R. v. Ellis, 2012 NSSC 329

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Ellis, 2012 NSSC 329 Date: 20120925 Docket: CRH 368181 Registry: Halifax Between: Her Majesty the Queen v. Dale Whitman, a Justice of the Peace for the Province of Nova Scotia, and Jonathan William Ellis LIBRARY HEADING Judge : The Honourable Justice Arthur W.D. Pickup Heard: September 7, 2012 in Halifax, Nova Scotia Subject: Certiorari to quash subpoenas issued by a Justice of the Peace requiring four police officers to attend a preliminary inquiry.

Summary: The Crown seeks to quash the subpoenas issued by a Justice of the Peace at the request of the defence, requiring four police officers to give evidence. The Crown asserts that the subpoenaed officers are not likely to give material evidence in the preliminary inquiry. They say that the attempt to question these four officers has nothing to do with the purpose of the preliminary inquiry as these officers were involved in an authorization to obtain a search warrant, and that this is not in issue at the preliminary inquiry.

The defence submits that the application is premature and whether or not the testimony of these officers is relevant to the inquiry is for the preliminary inquiry judge to resolve. In the alternative, the defence says that this being principally a search warrant case, any questions regarding the authority to obtain a search warrant are relevant. Issue: Should certiorari issue?

Result: Application for certiorari dismissed. The Preliminary Inquiry judge is the person who should deal with the relevance of the evidence of the four officers and is in the best position to do so. In the alternative, the officers ’ evidence is likely to be relevant. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R v. Ellis, 2012 NSSC 329 Date: 20120925 Docket: CRH 368181 Registry: Halifax Between: Her Majesty the Queen v.

Dale Whitman, a Justice of the Peace for the Province of Nova Scotia, and Jonathan William Ellis Judge: The Honourable Justice Arthur W.D. Pickup Heard: September 7, 2012 Counsel: Jeffrey S. Moors, for the Crown Trevor McGuigan, for the defendant By the Court : [ 1 ] This is an application for an order in the nature of certiorari pursuant to the Criminal Code and Civil Procedure Rule 64 . The Crown seeks to quash subpoenas issued by Dale Whitman, a Justice of the Peace, on March 12, 2012, requiring the attendance of Det./Cst. David Li, Cst. David Lane, Cst. Peter Hurley and Cst.

Jules Laraque to give evidence at the preliminary inquiry.

Background Facts [2] Jonathan Ellis is charged with others with an offence contrary to s. 5(2) of the Controlled Drugs and Substances Act. [3] On November 12, 2009, members of the Halifax Regional Police Integrated Drug Unit executed a search warrant at Mr.Ellis’s property in Eastern Passage. On that date he was located in the garage along with other persons. The police searched thepremises and found approximately 236 pounds of cannabis marijuana. Several individuals, including Mr. Ellis, were charged with theCDSA offence.

The matter was to proceed to preliminary inquiry. [4] Prior to the preliminary inquiry the Crown advised that it would not be calling four police officers who had been listed aspossible witnesses. Subpoenas were obtained by the defence, to examine all four officers. The first officer subpoenaed was Det./Cst. Li,who authored and swore the information to obtain a search warrant (“ITO”). According to the Crown he had no involvement thanattending at Mr. Ellis’s property. He did not seize any items in the search.

The defence suggests that there was more active involvementby these officers and, in particular, that Det./Cst. Li initiated the investigation, prepared the initial officers’ report and drafted the Crownbrief report. Further, according to the defence, Det./Cst. Li gathered information from Csts. Lane, Hurley and Laraque, relating to theconfidential sources and included this information in the ITO. Det./Cst. Li stated in the ITO that he conducted surveillance of Mr. Ellis’sresidence and held a pre-search briefing with members of the police. [5] The remaining three officers subpoenaed by the accused were Cst.

David Lane and Cst. Jules Laraque, of the HalifaxRegional Police and Cst. Peter Hurley of the RCMP. These officers were the source handlers for two confidential informants thatprovided information that was contained in the ITO. According to the Crown, Cst. Lane and Cst. Hurley did not search the property, andCst. Laraque entered the property but did not seize any items. The defence submits that according to the ITO, Cst. Laraque maintained aconfidential source who provided information regarding Mr. Ellis, and Cst.

Laraque had prepared a typed document with respect to thisinformation titled “Source Debriefing Report”. Further, the ITO contains specific reference to information provided by confidentialsources maintained by Csts. Lane and Hurley. Cst. Lane made handwritten notes in relation to the information provided by the source,as well as a source debriefing report. Cst. Hurley made handwritten notes and prepared a source debriefing report. [6] On March 19, 2010, Mr. Ellis made an application before Associate Chief Judge Brian Gibson, who unsealed the ITO. Counsel for Mr.

