CITATION: R. v. Wabason, 2015 ONSC 6128
COURT FILE NO.: CR-11-0142
DATE: 2015-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Dayna Arron, Peter Keen, and Andrew T.G. Sadler, for the Crown
Respondent
- and -
Shaldon Wabason,
Jessica Orkin and Delmar Doucette, for the Applicant/Defendant
Applicant/Defendant
HEARD: June 2, 2015, at Thunder Bay, Ontario
Platana J.
Ruling Regarding Voluntariness Voir Dire
[1] This is an application by the Applicant/Defendant in regard to a voluntariness voir dire on his statement to the police. The Application was heard June 2, 2015. In order to enable counsel to prepare for trial, on September 4, I released my decision with reasons to follow. The trial commenced on September 14. These are my reasons.
[2] On March 19, 2011, Mr. Wabason was arrested and charged with murder. On March 20, he was question by the police and gave a statement.
[3] His trial was originally to take place before Justice McCartney in 2014. On February 24, 2014 in a pre-trial ruling, Justice McCartney held that the statement was voluntary.
[4] The scheduled trial was then stayed as a result of a Kokopenace application brought by the accused which determined that the 2014 jury roll did not comply with Charter requirements.
[5] Justice McCartney retired on July 14, 2014. This trial was then scheduled to proceed before me in the September 2015 jury sittings.
[6] The Applicant brings this application seeking a ruling that the ruling as to voluntariness is not binding and that the Crown has failed to prove that the statement was voluntary. The Applicant asks that a new voluntariness voir dire be held (based on the evidentiary record from the 2014 voir dire, and that it be found that the statement was not voluntary and that it be excluded from use at his trial.
Applicant’s Position
[7] The Applicant references s. 551.3 of the Criminal Code. Mr. Doucette submits that Justice McCartney was not acting as a case management judge, and that s. 551.3 is therefore not applicable.
[8] Sections 551.3(1) and 551.3(4) of the Criminal Code state:
551.3 (1) In performing his or her duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, may exercise the powers that a trial judge has before that stage, including
(a) assisting the parties to identify the witnesses to be heard, taking into account the witnesses’ needs and circumstances;
(b) encouraging the parties to make admissions and reach agreements;
(c) encouraging the parties to consider any other matters that would promote a fair and efficient trial;
(d) establishing schedules and imposing deadlines on the parties;
(e) hearing guilty pleas and imposing sentences;
(f) assisting the parties to identify the issues that are to be dealt with at the stage at which the evidence on the merits is presented; and
(g) subject to section 551.7, adjudicating any issues that can be decided before that stage, including those related to
(i) the disclosure of evidence,
(ii) the admissibility of evidence, …
(4) A decision that results from the exercise of the power referred to in paragraph (1)(g) is binding on the parties for the remainder of the trial — even if the judge who hears the evidence on the merits is not the same as the case management judge — unless the court is satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced.
[9] Mr. Doucette further references s. 653.1 of the Criminal Code which states:
653.1 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.
[10] He submits that, in this case, no evidence was heard on the trial proper, and therefore there was no mistrial and s. 653.1 is inapplicable.
[11] Mr. Doucette submits in the alternative that if I determine that Justice McCartney’s ruling is binding, I should still consider the issue of voluntariness in a voir dire because it is in the interests of justice to do so, pursuant to ss. 551.3(4) and 653.1.
[12] In addressing this application I first deal with the issue of whether Justice McCartney’s pre-trial ruling in 2014 is binding on me.
[13] Both counsel agree that these two Criminal Code sections do not specifically apply to the circumstances in this case. Justice McCartney was not the case management judge. Neither was a mistrial declared. Mr. Doucette argues that the situation is analogous to and relies on those sections to submit that the decision is only binding if I am “satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced.”
[14] Mr. Doucette references s. 669.2 which states:
669.2 (1) Subject to this section, where an accused or a defendant is being tried by
(a) a judge or provincial court judge,
(b) a justice or other person who is, or is a member of, a summary conviction court, or
(c) a court composed of a judge and jury,
as the case may be, and the judge, provincial court judge, justice or other person dies or is for any reason unable to continue, the proceedings may be continued before another judge, provincial court judge, justice or other person, as the case may be, who has jurisdiction to try the accused or defendant. …
(4) If a trial that is before a court composed of a judge and a jury was commenced but no adjudication was made or verdict rendered, the judge before whom the proceedings are continued may, without further election by an accused, continue the trial or commence the trial again as if no evidence on the merits had been taken.
