R. v. Joseph Date:, 2016 BCPC 357

Citation: R. v. Joseph Date: 20160628 2016 BCPC 357 File Nos: 40409-1, 40496-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. ERNEST CLAYTON SCOTT JOSEPH ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: R. Garson Counsel for the Defendant: D. Marion Place of Hearing: Courtenay , B.C. Date of Hearing: June 28, 2016 Date of Judgment: June 28, 2016

[ 1 ] This is the oral decision for the application brought by Mr. Ernest Joseph. Due to our time, the location of court, the fact that counsel and I are visiting this jurisdiction, and most importantly to me, taking into account that the accused is still in custody, I do not wish to delay the decision. I reserve the right to change some of the decision, not in substance but the ability to make corrections if the need arises. [ 2 ] The court files that the application is brought is for Number 40409-1 and 40496-1 out of the Campbell River Registry.

The matter has been heard in front of me in Courtenay this day of June 28, 2016, and it involves alleged conduct of a Crown located in Campbell River. Perhaps this is one of the reasons that this matter is in Courtenay. [ 3 ] With respect to the charges, the actual charges on the court Informations, in my opinion, are fairly incidental and, in my view, have little bearing on this application. Although, I think it is fair to note that they are not of a sexual nature. [ 4 ] The amended notice of application filed with the Campbell River Registry on June 23rd, 2016, lays out what Mr.

Marion, counsel for the accused, seeks. Essentially, counsel for the accused argues that Mr. Joseph's s. 7 Charter rights have been violated and denied as a result of an abuse of process. As a result, the remedy being sought, as also outlined in the amended application, seeks an order granting a judicial stay of proceedings or such other remedy as the court deems just. [ 5 ]

Section 7, with respect to life, liberty and security of person, sets out: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 6 ] This concept of fundamental justice, to me, includes ideas such as abuse of process.

To me, a fundamental justice is an essential ingredient to our constitutional structure, and as far back as 1985, our courts have held that the trial court has the power to stay proceedings to prevent the abuse of a court's process through oppressive or vexatious proceedings, where compelling an accused to stand trial would violate those principles of fundamental justice which underlie the community's sense of fair play and decency. [ 7 ] The applicant alleges that the prosecution [as read in]: … demonstrated bad faith and improper motive by contacting the VisionQuest Recovery Society and requesting that the Society "rethink" their acceptance of Mr.

Joseph by alleging that Mr. Joseph was a convicted sexual offender, and disclosing in part entries on a protected youth record contrary to

Part 6 of the Youth Criminal Justice Act . [ 8 ] They rely on a book of documents which includes a number of affidavits, and those affidavits are filed as exhibits in this proceeding. [ 9 ] Essentially agreed by both parties is that Mr. Joseph was to be sentenced on May 12th, 2016. I should point out Mr. Marion is his counsel today. When I am referring to ‘his lawyer’, I am referring to his previous counsel that was to be counsel at the anticipated sentencing date. So, according to his lawyer's affidavit, part of the sentencing plan, if not the most significant part of it, was based on a proposal to have Mr.

Joseph go to VisionQuest Recovery Society. This plan, as I understand it, was developed in unison with some other information his lawyer became aware of through his parole officer. [ 10 ] It is fairly common knowledge VisionQuest is a residential treatment program that takes clients, often ones in jail, and provides them with rehabilitative counselling. Their letterhead, as Mr. Marion pointed out, states “Crime Prevention Through Rehabilitation”.

Ultimately I have always perceived that to be kind of their motto and perhaps that is why it is on their letterhead. [ 11 ] It also appears apparent on the face of the affidavits and through submissions of counsel that prior to sentencing taking place, Mr. Tim Morgan, Crown counsel with the Ministry of Justice, Criminal Justice Branch, Crown Counsel office located in Campbell River, had a conversation with the intake worker of VisionQuest once he learned of Mr. Joseph's acceptance to it.