Ellis advised the Provincial Court that he wished to question the officers subpoenaed on the information that wascontained in the ITO. The statement of issues filed by counsel for Mr. Ellis states: The issues are (

a) narrative of events; (

b) details of the police investigation leading up to and on November 12, 2009; (

c) reliability andcredibility of the information disclosed within the Information to Obtain a Search Warrant, source debriefing reports, and police officersnotes, including surveillance and information provided to police by confidential sources; and (

d) committal to stand trial. [7] A notice of application was filed on May 4, 2012 by the Crown, seeking an order in the nature of certiorari to quash theissued subpoenas. Issue: Should the subpoenas be quashed? Statutory Provisions [8] On a challenge to a subpoena the burden is on the party seeking to uphold the subpoena to show that the proposed witness islikely to provide material evidence. Therefore, the defence bears the burden of establishing that the officers can give material evidence atthe preliminary inquiry.

I am satisfied that if a party seeking to uphold a subpoena is not able to demonstrate that the witness would“likely” or “probably” have material evidence then certiorari may issue to quash the subpoenas. R. v. Harris (1994), (ON CA), 93 C.C.C. (3d) 478 (Ont. C.A.). [9] A judge at a preliminary inquiry derives his jurisdiction from

part XVII of the Criminal Code. In particular, s. 535 states:

If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part. [ 10 ]

Section 541 of the Criminal Code is also relevant. It provides: 541.

(1) When the evidence of the witnesses called on the part of the prosecution has been taken down and, where required by this Part, has been read, the justice shall, subject to this section, hear the witnesses called by the accused. ...

(5) The justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection,

section 540 applies with such modifications as the circumstances require. Position of the Parties The Crown [ 11 ] The Crown asserts that the subpoenaed officers are not likely to give material evidence in the preliminary inquiry . Therefore, certiorari should be issued to quash the subpoenas. The Crown submits that the attempt to question these four officers has nothing to do with the purpose of the preliminary inquiry. That is, they submit that the sufficiency of the authorization to obtain a search warrant is not in issue at the preliminary inquiry.

They say the officers subpoenaed by the accused had no dealings with the accused and no role in the arrest or search. The Crown submits the information is being sought at the preliminary inquiry by way of discovery to prepare for an application to have the search warrant excluded pursuant to s. 8 of the Charter of Rights and Freedoms. It maintains that this is not the purpose of a preliminary inquiry, or, at the least, is no more than an ancillary issue.

Defence [ 12 ] The defence agrees the test with respect to the issuance of a subpoena is whether a proposed witness is “ likely to give material evidence ” , but submits whether or not the testimony of these officers will be relevant to the inquiry is for the preliminary inquiry judge to resolve after applying the rules of evidence in the context of the hearing.

In the defence ’ s submission, even if I were to determine the matter, this principally being a search warrant case, any questions regarding the authority to obtain a search warrant are relevant and the four subpoenaed officers are likely to give material evidence on that issue. [ 13 ] The merits of the Crown application will be discussed under the following headings: i. Is this application premature? ii. Whether the subpoenaed police officers are “ likely to give material evidence ” . Is this application premature?

[14] The defence says the preliminary inquiry judge is the person who should deal with the relevance of the evidence of the fourofficers and is in the best position to do so. As the defence points out, the preliminary inquiry has not started and there have been noevidentiary rulings by the judge as to whether the subpoenaed officers are likely to give material evidence on any matter relevant to theinquiry. As Murphy J., said in R. v. McGrath,[2007] N.S.J.

No. 363, 2007 NSSC 255, at para. 32: 32 Decisions which the Crown says distinguish the extent to which ancillary issues can be explored during direct questioning ofdefence witnesses from what is allowed during cross examination were either first instance rulings in which a Preliminary Inquiry Judgeexercised discretion to refuse to hear testimony (usually because it constituted a fishing expedition), or superior court rulings declining toset aside an Inquiry Judge's decision, expressly or implicitly indicating that evidentiary determinations made by that Judge, even ifincorrect, do not constitute jurisdictional error... [15] The defence says the Crown is seeking a preemptive ruling on relevance from this court before the preliminary inquiry hasbegun, and before the preliminary inquiry judge has exercised his authority to rule on the issue.

Defence counsel suggests the Crownseeks a ruling that would usurp the jurisdiction of the Provincial Court. The Crown says that a preliminary inquiry judge is not equippedto deal with a Garofoli type application concerning an ITO and that the defence should have provided a list of the questions to be asked.

