WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: September 17, 2018

Court File No.: 2811 998

Between:

Her Majesty the Queen

— and —

C.B.

Before: Justice J.F. Adamson

Focus Hearing Heard on: August 31, 2018

Reasons for Judgment Released on: September 17, 2018

Counsel:

• G. Black — counsel for the Crown
• M. Gordner — counsel for the defendant C.B.

Reasons for Judgment

ADAMSON J.:

Introduction

[1] C.B. is before the Court with respect to three counts of sexual assault, three counts of sexual interference and one count of invitation to sexual touching. All charges relate to allegations involving his daughter K. The matter is currently scheduled for three full days of preliminary inquiry before me in late November. A focus hearing was conducted on August 31st, 2018 to deal with the following issues:

• Should the defence be permitted to call any or all of five proposed witnesses at the preliminary inquiry?
• If it is permitted, what rules should govern examination and cross-examination?

[2] I commend both counsel for litigating these issues at the focus hearing. Four of the five witnesses in question are children and a ruling in advance will allow them to benefit from either normal witness preparation or the peace of mind of knowing they will not be called. It also allows for more accurate scheduling which is of benefit to both parties as well as the Court.

Expected Factual Background

[3] The Crown is intending to proceed at the preliminary hearing by tendering a statement of K.B. and making her available for cross-examination. There are also two police officers who will be made available for the same purpose. The Crown estimates that his evidence will be completed in half a day or less. The defence does not expect to require all of the remaining two and a half days that have been set for the cross-examination of these witnesses.

[4] I have been advised that the allegations involve sexual encounters taking place within the family home at various times over two to three years that were known only to K.B. and the accused. K.B.'s only disclosure was made to a friend (perhaps somewhat vaguely) and to a church youth worker who immediately reported it to police. These last two are among the witnesses the defence wishes to call.

[5] The defence also wishes to call Mr. B.'s wife, son and other daughter who all resided in the home at the relevant times. All but one of these witnesses have given at least a short video statement to the police. These have all been disclosed.

[6] The Crown concedes that he may call some or all of these witnesses at trial. He not only refuses to call them as part of the Crown's case at the preliminary hearing, but also objects to the defence calling them in this proceeding.

[7] The defence cites Section 541(5) as their authority for their ability to call witnesses. It reads as follows:

"The Justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this sub-section, Section 540 applies with such modifications as the circumstances require."

[8] The defence (and again I commend Mr. Gordner for his fairness) has outlined the potential relevance of the witnesses. The disclosure witnesses will be able to describe what was disclosed and the circumstances under which the disclosure occurred. As the allegations involved the alleged manipulation of the parental discipline role by Mr. B. for sexual purposes there is obvious relevance in the circumstances of the disclosure. As well, the content of what was disclosed may be relevant in terms of evaluating the consistency of Miss K.B.'s testimony. Exploration of whether any records were kept might also provide the foundation for a third party records application which would clearly derail a subsequent trial if it came to light only part way through that ultimate proceeding.

[9] Without attempting a complete recitation, the relevance of the family members is said to fall under one or both of two general headings. The first is their insight into the opportunities that would have existed for these impugned activities to have taken place and been kept secret in the family home. The second would be their insight into the relationship between the main parties in terms of the potential manipulation of parental discipline or its rejection (and resulting ill feeling) on the part of the complainant.

The Crown's Argument

[10] The Crown argues that these witnesses are only relevant to the trial of the matter. His position is based on the idea that the purpose of the preliminary inquiry is to determine if there is enough evidence to commit the matter to trial. Section 541(5) refers to evidence that is "relevant to the inquiry". The Crown's view is that, once a basis for committal is established, there is no relevance to any further evidence. The oft cited "ancillary" discovery function of the preliminary inquiry is confined to questioning within the testimony of an otherwise relevant witness and does not extend to actually calling witnesses solely for this purpose.

[11] The Crown's materials made extensive reference to authorities holding that there is no constitutional right (for example: pursuant to the right to make full answer and defence) for the defence to discover witnesses. Given that I lack any constitutional jurisdiction in this case I understood the defence arguments to relate only to the proper interpretation of Section 541(5) rather than any constitutional challenge and that the Crown's point was really just to define the purpose of preliminary inquiries.

[12] However, the Crown's argument still has considerable force based on the plain wording of the section. He cites the decision of Justice Dean of this Court in R. v. Kushimo, 2015 O.J. No. 269 para. 18–19, as specific authority for the proposition that "relevant to the inquiry" means relevant to committal only. To quote Justice Dean (at para. 18):

"The defence is limited by Section 541(5) to matters relevant to the inquiry. It cannot call witnesses as relevant only to the trial or to pre-trial motions. The matters relevant to the inquiry go to its purpose, being whether there is sufficient evidence to commit the accused to stand trial".

[13] The Crown also expresses concern that to allow the contrary would be to unnecessarily lengthen preliminary inquiries to the point where they resemble trials, thus running counter to parliamentary attempts and judicial decisions that seemed directed to limiting their length. This is of particular concern in the current atmosphere around trial delay.

