Docket: CACR1925 Her Majesty the Queen Respondent - v. -, 2012 SKCA 59

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 59 Date: 20120601 Between: Docket: CACR1925 Her Majesty the Queen Respondent - and - Tanner Beaven Appellant Coram: Lane, Smith and Caldwell JJ.A. Counsel: Peter A. Abrametz for the Appellant Wade E. McBride for the Crown

Appeal: From: CR. No. 10 of 2010, J.C. Prince Albert Heard: January 9, 2012 Disposition: Appeal dismissed Written Reasons: June 1, 2012 By: The Honourable Mr. Justice Lane Concurring Reasons: The Honourable Mr.

Justice Caldwell In Concurrence: The Honourable Madam Justice Smith Lane J.A. [ 1 ] The Appellant and a co-accused were committed to stand trial after a preliminary inquiry at which they were charged with trafficking in a controlled substance for the benefit of or at the direction of or in association with a criminal organization contrary to s. 467.12 of the Criminal Code ; and with unlawfully conspiring with the named and unnamed persons to commit trafficking in a controlled substance contrary to s. 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 and s. 467.12 of the Code . [ 2 ] The Appellant sought to quash the committal by way of an application to the Court of Queen’s Bench in the nature of certiorari for judicial review.

The Queen’s Bench judge dismissed his application finding no error was made by the preliminary inquiry judge in accepting the impugned information. This is his appeal of the dismissal of his application. [ 3 ] The Crown elected to present its case by way of documents including copies of intercepted communications and surveillance. Counsel for the Appellant always maintained identification of his client was in issue. Among the materials relied on by the Crown was an affidavit by the officer responsible for the trial file maintained on the Appellant, Cpl.

Beaton, who had, in his words, “significant in depth knowledge of this full breadth of this investigation.” [ 4 ] The relevant portions of Cpl. Beaton’s affidavit read as follows: 12. Sgt. Allan Hofland, an investigator in this matter, has identified Trevor Anderson as one of the voices speaking in Exhibit “B” as indicated in Exhibit “A”. Cpl. Chris Wilson, an investigator in this matter, has identified Tanner Beaven as one of the voices speaking in Exhibit “B” as indicated in Exhibit “A”. Cst.

Travis Jordan, an investigator in this matter, has identified Evan Richards as one of the voices speaking in Exhibit “B” as indicated in Exhibit “A”. 13. I am able to identify Evan Richards and Tanner Beaven, the persons charged in this matter. [ 5 ] Counsel for the co-accused was prepared to allow the affidavit to be entered but counsel for the Appellant was not prepared to agree to its admission.

Counsel for the Appellant argued the hearsay evidence of voice identification should not be admitted without the officer giving viva voce evidence on a voir dire contending recognition evidence was subject to a higher standard of scrutiny.

The preliminary inquiry judge admitted the affidavit and, as a result, the Appellant contends he was denied his right to cross-examine a witness who would be key to the identification issue at trial. [ 6 ] The Appellant then brought the aforementioned application to quash on the basis the committal was made without jurisdiction because without the impugned information there was no admissible evidence with regard to the issue of identification and, in any event, the evidence does not meet the standard required by s. 540(7) of the Code.

He argues the preliminary inquiry process would have no meaning if the Crown was allowed to put in such hearsay evidence without a right of cross-examination.

[ 7 ] The Queen’s Bench judge dismissed the Appellant’s application for judicial review finding the preliminary inquiry judge was alive to the s. 540(7) criteria, heard evidence on the issue, and found the evidence was sufficient. Further, the decision was made within the jurisdiction of the preliminary inquiry judge having been founded on the evidence presented and thus did not constitute a reviewable matter. He went further referring to the Crown’s

summary of events including the following undisputed facts: [15] In any event I note the Crown’s

summary of events includes the following undisputed facts: 48. The lack of application under s. 540(9) to cross-examine Cpl. Wilson and the previous agreement at the s. 536.4(1) focus hearing to dispense with the need to call Cpl. Wilson both suggest that even if a case had been made out for loss of jurisdiction, this Court should exercise its discretion against granting the remedy requested. These two factors indicate that the applicant was largely responsible for the position he found himself in at the preliminary hearing.

