R v C.M.M., 2017 MBCA 105

Citation: R v C.M.M., 2017 MBCA 105 Date: 20171023 Docket: AR17-30-08796 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : ) S. A. Inness , HER MAJESTY THE QUEEN ) M. A. Zurbuchen and ) S. M. Ehrmantraut Respondent ) for the Appellant ) - and - ) C. A. Vanderhooft and ) M. E. Lavitt C.M.M. ) for the Respondent ) (Accused) Appellant ) Appeal heard and ) Decision pronounced: ) October 23, 2017 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). On appeal from 2017 MBQB 34 MAINELLA JA (for the Court): Introduction [ 1 ] The dispute in this appeal is whether the preliminary inquiry judge’s

interpretation and application of statutory evidentiary rules was reviewable on an application for certiorari . After hearing the appeal, it was allowed with reasons to follow because, in our view, as I will explain, if the preliminary inquiry judge erred, his error was legal as opposed to jurisdictional. Background [ 2 ] By way of background, the accused was charged with the sexual assault of his teenage step-daughter. She disclosed the allegation to police by way of a sworn video-recorded statement. The accused elected to be tried by judge and jury and requested a preliminary inquiry.

The Crown disclosed the statement and provided reasonable notice that it intended to not call the complainant as a witness, but would seek to admit her statement pursuant to section 540(7) of the Criminal Code .

It is not disputed that the statement, if admitted into evidence, by itself would have provided sufficient evidence to put the accused on trial for sexual assault (see section 548(1) of the Criminal Code ; and R v Arcuri , 2001 SCC 54 at paras 22-32 ). [ 3 ] The preliminary inquiry judge found (in unreported reasons) that the statement was credible or trustworthy in the circumstances of the case for it to be admissible pursuant to section 540(7).

He also concluded that the relationship between sections 540(7) and (9) of the Criminal Code is that, once an assessment of credibility and trustworthiness has been determined, an accused’s right to cross-examine on the evidence in question under section 540(9) is “extinguished” (at para 8). Nevertheless, he declined to admit the statement on the basis that section 540(7) gave him a “residual discretion” (at para 12) to permit the defence to discover the Crown’s case by requiring it to call the complainant to testify in the ordinary course.

The Crown declined to call her and the accused was discharged for lack of evidence. [ 4 ] The Crown successfully moved for certiorari to quash the discharge. The reviewing judge concluded that the preliminary inquiry judge’s misinterpretation of sections 540(7) and (9) resulted in him having “lost” (at para 3) or acted in “excess” (at para 17) of his jurisdiction. He determined that the statute affords no residual discretion for a preliminary inquiry judge to decline to admit evidence found to be credible or trustworthy for the purpose of defence discovery of the Crown’s case. The reviewing judge held

that, once the statement was found to be credible or trustworthy, it should have been admitted, thereby providing sufficient evidence tocommit the accused to stand trial, and the preliminary inquiry judge should have then determined whether, for the purposes of section540(9), it was appropriate to permit cross-examination of the complainant.

Analysis [5] Sections 540(7) and (9) of the Criminal Code read as follows: Evidence 540(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that thejustice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing orotherwise recorded.

Appearance for examination 540(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examinationor cross-examination with respect to information intended to be tendered as evidence under subsection (7). [6] These provisions and others, such as section 537(1.1), were changes made to the rules of evidence for preliminaryinquiries introduced by the Criminal Law Amendment Act, 2001, SC 2002, c 13.

Parliament’s intent was to, without abolishing thepreliminary inquiry altogether, streamline its use; reduce pre-trial delay; minimize inappropriate questioning of witnesses, particularlysexual assault complainants; and provide the Crown with “an alternative method” of presenting its case than by the ordinary course ofcalling viva voce evidence (R v Rao, 2012 BCCA 275 at para 62; see also R v M (P) (2007), 2007 QCCA 414 , 222 CCC (3d)393 (Qc CA) at paras 68-73; and R v Vasarhelyi, 2011 ONCA 397 at para 44). [7] The meaning of sections 540(7) and (9) has been the subject of much controversy in Manitoba.

The parties citednumerous conflicting decisions of the Provincial Court interpreting and applying sections 540(7) and (9) and also from the Court ofQueen’s Bench deciding applications for certiorari relating to alleged errors committed in relation to these provisions. The decisionscited to us are disparate in approach and are irreconcilable. The parties argue that, given the importance of these provisions to theadministration of criminal justice, this Court should provide direction as to their meaning notwithstanding the fact that this appeal is notabout the correctness of a particular

interpretation of the statute, but whether the reviewing judge selected the correct standard of reviewand applied that standard correctly in his determination that the preliminary inquiry judge committed a jurisdictional error as opposed toa legal one (see R v Eckstein (SM), 2012 MBCA 96 at para 12). [8] In our view, given the narrow nature of our jurisdiction on this appeal (see section 784(1) of the Criminal Code), itwould not be appropriate to stray from the question of jurisdictional error and comment on the correctness of any of the previousinterpretations of sections 540(7) and (9) that have been given by judges of the Provincial Court or Court of Queen’s Bench (see AttorneyGeneral (Quebec) v Cohen, (SCC), [1979] 2 SCR 305 at 310; and R v Beaven, 2012 SKCA 59 at para 25). [9] Certiorari is an extraordinary remedy; it is not available to set aside errors in law or decisions of a preliminaryinquiry judge that a reviewing court does not agree with (see R v Russell, 2001 SCC 53 at para 19; and R v Cunningham, 2010 SCC 10 atpara 57).

