COURT FILE NO.: 37/12
DATE: 20121206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
A. Calsavara, for the Respondent/Crown
Respondent
- and -
V.B. (a young person)
J. Hershberg, for the Applicant
Applicant
HEARD: November 27, 2012
PUBLICATION BAN PURSUANT TO s. 110 OF THE YOUTH CRIMINAL JUSTICE ACT, S.C. 2002, c.1 AND PURSUANT TO s.648 OF THE CRIMINAL CODE OF CANADA
REASONS FOR JUDGMENT ON APPLICATION TO QUASH SUBPOENA
Daley J.
[1] The applicant, a young person, seeks an order quashing the subpoena served upon him on October 9, 2012 by which counsel for the Crown wishes to compel him to testify at the preliminary hearing of a separately charged adult accused.
[2] In dismissing the application I gave brief oral reasons with written reasons to follow. These are those reasons.
[3] The applicant was charged with second-degree murder in January 1, 2012, along with his separately charged adult co-accused E.B. Counsel has now advised that the Crown will be seeking an order of committal to trial of both the applicant and E.B. on charges of first-degree murder instead of second-degree murder and that an adult sentence would be sought should the applicant be convicted.
[4] The applicant has declined to provide a statement to the police.
[5] The preliminary hearing with respect to the accused E.B. commenced on November 13, 2012 and is scheduled to resume on December 3, 2012.
[6] The applicant's preliminary hearing is scheduled to begin on December 14, 2012 and then to continue in January and April, 2013.
[7] The record filed on this application is composed of an informational record of facts based largely on evidence given thus far in the ongoing preliminary hearing with respect to the accused E.B.
[8] The applicant's Fresh Notice of Application contains statements from the evidence from the preliminary hearing in paragraphs 1-12 on pages 2 and 3.
[9] Further, counsel for the Crown has filed a responding application record which includes a factum in which at page 3 in paragraph 7 further facts are set forth based on evidence given at E.B.'s preliminary hearing. Also included in the responding record is the report of the post-mortem examination of the victim.
[10] Counsel agreed that the information referred to in their respective application records is to form the record to be considered on this application.
[11] Further, counsel agreed specifically that the following facts form part of the evidence from E.B.'s preliminary hearing and that they form part of the record to be considered on this application:
THE GROUND FOR THIS APPLICATION ARE:
The applicant was arrested and charged with second degree murder on January 1st, 2012 along with his separately charged adult co-accused E.B. The arrest related to the homicide of K.P. that occurred on December 28, 2011.
At about 6:30 p.m. on December 28, 2011, K.P. was stabbed in a stairwell. Mr. K.P. succumbed to his injuries resulting from knife wounds. Crown’s theory is that E.B. and V.B. were joint principals in the planning and execution of this homicide. M.V. and E.T. also attended the scene with E.T. and V.B. Both provided statements to police upon being charged with murder and were released.
M.N. and E.T. have testified at the preliminary hearing for E.B. that E.B. and V.B., along with M.N. had travelled to the location of the stabbing in a car driven by E.T.
M.N. testified that V.B. and E.B. told him before they left that they were going to “check K.P.”
E. T. testified that in the car on the way there V.B. said “How are we going to deal with this guy?” and “Do we have everything? E.T. Testified that it was at this time that he noticed E.B. holding a knife.
M. N. and E.T. testified that upon arriving at the location of the stabbing, E.B. and V.B. and M. N. got out of the car, and asked E.T. to wait.
M.N. testified that the 3 went into the stairwell. About 15 minutes later, he and E.B. and V.B. were in the stairwell when H.T. opened the door to the stairwell, followed by K.P. H.T. ran. M.N. testified he saw E.B. stab K.P. once or twice around his chest area. K.P. was facing E.B. M.N. testified he was closest to E.B. and V.B. was further up the stairs. H.T. testified that did not see V.B.
M.N. testified that he went by E.B. and K.P., down the stairs an out the back door. He testified that he went straight to E.T.’s vehicle (through the wooded area) and that both E.B. and V.B. showed up back at the vehicle 30 seconds after he did.
H.T. testified that E.B., M.N. and V.B. all exited the building at the same time and ran through the woods together to the awaiting vehicle.
Once in E.T.’s vehicle, the four drove back to V.B.’s residence from which they went their separate ways.
