ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR15-134 DATE: 20161012
BETWEEN:
Her Majesty the Queen Elizabeth Barefoot, for the Federal Crown
- and -
Michael Bemister Bernard Cugelman, for the Accused Accused
HEARD: October 12, 2016
REASONS FOR DECISION ON WHETHER TO PERMIT A CHANGE IN THE CROWN’S POSITION REGARDING ITS USE AT TRIAL OF THE UTTERANCES AND STATEMENT MADE BY THE ACCUSED
Conlan J.
I. Introduction
The Charges
[1] Michael Bemister stands charged on a multi-count Indictment, as follows.
Michael Bemister stands charged that, on or about the 14th day of August, 2013 in the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did traffic in a substance included in Schedule I to wit: Fentanyl, contrary to section 5(1) of the Controlled Drugs and Substances Act.
AND FURTHER THAT Michael Bemister stands charged that, on or about the 15th day of August, 2013 in the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did traffic in a substance included in Schedule I to wit: Hydromorphone, contrary to section 5(1) of the Controlled Drugs and Substances Act.
AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 in the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did possess a substance included in Schedule I to wit: Fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did unlawfully possess a substance included in Schedule II to wit: cannabis, contrary to section 4(1) of the Controlled Drugs and Substances Act.
AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did have in his possession proceeds of property, $4840 in Canadian currency, of a value not exceeding five thousand dollars knowing that all of the proceeds of the property was derived directly or indirectly by the commission in Canada of an offence punishable by indictment contrary to section 354(1)(a) of the Criminal Code.
AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did have in his possession a firearm, to wit a 22 calibre rifle without being the holder of a license under which he may possess it, contrary to section 91(1) of the Criminal Code.
AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did have in his possession a firearm, to wit a 22 calibre rifle without being the holder of a license under which he may possess it, contrary to section 91(1) of the Criminal Code.
AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did without lawful excuse store a firearm, to wit: a 22 calibre rifle in a careless manner contrary to section 86(1) of the Criminal Code.
AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did without lawful excuse store a firearm, to wit a 22 calibre rifle in a careless manner contrary to section 86(1) of the Criminal Code.
AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did possess a prohibited weapon, to wit a flick knife without being the holder of a license under which he may possess it, contrary to section 91(2) of the Criminal Code.
AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did possess a prohibited weapon, to wit a flick knife without being the holder of a license under which he may possess it, contrary to section 91(2) of the Criminal Code.
[2] The accused has elected to be tried in the Superior Court of Justice, by a judge sitting alone. The trial commenced in Owen Sound on October 12, 2016. It is expected to last a few days.
The Issue
[3] In September 2015, Durno J. and counsel conducted a pretrial conference. At that time, the Crown clearly took the recorded position that it would not be relying upon any statement/utterance made by the accused to the police as part of its case but rather would seek a ruling as to admissibility only for purposes of potential use in cross-examination of Mr. Bemister at trial.
[4] The Crown concedes that.
[5] On August 2, 2016, the Crown sent an email to Defence counsel which stated, in part, the following: “I forgot about some of the utterances your client makes to police re his medication after his arrest. I wish to have those admitted and I know that I need to notify you about that. I have also reconsidered your client’s statement and wish to have that admitted as part of the Crown’s case. Do you want to have another JPT?”.
[6] The Crown cannot prove that Mr. Cugelman received that email. It was never responded to. Mr. Cugelman indicates that he never read it; if he had, he surely would have replied to such a significant change in the Crown’s position. I accept that.
[7] Should the Crown now be permitted to admit as part of its case at trial the utterances/statement made by Mr. Bemister to the police? That is the question that counsel argued at Court on October 12th.
II. Analysis
[8] I commend Ms. Barefoot for being candid with the Court.
[9] Clearly, the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) have not been complied with by the Crown. That is conceded.
[10] Subrules 28.04(11) and (12) provide as follows.
Changes of Position
(11) If either party changes any position taken and recorded on the pretrial conference report, the party must provide written notice of the change to the other parties and the Superior Court trial coordinator and arrange for a further pre-trial conference as soon as practicable, and serve and file any notices, records, facta, books of authorities or other materials required by these rules.
(12) Failure to comply with subrule 28.04(11) may result in any application resulting from a change in position not being heard by the trial judge.
[11] At most, the Crown met only one of the requirements outlined in subrule (11) – providing written notice of the change in position to opposing counsel. The trial coordinator was not advised. A further pretrial conference was not arranged. Nothing was filed by the Crown with the Court.
[12] All of that is conceded by Ms. Barefoot.
[13] The Crown, however, relies on the decision in R. v. S-R. (J.), 2008 ONSC 92004, 237 C.C.C. (3d) 326 (Ont. S.C.J.).
[14] With respect, that decision does not assist the Crown. That decision speaks about the potential for allowing the Crown to resile from a previously recorded position where there exists some compelling explanation for the change.
[15] No such compelling explanation exists here.
[16] The Crown acknowledges that it was known in September 2013 that Mr. Bemister allegedly possessed more fentanyl patches than his lawful prescription permitted. The fact that the precise number of excess patches changed due to further calculations done by the police and the Crown does not provide a compelling explanation for the significant change in the Crown’s position two months before the trial date.
[17] The Crown submits further that it wishes to introduce as part of its case at trial the utterances/statement made by Mr. Bemister to the police because they corroborate the evidence of Crown witness Jesse Watson, something not discovered until August 2016 when the police more closely examined the seized fentanyl patches.
[18] The notion is that the patches had their middles cut-out, and that observation bolsters the evidence of Mr. Watson about seeing strips of patches.
[19] I reject that argument. There is no reason why the alleged significance of the middles of the patches having been cut-out would not have been readily apparent to the authorities in 2013, and certainly by September 2015 (when the pretrial conference was held).
[20] Put another way, the fact that the police more closely examined the patches in August 2016 ought not to be permitted to prejudice Mr. Bemister.
[21] The Rules exist for a reason. Failure to comply with them in a significant way ought to generally attract some consequence, especially where, as here, the evidence sought to be adduced is in no way crucial to the prosecution’s case.
[22] I accept the Defence argument that, at the pretrial conference and since, it would not have declined to dispute the admissibility of those utterances/statement of Mr. Bemister to the police but for the Crown’s explicit position that they would only be relied upon in cross-examination of the accused at trial.
[23] In other words, before October 12th, the case to be met by the Defence did not include those utterances/statement because there was no intention of calling Mr. Bemister to testify at trial.
[24] I am convinced that to permit the Crown to do what it now wants to do would impair Mr. Bemister’s right to a fair trial.
[25] An adjournment of the trial to allow the Defence to reassess the case is not appropriate. This matter is terribly old – more than three years so. The chief Crown witness, Mr. Watson, is a vulnerable person. In fact, a ruling has already been made permitting Mr. Watson to testify remotely starting on October 13th. The trial must proceed as scheduled.
III. Conclusion
[26] For these reasons, after carefully balancing the competing interests, I ruled at Court on October 12, 2016 that the Crown must maintain its position as recorded at the pretrial conference and cannot now introduce the utterances/statement made by Mr. Bemister to the police as part of its case at trial.
Conlan J.