As this Court explained in Canadian Broadcasting Corporation et al v Morrison, 2017 MBCA 36 (CBC), a case involving theinterpretation and application of section 540(7) as to the admissibility of hearsay evidence at a pre-enquete hearing for a privateprosecution (see

section 507.1 of the Criminal Code), certiorari will not lie for errors as to the admissibility or inadmissibility ofevidence (at para 92): An error by a judge as to the admission or exclusion of evidence, or the application of the rules of evidence to a question a judge hasjurisdiction to decide, is not a jurisdictional error (see Attorney General (Que) v Cohen, (SCC), [1979] 2 SCR 305 at310; Forsythe [v The Queen, (SCC), [1980] 2 SCR 268] at pp 271-72; Dubois [v The Queen, (SCC),[1986] 1 SCR 366] at p 377; and R v Deschamplain, 2004 SCC 76 at para 17).

As Caldwell JA explained in R v Beaven, 2012 SKCA 59,“An erroneous evidentiary ruling under which the only evidence on an essential ingredient of an offence is admitted is not a jurisdictionalerror: R. v. LeBlanc, 2009 NBCA 84” (at para 26). See also R c PM, 2007 QCCA 414 at paras 32-40. [10] A jurisdictional error will arise from an evidentiary ruling at a preliminary inquiry in only two discrete situations: where the presiding judge fails to observe a mandatory provision of the Criminal Code or denies a party natural justice (see Forsythe atpp 271-272; and Deschamplain at para 17).

Here the preliminary inquiry judge did not refuse to consider the substance of the Crown’sapplication under section 540(7) to admit the statement, the defence’s objection to the application or the defence’s alternative request tocross-examine the complainant pursuant to section 540(9). His reasons demonstrate that he turned his mind to the meaning of sections540(7) and (9) and applied them to the circumstances of the case. Construing these provisions and deciding whether to admit or excludethe statement, with or without cross-examination, of the complainant based on his statutory

interpretation were subjects within hisjurisdiction (see Vasarhelyi at paras 52-53). Accordingly, it cannot be said that he failed to observe a mandatory provision of theCriminal Code or denied anyone natural justice in exercising his duties at the preliminary inquiry. In our view, because the decision ofthe preliminary inquiry judge did not give rise to a jurisdictional error, the reviewing judge did not show proper deference to it and erredby granting the remedy of certiorari to quash the discharge (see CBC at para 27). [11] In coming to our decision, we do not endorse or disagree with the preliminary inquiry judge’s

interpretation of sections540(7) and (9). The same is true of the reviewing judge’s

interpretation of these sections or any other

interpretations provided to us from

other judges of the Provincial Court or Court of Queen’s Bench (e.g. R v Catellier, 2016 MBQB 190).

Had the preliminary inquiry judgeinterpreted sections 540(7) and (9) in the manner the reviewing judge did and committed the accused to stand trial on the basis of thecomplainant’s statement, without permitting cross-examination of her because it would be inappropriate, there would be no basis tochallenge the committal by way of an application for certiorari because of the absence of jurisdictional error (see CBC at para 92). [12] Finally, it is noteworthy, as counsel for the accused emphasized in her submission before the reviewing judge andbefore this Court, that the Crown chose to address the alleged error of the preliminary inquiry judge by the cumbersome remedy ofcertiorari, proceedings of which have gone on for 14 months since the discharge, as opposed to the more expeditious alternative of adirect indictment pursuant to

section 577 of the Criminal Code. [13] It is entirely appropriate for the proper administration of justice for the Crown to exercise its direct indictment powerunder

section 577 to protect the physical or psychological health of a witness, such as a sexual assault complainant, from the difficultiesinvolved in testifying more than once or to prevent or remedy a wrongful discharge arising from a legal error made by a preliminaryinquiry judge (see Regina v Moore et al (1986), (MB CA), 26 CCC (3d) 474 (Man CA), leave to appeal to SCCrefused 1986WL595498; and R v SJL, 2009 SCC 14 at para 38). An accused does not have a constitutional right to a preliminary inquiry(see SJL at para 21).

Nor does he or she have a constitutional right to discovery by cross-examining witnesses at a preliminary inquiry solong as full disclosure is provided by other means, such as Crown disclosure of witness statements (see R v Bjelland, 2009 SCC 38 atparas 32-36). [14] We agree with the comments of Watt JA in R v Manasseri, 2016 ONCA 703, that, in the era of presumptive time limitsfor criminal cases going to trial (see R v Jordan, 2016 SCC 27) and the duty of full disclosure (see R v Stinchcombe, (SCC), [1995] 1 SCR 754), the Crown “should give very serious consideration to preferring direct indictments” (at para 376, n 5) toensure the timely adjudication of criminal cases on their merits.

In an appropriate case, such a course of action is more proportional toremedy inherent or unforeseen delays in the criminal process than the alternative of, after a discharge, entering the certiorari maze ofjurisdictional versus legal error. Conclusion [15] In the result, the appeal was allowed, the order of certiorari was set aside and the order of discharge of the accused forthe allegation of sexual assault was re-instated. JA JA JA