(5) Where a trial is continued under paragraph (4)(a), any evidence that was adduced before a judge referred to in paragraph (1)(c) is deemed to have been adduced before the judge before whom the trial is continued but, where the prosecutor and the accused so agree, any part of that evidence may be adduced again before the judge before whom the trial is continued.
[15] Mr. Doucette argues that the entire s. 669.2 deals with circumstances where a trial has commenced. He argues that nothing in this section deals with pre-trial motions in the context of a trial which has been stayed.
[16] In the alternative, he submits that the use of the permissive “may”, indicates that I am entitled to look at the substance of the evidence. In that regard, he seeks a ruling that the statement is not voluntary.
Crown’s Position
[17] Mr. Sadler references R. v. Le, 2011 MBCA 83, [2011] M.J. No. 319, 275 C.C.C. (3d) 427, where the initial trial judge was appointed to the Court of Appeal, after deciding two preliminary motions before the commencement of the trial itself, as analogous to this case. At paragraph 25, the court stated:
- While there is no appellate authority that specifically addresses whether the appointment of a trial judge to the Court of Appeal engages s. 669.2 of the Code, in R. v. Leduc (2003), 2003 CanLII 52161 (ON CA), 176 C.C.C. (3d) 321 (Ont. C.A.), leave to appeal to S.C.C. dismissed, [2003] S.C.C.A. No. 411 (QL), Laskin J.A., writing for the court, noted (at para. 66):
The case law does not establish an exhaustive list of circumstances where a judge would be “unable to continue”. The list, however, has been held to include illness, absence and appointment to higher court. See Ramsey v. The Queen (1972), 1972 CanLII 1409 (NB CA), 8 C.C.C. (2d) 188 (N.B.C.A.); R. v. Beauchamp, 2002 CanLII 8725 (QC CS), [2002] J.Q. No. 3214 (QL) (S.C.) [reported 4 C.R. (6th) 318]; R. v. Shrubsall (2000), 2000 CanLII 2852 (NS SC), 148 C.C.C. (3d) 425 (N.S.S.C.). The section uses the open-ended phrase “for any reason”. In my view, the trial judge’s disqualification for bias was a “reason” within this section of the Code. ….
[18] At paragraph 28, the court noted “There are a number of reported cases where a new judge has been assigned as a result of the initial judge’s illness or retirement.”
[19] At paragraph 123, the court stated:
- The law is clear that the trial judge had inherent jurisdiction to reconsider or revisit the previous rulings made at trial, but as stated by the Supreme Court in R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707 at paras. 30-31, an order relating to the conduct of a trial can be varied or revoked only if the circumstances have materially changed.
[20] Mr. Sadler submits that it makes no sense to find that, where a trial must recommence because of a mistrial decisions on pre-trial motions would remain in effect, but that where the trial continues pursuant to s. 669(2) they would not.
[21] In R. v. Wu, [2002] O.J. No. 4568, the Court of Appeal addressed a situation where the trial judge made several rulings on pre-trial motions before the jury was empanelled. During the jury selection process, a mistrial was declared. The accused sought to find that the pre-trial motion decisions were non-binding due to the mistrial. The trial judge relied on R. v. Curtis (1991), 1991 CanLII 11732 (ON SC), 66 C.C.C. (3d) 156, to find that the pre-trial motions survived the mistrial. Justice MacPherson upheld the reasoning in Curtis, at paras. 19 – 21:
[19] In Curtis, the issue was whether Ewaschuk J. had the jurisdiction to hear pre‑trial motions and whether he was seised with the trial of the accused before a jury to be chosen at a later date. In answering these questions in the affirmative, Ewaschuk J. relied on s. 645(5) of the Criminal Code which provides:
645(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.
