R. v. Reimer, 2022 MBKB 188

Date: 20221004 Docket: CR 21-01-38804 (Winnipeg Centre) Indexed as: R. v. Reimer Cited as: 2022 MBKB 188 COURT OF king’S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, ) Appearances : ) ) ) Dan Angus, Andrew Slough and Charles Murray - and - ) for the Crown ) KARLTON DEAN REIMER, accused. ) ) ) ) ) ) Leonard Tailleur and Brittney Hoyt for the accused JUDGMENT DELIVERED: OCTOBER 4, 2022 Motion to Quash Direct Indictment GREENBERG J. [ 1 ] Karlton Reimer is charged with two counts of second degree murder. The Crown is proceeding by direct indictment. Mr.

Reimer argues that the direct indictment is an abuse of process and violates his rights under s. 7 of the Charter . He asks the court to quash the indictment and direct that a preliminary inquiry be held. background [ 2 ] Mr. Reimer was arrested on March 25, 2021, with respect to the stabbing deaths of a couple in their home in rural Manitoba. In August 2021, defence counsel advised the Crown that he was requesting a preliminary inquiry. He provided the Crown with a list of 15 witnesses that he wished called and indicated that he estimated that the preliminary would take five days.

On October 17, 2021, the Crown advised defence counsel that they would be seeking a direct indictment and invited him to make submissions as to why they should not proceed in that manner. The next day, defence counsel sent a letter to the Crown explaining why he wanted a preliminary inquiry and that a preliminary would likely lead to admissions that would shorten the trial.

After reading that letter, Michele Jules, the executive director of the Manitoba Prosecution Service (“MPS”), sent the following email to defence counsel indicating that the Provincial Court could not accommodate a five day preliminary within the time frame set by R. v.

Jordan , 2016 SCC 27 : Hi Len, I tried to call you now that I’ve reviewed your letter… While I appreciate the benefit of discovery for defence, after Jordan that is simply a luxury that the system can’t afford. … While I appreciate what you are saying about saving time in QB [Queen’s Bench], PJC [Provincial Court] is actually where the capacity problem currently exists and we see no way to get this case in within the 30 months we are allowed with a multi-day prelim in PJC first.

But again, if there is a way to have a few witnesses heard in a day with a consent committal there could be the opportunity to meet your desire to discover at least a couple of crucial witnesses. Let me know if a phone call Monday works to discuss more.

[3] There followed further emails and phone calls between counsel, in which defence counsel indicated that, although he stillwished to examine 15 witnesses, he believed he could complete the preliminary in three days. Ms Jules consulted with the trialcoordinator and determined that even three days could not be accommodated within the Jordan timeframe. In response to the suggestionof defence counsel that the Steinbach court, where the preliminary would be held, sits empty most days, she wrote: Unfortunately Len what you have set out is not accurate.

The building may sit empty but there is no Judiciary available until January2023 for 3 days in Steinbach. In fact the Trial Coordinator advised me that Steinbach is more restricted than other circuits for specialsbecause it is used twice a week for docket and 1 day trials. She further indicated that just because she has judiciary for 3 days in Januaryof 2023 does not mean they will have a clerk available. And of course what you actually put forward in August was wanting to hear from 15 witnesses over potentially 5 days for the purpose ofdiscovery before trial.

I referred you to the position of the Bench on preliminary inquiries in 2017 and I’ll note Justice Joyal’scomments. “The discovery that the defence council (sic) gets through a preliminary inquiry is a benefit…Those benefits are now coming at such acost in the context of delay, that they are no longer worth the price.” It appears this is where we are left. As indicated the entirety of your 12 page submission will move to the Deputy with our request toconsider granting a Direct Indictment in this case. [4] On November 3, 2021, the Crown preferred a direct indictment.

In her evidence on this motion, Ms Jules said that sherequested a direct indictment for two reasons; first, the concern about delay and, second, the case against the accused was a strong one so“a preliminary inquiry was not necessary to fulfil its primary purpose of establishing whether there was sufficient evidence to commit theaccused to stand trial.” [5] The defence argues that the decision to direct indict was not based on the circumstances of this case but on a broad policy todirect indict in all cases. Ms Jules testified that there is no such policy.

The policy of MPS with respect to direct indictments is reflectedin a statement issued in June 2017 which states that guidelines would be developed to assist the Deputy Attorney General in decidingwhether to direct indict and that, in each case, input would be sought from defence counsel on the merits of doing so. As I said, in thiscase, that input was sought.

Ms Jules reviewed defence counsel’s letter and attempted to accommodate his request for a preliminary. [6] Ms Jules’ evidence is that, after the Supreme Court issued its decision in Jordan, Manitoba crown attorneys were directed “toconsider direct indictments where appropriate in all serious cases” with a view to ensuring their proper use. The MPS Crown ProcedureManual, dated May 24, 2017, states: Under the Criminal Code an accused has a right to a preliminary inquiry in certain instances in order to test whether there is admissibleevidence on which a reasonable jury, properly instructed, could convict: USA v.

Shephard, (SCC), [1977] 2 SCR 1067. While an accused has this right, preliminary inquiries must be conducted in a manner that advances the interests of justice. If they causeundue delay, use unnecessary court time, place undue strain on witnesses or impair the right of a co-accused to a trial within a reasonabletime, they negatively impact the administration of justice. Thus, they must be conducted in a manner that meets the legal test andprovides reasonable opportunity to test the most relevant evidence, not all evidence.

