R. v. Robichaud Date:, 2012 BCPC 82

Citation: R. v. Robichaud Date: 20120323 2012 BCPC 0082 File No: 92276-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARCEL LAURENT ROBICHAUD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. T. Livingston Counsel for the Defendant: Mr. K. Sommerfeld Place of Hearing: Merritt, B.C. Date of Hearing: March 8, 2012 Date of Judgment: March 23, 2012 [ 1 ] This focus hearing arose from the commencement of this preliminary inquiry which was scheduled to start on March 8, 2012.

At the commencement of the preliminary inquiry, the Crown announced that it had brought one witness only. This was the police officer who had taken the statement of the complainant on a sexual assault charge. At the arraignment hearing, arraignment reports were filed indicating several more witnesses would be called at the preliminary inquiry, including the complainant. Mr. Sommerfeld advised at the commencement of the preliminary inquiry that he had just learned that morning that the only witness to attend was the police witness.

This was in fact indicated on the trial confirmation report filed by Crown some time ago. However, Mr. Sommerfeld confessed that he had not turned his mind to what appears on his copy of the form as merely chicken scratch in the area indicating the number of witnesses. [ 2 ] The Defence advised that they were not prepared to proceed with the preliminary inquiry. Mr. Sommerfeld also wanted the advantage of cross examining the witnesses as opposed to calling them himself. The Crown did not intend to call any other witnesses.

Both counsel requested that I seize myself of the matter so that rather than simply being adjourned to another date, we could conduct a focus hearing to determine this issue of who may attend. [ 3 ] The DNA evidence has been admitted by the Defence and no experts are required at the preliminary inquiry. However, Mr. Sommerfeld wished to have the three police officers involved with the interview and arrest of Mr. Robichaud. He wishes to test voluntariness of statements made by the accused. The Crown does not intend to lead Mr. Robichaud’s statement at the preliminary

hearing. [4] Mr. Livingston maintains that the Crown is leading only that evidence which meets the Sheppard test. He says admissibility hasnothing to do with whether the accused is committed to stand trial and therefore Mr. Sommerfeld is not entitled to have those policewitnesses attend. [5] Mr. Sommerfeld also wishes to test the complainant’s testimony but the issue of the complainant’s statement will be left for anapplication under s. 540 on another day. [6] There is an additional witness, the person who was present during a portion of the evening when the complainant and theaccused were together.

The evidence of this witness is important at trial as it will be relevant to the issue of honest but mistaken belief asto the complainant’s consent. Mr. Livingston argued that is something which requires the court to weigh evidence and is not appropriateto determine whether the accused should stand trial. [7] Mr. Sommerfeld spoke passionately and eloquently about the loss of the discovery process in preliminary inquiries. He cited theshortage of judicial resources arguing that this has driven the courts to take a stricter approach to the hearing of evidence on preliminaryinquiries.

He also cited the shortage of counsel in Crown office which has led not only to the late assignment of files to Crown but alsoto the breakdown of communications with respect to which witnesses will be called and how to properly anticipate and prepare for trialsand preliminary inquiries. [8] This has certainly been an impact on this case. It defies me how the parties could know so clearly at the arraignment hearing thatseveral witnesses would be called at the preliminary inquiry but move by trial confirmation to just one witness without full discussionbetween Crown and Defence.

I appreciate that the Bar is not particularly pleased with the Criminal Case Flow Management Rules, butthey are rules all the same. Paying lip service to them by scribbling last minute information onto the form merely for the sake ofcomplying is inadequate to meet those rules. It is equally inadequate to merely receive the form without reading it and making furtherinquiry, and then to confirm readiness on the basis of those forms.

It may well be that this is a product of resource shortages in Crownoffice and poor legal aid funding in some cases for the Defence, but the end result is prejudice not only to the accused but to thecomplainants, the witnesses and to the wasted court resources for this false start.

This is even more discouraging in a circuit court wherethe system went to considerable expense to send a judge, a clerk and two sheriffs to Merritt. [9] That being said, the preliminary inquiry will proceed, governed by the parameters to be set at this focus hearing and at the s. 540application to come. [10] The issue before me on this focus hearing is whether I must compel Constables Dillon, Buliziuk and Warner as well as Mr.Thomas to attend at the preliminary inquiry in order for Mr.