Surveillance video shows E.B. and V.B. and M.N. entering the building at about 7 p.m. Police found K.P.’s blood in the stairwell and in E.T.’s truck.
M.N. is the only witness who testified that E.B. stabbed K.P. M.N. gave two statements to police under oath. In the second he admitted that his first was false. The only other potential eyewitness to the stabbing is V.B.
[12] It is the position of the applicant that there is sufficient evidence available for the Crown to gain a committal for trial of E.B. without any evidence from the applicant.
[13] It is further asserted on behalf of the applicant that it is speculation only in that the evidence that he may offer, is material.
[14] Further, the applicant asserts that the Crown's purpose in seeking to compel him to testify at the preliminary hearing is a predominantly improper purpose whereby the Crown seeks to obtain incriminating evidence against him, and to force him to reveal his defence position in advance of his own trial and that s. 5 of the Canada Evidence Act, R.S.C. 1985, c. C-5 and ss. 11 (c) and 13 of the Canadian Charter of Rights and Freedoms (“Charter”) do not provide adequate protection to him and as such his trial fairness rights will be potentially violated and impaired.
[15] It is the position of the Crown that the applicant is likely to give material evidence relating to the guilt or innocence of E.B. and that it seeks that evidence for that legitimate purpose only.
Analysis:
[16] Section 698 (1) of the Criminal Code provides that: "Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence."
[17] The onus rests with the Crown to establish that the applicant likely has material evidence to give at the preliminary hearing. Evidence indicating that the applicant will in fact give material evidence is not required to establish materiality within the terms of s. 698(1): R. v. Z. (L.). (2001), 2001 CanLII 8539 (ON CA), 54 O.R. (3d) 97 (C.A.).
[18] It has been held that persons separately charged with offences arising out of the same transactions are ordinarily compellable by the Crown at the preliminary hearing or trial of the other accused. There is no meaningful difference between subpoenas issued in respect of a preliminary hearing and those issued in respect of a trial: R. v. Cunsolo, 2007 ONCA 356, 155 C.R.R. (2d) 223; R. v. Z.(L.); R. v. Primeau, 1995 CanLII 143 (SCC), [1995] 2 S.C.R. 60; R .v. P.C., 2011 ONSC 1824, 231 C.R.R. (2d) 215, per Code J.
[19] In his submissions on this application, counsel for the applicant stated that he could not argue that the evidence likely available from the applicant was not material for the purposes of E.B.'s preliminary hearing.
[20] I am satisfied that the applicant would likely give material evidence relating to the guilt or innocence of E.B. at the preliminary hearing.
[21] I have reached this conclusion based on many of the facts outlined above as forming the record for this application. Included in the facts are the following:
(1) M.N. and E.T. place the applicant at the scene of the stabbing at the material time;
(2) M.N. places the applicant in the stairwell where the stabbing occurred at the time it occurred;
(3) the applicant, on the evidence available, is the only person other than M.N. and E.B. who were present in the stairwell at the time of the stabbing;
(4) M.N. and E.T. have testified that the applicant was present with the accused E.B. in the apartment building where the stabbing occurred within minutes before it took place; and
(5) M.N. and E.T. testified that both the applicant and E.B. had travelled with them from the applicant's home to the apartment building where the homicide occurred.
[22] Given that the Crown has established that the appellant likely has material evidence to offer at E.B.'s preliminary hearing, the onus shifts to the applicant to establish that he should be relieved of his compulsion to testify on the basis that his rights would otherwise be violated under the Charter: British Columbia Securities Commission v. Branch et. al., 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3; R. v. Papadopoulos, [2006] O.J. No. 5410 (S.C.), per Dawson J.
[23] The circumstances in which a witness could be relieved from testifying were considered by the Supreme Court of Canada in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97. At para. 29, Sopinka J., writing for the majority of the Court, stated:
As well, in S.(R.J.), I articulated a test based on the principle of fundamental fairness included in s. 7 of the Charter whereby, in exceptional circumstances, a witness could claim an exception from the general rule of compellability. Specifically, I stated at pp. 608-9 that:
A witness may be entitled to claim an exception under s. 7 from the
principle that the state is entitled to every person's evidence if it is established that the Crown is engaging in fundamentally unfair conduct. Attempts to by-pass the procedural safeguards that are intrinsic to the notions of dignity and individual liberty contained in the Charter and to our conception of fundamental trial fairness are fundamentally unfair conduct that violates the principles of fundamental justice. . . .