What is not agreed seems to be the exact content of that conversation. [ 12 ] By letter dated May 13, 2016, addressed to a representative of VisionQuest, Mr. Morgan “denies asking any representative of VisionQuest to rethink the acceptance of Mr. Joseph”, he continues in the second to last paragraph to qualify his conversation and states that [as read in]: My efforts were limited to ensuring that Mr. Joseph was in fact a suitable candidate for VisionQuest, given his criminal conduct in the past. [ 13 ] He makes it clear that it is his view that really what he is doing is out of "diligence".

This was the word that he used. I think Mr. Garson and Mr. Marion quite accurately pointed out that there is a transcript as well of what the Crown counsel said to the court in response to the allegations from defence counsel on May 12, 2016. [ 14 ] Crown counsel also continues when he further qualifies his efforts as being “not an attempt to influence their decision, but merely an effort to inform your [VisionQuest] employees of relevant facts and to confirm the admissibility of Mr.

Joseph.” [ 15 ] He writes this letter in response to information received characterizing his actions as “trying to affect the decision to take Mr. Joseph as a client or not.” [ 16 ] Review of Mr. Gavin Young's statement, an intake officer of VisionQuest, states [as read in]: On May 11, 2016, Mr. Morgan advised me that Mr. Ernest Joseph was a sexual offender with a violent criminal history and suggested that Mr. Joseph was not a suitable candidate for admission.

[ 17 ] Ultimately a number of very good points have been made by counsel. [ 18 ] I have decided to proceed in this matter; first allowing counsel for the accused to provide submissions based on affidavits to me with respect to whether there is an appropriate foundation on which to consider whether the actions alleged form a sufficient platform, if I can use that phraseology, in which to grant the order sought by the accused. [ 19 ] I should point out that Justice Fitch's analysis of procedures to be followed, found in R. v. McDonald out of the Dawson Creek Registry, was a useful guide to me.

While ultimately the Vukelich threshold approach may not have been necessary, I believe that allowing the accused to provide evidence by way of submissions first would help me decipher some of the remaining issues. [ 20 ] Both counsel referred to R. v. O'Connor , a Supreme Court of Canada 1995 leading authority on our issues today.

In the headnote I find I am guided by Justice La Forest's words where he wrote: Where an accused seeks to establish that ... the Crown has violated s. 7 – [ 21 ] I recognize in that case I think it was an issue of disclosure, unlike our case here. -- he or she must establish that the impugned [act], on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence.

The focus must be primarily on the effect of the impugned actions on the fairness of the trial. [ 22 ] Justice Romilly, in the 2004 case of Wilder , at paragraph five, basically talked about this threshold being like a wild goose chase.

And in attempting to avoid a wild goose chase, Justice Romilly in that case found that the accused had to satisfy the threshold requirement first and ultimately show that there was an air of reality to his contention that the rights had been violated. [ 23 ] I take from these words, ultimately, that if it is apparent to this court that the facts as alleged do not disclose a Charter violation, the application may be dismissed without considering the evidence any further.

I think paragraph six of that Wilder decision talked about that as being an appropriate response or approach. [ 24 ] Did state conduct prejudice the fairness of his trial? It is a bit hard for me to reconcile two submissions of the Crown. Found at paragraph 12 of their written submissions, it is written: The applicant was to be sentenced on May 12th.

He is not facing a trial in relation to those matters. [ 25 ] When I first read that, I was left with the impression that it was the Crown's position that the right to a fair trial in that situation was not being affected one way or the other. [ 26 ] Yet, I think quite correctly, in oral submissions Mr. Garson, for the Crown, points out in his submissions and now I understand the position of the Crown to be that, yes, indeed, the sentencing process is part of the trial process and is also meant to be fair. [ 27 ] One way or the other, I find the latter point of the Crown to be a fairer look at our trial process.