The Defence Argument

[14] The defence argues that while the discovery function of the preliminary hearing has been consistently described as "ancillary" or "secondary" it has not been extinguished altogether. If this function still exists then evidence called in furtherance of it is "relevant to the inquiry". The most recent expression of this interpretation from an appellant court is the B.C. Court of Appeal's decision in R. v. Rao (2012), 2012 BCCA 275, 94 C.R. (6th) 109. In a similar vein the defence also cites R. v. McGrath, 2007 NSSC 255, [2007] NSJ No. 363, R. v. Lena, 2001 BCCA 549, [2001] BCJ No. 1906, and R. v. Ward, [1976] O.J. No. 807.

Analysis

[15] When confronted with competing lines of authority it is often instructive to look beyond the particulars of the section to the general policy concerns enlivening the debate.

[16] I note first that I am dealing with the issue as it is framed by the current legislation. The intentions of Parliament for the future of preliminary hearings are not directly relevant.

[17] Also, insofar as we know and understand the current state of the preliminary inquiry there is no basis to believe that a ruling in favour of the defence here will open the floodgates to an unwanted expansion of these proceedings generally. The rules have been the same for decades and the calling of defence witnesses at preliminary inquiries has always been unusual. This is no doubt due to its questionable strategic value. Calling witnesses when you don't know what they are going to say inevitably entails some peril. It is doubly dangerous when you can't cross-examine and the other side can. Any gain derived from a witness's testimony may well be demolished in cross-examination by an alert Crown. On a bad day it might even result in additional charges. Such is the adversary system.

[18] These same rules of evidence also serve to protect the potential witnesses from abusive or particularly onerous questioning. They are a powerful tool available to the preliminary inquiry judge who has a duty to ensure the proceedings are not abusive to any witness. This is underscored by the particular strictures of Section 537(1.1).

[19] Nevertheless, a searching examination of the witness's knowledge of relevant issues is still possible through a reasonably unfettered examination in-chief. If discovery is a live aspect of preliminary inquiries it can be accomplished in this way. The question is whether it should be permitted to happen.

[20] The larger policy that favours the defence position here is grounded in the value of the parties knowing what to expect from the witnesses in advance of the trial. As Professor Paciocco, as he then was, argued in his article "A Voyage of Discovery: Examining the Precarious Condition of the Preliminary Inquiry", 2003 48 Crim. LQ 151, short statements are no substitute for examination. Skilled examinations conducted at preliminary inquiries have value in that they can crystallize or eliminate issues in advance of trial. This reduces waste and helps the lawyers eliminate mistakes when the matter ultimately comes before its trier of fact. In short, a thorough preliminary inquiry will result in a more efficient and fair trial. The instant case is an excellent example of a fact situation where uncertainty around key issues can be resolved at a preliminary hearing in a fashion that will allow those issues to be more effectively litigated at trial by both sides.

[21] Turning to the particulars of the legislation; pursuant to Section 535 the Judge is required to "inquire into the charge and any other indictable offence in respect of the same transaction, founded on the facts that are disclosed by the evidence taken under this part". Both the cases cited by the defence and the aforementioned article by (then) Professor Paciocco make a strong case that the discovery function of the preliminary inquiry still exists. In addition to his comments on the practical value of these examinations the Professor makes the point that removal of the discovery function should require a much more explicit intervention by Parliament than what has taken place to date. Indeed, this state of affairs is reflected daily in actual practice throughout this country where witnesses are routinely made available by the Crown for exactly that purpose. That is even true of the case at bar where the Crown has agreed to two police officers being called for purely discovery purposes.

[22] In the result I find that I am in complete agreement with the British Columbia Court of Appeal in Rao, supra, where they held (at paragraph 97): "There is nothing in any of the authorities that is binding on this Court which justifies the conclusion that section 541(5) was to be read as precluding the calling of witnesses to further the discovery function of the preliminary inquiry. Rather, such cases as Lena, Earhart and P.M. support the conclusion that the discovery function is alive and continues to serve its historical function, albeit in a more streamlined form."

[23] That preliminary inquiries still include some element of pure discovery is indisputable. That the evidence "taken under this part" includes that taken under Section 541(5) is also clear. The Crown's argument appears to reduce down to the proposition that, while the defence can ask questions in aid of discovery of a witness whose testimony is relevant to committal, or who the Crown agrees to make available, they cannot call a witness purely for that purpose. There is nothing in the Code sections that imposes this restriction. In my view, given that discovery of witnesses is still a recognized purpose of preliminary inquiries, the defence should be permitted to call such witnesses within reasonable bounds. I am satisfied on what I have heard from Mr. Gordner that the proposed witnesses have evidence to give that is relevant to the inquiry and he will be permitted to call them.

[24] Given my comments about the potential efficacy of examination in-chief and the role of the rules governing examinations generally in expediting matters, I see no reason to call these witnesses myself and will decline to do so. Any application for leave to cross-examine out of turn will have to be based on the witness's actual testimony rather than conjecture as to how it will unfold.

Released: September 17, 2018

Signed: Justice J.F. Adamson