Fundamentally unfair conduct will most frequently occur when the Crown is seeking, as its predominant purpose (rather than incidentally), to build or advance its case against that witness instead of acting in furtherance of those pressing and substantial purposes validly within the jurisdiction of the body compelling the testimony. The Crown will be predominantly advancing its case against the accused when, by calling the witness, it is engaging in a colourable attempt to obtain discovery from the accused and, at the same time, is not materially advancing its own valid purposes. Such action would bypass the safeguards to the dignity of the individual under the Charter and fundamentally undermine the integrity of the judicial system. The principles of fundamental justice under s. 7 do not allow the state to have a general power of interrogation, that is, to permit the state to pass a law requiring all suspected persons to answer pre-trial questions, even if such a law prevented later use of those statements at trial. [Emphasis added.]
Accordingly, I found that if the state's actions in compelling a witness could be characterized as fundamentally unfair, as that term is defined above, compelling the witness to testify would be inconsistent with the principles of fundamental justice and an application for appropriate relief could be brought under s. 24(1) of the Charter. Such an application could be made, as I noted in S.(R.J.), at two points: (a) when the witness is subpoenaed (the "subpoena stage"); and (b) when the witness is tried (the "trial stage"). At the subpoena stage, if a violation of s. 7 is successfully made out, the appropriate remedy is to quash the subpoena. However, as I noted in S.(R.J.), at pp. 610-11, a challenge at the subpoena stage to the validity of a subpoena is highly speculative and should only succeed in the clearest of cases:
As a practical matter, fundamentally unfair conduct may be quite
difficult to establish at the subpoena stage, since the Crown's real
purpose may not be apparent at that point. Information that may
establish this violation, such as particular colourable lines of questioning by the Crown at the accused's trial, will only become
available and properly appreciable at the trial stage.
Consequently, I emphasized at p. 612 that a compelled witness must also be permitted to allege a violation of s. 7 of the Charter at the trial stage:
At the trial stage, the court will essentially be asking itself whether,
if what is now known had been known at the time the state sought to compel the witness, an exception would have been made to the general rule of compellability and the subpoena would have been quashed.
If fundamentally unfair conduct contrary to s. 7 of the Charter is demonstrated at the trial stage, the court may provide a remedy, pursuant to s. 24(1) of the Charter, which it considers appropriate and just in the circumstances, generally a stay of proceedings.
[24] As noted by Sopinka J. any challenge, at the subpoena stage, as to the validity of a subpoena is highly speculative and should only succeed in the clearest cases where compelling a witness to testify would be inconsistent with the principles of fundamental justice.
[25] Relief in respect of alleged prospective Charter breaches will only be granted in circumstances where the claimant is able to prove that there is a sufficiently serious risk that the alleged violation will in fact occur: Phillips v. Nova Scotia (Westray Inquiry), at paras. 108-110, per Cory J. (Iacobucci and Major JJ. concurring). .
[26] In B.C. Securities Commission v. Branch, the Court established a two-part test with respect to the determination of whether or not an exemption from an obligation to testify should be granted.
[27] First the court must determine the predominant purpose in the Crown seeking to adduce the evidence and determine whether it is in order to obtain incriminating evidence against the witness, or for the legitimate public purpose of obtaining evidence in furtherance of the related prosecution: B.C. Securities Commission v. Branch, at para. 7, per Sopinka and Iacobucci JJ. (Lamer C.J., La Forest, McLachlin and Major JJ. concurring)
[28] Secondly, consideration must be given to the potential prejudice to the accused witness' right to a fair trial. If it is determined that the predominant purpose in having the accused witness testify is to obtain incriminating evidence, then the Crown must justify the potential prejudice to the right of the witness against self-incrimination or to a fair trial.
[29] If the only prejudice is the possibility of later derivative use of the accused's evidence, then the compulsion to testify occasions no prejudice for that individual, as a claim for derivative immunity may be made at the subsequent proceeding: B.C. Securities Commission v. Branch, at paras. 8-9, per Sopinka and Iacobucci JJ. (Lamer C.J., La Forest, McLachlin and Major JJ. concurring)
[30] It is urged on behalf of the applicant that the Crown is seeking to compel him to testify at the preliminary hearing for a predominantly improper purpose, namely to force him to reveal his defence position before trial.