From point of charge to the point of conclusion, whether that be sentence, or some other point in time, the public demands that all people in the justice system adhere to a fair process. That is, counsel, defence counsel, judges as well. [ 28 ] Mr. Marion, in his submissions, said that the Crown will argue that there is no prejudice. In fact, that is exactly what the Crown argued with respect to the trial process, which I find the sentencing process is part of. [ 29 ] Is there prejudice? I have reviewed the transcript of proceedings from May 12, 2016. Ms.

Runyon, counsel for the accused at the anticipated date of sentencing, made an application to adjourn the matter. [ 30 ] It is important to understand that the accused could have proceeded to sentencing on that date, but for some reason or another chose not to pursue his right to be sentenced. The adjournment was granted, and while I do not know why he has not yet been sentenced, I must presume that he has simply put off sentencing for some reason. The delay of sentence, whether it be for one day or longer, was a choice made by an accused with the benefit of counsel.

Albeit, if that delay was as a direct result of an intentional underhanded (if I can use that word) act of a Crown or anyone else in the justice system, a stay or some other remedy might be warranted. [ 31 ] Of course, it is not lost to me that counsel, faced with this new change of circumstances, simply may have needed some time to locate legal options for their client and get instructions as to what remedies they may wish to seek. [ 32 ] Ultimately there seems to be an underlying premise that if sentencing did proceed that day, or rather ‘but for the inappropriate communications of the Crown’, would Mr.

Joseph be out of custody, perhaps at VisionQuest? [ 33 ] I cannot try to guess what might have happened. To meander down the path of speculation, leads to an endless array of possibilities. The fact is, with respect to trial process, that is the way this case proceeded. The way that this case proceeded in court was done so in accordance with the accused’s own choices. [ 34 ] I do not find, with respect to meeting the threshold with regard to the delay and abuse of process, that there is sufficient foundation to consider whether a judicial stay or other appropriate remedy is necessary.

But I go on to consider, did the state conduct undermine the integrity of the judicial process? [ 35 ] This question is slightly more problematic. I wish to consider it more formally under the analysis of Justice Moldaver, used in R v. Babos , the 2014 Supreme Court case referred by counsel. I do not need to go into any great detail, but it is found in the Crown's Book of Authorities at Tab 4. I found paragraphs 38, 39, straight through to 41 very compelling. It is also found in Crown's written argument at paragraphs 17 and 18.

[ 36 ] There “must be prejudice” is one of the considerations. Mr. Marion argues that delay, stigma as to being labelled a sex offender, and possible prejudice as to what the sentencing judge might request, are all part of the prejudice. I take it from his very able submissions that each, individually, could be considered prejudice, and together as a whole it could be a larger prejudice. [ 37 ] Respectfully, I disagree. Mr. Joseph still has a right to be sentenced fairly in accordance with the principles of sentencing. There is no indication that this information has been filtered down to any other people.

There is no indication on the face of the affidavits to show that there have been any negative consequences as a direct result of the stigma that might have come about from being labelled a sex offender. [ 38 ] Once more, while the sentencing judge is open to ask for any information, I am hard-pressed to understand why any misinformation with respect to an older criminal record would affect an outcome. [ 39 ] Another consideration is there must be no alternate remedy capable of redressing the prejudice. There are alternative remedies, but do they necessarily fall within an order of this court?

For example, I cannot order another trial judge to reduce a sentence, and nor do I wish to leave the impression that the actions of the Crown properly give rise to a reduction of sentence. They may. However, that is not for me to decide. [ 40 ] One of Mr. Marion's excellent submissions, and there were many, was that Mr. Joseph was ultimately being denied the opportunity from the time of the proposed sentencing to today's date, and longer, until completion of sentence, to participate in the rehabilitative process. Further, that his liberty has been taken away.

In short, he is in jail and should not have been, and could be benefitting from programming. [ 41 ] However, with the greatest respect, the sentencing hearing can take place. On this point, Mr. Garson is correct. These events that have slowed down his right to plead guilty in order to further consider his legal remedies is a journey that began partially with the communication of the Crown to the intake worker, but also they were a direct result of his choices as well. [ 42 ] Ultimately there are alternative remedies, ones that in some instances cannot be accomplished by today's hearing.

