R. v. Kim Date:, 2013 BCPC 337

Citation: R. v. Kim Date: 20130521 2013 BCPC 0337 File No: 87439-3C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL HANSEOCK KIM ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: K. MacWilliam Counsel for the Accused: S. Wright Place of Hearing: Port Coquitlam , B.C. Date of Hearing: May 21, 2013 Date of Judgment: May 21, 2013

[ 1 ] THE COURT: The accused, Michael Hanseock Kim, makes application for what his counsel, Mr. Wright, properly describes as an indulgence. We are convened in a preliminary inquiry or about to commence substantively a preliminary inquiry and this preliminary application is brought seeking the indulgence. [ 2 ] Mr.

Wright wishes to cross-examine two Crown witnesses, two police officers, on subjects that relate to possible Charter defences and a related issue having to do with the sufficiency of Crown disclosure. [ 3 ] Sitting as a preliminary inquiry judge, I do not constitute a court of competent jurisdiction to provide any Charter remedies or to make determinations of guilt or innocence. Rather, my narrow power as a preliminary inquiry judge is to answer the question of whether there is sufficient evidence before the court to commit Mr. Kim to trial. [ 4 ] The threshold is notoriously a low one.

Indeed, in the case at bar, even that low threshold does not require to be overcome through the adducing of evidence by the Crown leading to a ruling because the question of Mr. Kim's committal is uncontroversial.

This is, in other words, a case involving a consent committal. [ 5 ] To the extent that the focus in preliminary inquiries falls heavily, although not exclusively, on the question of committal, this preliminary inquiry, insofar as it goes forward and the court hears evidence in cross-examination, will do so only for the purpose of addressing an ancillary and secondary purpose of preliminary inquiries and that is the discovery purpose. [ 6 ] That discovery purpose has been narrowed in recent years, although as the cases placed before me and the cases generally known to me stipulate, that discovery process survives to the present day in a constrained form. [ 7 ] Mr.

Wright, for Mr. Kim, draws to my attention firstly the court's power to limit counsel who, in the course of cross- examination in a preliminary inquiry, embark upon questioning that is, in the court's opinion, abusive, too repetitive or otherwise inappropriate. He submits that the discretion to intervene and prevent cross-examination that is otherwise inappropriate is an aspect of the discretion to which he appeals in his application.

His application is for an indulgence that would have me permit questioning that touches on issues relating to Charter rights and disclosure, but that do not go to committal. [ 8 ] This discretion to allow a preliminary inquiry to touch upon issues that do not go to committal, but go to questions over which the court has no determinative power -- that is to say, issues having to do with Charter compliance -- is acknowledged in the case law. [ 9 ] It is recognized in recent and not so recent authorities.

It is a discretion that is properly exercised sparingly, but it is a discretion that is nevertheless exercised from time to time by the courts. [ 10 ] In R. v. Pham , Mr.

Justice Cohen of the Supreme Court of British Columbia acknowledged that jurisdiction and its narrow ambit when he said at paragraph 30 inter alia : In particular, evidence in cross-examination on Charter issues that do not relate to the test for committal may be disallowed at a preliminary inquiry hearing without constituting jurisdictional error. [ 11 ] His Lordship's use of the permissive word "may" supports the correlative contention advanced by Mr. Wright that this court is properly able to grant the indulgence that he is seeking without committing jurisdictional error. [ 12 ] R. v. Gill , a decision of Mr.

Justice Groberman in Chambers in the British Columbia Court of Appeal, reaffirms the narrowing, post-2004, of the discovery function of a preliminary inquiry, but also confirms the persistence of a residue of that discovery function, citing R. v. Hynes . At paragraph 21, Mr. Justice Groberman says, among other things: For decades defence counsel have employed the preliminary inquiry procedure as a sort of examination for discovery procedure in a criminal proceeding. Such use of a preliminary inquiry is not considered inappropriate. [ 13 ] At paragraph 24, more directly, Mr.

Justice Groberman says: It may well be that as a matter of convenience, the defence is allowed at a preliminary inquiry to explore matters that do not go to the question of whether or not an accused should be committed for trial. That is often down without objection by the Crown. Where such exploration occurs, however, it is a matter of indulgence and not of right. [ 14 ] Mr. Wright asks the court to grant that kind of indulgence in the case at bar. [ 15 ] R. v. Cramer , a 2004 decision of my sister Judge Rounthwaite, reported at 2007 BCPC 358 , represents a case where the kind of indulgence sought by Mr.

