Her Majesty the Queen v. L.Z. [Indexed as: R. v. Z. (L.)]

54 O.R. (3d) 97

[2001] O.J. No. 1882

Docket No. C31434

Court of Appeal for Ontario,

McMurtry C.J.O., Abella and Sharpe JJ.A.

May 22, 2001

Charter of Rights and Freedoms--Fundamental justice--Self- incrimination--Young person and adult charged with murder --Young person called as witness at adult's preliminary inquiry--Under extensive questioning by Crown, young person admitting that he stabbed deceased and that he told another person that he had done so--That person called as witness at preliminary inquiry--Witness supported young person's inculpatory statements--Crown's use of adult's preliminary inquiry primarily to obtain evidence against young person unfair and undermining privilege against self-incrimination --Witness's evidence constituting derivative evidence --Transcript of witness' evidence should have been excluded at young person's trial under ss. 7 and 24(1) of Charter --Canadian Charter of Rights and Freedoms, ss. 7, 24(1).

L, a young person, and D, an adult, were charged with murder. The Crown's attempt to have L transferred to ordinary court so that there could be a single trial was unsuccessful. L was called as a witness at D's preliminary inquiry after his counsel tried unsuccessfully to quash the subpoena as an abuse of process. Crown counsel asked L very few questions about D. Most of the questions were in relation to L's own activities on the night of the murder as well as those of his companions other than D. L stated that he had stabbed the victim twice and that he had admitted that fact to some of his companions, including B. B, who was called as a witness by counsel for D, affirmed L's inculpatory statements reluctantly. D was discharged at the preliminary hearing.

Defence counsel applied unsuccessfully at the outset of L's trial to stay the proceedings as an abuse of process as a result of the appellant's compelled testimony at D's preliminary inquiry. In the course of the stay application, the Crown stated that what the Crown was trying to do at the preliminary inquiry was to get an understanding of "what happened out in the alleyway and who participated in it" and that the predominant purpose in calling the appellant as part of the Crown's case was "to seek the truth of the involvement of everyone in this incident".

B was called as a witness for the Crown at the appellant's trial. He refused to testify as to the appellant's admission of stabbing the deceased, and Crown counsel applied to cross- examine him as an adverse witness due to inconsistencies between his evidence at D's preliminary inquiry and at the appellant's trial. The trial judge admitted for substantive use the transcript of B's evidence at the preliminary inquiry. The accused was convicted of second-degree murder. He appealed.

Held, the appeal should be allowed.

Persons separately charged with offences are ordinarily compellable at the preliminary inquiries of other persons charged with the same offence. However, an initial determination that a proceeding is valid and a witness properly compellable did not shield the Crown from the allegation that its subsequent conduct amounted to unfairness. The relevant inquiry should be directed at whether the Crown's conduct throughout D's preliminary inquiry was consistent with the valid purpose of that proceeding. While the appellant was a compellable witness to give evidence at D's preliminary inquiry, it was unfair to use that process for the predominant purpose of compelling him to incriminate himself for the purpose of creating new evidence against him from another witness. The predominant purpose of the preliminary inquiry was to build up a case against the accused. The Crown used the preliminary inquiry to serve as an inquisitorial process for the purpose of developing new evidence against the appellant. The introducti on of B's evidence from the preliminary inquiry rendered the appellant's trial unfair and constituted a breach of s. 7 of the Canadian Charter of Rights and Freedoms.

As the inculpatory evidence of B in relation to the accused probably would not have been obtained but for the appellant's conscripted evidence, it was derivative evidence that should have been excluded under the immunity provided by s. 7 and under s. 24(1) of the Charter.

APPEAL from a conviction for second-degree murder.