[31] It is submitted that this improper purpose can be inferred from certain conduct of counsel for the Crown and the police.
[32] It is asserted that conduct from which an improper purpose can be inferred included:
(1) late disclosure to the applicant of the Crown's intention to place him under subpoena;
(2) attempts by the police to obtain a statement from the applicant upon his arrest;
(3) discussions between counsel at a judicial pre-trial about the applicant possibly providing a statement; and
(4) the fact that the applicant had not provided a police statement.
[33] In my view, none of these facts as asserted can reasonably form the basis for inferring that the Crown has a predominantly improper purpose in placing the applicant under subpoena to testify at the preliminary hearing.
[34] The applicant was served with a subpoena approximately 5 weeks prior to the commencement of E.B.'s preliminary hearing.
[35] The applicant brought this application returnable November 27, 2012 with the preliminary hearing having already commenced and scheduled to continue on December 3, 2012. The applicant has had more than ample notice of the Crown's intention to place him under subpoena.
[36] The police attempts to obtain a statement from the applicant on his arrest and his refusal to provide one cannot in any way be considered a basis for a finding of improper purpose. The police were entitled to attempt to obtain a statement from the applicant.
[37] Further, as to the Crown's purpose in seeking to have the applicant testify at the preliminary hearing, while counsel for the Crown acknowledged that there will probably be adequate evidence before the justice to obtain an order of committal for trial of E.B. on the charge of second-degree murder, the applicant's evidence is important. Although counsel for the Crown need not show that the evidence likely to be given by applicant is essential to the Crown's case against E.B., the record submitted shows that the applicant and M.N. were both at the scene of the stabbing and both counsel agree that M.N. has given conflicting under oath statements to the police. As such, his evidence would have to be considered with a Vetrovec caution: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.
[38] This makes the applicant's evidence all the more material and favours a conclusion that the predominant purpose for the Crown seeking to adduce evidence from the applicant is for the legitimate purpose of obtaining evidence in furtherance of the prosecution of E.B. and not for the predominant purpose of obtaining incriminating evidence against the applicant.
[39] While I have concluded that the applicant has failed to demonstrate, on the balance of probabilities, that the predominant purpose of the Crown in placing him under subpoena is to gather incriminating evidence against him, I am also of the view that, within the context of the second test in B.C. Securities Commission v. Branch, as to the potential prejudice to the applicant, at its highest, the applicant has demonstrated only a possibility of later derivative use of his evidence.
[40] There is no evidence of either a "high degree of probability" nor a "real and substantial risk" that the applicant will be irreparably prejudiced as:
(a) the Crown would be precluded from using the compelled evidence at the applicant's trial to incriminate or impeach him: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. Nedelcu, 2012 SCC 59, [2012] S.C.J. No. 59; and
(b) upon testifying, if the record of the applicant's evidence reveals that the predominant purpose in calling him was to gather evidence against him, it would then be open to the applicant, at his trial, to apply for a stay or to exclude the derivative evidence as in the case of R. v. Z.(L.).
[41] In the event any real risk of prejudice arises, I am satisfied that there are adequate safeguards and remedies available to the applicant.
[42] As noted by Code J. in R. v. P.C., at para. 11: "The Crown would be well advised not to develop any further evidence against P.C., after compelling his testimony at the adult accused's preliminary inquiry, in order to dispel any possible inference that they used the compulsion of P.C. in order to build a stronger case against him." This direction is most apt in the circumstances of this case as well.
[43] For the reasons outlined above, I have concluded that the applicant has not established that he should be granted an exemption from testifying at E.B.'s preliminary hearing and as such this application is dismissed.
Daley J.
Released: December 6, 2012
COURT FILE NO.: 37/12
DATE: 20121206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
V.B. (a young person)
Applicant
PUBLICATION BAN PURSUANT TO s. 110 OF THE YOUTH CRIMINAL JUSTICE ACT, S.C. 2002, c.1 AND PURSUANT TO s.648 OF THE CRIMINAL CODE OF CANADA
REASONS FOR JUDGMENT ON APPLICATION TO QUASH SUBPOENA
Daley J.
Released: December 6, 2012