Wright here was granted. After canvassing the authorities and making some rather forceful statements about the importance of confining preliminary inquiries to their proper dimensions, Judge Rounthwaite stated two conclusions at paragraph 20. They are as follows. One:

Witnesses may only be called at a preliminary inquiry if their evidence is relevant to the determination of whether or not the accused should be committed to stand trial. Neither party may be called a witness whose evidence would only be relevant to possible Charter breaches. Two: If a witness is called at a preliminary inquiry to testify on matters relating to committal, cross-examination on Charter issues is a matter of judicial indulgence not of right. [ 16 ] Then Her Honour went on to give, in paragraph 22, her rationale for granting the indulgence in the case before her on that occasion.

She said: Subject to available court time, I will exercise my discretion to permit cross-examination on those two issues for the following reasons. First, I am told the particulars do not contain the information sought. Second, Ms. Chapman has taken steps to shorten the preliminary inquiry by making an admission and focussing the evidence on the real issues. [ 17 ] I pause to say that Ms. Chapman was counsel for the accused. Third, this is not a fishing expedition, but a request to cross-examine on specific issues identified by defence counsel and rising from the particulars provided in the Crown disclosure.

Fourth, as it involves two specific questions, I anticipate the cross-examination will not be prolonged and will not consume a great deal of time. I retain jurisdiction to limit such cross-examination should it become prolix or time consuming. [ 18 ] There, I pause to say that Judge Rounthwaite is referring to the jurisdiction conferred under s. 537(1.1).

Fifth, it seems possible that this is a case where learning this information at the preliminary hearing could assist both parties in determining whether an alternate disposition is appropriate, should there be a committal for trial. [ 19 ] Some five years post- Cramer , the Court of Appeal of this province gave a lengthy and detailed judgement in the case of R. v. MacFadden and Rao , reported at 2012 BCCA 1274 .

MacFadden and Rao might be said to be the latest word on the proper ambit of preliminary inquiry judges' jurisdiction to consider and hear evidence in cross-examination that goes beyond the question of committal. [ 20 ] I think it a fair

summary to say that Rao confirms that what we see in other decisions that precede it, namely, that there is a residue of jurisdiction in a preliminary inquiry court judge to allow evidence to be heard that touches on issues that do not directly go to the question of committal. [ 21 ] In paragraph 79, Madam Justice Prowse, for the majority, says: In that regard, the question is whether the preliminary inquiry judge was correct in concluding that by virtue of a combination of Stinchcombe and the 2004 amendments, the words "relevant to the inquiry" meant only "relevant to committal" and that an accused has no right to call witnesses under s. 541(5) if his sole purpose in doing so is to test or discover the Crown's case. [ 22 ] After further analysis, the court confirms, at paragraph 97, that, "The discovery function is alive and continues to serve its historical function, albeit in a more streamlined form." [ 23 ] Importantly, for today's purposes, paragraph 98 reads as follows: In my view, therefore, the preliminary inquiry judge erred in her

interpretation of s. 541(5) by restricting the words, "relevant to the inquiry" as referring only to the committal aspect of the inquiry, and, like the preliminary judge in Lena , she committed jurisdictional error in refusing to allow Mr. Rao to call witnesses pursuant to that section. It follows that the Supreme Court Judge erred in failing to find that preliminary inquiry judge had exceeded her jurisdiction in this regard. [ 24 ] In my view, one of the constraints relied upon by the Crown in opposing Mr. Kim's application flowing out of the decision in

Cramer must be read with the later decision of MacFadden and Rao in focus. I will just repeat Judge Rounthwaite's preclusive condition found in paragraph 20(1): Witnesses may only be called at a preliminary inquiry if their evidence is relevant to the determination of whether the accused should be committed to stand trial. Neither party may call a witness whose evidence would only be relevant to possible Charter breaches. [ 25 ] In my judgment, the surviving discovery-related, if you will, function of preliminary inquiries -- which has been confirmed clearly by both Mr.

Justice Groberman in Gill and the majority in MacFadden and Rao , since Judge Rounthwaite decided Cramer -- necessarily removes what some might say is an absolute prohibition regarding what Mr. Wright, on behalf of Mr.

Kim, wishes to do today. [ 26 ] I will also say that in as much as Judge Rounthwaite's ultimate decision was to allow cross-examination on Charter issues of witnesses who had a hybrid purpose for attending -- that is to say, to cover matters that were substantively in issue relating to committal and Charter issues -- it would particularly in the wake of Gill and MacFadden and Rao involve an artificial exercise to limit cross- examination on Charter issues only to cases where the witnesses were also giving evidence on unadmitted matters going to committal itself.