R. v. Hebert, [1990 118 (SCC), [1990] 2 S.C.R. 151, 47 B.C.L.R. (2d) 1, 110 N.R. 1, [1990] 5 W.W.R. 1, 49 C.R.R. 114, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145; R. v. White, [1999 689 (SCC), [1999] 2 S.C.R. 417, 174 D.L.R. (4th) 111, 240 N.R. 1, 63 C.R.R. (2d) 1, 135 C.C.C. (3d) 257, 42 M.V.R. (3d) 161, 24 C.R. (5th) 201, apld Other cases referred to British Columbia (Securities Commission) v. Branch, [1995 142 (SCC), [1995] 2 S.C.R. 3, 4 B.C.L.R. (3d) 1, 123 D.L.R. (4th) 462, 180 N.R. 241, [1995] 5 W.W.R. 129, 27 C.R.R. (2d) 189, 97 C.C.C. (3d) 505, 38 C.R. (4th) 133; Dubois v. R., [1986 60 (SCC), [1986] 1 S.C.R. 366, 41 Man. R. (2d) 1, 26 D.L.R. (4th) 481, 66 N.R. 289, [1986] 3 W.W.R. 577, 25 C.C.C. (3d) 221, 51 C.R. (3d) 193; R. v. Caccamo, [1975 319 (SCC), [1976] 1 S.C.R. 786; R. v. Girimonte (1997), [1997 1866 (ON CA), 37 O.R. (3d) 617, 48 C.R.R. (2d) 235, 121 C.C.C. (3d) 33, 12 C.R. (5th) 332 (C.A.); R. v. O'Connor, [1995 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1; R. v. Patterson, [1970 180 (SCC), [1970] S.C.R. 409; R. v. Primeau, [1995 143 (SCC), [1995] 2 S.C.R. 60, 131 Sask. R. 198, 180 N.R. 101, 95 W.A.C. 198, 27 C.R.R. (2d) 242, 97 C.C.C. (3d) 1, 38 C.R. (4th) 189; R. v. S. (R.J.), [1995 121 (SCC), [1995] 1 S.C.R. 451, 21 O.R. (3d) 797n, 121 D.L.R. (4th) 589, 177 N.R. 81, 26 C.R.R. (2d) 1, 96 C.C.C. (3d) 1, 36 C.R. (4th) 1; R. v. Tapaquon, [1993 52 (SCC), [1993] 4 S.C.R. 535, 116 Sask. R. 81, 109 D.L.R. (4th) 637, 159 N.R. 321, 59 W.A.C. 81, [1994] 1 W.W.R. 641, 87 C.C.C. (3d) 1, 26 C.R. (4th) 193; Skogman v. R., [1984 22 (SCC), [1984] 2 S.C.R. 93, 11 D.L.R. (4th) 161, 54 N.R. 34, [1984] 5 W.W.R. 52, 13 C.C.C. (3d) 161, 41 C.R. (3d) 1 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 24(1)

Michael W. Lacy, Daniel Kleiman and Daniel A. Stein, for appellant. Scott Hutchison, for respondent.

The judgment of the court was delivered by

[1] MCMURTRY C.J.O.:--The young person appellant appeals his conviction of second-degree murder by the Honourable Judge S. Merenda of the Ontario Court of Justice (Provincial Division) at the City of Toronto. He was sentenced to 33 months' secure custody to be followed by 24 months of conditional supervision. The appellant appeals against conviction only.

Overview

[2] A principal ground of the appeal is the issue of whether the trial judge erred in refusing to stay proceedings as an abuse of process following the preliminary inquiry hearing of an alleged adult co-perpetrator of the offence. This preliminary inquiry resulted in the compelled evidence of the appellant being used to create additional evidence against him. A second principal ground of appeal involves the question as to whether a derivative use immunity arises in relation to the testimony of any witnesses that was obtained as a result of the appellant's compellable evidence at the same preliminary inquiry and, subsequently, entered in evidence at the appellant's trial.

[3] For the reasons that follow, the appellant's conviction is set aside and a new trial ordered.

Facts

[4] In the early morning of July 23, 1995, there was a brawl at a bar in the City of Toronto. The appellant was present with a number of friends. Some of the appellant's friends were involved in the brawl with others at the bar. As a consequence of the brawl, Krzysztof Binkowski received 12 stab wounds and died.

[5] There was considerable difficulty faced by the investigating police officers in obtaining the co-operation of individuals present at the scene. However, after interviewing a number of witnesses, the police came to the conclusion that two individuals, the appellant and one Sean Dealwis, were the probable killers. Because of his age at the time of the offence, the appellant was charged as a young offender, while Dealwis was charged as an adult.

[6] The Crown attempted to have the appellant transferred to the adult court so that there could be a single trial, but was unsuccessful.

Preliminary Inquiry of Sean Dealwis

[7] The appellant was called as a witness at the preliminary inquiry of Sean Dealwis after his counsel attempted unsuccessfully to quash the subpoena as an abuse of process. The application was dismissed by Ewaschuk J. and an appeal to this court was dismissed by Doherty J.A. in a one-sentence endorsement holding that there was sufficient evidence to support the conclusion that the appellant had material evidence to give at the preliminary inquiry. [See Note 1 at end of document] Counsel for the appellant was refused standing at the Dealwis preliminary inquiry.

