R. v. Michell Date:, 2011 BCPC 347

Citation: R. v. Michell Date: 20111109 2011 BCPC 0347 File No: 91617-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STANLEY FRANKIE MICHELL RULING OF THE HONOURABLE JUDGE FRAME Crown Counsel: B. Caffaro Defence Counsel: S. Tate Duty Counsel for the Complainant: R. Bruneau Place of Hearing: Kamloops, BC Date of Judgment: November 9, 2011 [ 1 ] THE COURT: This is an application by Mr. Caron to attend the continuation of the trial on November 10, Courtroom 3B.

He is presently incarcerated at KRCC and wishes to be at the trial "to show his continued support for the serious charges through to the final decision," and I quote that from the application. [ 2 ] I am told further by duty counsel, Mr. Bruneau, that he also feels that it will assist him in his recovery aspect from the very serious injuries he suffered as a result of the altercation which led to the charges now before me. [ 3 ] The application is brought on a standard form with the box ticked, person subject to order . Mr.

Caron is not subject to any order related to these proceedings. [ 4 ] I am not satisfied that there are any grounds for bringing this application before me in any procedural manner at all. I have scoured the Criminal Code for the sections that might possibly relate and there are none. The only one that comes close is s. 527 relating to the warrants to produce a witness to attend a trial, and that is very specific that it must be because justice requires the attendance of that person.

[ 5 ] I have been referred to the Victims of Crime Act s. 8 which may nebulously, somewhat stretchingly, refer to the courthouse as accommodating victims. This appears to be a physical accommodation due to disabilities, as opposed to having a person attend for more subjective grounds.

The intent though of the Act and that section, is that the government must promote certain goals, one of which is to promote equal access to victim services at all locations through British Columbia, which does not apply; to be adequately protected against intimidation and retaliation, which does not apply; to have property of victims returned, which does not apply; to have justice system personnel trained to respond appropriately to victims, which might vaguely apply; to give proper recognition to the needs of victims for timely investigation and prosecution, which does not apply; and as I say, the facilities do not apply. [ 6 ] The definition of victim under the Victims of Crime Act s. 1: "victim" means an individual who suffers, in relation to an offence, (

a) physical or mental injury or economic loss as a result of

an act or omission that forms the basis of the offence, [that applies] or (

b) significant emotional trauma and is an individual against whom the offence was perpetrated or, with respect to an individual against whom the offence was perpetrated, is a spouse, sibling, child or parent of the individual, but does not include a person listed within the definition of "justice system personnel" in relation to an offence to which the person responds in the line of duty;... [ 7 ] So certainly Mr.

Caron would qualify as a victim under that Act by that definition, but there is no authority in that Act that requires or compels or even prevails upon the court to have him attend once his duty as a witness has been completed and he has been discharged. [ 8 ] The ability of the public to attend at trial is permissive not prescriptive. In other words, the court cannot compel a person who is a member of the public to attend, but the public is largely entitled to come.

It is the Crown who prosecutes the case, not the complainant, and therefore the complainant's presence is not required after being excused by the judge. No further attendance is necessary and a complainant has at that point no greater or lesser entitlement to appear in court than an other member of the public. Absent such a requirement for attendance, the public - including witnesses and complainants who have been dismissed - may attend if they choose to do so, but must do so on their own steam.

If that person finds themselves incarcerated there is no authority or appetite in the court to permit their attendance. [ 9 ] I have been given some information that the sheriff services are strained. They are these days always strained, but they are particularly so tomorrow when the continuation is scheduled to take place. I have also been advised that it will require extra sheriff services particularly in court because these gentlemen have to be kept separated in other parts of the courtroom.

That is an unnecessary expenditure of resources, an unnecessary expenditure for the public and something that is completely unrequired and undesirable for this court to start making spring orders so that complainants can attend the continuation of trial once their duty is discharged. [ 10 ] I am dismissing the application on that basis. (RULING CONCLUDED)