Defence counsel counters that that is precisely what they are trying to do before the preliminary inquiry judge. [16] I agree with Murphy J.’s observations in McGrath, supra, that courts are reluctant to exercise their discretion to grantinterlocutory prerogative remedies: 38 The Crown’s application for prerogative remedies at this stage in the proceeding constitutes a request for interlocutoryprerogative relief. As this Court has previously notes in Bird v. Nova Scotia (Attorney General), [2007] N.S.J.

No. 7, and R. v.MacDonald (2002), 2002 NSSC 66 , 203 N.S.R. (2d) 225, courts are very reluctant to conduct supervisory review forjurisdictional error in an interlocutory matter.

While the interlocutory nature of the present application does not necessarily preclude thegranting of relief, there is nothing arising in the circumstances of this case to warrant so unusual an exercise of discretion as to grantinterlocutory prerogative relief. [17] It is important to note that a preliminary inquiry judge has jurisdiction to make all evidentiary rulings, and the issue of whetherthese witnesses are relevant to the inquiry can be put squarely before the preliminary inquiry judge to resolve.

The preliminary inquiryjudge can determine the nature and scope of the examination of witnesses, and rule on any objections. In other words, the Crown canargue its position as to the relevancy of these witnesses before the preliminary inquiry judge. The Crown can seek certiorari from thiscourt should it not be in agreement with the findings of the preliminary inquiry judge. [18] The Crown argues that the subpoenaed officers have nothing to do with the purpose of the preliminary inquiry. A preliminaryinquiry judge cannot grant Charter remedies.

However, it is apparent, in this case, the defence is not seeking a Charter remedy from thepreliminary inquiry judge. It is seeking disclosure of allegedly relevant facts surrounding the granting of the search warrant, which thedefence argues is permissible as an ancillary purpose of the preliminary inquiry. [19] I am satisfied the issue of the relevancy of these officers’ testimony is more properly heard in the preliminary inquiry. I agreewith defence counsel that the Crown is asking this court to preempt the jurisdiction of the Provincial Court judge who has not made anyruling.

On this basis I dismiss the application for certiorari. Are the four proposed witnesses “likely to give material evidence”? [20] In the event that I am wrong on the first issue, I will go on to deal with the merits of the certiorari application with respect towhether the four proposed witnesses are “likely to give material evidence”. The burden is on the defence. If the defence does not meetthis burden, then certiorari may issue to quash the subpoenas. It is important to note that I have already determined that the preliminaryinquiry judge is the proper person to determine this issue.

However, with the limited evidence before me, and based on counsels’arguments, I will determine the issue for the purposes of this application. For the reasons which follow, I am satisfied that the defencehas met its burden and, I would dismiss the certiorari application, being satisfied that these officers can provide relevant and materialevidence. [21] A review of the purposes of a preliminary inquiry is relevant to this analysis.

[22] The Crown and defence disagree on the purpose of a preliminary inquiry. The Crown takes a narrow view while the defence’sview is wider, in that it says that the preliminary inquiry also serves a discovery function. The Crown cites cases which in a very generalway can be summarized to state that a preliminary inquiry judge must focus on whether the evidence presented is sufficient to committhe accused to trial. The Crown submits that a preliminary inquiry is not a fishing expedition or an opportunity for the defence to obtaindiscovery.

The defence position, on the other hand, says that there is an ancillary purpose to a preliminary inquiry and that case lawrecognizes that a preliminary inquiry can be used to disclose or discover the Crown’s case. The Crown takes a narrower view and saysthat the ancillary purpose for which defence discovery can take place is limited to the issue of the guilt or innocence of the accused, anddoes not extend to Charter considerations, are being pursued by the defence. [23] In support of its’ submission, the Crown submits McLachlin, C.J.’s comments in R. v.

Hynes, [2001] 3 S.C.R. 623, 2001 SCC82 which described the primary function of the preliminary inquiry as follows: 30 The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrantcommitting the accused to trial: Criminal Code, s. 548(1); Caccamo v. The Queen, (SCC), [1976] 1 S.C.R. 786. Thepreliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial.

Itsparamount purpose is to "protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcementagency is not in possession of evidence to warrant the continuation of the process": Skogman v. The Queen, (SCC),[1984] 2 S.C.R. 93, at p. 105.