[20] Ewaschuk J. analyzed this provision at pp. 159-60:
It is my view that when a judge makes evidentiary rulings pursuant to s. 645(5) of the Criminal Code he or she acts as the trial judge and, consequently, is necessarily seised with the trial. In fact, s. 645 immediately follows the heading “Trial” which, in my view, is confirmatory than an evidentiary hearing conducted pursuant to s. 645(5) is deemed to constitute part of a jury trial . . . .
Thus, an accused entitled to a jury trial is tried by a court composed of a judge and jury. For the judge, the trial commences on the hearing of an application pursuant to s. 645(5) of the Criminal Code – assuming such application is made. Otherwise it generally commences on the hearing of evidence before the jury: s. 669.1(1) of the Criminal Code. For the jury, the trial commences when the accused is put in their charge after the jury has been selected and sworn. In this unique sense, a jury trial may well commence at different stages of the trial proceedings for both the judge and the jury. Only when the trial actually commences for the judge and for the jury do they respectively become seized of the trial.
[21] I agree with this description of the process in a trial involving judge and jury. It is, in a sense, a bifurcated process with the trial judge being seised from the outset and the jury becoming seised once it has been sworn. It follows that there is no logical or legal reason for concluding that a mistrial in the jury selection process seeps back into the judge’s jurisdiction to hear and dispose of pre‑trial motions.
[22] Mr. Sadler then references R. v. Davis, [2012] O.J. No. 4736. In that case the Crown applied to uphold the pre-trial rulings of a trial judge who recused himself based on a reasonable apprehension of bias. At paragraphs 13 – 16, Baltman J. stated:
[13] That leaves the argument focused on s. 653.1, and in particular whether “the interests of justice” require re-litigation in this case. The section states:
In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made – or could have been made – before the stage at which the evidence on the merits is presented.
[14] That section was proclaimed in force on August 15, 2011, and marks a departure from previous jurisprudence from the Supreme Court of Canada to the effect that a trial judge is not bound by interlocutory rulings made at an earlier trial, even if a higher court finds no error with the ruling: R. v. Duhamel, 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555
[15] To date there has not been any jurisprudence interpreting s. 653.1, and in particular what the phrase “interests of justice” means in this context. However, the identical wording is used throughout the Criminal Code and has been analyzed extensively. Based on a review of those cases I derive the following guidance in interpreting the phrase:
• The phrase “interests of justice” takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case-by-case basis. The interests of justice encompass broad based societal concerns and the more specific interests of a particular accused, including meaningful access to appellate review: R. v. Bernardo, [1977] O.J. 5091 (C.A.) at paras. 16 and 19;
• The expression takes into consideration both the interests of the accused as well as the state: R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768
• The interests of justice also encompass the integrity of the criminal process, which includes bringing finality to litigation and avoiding the time and expense inherent in the re-litigation of issues: R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 at p. 411; R. v. Owen,2003 SCC 33, [2003] S.C.J. No. 31, para. 52; R. v. Last, 2009 SCC 45, [2009] S.C.J. No. 45, para. 16
[16] Section 653.1 is clearly intended to encourage the retention of prior rulings, in order to avoid the time, expense and risk of conflicting decisions associated with re-litigation. The wording of the section - “unless the court is satisfied…[previous rulings] are binding” – indicates there is a presumption in favour of preserving rulings made at the earlier trial. The presumption is only defeated if in the particular circumstances of the case, the court is satisfied that it would not be in the interests of justice to proceed based on the previous rulings.
[23] The Crown’s position is that in Davis, the new trial judge concluded that the pre-trial motions needed to be revisited in the interests of justice because the initial trial judge’s comments suggested concern about whether the apprehension of bias that resulted in the mistrial might also impact the decisions on the motions.