[8] A review of the transcript of the evidence at the preliminary inquiry reveals that Crown counsel asked the appellant very few questions about the possible role of Dealwis in the killing and that the overwhelming majority of the questions addressed to the appellant were in relation to his activities on the night of the murder, as well as those of his companions other than Dealwis. The Crown in its argument on appeal described the process as a "search for the truth".

[9] During his examination by the Crown, the appellant admitted that he had stabbed the victim twice and that he had admitted this fact to some of his companions when they left the scene by car. One of the companions that the appellant believed may have heard his admission was the witness Leroy Borba, who also testified at the Dealwis preliminary inquiry.

[10] Borba was called as a witness by the defence counsel for Dealwis. A very brief examination-in-chief occurred, in which Borba stated that he had never seen Dealwis with a knife during the night of the stabbing nor had he heard Dealwis state anything about being involved in a stabbing. After the conclusion of the examination-in-chief of Borba, Crown counsel stated that Borba was "a very key witness and the Crown expects to do some very lengthy cross-examination".

[11] Borba was obviously very reluctant to implicate the appellant in the stabbing. It was only after Crown counsel stated that the appellant had already testified at the preliminary inquiry, and had admitted both that he had stabbed the victim and that he later told Borba and the other occupants of the car that he had stabbed somebody, that Borba was prepared to testify about the appellant's inculpatory statements.

[12] The following questions and answers were part of Borba's cross-examination by the Crown at the preliminary inquiry of Dealwis. L.Z. is the appellant:

CROWN: I suggest to you sir, back at the park, [L.Z.] was telling everybody, everybody that was there that he stabbed someone. Isn't that true?

BORBA: I'm not quite sure if he told everyone, but, yeah, he did tell me that he stabbed someone.

(Emphasis added)

CROWN: He did tell you, okay.

BORBA: He didn't say how many times. He didn't say where or who. . . . . .

CROWN: And when he told you he stabbed someone who was there?

BORBA: I'm not quite sure.

CROWN: It wasn't towards the end of the night when most people were gone, was it?

BORBA: It was more like when there was people around.

CROWN: Shortly after you all got back there, isn't it?

BORBA: Around, I'd say. . . . . .

CROWN: Okay, so Mr. [Z.] says that he stabbed someone. When he says that what is your reaction?

BORBA: My reaction is, I don't want to hear about it. None of my business.

CROWN: Why is that, sir?

BORBA: Because if I start hearing about this and people start telling me that and telling me this, it gets me in trouble. If you did it that's cool. I don't want to hear about it. I don't want to deal with it. That's your problem, not mine.

CROWN: [L.Z.] had a reason to worry about the police coming, didn't he?

BORBA: I assume so.

CROWN: What do you mean assume? He stabbed somebody?

BORBA: Then I guess he did have reason to worry about it.

CROWN: And in fact he said, "I think the person's dead" didn't he?

BORBA: I'm not quite sure about that.

CROWN: You knew [L.Z.] had stabbed someone, yes?

BORBA: I was under the impression that he had done something when he said, "I stabbed somebody."

CROWN: Okay, it wasn't an impression. He told you that he stabbed somebody, yes?

BORBA: Not specifically. He told the group that was around.

CROWN: The group of you that [L.Z.] said to the group, "I stabbed somebody" yes?

BORBA: Something like that.

CROWN: And it's possible that he also said that, "I think he's dead"?

BORBA: It is possible that he could have said that but I never heard it.

CROWN: Or you don't remember?

BORBA: Or I don't remember.

CROWN: Mr. [Z.] said he stabbed the person in the back alleyway, didn't he?

BORBA: Not to me.

CROWN: Not to you.

BORBA: What he said was, "I think I stabbed somebody".

CROWN: "I think I stabbed someone" or "I stabbed someone"?

BORBA: I'm pretty sure his statement to the group was, "I think I stabbed somebody".

CROWN: Well, that's not what you said earlier. What you said earlier was that he said, "I stabbed someone".

BORBA: I agreed to the statement that you made saying that he mentioned to the group that he stabbed someone. He didn't say, "I stabbed someone". He said, "I think I stabbed somebody." To my recollection those were his exact words.