The justice evaluates the admissible evidence to determine whether it is sufficient to justify requiring theaccused to stand trial. (The trial judge cannot, with due respect to the contrary suggestion of Gushue and Green JJ.A., simply "choose notto" rely on offered evidence without first making a positive ruling against its admissibility.) 31 Over time, the preliminary inquiry has assumed an ancillary role as a discovery mechanism, providing the accused with an earlyopportunity to discover the Crown's case against him or her: Skogman, supra, at pp. 105-6.

Nonetheless, this discovery element remainsincidental to the central mandate of the preliminary inquiry as clearly prescribed by the Criminal Code; that is, the determination ofwhether "there is sufficient evidence to put the accused on trial" (s. 548(1)(a)). [24] It is interesting to note that the Supreme Court of Canada did recognize the ancillary role of a preliminary inquiry to allowdiscovery of the Crown’s case. [25] Under s. 545(5) of the Criminal Code, the preliminary inquiry judge hears each witness called by the accused “who testifies toany matter relevant to the inquiry”. According to the Crown the

interpretation of “relevant” should be one which remains focussed onthe primary purpose of the preliminary inquiry as described in R. v. S.A.B., [1998] B.C.J. No. 3087, at paras. 41- 47(B.C.S.C.): 41 The following conclusions can be drawn about the purpose of preliminary inquiries. While a preliminary inquiry in its present formincludes the right to test the case to be met, its function is not as an investigative tool, either for the Crown or the defence.

Witnesses, foreither side, cannot be subpoenaed to testify unless they are likely to give material evidence. 42 Nor is a preliminary inquiry a mechanism to obtain Crown disclosure. 43 Guilt or innocence is not determined at a preliminary inquiry. Therefore the right to make full answer and defence does not arise atthis stage. The inquiry is, rather, a screening device to ensure that the only cases that proceed to trial are those where a reasonable jury,properly instructed, could convict: U.S.A. v.

Sheppard (1976), (SCC), 30 C.C.C. (2d) 424 (S.C.C.). 44 In my view, the right of the person charged to call witnesses is directed toward the screening purpose. That is, he or she is entitledto present relevant evidence to demonstrate that a reasonable jury, properly instructed, could not convict. This does not include "fishingexpeditions". 45 It is well known that, in light of Stinchcombe, the value of the preliminary inquiry itself is in dispute. The Department of Justice isstudying the issue.

46 No matter what view one takes of their usefulness, I agree with the observation of Doherty J.A. in Girimonte that it is not in theinterests of justice to unduly prolong and fragment preliminary inquiries. ... 47 Preliminary inquiries do not have an investigative or disclosure function. Their purpose is to decide whether there is evidence uponwhich a reasonable jury properly instructed could convict. Evidence presented must be relevant to that question. [26] The Crown says that the focus of the preliminary inquiry must be directed to the issue of sufficiency of evidence.

The Crownfurther submits that the preliminary inquiry judge does not have jurisdiction to hear Charter arguments. [27] The defence argues that the courts have consistently recognized that preliminary inquiries have an ancillary function to allowdefence to pursue discovery of the Crown’s case, including discovery in relation to Charter issues. In McGrath, supra, the Crownsought certioari against the preliminary inquiry justices’ decision to admit the evidence of a police witness called by the defence in aCDSA matter for the purpose of exploring potential Charter arguments respecting the arrest and search.

Considering the scope of thediscovery aspect of the preliminary inquiry, Murphy J. said: 26 The discovery element of the Inquiry has been recognized more recently in R. v. Hynes, supra, (both at para. 31 of Chief JusticeMcLaughlin's [sic] reasons for the majority and para. 78-80 of Justice Major's dissenting opinion), and in the Ontario Court of Appealdecision in R. v. B.(E.), (ON CA), [2002] O.J.

No. 75 at para. 41-44. 27 The Crown contends that the provisions now contained in sections 540 and 541 of the Criminal Code show a parliamentaryintention that preliminary inquiries be more streamlined and focused on the issue of sufficiency of evidence. However, the decisionsupon which the Crown relies in support of restricting the Inquiry addressed situations where defence sought to substantially broaden theInquiry scope. For example, in R. v. Gateway Industries Limited, [2002] M.J. No. 280 (Q.B.), the defence attempted to subpoena crowncounsel; in R. v.

Ciancio and Lees (April 18, 2005), Vancouver 145694-1, defence sought leave to cross examine a police officer on anaffidavit concerning Charter issues which had apparently not been addressed during earlier testimony at the inquiry; and in R. v.Anderson, [2001] B.C.J. No. 2978, (B.C.S.C.), affirmed [2001] B.C.J.