The applicant should not be rewarded for having a significant role in bringing about the very circumstance upon which he now grounds his complaint. [Emphasis in original] [ 8 ] In this latter regard, he was referring to an earlier agreement among counsel to dispense with the need to call Cpl. Wilson – the identifier of the Appellant’s voice. The Crown in its argument before us referred to this agreement to waive the calling of Cpl. Wilson but it must be noted this agreement came before the tendering of the affidavit of Cpl.

Beaton. [ 9 ] The Crown argues no error was made in admitting the hearsay evidence and the evidence met the test of credibility and trustworthiness required by s. 540(7). [ 10 ] The relevant provisions of the Code are as follows: 540.

(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.

(8) Unless the justice orders otherwise, no information may be received as evidence under subsection (7) unless the party has given to each of the other parties reasonable notice of his or her intention to tender it, together with a copy of the statement, if any, referred to in that subsection.

(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7). Decision [ 11 ] I see the Appellant’s first argument as an attempt to elevate identity evidence to some special category requiring it to be tested in a voir dire before the preliminary inquiry judge can decide on its admissibility.

The Appellant then argues, as I understand it, that without the testing of such hearsay identity evidence he is not able to properly prepare his defence. [ 12 ] I see no merit to the first argument. Section 540(7) does not establish categories of evidence. The preliminary inquiry judge has the discretion to receive as evidence “ any information that would not otherwise be admissible” (my emphasis) provided it is credible and trustworthy. No distinction is made in the legislation to any particular category or type of information.

Section 540(7) is clear and unequivocal and the preliminary inquiry judge, in exercising his discretion, must only decide if information is credible and trustworthy.

Therefore, it was open to the preliminary inquiry judge to admit the impugned information into evidence. [ 13 ] The Appellant’s second argument touches on the purposes of the preliminary inquiry process and, in particular, subsections (7)-(9). [ 14 ] Subsections (7)-(9) of s. 540 were part of a series of amendments designed to expedite the preliminary hearing and to circumscribe the scope of such preliminary inquiry. [ 15 ] The Ontario Court of Appeal in R. v.

Vasarhelyi , 2011 ONCA 397 , 272 C.C.C. (3d) 193 at para. 44 said, “Sections 540(7)-(9) entered service on June 1, 2004, as part of a comprehensive series of amendments intended to expedite the hearing and circumscribe the scope of the preliminary inquiry.” Subsection (7) is very broadly drafted, however, the amendments did not alter the fundamental purpose of a preliminary inquiry which is to determine if there is sufficient evidence to put the issue to trial (see: R. v. Arcuri , 2001 SCC 54 , [2001] 2 S.C.R. 828 at para. 1 [1] ).

[16] There is of course a secondary purpose with a preliminary inquiry and that is to allow the defence a chance to assess the Crown’scase. See R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 at para. 20 where the Chief Justice states, “While the preliminary inquiryalso affords defence counsel the opportunity to assess the nature and strength of the case against his or her client, its primary purpose isto ascertain whether there is sufficient evidence to warrant committing the accused to trial.” The accused is entitled to adequatelyprepare his or her trial (see: R. v.

George (1991), (ON CA), 69 C.C.C. (3d) 148 (Ont. C.A.)). [17] I make these references only to note that, although the amendments were aimed at expediting the preliminary inquiry process, theydid not change the essential purposes of the preliminary inquiry. Therefore, the acceptance by the preliminary inquiry judge of thehearsay evidence in this case in no way can be construed as making the preliminary inquiry process meaningless as argued by theAppellant. [18] There is, however, a second aspect arising from the facts before us. Counsel for the Appellant, and counsel for the co-accused,waived the calling of Cpl.

Wilson. As I stated above, the waiver was prior to the tendering of the affidavit. The waiver to the calling ofthe witness granted by counsel for the Appellant cannot, in this case, be extended to include tendered information of which the defencehad no information and, particularly, to an issue the Appellant’s counsel always maintained was an important part of his defence. Theexistence of the waiver, in my view, did not prevent the Appellant from making an application to the preliminary inquiry judge to haveCpl. Wilson appear for cross-examination.