CROWN: Now, sir, I suggest to you, one of the people you are trying to protect is [L.Z.] and in fact, you are only telling us what you now [sic] about [L.Z.] because you know one, [L.Z.] has already talked to us about it, right? So it's all right to say he stabbed someone because you know [L.] has already told us that, right? Isn't that correct?

BORBA: Is it . . .?

CROWN: I am suggesting -- all you are telling us . . .

BORBA: I am telling you what I know when you ask for it ask me honestly, not because it's been said but because it's what I know.

CROWN: I am suggesting to you that you are still trying to protect Mr. [Z.] and others?

BORBA: I would have to disagree.

CROWN: I suggest to you, that all you are telling us -- you are comfortable now telling us that Mr. [Z.] said he stabbed someone and you only agreed to this after I tell you Mr. [Z. ] admitted to it. Isn't that correct? Isn't that correct?

BORBA: That what?

CROWN: When we are going through your evidence in the morning you don't confirm to me . . .

BORBA: Well, you asked me a question and I said, "I don't know" and then you said that he had already stated this in his statement and then I agreed with you.

CROWN: All right, then. Well, again, sir, that is correct. What you did is, you told me you didn't know anything about it and when I told you that Mr. [Z.] had admitted to the stabbing it is only then that you told me that in fact Mr. [Z.] had admitted to the stabbing?

BORBA: What I had said was, I don't remember. Then you had stated that he had already put that in his statement.

CROWN: Okay.

BORBA: Then I agreed with you.

CROWN: Sir, you were covering up for him. You knew he told you he stabbed someone and until you heard that Mr. [Z.] had admitted it in this court, you had no intention of telling us about that conversation, were you?

BORBA: That's not true.

CROWN: So you knew that [L.Z.] was at the time that he admits to doing the stabbing, that the likelihood is that he either murdered someone or caused some very serious injuries. Isn't that correct?

BORBA: Yes.

(Emphasis added)

[13] The Crown, at the conclusion of the preliminary hearing, invited the judge to discharge Dealwis. The Crown noted that the appellant's testimony had cleared Dealwis and that the evidence suggested that Dealwis was never in the back alley where the murder occurred. The Crown also stated:

When the case was assigned to myself and Mr. Gayne and we also, of course had Mr. [Z.] as part of it as well; we were looking at the evidence and we thought at the time that the Crown's case was not strong against Mr. Dealwis because we only had these individuals who were not at the scene.

The preliminary hearing judge did, in fact, discharge Dealwis.

Trial of the Appellant

[14] At the commencement of the appellant's trial, his counsel brought an unsuccessful application to stay the proceedings for an abuse of process as a result of the appellant's compelled testimony at the Dealwis preliminary inquiry. The Crown made the following comment in the context of submitting to the court that subpoenaing the appellant to the Dealwis preliminary hearing had not been unfair:

What the Crown was hoping to do was to try to get an understanding of "what happened out in the alleyway and who participated in it . . .".

[15] As stated earlier, Ewaschuk J. had dismissed an application brought on behalf of the appellant to quash the subpoena requiring him to give evidence at the Dealwis preliminary inquiry. The Crown referred to the decision of Ewaschuk J. in the following terms on the stay application:

There is nothing in Justice Ewaschuk's decision, or in his discussion with Mr. Wiley that says at a preliminary inquiry you can only talk about the guilt or innocence of the person who is currently before the court.

[16] The Crown also made the additional comments during the course of the stay application:

[W]hy I'm going through this evidence is that you'll see that each and every one of these witnesses were called for the purpose of getting at the truth of what happened in that alleyway . . .

[Y]ou can see, Your Honour, that the Crown is trying to get evidence, Your Honour that the Crown is trying to further the Crown's case.

[T]he predominant purpose in the Crown cross-examining these witnesses, in calling Mr. [Z.] as part of the Crown's case was to seek the truth of the involvement of everyone in this incident.

(Emphasis added)

[17] Borba was called as a witness for the Crown at the appellant's trial. He refused to testify as to the appellant's admission of stabbing the deceased and Crown counsel applied to cross-examine him as an adverse witness due to inconsistencies between his evidence at the Dealwis preliminary inquiry and at the trial of the appellant. Defence counsel argued that it would be unfair to allow Crown counsel to cross-examine him on his evidence at the preliminary "as a result of being for lack of a better word, prompted as cross-examined as to what came out of Mr. [Z.]'s mouth. In essence, it's sort of like derivative evidence from Mr. [Z.]."