No. 566 (B.C.C.A.), defence wanted to subpoena 15 R.C.M.P.officers in addition to 12 civilian witnesses concerning disclosure issues. [28] Justice Murphy continued at para. 28: 28 Although recent authorities direct that a Preliminary Inquiry Judge should in appropriate cases exercise authority to limit defenceefforts to pursue broad discovery, the case law continues to recognize that discovery is a real ancillary purpose of the Inquiry.

Theprimary function of the Preliminary Inquiry is determination whether there is sufficient evidence to commit the accused to stand trial;however, there is no jurisdictional limitation which precludes an Inquiry Judge from allowing defence counsel to pursue discovery withinreasonable bounds. [29] I am satisfied that on balance there is a recognition in the case law that discovery is an ancillary purpose of a preliminaryinquiry.

The matter before me is essentially a search warrant case and the defence seeks to question these officers on the circumstancessurrounding the obtaining of the search warrant. [30] In McGrath, supra, Justice Murphy commented as follows: 30 The Crown maintains that Criminal Code s. 541(5) which states "the justice shall hear each witness called by the accused to testifyas to any matter relevant to the inquiry" restricts the Accused to calling only witnesses whose testimony is confined to the issue ofsufficiency of evidence for committal.

Crown counsel refers to several decisions in which courts have indicated that an accused maycross examine crown witnesses concerning Charter or other issues not relevant to whether there ought to be a committal for trial, butrefused to allow the defence to call witnesses whose evidence will not be relevant to the primary purpose of the Inquiry. (R. v. Schindler,

[2005] N.J. No. 204; R. v. Gateway Industries Limited, supra; R. v. Anderson, supra; and R. v. Ciancio and Lees, supra.) 31 I do not subscribe to the Crown's view that testimony from defence witnesses must always be so restricted, and I question theproposition that Defence counsel's latitude must be much more limited when examining defence witnesses than when cross examiningcrown witnesses, particularly in circumstances such as those in this case, where the Accused wants only to introduce evidence from oneother police officer who can further address events explored during prior cross examinations.

However, even if the Crown'sinterpretation of sections 540 and 541 of the Criminal Code is correct, in my view the issue and the case law to which counsel refersinvolve application of evidentiary principles, a matter within the Judge's discretion, and not jurisdictional boundaries which create a basisfor judicial review. [31] I note that recently in R. v. Rao, 2012 BCCA 275 , [2012] B.C.J.

No. 1247 (B.C.C.A.), the British Columbia Court ofAppeal made a similar finding. [32] Under s. 545(5) of the Criminal Code, the preliminary inquiry judge is tasked with hearing the Crown witnesses and thosewitnesses called by the accused “who testifies to any matter relevant to the inquiry”. I am satisfied that this would include hearingevidence as to the circumstances surrounding the obtaining of a search warrant. [33] In R. v. Drozney, [2004] O.J. No. 1487 (Ont.

S.C.J.), the court found that the preliminary inquiry judge’s refusal to allow cross-examination of a police officer regarding his sworn information to obtain a search warrant was a jurisdictional error. The court held atpara. 28: ...The very purpose for which Carthy J.A. concluded in Dawson that cross-examination of this sort is available at a preliminary inquirywas to permit an exploration of "matters that may be relevant to Charter issues at trial".

To preclude cross-examination on the basis thatit does not relate to a live issue at the preliminary inquiry flies in the face of Dawson, and effectively denies the availability ofcross-examination at a preliminary inquiry at all. The argument of Crown counsel, adopted by the preliminary inquiry Judge, pays lipservice to Dawson, but effectively precludes the exercise of discretion to permit cross-examination of the affiant. It amounts tojurisdictional error. [34] The Crown attempts to distinguish this decision on the basis that the preliminary inquiry was already underway.

In thecircumstances of this case, the preliminary inquiry has not begun. With respect, Drozney, supra, dealt with exactly the issue here,namely, whether a preliminary inquiry judge can hear evidence regarding an ITO. In Drozney, supra, the preliminary inquiry judge’srefusal to allow cross-examination of the police officer on the ITO was found to be a jurisdictional error.

In these circumstances, theCrown is taking a very narrow view of the purposes of a preliminary inquiry, and the Crown does not recognize the ancillary function,which can, under recent jurisprudence, allow for the exploration of facts which would later support a Charter argument. [35] Based on the limited evidence put before me, these four officers are likely to give material evidence as to the background of thevalidity of the warrant. I add that the preliminary inquiry judge may take a different view after hearing evidence and argument relatingto the specific circumstances of the offence and the investigation.

I decline to issue certiorari as I satisfied that the defence has met itsburden. [36] The application for certiorari is dismissed . Pickup, J.