It is not lost on me that should I have found doubt on the above two points that this doubt would be resolved in favour of a stay. Ultimately the threshold would have been met and the only argument that would be coming after today would be whether a stay was appropriate. [ 43 ] Ultimately did the conduct of the state amount to abuse of process? In order to find this, a court has to ask whether there was serious conduct or misconduct and significant harm. If I have not been clear, I have doubts as to whether significant harm has been caused. If it has been caused, as Mr.

Marion describes, then is it as a direct result of two parties, both the Crown and the accused? [ 44 ] I do believe it is worth discussing the conduct of the Crown. First, I agree with the Crown's submission that the affidavits do not disclose such egregious conduct as we see in many of the authorities today. [ 45 ] Second, I agree that a Crown has a right to speak to witnesses, address concerns about their knowledge of witnesses professing to be character witnesses, whether that be in a courtroom or outside a courtroom.

But I am of the view that such interactions are often best done in the presence of others, in case there is disagreement as to the tone or text of those communications. Emails are often valuable methods of recollecting events.

Notetaking is commonly used by legal professionals to clearly denote the essence of the communications. [ 46 ] While the reality of court time being scarce generally forbids the luxury of doing some of this vetting in court, openness is a quality that the public likes and, in my view, expects. [ 47 ] When you possess the power of the Crown, can a conversation like in this case not be easily misinterpreted? Could the simple perception itself of being an attempt to influence others not be enough to undermine the integrity of the trial process?

Suggesting that a client is not suitable for admission has effects on a listener. [ 48 ] VisionQuest, even by their own correspondence reflected in this case, suggests that the Crown ought to have known specifically that, as VisionQuest writes, "Societies and organizations involved in the rehabilitation and recovery of addicted criminals are reliant on the relationships built between the courts, Crown counsel, probation and bail officers, as well as defence lawyers." They continue on by saying that they “are very cognizant of these relationships and work hard to work as partners with all parties.” In short, they are essential players in the justice system, and without these sorts of agencies criminals who have a strong desire to become rehabilitated may not have the chance. [ 49 ] Words from counsel have effects.

It is words that we use to shape our justice system. [ 50 ] I cannot guess as to what this gentleman Crown's intention was. Was it simply to confirm the admission or was it to talk the agency out of their acceptance of Mr. Joseph as a client? [ 51 ] If – and I say this very hypothetically – if it was an intentional act surreptitiously done behind closed doors, using undue influence with insider information, I think this would be an abuse of process. Certainly, with the evidence to support this, the court would have no problem finding the threshold was made out.

Then the court would then have to determine some of the other issues that this application raises, such as what the appropriate remedy might be. [ 52 ] In the end, I again consider Justice Moldaver's decision at paragraphs 49 and 50 of the Anderson decision: … the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system. [ 53 ] I wish to thank both counsel for the very well-prepared arguments and the appropriate authorities.

[ 54 ] With respect to the threshold, I do not believe there is anything in the conduct of the Crown here that would even remotely justify a judicial stay.

No doubt it appears that he, that being the Crown, could have been more polite in his letters to VisionQuest, perhaps investigated the nature of the criminal antecedents, as he puts it, and not disclosed the information potentially contrary to his professional responsibilities under the Youth Justice Act . [ 55 ] However, the conduct apparent on the face of the affidavit material, and as supported by submissions of both counsel, does not substantiate a claim of abuse of process. [ 56 ] If Mr.

Joseph's situation has been worsened by the conduct of the Crown, the remedies will have to lie elsewhere. [ 57 ] The amended application regarding court file 40409-1 and 40496 seeking a judicial stay or other remedy is dismissed. [ 58 ] What I am calling the overlapping Crown application for a

summary dismissal of the abuse of process application is granted. [ 59 ] Thank you, gentlemen, for your very learned approach to today's proceedings. (REASONS FOR JUDGMENT CONCLUDED)