[18] At the conclusion of Borba's cross-examination on the voir dire, the trial judge ruled in part as follows:

Looking at all the evidence, I am satisfied that the required indicia of reliability are present and that the threshold of reliability has been met and under all the circumstances I do allow the inconsistent previous statement in the form of the transcript of the preliminary hearing of Mr. Borba to be admitted as substantive evidence. There is one exception however, and that is any reference to Mr. [Z.]'s testimony at a previous proceeding that is contained in Exhibit A, which is a preliminary inquiry transcript of Mr. Borba's cross- examination will not be admitted nor considered for this trier of fact in the trial proper. . . .

[19] In his reasons for conviction of the appellant, the trial judge again referred to the filing of the preliminary inquiry evidence of Borba at the appellant's trial as follows:

I allowed the Crown's application to admit for substantive use the evidence in transcript form that Borba gave at that preliminary hearing under oath. I did however rule that any reference to any testimony of Mr. [Z.] contained in Borba's preliminary testimony would not be admitted, nor would it be considered by me as a trier of fact.

[20] However, nowhere in the transcript of the evidence from the trial of the appellant does the trial judge indicate the manner or process that he employed in the purported editing of the evidence of Borba's preliminary inquiry testimony so as to exclude "any reference to any testimony of Mr. Z.".

[21] In the reasons for his decision, the trial judge stated that the "evidence linking Mr. [Z.] to the stabbing of the deceased came primarily from three sources: Pires, Barton and Borba" and he referred to the three as "ultimately providing the key links to Mr. [Z.] as the killer of Mr. Binkowski".

[22] In relation to Borba's evidence, the trial judge concluded that the attribution of "certain incriminating admissions to Mr. [Z.] were not elicited by the Crown as a result of using any compelled testimony from Mr. [Z.]". In my view, this finding is simply unsupportable when one examines the Crown's many references to the appellant's evidence at the Dealwis preliminary hearing during her lengthy examination of Borba.

[23] As stated above, Crown counsel's cross-examination of the witness Borba included the following statements by the Crown:

In fact you are only telling us what you know about [L.Z.] because you know he's already talked to us about it right. So it's all right to say he stabbed someone because you know [L. ] has already told us about that, right? Isn't that correct?

[Y]ou are comfortable now telling us that Mr. [Z.] said he stabbed someone and you only agreed to this after I tell you Mr. [Z.] admitted to it. Isn't that correct?

When I told you that Mr. [Z.] had admitted to the stabbing it is only then that you told me that in fact Mr. [Z.] had admitted to the stabbing.

[U]ntil you heard that Mr. [Z.] had admitted it in this court, you had no intention of telling us about that conversation, were you?

Analysis

[24] Persons separately charged with offences are ordinarily compellable at the preliminary inquiries of other persons charged with the same offence: R. v. Primeau, [1995 143 (SCC), [1995] 2 S.C.R. 60, 97 C.C.C. (3d) 1. This follows from the majority decisions in R. v. S. (R.J.), [1995 121 (SCC), [1995] 1 S.C.R. 451, 121 D.L.R. (4th) 589 and British Columbia (Securities Commission) v. Branch, [1995 142 (SCC), [1995] 2 S.C.R. 3, 123 D.L.R. (4th) 462, wherein the court formulated an approach to testimonial compellability that focuses on the purpose for which the state desires the testimony.

[25] In Primeau, Sopinka and Iacobucci JJ., writing jointly for an eight-judge majority, stated at pp. 70-71 S.C.R. that "even if separately charged as an accused person, a witness appearing in another person's criminal trial will ordinarily be compellable in that criminal trial unless it is established that the predominant purpose in compelling the testimony is incrimination of the witness."

[26] In Branch, Sopinka and Iacobucci JJ., for the same eight-judge majority on the issue, held that if testimony is sought from a witness in a criminal prosecution for the predominant purpose of obtaining evidence in furtherance of that prosecution, that witness will be compellable.

[27] They also stated at pp. 14-16 S.C.R.:

In view of the conclusions reached in S. (R.J.), any test to determine compellability must take into account that if the witness is compelled, he or she will be entitled to claim effective subsequent derivative use immunity with respect to the compelled testimony or other appropriate protection. The common feature of the respective compellability tests proposed in the reasons in S. (R.J.) is that the crucial question is whether the predominant purpose for seeking the evidence is to obtain incriminating evidence against the person compelled to testify or rather some legitimate public purpose. This test strikes the appropriate balance between the interests of the state in obtaining evidence for a valid public purpose on the one hand, and the right to silence of the person compelled to testify on the other.