Subsection (9) raises the opportunity for the accused to raise any argument pertaining to thesecondary purpose of a preliminary inquiry. I do not read subsection (9) as allowing only one such application during a preliminaryinquiry nor do I read it as preventing the Appellant from applying, even after having waived the calling of the witness, when he receivednew information.

He chose not to make such an application and the preliminary inquiry judge made no error in allowing suchinformation to be admitted. [19] The Appellant further argues there was no other identification evidence if that hearsay evidence, in his argument, had beenexcluded. In fact, the deposing Cpl. Beaton in his affidavit said he was able to identify the Appellant and his name was mentioned in theintercepts. [20] I am satisfied no error going to jurisdiction has been demonstrated and the appeal is therefore dismissed.

DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of June, A.D. 2012. “Lane J.A.” Lane J.A. Caldwell J.A. [21] I have read Lane J.A.’s decision and I concur in the result. [22] The Crown’s case, which is largely based on wire-tap information, was led through an affidavit sworn by Corporal Beaton, the leadinvestigating officer. Attached to the corporal’s affidavit were, among other exhibits, a written

summary of the evidence the Crownanticipated leading at trial, an electronic copy of intercepted telephone communications, and transcripts of pertinent portions of theintercepted communications. [23] The appeal turns on the preliminary hearing judge’s decision, made under s. 540(7) of the Criminal Code, to admit paragraph 12 ofCorporal Beaton’s affidavit into evidence. Paragraph 12 contains hearsay identification of the appellant’s voice as one of the voicesrecorded in communications intercepted by wire-tap.

While the appellant did not admit identification of any recorded voice as his voice,he took no issue with respect to the admission of the remainder of the corporal’s affidavit or the information exhibited thereto. [24] The appellant submits the preliminary hearing judge improperly admitted paragraph 12 into evidence and had no other evidence onan essential element of the offence, namely, identification of the appellant as party to the intercepted communications. As such, theappellant asserts the preliminary hearing judge committed a jurisdictional error by committing him to stand trial without sufficient

evidence (see: R. v. Skogman, (SCC), [1984] 2 S.C.R. 93). In the alternative, the appellant says the admission ofevidence of identification in the form of an affidavit sworn by a peace officer other than the peace officer who made the identificationamounted to a denial of natural justice. [25] To begin, I would not opine as to whether the preliminary hearing judge correctly interpreted s. 540(7) of the Criminal Code whenhe admitted the evidence in question.

The scope of supervisory remedies in the context of a preliminary hearing is limited (see: R. v.Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, per McLachlin C.J.C. at paras. 19-20) and it is irrelevant whether a reviewing court wouldhave reached the same conclusion as the preliminary hearing judge (see R. v. Skogman, supra, per Estey J. at p. 100). [26] As to the appellant’s submissions, the first must fail for two reasons. An erroneous evidentiary ruling under which the onlyevidence on an essential ingredient of an offence is admitted is not a jurisdictional error: R. v. LeBlanc, 2009 NBCA 84, 250 C.C.C. (3d)29.

Furthermore, the record in this case discloses there was other evidence of identity available to the preliminary hearing judge for thepurposes of committal, including: (

a) transcription of at least one wire-tap recording of a telephone conversation in which a participant is recorded as saying: “This isTanner”; and (

b) evidence of police surveillance in which the appellant (or his vehicle) is noted as attending at a location at a time whichcorresponded with the place and time of a meeting planned by individuals whose communications in that respect were intercepted by awire-tap. [27] The appellant alternatively alleges the admission of paragraph 12 resulted in a denial of natural justice because he was precludedfrom cross-examining the prosecution’s key identification-witness and thereby denied the right to make full answer and defence. Thisargument is without merit given the conclusions in R. v.

Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, where Rothstein J., for themajority, said: [32] The appellant also says that his right to a fair trial was prejudiced because he was denied the right to cross-examine Friedman andHolland at a preliminary hearing. Cross-examining a witness at a preliminary hearing, however, is not a component of the right to makefull answer and defence.