I would not wish, in ruling on this application, to create -- contrary to the policy that drives counsels' efforts to narrow issues and remove from controversy those things that can be removed from controversy -- an incentive to withhold agreement and keep controversial things that would not otherwise not be controversial only to serve as a basis for getting the right to cross-examine on Charter issues (by opening the door to witnesses giving testimony through the device of keeping controversial that which need not be controversial). [ 27 ] Judge Rounthwaite, in Cramer , was properly mindful of the importance of there being a solid and credible rationale for granting indulgences of the kind that are sought by Mr.

Wright on behalf of Mr. Kim today. I find the considerations that she addressed in forming her own decision to grant the indulgence helpful to me in considering the application made on behalf of Mr. Kim. [ 28 ] In going through those considerations one by one, as they are set out in paragraph 22 of the decision in Cramer , and applying them to the case at bar, I find that I am persuaded that the indulgence that Mr. Wright is seeking can and should be granted. [ 29 ] First, the question of the particulars. I am told in submissions by Mr. Wright on behalf of Mr. Kim that there are aspects of the case against Mr.

Kim that are still unclear. These relate primarily to information referred to in the Information to Obtain that originate with a Crown informant. [ 30 ] Mr. Wright's efforts to determine whether or not the information from the Crown informant was the subject of officer's notes has not yielded an answer that has assisted him. So, to that extent, his proposed cross-examination of the officer who obtained the information from the Crown informant will enlighten him, to some degree potentially, in a way that the particulars provided so far have not. [ 31 ] Mr.

Wright, I pause to say, has been emphatic that he is not making any efforts in the course of this preliminary inquiry to obtain information that would identify the Crown informant. This is not an application for an indulgence that in any way engages the law relating to innocence at stake, insofar as Ms. MacWilliam has properly stated in her submissions, in a preliminary inquiry, committal is the only potential jeopardy that an accused faces.

Innocence is not at stake in a proceeding of this kind. [ 32 ] Moving on to Judge Rounthwaite's second factor for consideration, Her Honour refers to defence counsel having taken steps to shorten the preliminary inquiry by making admissions, enabling the preliminary inquiry to focus the evidence on the real issues. [ 33 ] That certainly has happened here.

What started out as a three-day preliminary inquiry is now down to less than a full day because of admissions and because of the commendable efforts of both counsel in narrowing the focus to what is really in issue. [ 34 ] This is a preliminary inquiry that everyone is able to say at this early stage will proceed on the basis of a consent committal.

So, that requirement or that factor weighs in favour of the application. [ 35 ] Judge Rounthwaite's third point relates to "fishing expeditions" and whether or not the request to cross-examine focuses in on specific issues arising from particulars and so forth. [ 36 ] Here, again, I am satisfied that what Mr. Wright wishes to do in cross-examining these witnesses does not have a broad and unfocused and unconstrained character.

Rather, he has quite precise, narrow questions he wishes to explore, in part arising out of the points I just referred to in relation to officer notes relating to evidence from a Crown informant. [ 37 ] Mr. Wright says that he expects these cross-examinations to be completed well within the balance of the day, which is the afternoon.

So, I have not heard anything that ought to give me any concern, I believe, regarding fishing expeditions and broad-based, unfocused and exploratory cross-examination. [ 38 ] That, I think, is sufficient to answer Judge Rounthwaite's fourth point about undue prolonging and undue time consumption associated with the indulgence that is sought.

We have here an indulgence that will require brief cross-examinations that are focused and will not exceed reasonable time limits. [ 39 ] Judge Rounthwaite's fifth point relates to the possibility that the information acquired in the course of the cross-examinations might assist both sides in determining whether something other than a trial might be the appropriate disposition following committal . [ 40 ] Mr. Wright averts to that as a possible outcome.

He says, for example, that if his cross-examination reveals evidence that significantly raises potential non-compliance with s. 8 of the Charter , everyone's attentions in terms of what lies ahead may potentially be readjusted to bear down more upon questions of s. 24 remedies than they might otherwise.

[ 41 ] I consider that there is merit in that submission. Both Mr. Wright and Ms. MacWilliam will know more that could inform alternative approaches after these cross-examinations than they know today. [ 42 ] So, for all of those reasons, and as I have already indicated, recognizing that what Mr. Kim, through his counsel, Mr.

Wright, is seeking is an indulgence not a right, I am satisfied firstly that I have the jurisdiction to grant the indulgence in proper circumstances. [ 43 ] Secondly, and for the reasons I have particularly referred to in the latter part of these reasons, I am satisfied that the jurisdiction can be exercised in favour of the application in this case without running into the difficulties that were anticipated by Judge Rounthwaite when she articulated the factors that she thought ought to be considered. I have considered those same factors.

Accordingly, the application is allowed. (ORAL REASONS FOR JUDGMENT CONCLUDED)