In applying this test, the Court must first determine the predominant purpose for which the evidence is sought. To qualify as a valid public purpose, compelled testimony in a criminal prosecution or prosecution under a provincial statute must be for the purpose of obtaining evidence in furtherance of that prosecution.

It would be rare indeed that evidence sought cannot be shown to have some relevance other than to incriminate the witness. In a prosecution, such evidence would simply be irrelevant. There may, however, be inquiries of this type and it would be difficult to justify compellability in such a case. In the vast majority of cases, including this case, the evidence has other relevance. In such cases, if it is established that the predominant purpose is not to obtain the relevant evidence for the purpose of the instant proceeding, but rather to incriminate the witness, the party seeking to compel the witness must justify the potential prejudice to the right of the witness against self-incrimination.

(Emphasis in original)

[28] In S. (R.J.), at pp. 543-44 S.C.R., Iacobucci J., for the majority, considered the issue of whether it would be possible for the Crown to subvert the principle against self- incrimination by proceeding against two accuseds separately. The appellant relies upon the following passage to support his claim that the Dealwis preliminary inquiry constituted an abuse of process insofar as its purpose was to subpoena the appellant in order to build the Crown's case against him:

[I]f it be suggested that the Crown might choose to prosecute an accused, having first prepared no case to meet and only for the purpose of subpoenaing a witness, then it would seem to me that an objection should lie, not only because the purpose of the proceedings can no longer be defined by the adversarial contest between the state and the so-called accused, but also because the prosecution would amount to an abuse of process, being "conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention": R. v. Power, [1994 126 (SCC), [1994] 1 S.C.R. 601, at p. 615. There is more than one way to check the progress of a fishing expedition, but a decision to proceed separately does not, in and of itself, amount to an abuse of process: see R. v. Crooks (1982), [1982 2247 (ON SC), 39 O.R. (2d) 193 (H.C.); and R. v. Mazur (1986), [1986 1161 (BC CA), 27 C.C.C. (3d) 359 (B.C.C.A.), leave to appeal refused, [1986] 1 S.C.R. xi. This is especially clear on the facts of this case, inasmuch as the decision to proceed separately was prompted by an administrative procedure rather than a Crown strategy.

(Emphasis in original)

[29] I do not believe that the above passage assists the appellant in relation to the actual issuing of the subpoena in relation to the Dealwis preliminary inquiry. First, the charges against Dealwis, and the subsequent preliminary inquiry, were not prima facie objectionable, as two courts have found while dismissing the appellant's application to quash the subpoena. The Crown did have reason to believe that Dealwis was involved in the murder, and it could not be said ipso facto that the predominant purpose of the issuance of a subpoena to the appellant was to incriminate him. Furthermore, as Doherty J.A. held in relation to the application to quash the subpoena, that one could reasonably conclude that the appellant had material evidence to give regarding Dealwis' involvement in the murder.

[30] As was the case in S. (R.J.), the separate proceedings against Dealwis and the appellant were necessitated by administrative procedure: the Crown attempted, unsuccessfully, to enable a single trial by having the appellant transferred to adult court. It would therefore appear that the proceedings against Dealwis were commenced for a valid public purpose and that, without more, neither the initial purpose of the preliminary inquiry nor the fact that a subpoena was issued against the appellant can be impugned in this appeal as an abuse of process.

[31] However, an initial determination that a proceeding is valid and a witness properly compellable does not in my opinion shield the Crown from an allegation that its subsequent conduct amounted to unfairness. It is possible for proceedings commenced for a valid public purpose to be transformed into what was referred to in S. (R.J.) at p. 536 S.C.R. as "an inquisition of the most notorious kind". Iacobucci J. appears to have anticipated this problem in S. (R.J.) when he stated at p. 542 S.C.R.:

The search for truth in a criminal trial against a named accused has an obvious social utility, and the truth-seeking goal operates to limit effectively the scope of the proceedings in terms of the "inquiry effect". The laws of relevancy would preclude the random examination of individuals within a criminal trial.