What is protected under s. 7 is the right to make full answer and defence at trial, not the right to cross-examine awitness at a preliminary hearing. … [34] …There is no independent Charter right to cross-examine a witness at a preliminary inquiry. As stated above, s. 7 of the Charterprotects the right of the accused to make full answer and defence. As indicated, in order to make full answer and defence, the Crownmust provide the accused with disclosure (see Stinchcombe [ (SCC), [1991] 3 S.C.R. 326]).

However, this does not meanthat the accused has a Charter right to a particular method of disclosure. [35] In R. v. Sterling (1993), (SK CA), 113 Sask. R. 81, the Saskatchewan Court of Appeal considered whether, inlight of this Court’s decision in Stinchcombe, the accused had a Charter right to cross-examine a witness at a preliminary inquiry.

Afterendorsing the judgment of Martin J.A. in Arviv [(1985), (ON CA), 51 O.R. (2d) 551], Wakeling J.A., concurring, said,at para. 77: The principle appears to have been established that production of witnesses, which is what a preliminary hearing produces, is not anessential component of fundamental justice so long as full disclosure is otherwise given by the Crown. [36] Although the primary purpose of the preliminary inquiry is to enable a provincial court judge to determine whether an accusedshould be committed for trial, as noted by Martin J.A. in Arviv, at p. 560, “the preliminary hearing does serve the ancillary purpose ofproviding a discovery of the Crown’s case”.

However, if Crown disclosures are otherwise complete, then the accused’s s. 7 right has notbeen infringed by his not being able to cross-examine a witness at a preliminary hearing. The discovery purpose of the preliminaryinquiry has been met through other means, such as providing the accused with witness statements. [37] In the present case, the Crown provided the appellant with disclosure, albeit late.

In light of the fact that disclosure was ultimatelyprovided to the appellant, the appellant’s s. 7 right to make full answer and defence was not infringed by his inability to cross-examinethe potential Crown witnesses at a preliminary hearing. The appellant was provided with a transcript of a videotaped KGB statement ofone accomplice, as well as an agreed statement of facts that formed the basis for a guilty plea and sentencing of the other accomplice.This material provided the appellant with sufficient disclosure of the Crown’s case against him.

The appellant could make full answerand defence as guaranteed by s. 7 of the Charter without the need to cross-examine these witnesses at a preliminary inquiry. Theprejudice resulting to the appellant from this late Crown disclosure would therefore have been cured by an adjournment to provide theappellant with an opportunity to consider this new evidence against him.

[28] R. v. Bjelland is clear that while an accused has a Charter right to obtain Crown disclosure prior to trial (see Stinchcombe) and mayuse the preliminary inquiry process for this purpose, there is no right to obtain disclosure during a preliminary inquiry.

As such, denial ofthe ability to cross-examine a preliminary inquiry witness does not engage the principles of natural justice where the Crown otherwisemeets its disclosure obligations prior to trial. [29] At its core then, the appeal calls into question an evidentiary ruling made by a judge at a preliminary inquiry which does not, at thisjuncture, amount to a denial of natural justice.

And, in that respect, the reasons of Major J., writing for the majority in R. v.Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 17, are directly on point: …The preliminary inquiry judge has jurisdiction to conduct the inquiry according to the rules of evidence. Any error with respect to theapplication of those rules that does not rise to the level of a denial of natural justice (which also goes to jurisdiction: see Dubois, [ (SCC), [1986] 1 S.C.R. 366], at p. 377; Forsythe, [ (SCC), [1980] 2 S.C.R. 268], at p. 272) constitutes an errorof law, not a jurisdictional error.

Errors of law are not reviewable by way of certiorari. [30] In the result, I would dismiss the appeal on the basis that the reviewing judge committed no error when he concluded (at para. 14)that the preliminary hearing judge’s decision to admit paragraph 12 of Corporal Beaton’s affidavit does not constitute a reviewablematter. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of June, A.D. 2012. “Caldwell J.A.” Caldwell J.A. I concur “Smith J.A.” Smith J.A.