 9 ] Crown counsel, on the other hand, says that because they have both elected the same, and because Mr.

Warner, although on a later date, has requested a preliminary inquiry, that the court mandates that there must be a preliminary inquiry held for both of them and points to s. 536(4.2) of the Code , which reads: If two or more persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (4), a preliminary inquiry must be held with respect to all of them. [ 10 ] Of note is that both subsections referred to by counsel, that is, subsection (4.3) by Mr. Hoem, and (4.2) by Mr.

Yusuf for the Crown, both refer to whether or not a request for a preliminary hearing was made and refer to subsection 4 as the underlying initiating step. [ 11 ] It is, in my view, a novel point. In my view, I am not aware of this argument having been raised in the past, but from a plain reading of all of the sections within 536 as it relates to elections and preliminary inquiries the situation may be somewhat further complicated where more than one persons may be jointly charged, and it could in fact be four, five or six. In the case before me, it is relatively straightforward in that we have two.

But it is not uncommon for three, four or five accused to be jointly charged with respect to an offence where one may elect to be tried by a superior court, either a judge alone or a judge and jury, and because of the difficulties in calendars and the like of counsel that the other accused appear at different times. [ 12 ] It seems to me, from reading these subsections, on the face of it, that subsection (4.2) as it relates to the requirement that there must be preliminary hearing with respect to all of them was to address that kind of a situation, and that subsection (4.3) with respect to a situation in which no request for a preliminary inquiry is made, the justice shall fix the date for trial and the like on which that accused must appear.

It seems to me, as I have said, on the face of it, there is a very, very clear specific and explicit distinction between (4.2) and (4.3) in the sense that (4.3) refers to a single accused, where (4.2) addresses a situation where more than two persons are jointly charged. [ 13 ] In my view, as a result, subsection (4.3) contemplates a situation where there is a singular accused before the court, and that accused has not requested a preliminary hearing, whereas subsection (4.2) addresses those situations where in fact there are co-accused charged jointly. [ 14 ] I might also add that in a careful reading of s. 536 and the various subsections thereunder, there is nothing in there requiring that the decision to request a preliminary inquiry or not to request a preliminary inquiry must be made at any particular or given time or at the same time. [ 15 ] Subsection (4.2) merely provides that if they are jointly charged and one or more of them make a request, then there must be a preliminary hearing with respect to all, but there is no time frame specified within which such a request must be made. [ 16 ] As a result, and upon reading all of these subsections and bearing in mind the proceedings that have taken place, in my view the appropriate conclusion is that notwithstanding that Mr.

Young may have elected a judge alone and had not requested a preliminary inquiry hearing at an earlier date than Mr. Warner, the Code clearly provides that Mr. Warner's request for a preliminary hearing shall take precedence and that there will be, as a result, a preliminary hearing in my view. That is what the

section provides, and that is what applies here. (ORAL REASONS FOR SENTENCE CONCLUDED)