[32] Clearly, Iacobucci J. reasoned that the laws of relevancy would generally guard against the usurpation of valid proceedings to an invalid purpose. In a case such as the appeal before us, however, where counsel for the appellant was refused standing at the Dealwis preliminary inquiry, we are left to examine the proceedings as they unfolded, and to determine whether specific unfairness occurred through a perversion of the preliminary inquiry's purpose.

[33] In an analysis of this issue, the relevant inquiry should be directed at whether the Crown's conduct throughout the Dealwis preliminary inquiry was consistent with the valid purpose of that proceeding. Stated otherwise, did the Crown continue with the prosecution against Dealwis for the predominant purpose of strengthening its case against the appellant?

[34] There is [a] substantial body of jurisprudence to the effect that the sole purpose of the preliminary inquiry provisions of the Criminal Code, R.S.C. 1985, c. C-46 is to establish a charge screening device. The proceedings are oriented towards the determination of whether there is sufficient evidence to force the accused to stand trial: R. v. Patterson, [1970 180 (SCC), [1970] S.C.R. 409 at p. 412; R. v. Caccamo, [1975 319 (SCC), [1976] 1 S.C.R. 786 at pp. 809-10; Skogman v. R., [1984 22 (SCC), [1984] 2 S.C.R. 93 at p. 105, 11 D.L.R. (4th) 161; Dubois v. R., [1986 60 (SCC), [1986] 1 S.C.R. 366 at pp. 373-74, 26 D.L.R. (4th) 481; R. v. Tapaquon, [1993 52 (SCC), [1993] 4 S.C.R. 535 at pp. 545-47, 109 D.L.R. (4th) 637; R. v. O'Connor, [1995 51 (SCC), [1995] 4 S.C.R. 411 at pp. 509-10, 130 D.L.R. (4th) 235 per L'Heureux-Dubé J.; R. v. Girimonte (1997), [1997 1866 (ON CA), 37 O.R. (3d) 617 at pp. 628-31, 121 C.C.C. (3d) 33 (C.A.). In this sense, the purpose of the preliminary inquiry is directed squarely at the accused who is [the] subject of the proceedings.

[35] In the Dealwis preliminary inquiry, Crown counsel conducted an extensive two-day examination-in-chief of the appellant. During that time, only rarely did the Crown's questions deal directly with the charges against Dealwis. The appellant stated rather early during his first day of testimony that Dealwis was denied entry to the club, and actually placed Dealwis in front of the club, far from the scene of the murder. Nevertheless, Crown counsel questioned the appellant in great detail about the events in the alley behind the club. Her questioning clearly establishes that her predominant purpose was to obtain evidence against the appellant.

[36] It should also be emphasized that the Crown's statements made during the application for a stay of proceedings against the appellant indicated that she thought that the purpose of the preliminary inquiry was not limited to "the guilt or innocence of the person who is currently before the court". Indeed, the Crown at the Dealwis preliminary inquiry -- who was the same Crown at the trial of the appellant -- was very candid in stating that her intention in examining witnesses at the Dealwis preliminary inquiry was to provide a means of "getting at the truth of what happened in that alleyway" and that the purpose of "calling Mr. [Z.] as part of the Crown's case was to seek the truth of the involvement of everyone in this incident".

[37] In S. (R.J.) at p. 512 S.C.R., Iacobucci J. also stated:

. . . I conclude that a review of Charter jurisprudence demonstrates not only that the pre-Charter policy justification persists, but also that it has attained fresh constitutional nourishment. The case-to-meet principle, first articulated in this country by Ratushny (Self-Incrimination in the Canadian Criminal Process [Toronto: Carswell, 1979] at p. 179), has become a unifying thought.

There is a principle against self-incrimination in Canada which is part of fundamental justice.

[38] In R. v. Hebert, [1990 118 (SCC), [1990] 2 S.C.R. 151 at pp. 180-81, 57 C.C.C. (3d) 1, McLachlin J. (as she then was) discussed whether the right to silence for detained persons should apply as well to an accused's right against self-incrimination:

The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of the person provided that it respects fundamental principles of justice. The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute -- in the first case because the state has improperly used its superior power against the individual, in the second because the state's legitimate interest in law enforcement has been frustrated without proper justification.

The right to silence conferred by s. 7 reflects these values. The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police.