Sommerfeld to be better able to discover the Crown’s case and test thestrength of it. [11] I have reserved to consider some decisions which followed USA v. Sheppard and the amendments to the Criminal Code, whichhave certainly narrowed the scope of a preliminary inquiry. Those decisions which I have been referred to are one of Justice Grobermanin R. v. Gill et al. 2006 BCSC 927 and R. v. Rao 2011 BCSC 390, which flowed from the R. v. McFadden and Rao, a decision of JudgeBagnall cited at 2010 BCPC 218 , 2010 BCPC 0218. [12] The R. v.

Gill decision arose on an application to quash the ruling of a Provincial Court judge in the course of a preliminaryinquiry on precisely the same issues which Mr. Sommerfeld wishes to examine the Crown’s witnesses in this case. R. v. Gill was a GSTfraud case with 131 counts attendant on it. In Gill, the Defence counsel recognized that the Crown had sufficient evidence for acommittal to stand trial. Counsel were not seeking a full preliminary inquiry but one which was limited pursuant to s. 536.3 of theCriminal Code.

Although counsel had been able to agree which witnesses would be called on the focus hearing, objections were madewhen cross-examination ventured into areas for which the Provincial Court did not have jurisdiction and for which the issues werecovered by privilege. [13] At paragraph 16, Justice Groberman determined that where a disclosure issue is relevant to an issue critical to the preliminaryinquiry, the Provincial Court judge does have jurisdiction to order production of documents.

Apart from that, however, JusticeGroberman found that any rights accorded to the accused on the focus hearing relating to Charter issues were indulgences rather thanentitlements. Failing to extend those indulgences further did not result in losing jurisdiction. The court recognized that the new regime isdirected at limiting issues at a preliminary inquiry to those that are genuinely at issue. The court rejected Defence counsel’s argumentthat preliminary inquiries were no longer necessarily directed at the issue of committal for trial but permitted inquiries that were purelyin the nature of discovery.

The court did recognize that preliminary inquiries had assumed an ancillary role as a discovery mechanismbut that remained incidental to the central mandate of a preliminary inquiry. Groberman, J. concluded that the fundamental nature of thepreliminary inquiry remained that of screening charges to determine whether there was sufficient evidence to put an accused on trial, andthat any discovery function remained purely ancillary. [14] The courts have continued to allow preliminary inquiries to serve the ancillary purpose of discovery.

However, it must remain anindulgence and will be curtailed as necessary as in the case of R. v. Rao. [15] At the focus hearing in that decision, Judge Bagnall was considering an application under s. 540(7) to adduce certain evidence indocumentary form. The issue before Judge Bagnall arose when Defence counsel sought to call the 28 witnesses the Crown was notgoing to call at that preliminary inquiry. That issue is not presently before me. However, Judge Bagnall reviewed the law as itdeveloped over time and through the various amendments.

She concluded at paragraph 75: 75 The backlog in these courts for those awaiting a trial scheduled for more than a day is, and has been for some years, over a year.Even persons in custody may wait months before being able to secure trial dates. The court has a responsibility to the public and to theadministration of justice to ensure that judicial resources are used prudently. In R. v. Omar (2007), 2007 ONCA 117 , 218C.C.C. (3d) 242, Sharpe J. A. on behalf of the Ontario Court of Appeal said the following at paragraph 32:

Judicial proceedings are not designed on the basis of a cost-benefit analysis, but there surely must be an element of proportionality that informs the manner in which trials are conducted... [ 16 ] On appeal to Madam Justice Brown in R. v. Rao 2011 BCSC 390 , Judge Bagnall’s decision was upheld. [ 17 ] As Judge Bagnall said, judges must be concerned with the efficient and proper use of resources regardless of whether one is considering a trial or preliminary inquiry, whether it is in the main courthouse of a District or in one of its circuit courts, and whether it is for hours, days or weeks in length.

In this case, there is no benefit to calling any of the police witnesses or Mr. Thomas to give evidence. Their evidence would be given for no other purpose than discovery of the Crown’s case and assessing Charter issues not within the mandate of a preliminary inquiry judge. None of these witnesses will give evidence which will go to whether Mr. Robichaud ought to be committed to stand trial.

I dismiss the Defence application to compel the attendance of those witnesses. [ 18 ] Counsel have indicated that the Crown will be making an application pursuant to s. 540 to lead the complainant’s evidence by way of statement through one of the police officers. I have indicated that it would be my preference that application be brought ahead of the preliminary inquiry so that both parties may properly prepare for that preliminary inquiry. Authority for this order of procedure is found in the cases I have been referred to. _______________________ S.D. Frame Provincial Court Judge