Under no circumstances is a preliminary inquiryto become a full dress rehearsal of the trial. [emphasis in original] [7] Guidelines for requesting a direct indictment, which were also issued by MPS in 2017, provide several examples of appropriatecircumstances for proceeding by direct indictment, two of which were relied upon by Ms Jules in the present case: 1) the need to complywith Jordan timelines and 2) “preliminary testing of the evidence is not likely to be meaningful” because of the strong physical andforensic evidence in this case. I note that Mr. Reimer does not deny killing the two deceased.

He will be arguing that he is notcriminally responsible due to a mental disorder. [8] In 2019, Parliament passed Bill C-75 (An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts andto make consequential amendments to other Acts, S.C. 2019, c. 25). Among other things, Bill C-75 removed the right to a preliminaryinquiry for all but serious offences (offences punishable by 14 years or more of imprisonment). However, the MPS policy statement,guidelines and Crown manual, referred to above, did not change as a result of Bill C-75.

Ms Jules’ evidence is that preliminary inquiriesare still conducted regularly in Manitoba. Although the number of direct indictments has increased, that increase was brought on by theneed to ensure compliance with s. 11(

b) of the Charter. the law [9]

Section 577 of the Criminal Code gives authority to the Attorney General to issue direct indictments. That authority is a coreaspect of prosecutorial discretion that is only reviewable where the exercise of the discretion is an abuse of process (R. v. S.J.L., 2009SCC 14, [2009] 1 SCR 426, at para. 24; R. v. Anderson, 2014 SCC 41, [2014] 2 SCR 167, at paras. 44, 48). The onus is on the claimantto establish an abuse of process (Anderson, at para. 52). [10] The threshold for establishing an abuse of process is a high one.

In Anderson, Moldaver J., writing for the court, explained: [49] The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type of

prosecutorial conduct that constitutes abuse of process. In Krieger, this Court used the term "flagrant impropriety" (para. 49). In Nixon,the Court held that the abuse of process doctrine is available where there is evidence that the Crown's decision "undermines the integrityof the judicial process" or "results in trial unfairness" (para. 64). The Court also referred to "improper motive[s]" and "bad faith" in itsdiscussion (para. 68). [11] In R. v.

Burg and Khan, 2021 MBCA 77 , the Manitoba Court of Appeal held that using a direct indictment as ameans of ensuring that the Jordan timeframe is met is not an abuse of process. In fact, the court endorsed its earlier decision in R. v.C.M.M., 2017 MBCA 105 , where it encouraged the use of direct indictments for that purpose. [12] The primary purpose of a preliminary inquiry is to determine whether there is sufficient evidence to commit an accused tostand trial. While defence counsel do use preliminary inquiries as a means of discovery, the disclosure obligations imposed on theCrown by R. v.

Stinchcombe, (SCC), [1991] 3 SCR 326, should satisfy the accused’s right to disclosure. If an accusedhas received full disclosure from the Crown, they do not have a right to cross-examine witnesses at a preliminary inquiry (R. v. Bjelland,2009 SCC 38, [2009] 2 SCR 651, at para. 36). Analysis [13] The defence argues that preferring a direct indictment in this case was an abuse of process because it was not based on theparticular circumstances of this case. Rather, they say, it was based on a policy to directly indict in all cases.

As I said, Ms Jules deniedthe existence of such a policy and the defence presented no direct evidence of one. However, the defence argues that that policy isimplicit in the fact that the Attorney General of Manitoba lobbied Parliament for the elimination of preliminary inquiries prior to theenactment of Bill C-75. The defence says that the Attorney General’s position on Bill C-75 shows an “institutional and attitudinal bias”against preliminary inquiries.

While Parliament decided to retain preliminary inquiries for serious offences, the defence says that theincrease in direct indictments in Manitoba since Bill C-75 was enacted shows that the Attorney General has implemented in practicewhat he could not accomplish through legislative amendment. [14] As I said in my decision on the defence motion for disclosure (R. v.

Reimer, 2022 MBQB 150 ), if the defence couldestablish that MPS had a policy to directly indict in all cases, that is to say, to effectively overrule Parliament’s decision to retainpreliminary inquiries for serious offences, that would offend the constitutional principle of separation of powers. The decision to directlyindict would not be an exercise of discretion at all and would, as the defence alleges, be “biased”. [15] However, there is no evidence of such a policy in this case.

While the Attorney General may have lobbied Parliament toabolish preliminary inquiries, the MPS policy and guidelines have not changed since 2017. Those guidelines set out criteria forrecommending a direct indictment. Those criteria animated the decision in this case. Nor do the statistics on direct indictments inManitoba suggest a change in policy. While there have been more direct indictments in recent years, that increase is due to Jordantimelines and backlogs created by the COVID pandemic. [16] Moreover, the evidence here is that there was no rush to direct indict in this case.

Ms Jules took the defence request for apreliminary inquiry into consideration and made efforts to reach an agreement with defence counsel that would accommodate his requestto cross-examine certain witnesses. She was not required to do so. There is no suggestion that the Crown has not met its Stinchcombedisclosure obligations. As I said, the defence has no right to cross-examine witnesses at a preliminary inquiry.

The emails exchanged bycounsel, which were filed in evidence, demonstrate a concerted effort by the Crown to accommodate the defence request, not a bias infavour of direct indictments. [17] The motion by the accused to quash the direct indictment is dismissed. J.