[39] In S. (R.J.), Iacobucci J. made the following statement relating to the exclusion of derivative evidence in subsequent proceedings at p. 561 S.C.R.:

Turning back to the problem of compelled testimony, then, I see no reason not to draw the obvious analogy. Since it is the principle against self-incrimination which is at stake, and since that principle finds recognition under s. 24(2) as I have described, we should avoid the incongruity which would result if a different quality of protection was offered to the witness who is compelled to answer questions. The Charter should be construed as a coherent system: Hebert, supra. Accordingly, I think that derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness, ought generally to be excluded under s. 7 of the Charter in the interests of trial fairness. Such evidence, although not created by the accused and thus not self-incriminatory by definition, is self-incriminatory nonetheless because the evidence could not otherwise have become part of the Crown's case. To this extent, the witness must be protected against assisting the Crown in creating a case to meet.

(Emphasis in original)

[40] Further, at p. 562 S.C.R., Iacobucci J. referred to the question as to whether evidence discovered through compelled testimony could have been obtained by the authorities in the absence of compelled testimony:

I wish to emphasize that in using the word "could" in this context, I am proposing an inquiry into logical probabilities, not mere possibilities. At some level, all evidence which has independent existence could have been located by authorities. The important consideration, however, is whether the evidence, practically speaking, could have been located. That is, would the evidence, on the facts, have otherwise come to light? Logic must be applied to the facts of each case, not to the mere fact of independent existence.

(Emphasis in original)

[41] S. (R.J.) stands for the proposition that as a result of s. 7 there is a discretion to exclude evidence the admission of which would render a trial unfair. The subsequent decision of R. v. White, [1999 689 (SCC), [1999] 2 S.C.R. 417, 174 D.L.R. (4th) 111 dealt with the exclusion of such evidence under s. 24(1) of the Charter. Iacobucci J. held at pp. 459-60 S.C.R.:

Although I agree with the majority position in Harrer [[1995 70 (SCC), [1995] 3 S.C.R. 562], that it may not be necessary to use s. 24(1) in order to exclude evidence whose admission would render the trial unfair, I agree also with McLachlin J.'s finding in that case that s. 24(1) may appropriately be employed as a discrete source of a court's power to exclude such evidence. In the present case, involving an accused who is entitled under s. 7 to use immunity in relation to certain compelled statements in subsequent criminal proceedings, exclusion of the evidence is required. Although the trial judge could have excluded the evidence pursuant to his common law duty to exclude evidence whose admission would render the trial unfair, he chose instead to exclude the evidence pursuant to s. 24(1) of the Charter. I agree that he was entitled to do so.

(Emphasis in original)

Conclusion

[42] The decision of the trial judge indicated that the evidence of Borba, together with two other witnesses provided "the key links to Mr. [Z.] as the killer of Mr. Binkowski". It is my opinion that the evidence of the witness Borba implicating the appellant in all probability would not have been obtained if it had not been for L.Z.'s compelled testimony at the Dealwis preliminary inquiry. While the appellant is a compellable witness to give evidence at a preliminary inquiry, it is unfair to use that process for the predominate purpose of compelling the appellant to incriminate himself for the purpose of creating new evidence against him from another witness.

[43] I am of the view that the predominant purpose of the preliminary inquiry in relation to Dealwis was to build up a case against the appellant. Although the Crown characterizes the preliminary inquiry as a "search for truth" and, indeed, all court processes involve a search for truth, the Crown used the Dealwis preliminary inquiry to serve as an inquisitorial process for the purpose of developing new evidence against the appellant. The use of the examination of the appellant at the Dealwis preliminary inquiry for this collateral purpose under the rubric of a "search for truth", is to distort it into an inquisitorial-type of investigative model, in which the privilege against self-incrimination is undermined. I am therefore of the view that the introduction of evidence of the witness Borba from the Dealwis preliminary inquiry rendered the trial unfair and therefore constituted a breach of s. 7 of the Canadian Charter of Rights and Freedoms.

[44] [The] inculpatory evidence of Borba in relation to the appellant would probably not have been obtained but for the appellant's conscripted evidence and was therefore derivative evidence that should have been excluded under the immunity provided by s. 7 (S. (R.J.)) and under s. 24(1) of the Charter pursuant to R. v. White, supra.

[45] In the result, the appellant's conviction is set aside and a new trial ordered. The evidence of the witness Leroy Borba from the Dealwis preliminary inquiry is to be excluded at any new trial.

Appeal allowed.

Notes

Note 1: The endorsement of Doherty J.A. is reported at [1997] O.J. No. 788 (QL).