[24] In R. v. Vander Wier, 2013 ONSC 6862, the accused brought a stay application after electing trial by judge and jury. The initial judge who heard the application was appointed to a higher court and another judge, Justice Coats, was appointed as the trial judge. The accused brought a fresh motion to relitigate the stay application. Justice Coats found that ss. 669.2(3) and (4) did not apply as the trial proper had not begun as the initial trial judge did not hear evidence on the merits of the case. At para. 20, she explains that Parliament in 2011 added “evidence on the merits” to s. 669.2, thus signaling an importance in the distinction between hearing evidence on the merits and/or evidentiary rulings, to Charter or stay applications. She reviews cases relied on by the parties at paras. 22 – 26, and found that they did not apply because of the distinction between evidentiary rulings and the stay application at hand. Justice Coats upheld the previsions decision on the stay application:
27 In our case, Justice Hourigan did not make evidentiary rulings that would affect the trial. He did not hear evidence on the merits of the case. A dismissal of a stay application for abuse of process is different from evidentiary rulings. The stay application for ruling is a stand-alone application, separate and apart from the trial. This distinction is supported by Rule 27 and the Court of Appeal in R. v. Leduc.
32 Furthermore, I find that it is not in the interests of justice to hear the identical application on the same record that was ruled on by a court of competent jurisdiction a few weeks prior. Justice Hourigan will provide reasons for his ruling and the applicant is not precluded from bringing another stay application during the trial before me should a different record arise. The defence has not satisfied me on a balance of probabilities that it would not be in the interests of justice to permit Justice Hourigan’s ruling to stand.
[25] The Crown argues that in this case, no such concern exists. The applicant has not identified any reason why the interests of justice require re-litigation. The Crown notes that the Applicant is relying on the same material filed in the 2014 motion before Justice McCartney. There is no new evidence. The Crown submits that what the Applicant is asking is simply that the decision on voluntariness be reviewed, and that simple request, with no further basis, is not sufficient to meet the test of “in the interests of justice”.
[26] Although there is no specific Criminal Code provision dealing with rulings in the event of a stay of proceedings, I accept the Crown’s argument that the situation is analogous to rulings made by a casement management judge, where a judge different from the trial judge can make evidentiary rulings regarding the admissibility of evidence, in this case, a statement by the accused.
[27] Further, I rely on the comments of Ewaschak J. in Curtis, that a jury trial may well commence at different times, and that for that, for the judge, a jury trial commences on the hearing of an application under s. 645(5). The judge is then seized. Section 669.2 provides that where the judge is for any reason unable to continue, the proceedings may be continued before another judge. Section 669.2(4) provides that the replacement judge may continue the trial.
[28] In this case, I find that Justice McCartney’s retirement has made him “unable to continue”, and I now sit in his place.
[29] Mr. Doucette has relied on ss. 551.3(4) and 653.1 to suggest that the ruling should now be excluded as it is not “in the interest of justice”. I do not agree. I accept the Crown submission that inasmuch as the argument for exclusion is now on the same record as was before McCartney J., what the Applicant really asks for is simply a “re-hearing”. I refer again to the comments of Baltman J. in R. v. Davis stated at para. 16:
[16] Section 653.1 is clearly intended to encourage the retention of prior rulings, in order to avoid the time, expense and risk of conflicting decisions associated with re-litigation. The wording of the section - “unless the court is satisfied…[previous rulings] are binding” – indicates there is a presumption in favour of preserving rulings made at the earlier trial. The presumption is only defeated if in the particular circumstances of the case, the court is satisfied that it would not be in the interests of justice to proceed based on the previous rulings.
[30] Further, in Vander Wier, Justice Coats stated at paras. 32:
32 Furthermore, I find that it is not in the interests of justice to hear the identical application on the same record that was ruled on by a court of competent jurisdiction a few weeks prior. …
[31] I am not satisfied that the Applicant has established on a balance of probabilities that it would be in the interests of justice to be entitled to relitigate a ruling made by Justice McCartney.
[32] Although it is not necessary for my ruling, I address the alternative argument of Mr. Doucette by noting that, even if I had determined that the ruling was not binding, I agree with the decision of McCartney J. and would have ruled the statement voluntary.
[33] This application is dismissed. The decision of McCartney J. is held to be binding, and the statement voluntary.
___”original signed by”
Mr. Justice T. A. Platana
Released: October 2, 2015
CITATION: R. v. Wabason, 2015 ONSC 6128
COURT FILE NO.: CR-11-0142
DATE: 2015-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Shaldon Wabason,
Applicant/Defendant
RULING REGARDING
VOLUNTARINESS VOIR DIRE
Platana J.
Released: October 2, 2015
/mls