R. v. Earhart (B.), (2007) 305 B.C.A.C. 1 (CA)

• Judge: Rowles, Newbury and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 12, 2007
• Jurisdiction: British Columbia
• Citations: (2007), 305 B.C.A.C. 1 (CA);2007 BCCA 614

R. v. Earhart (B.) (2007), 305 B.C.A.C. 1 (CA);

    515 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. MY.051

Regina (respondent) v. Beverley Earhart (appellant)

(CA035048)

Regina (respondent) v. Ashleigh Hiebert (appellant)

(CA035127; 2007 BCCA 614)

Indexed As: R. v. Earhart (B.)

British Columbia Court of Appeal

Rowles, Newbury and Low, JJ.A.

December 12, 2007.

Summary:

The accused were charged with first degree murder. At the preliminary inquiry, the judge refused to issue a material witness warrant for a co-accused charged under a separate indictment and refused to adjourn the preliminary inquiry to permit the accused to secure the attendance of the co-accused. After the accused were committed to stand trial, they applied for certiorari to quash the committal.

The British Columbia Supreme Court, in a judgment reported [2007] B.C.T.C. Uned. A79, dismissed the application. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal.

Administrative Law - Topic 5007

Judicial review - Certiorari - General principles - When available - Criminal matters - [See Criminal Law - Topic 7124 ].

Criminal Law - Topic 3235

Compelling appearance, detention and release - Arrest - Warrants - Material witness warrant - [See Criminal Law - Topic 3703 ].

Criminal Law - Topic 3703

Preliminary inquiry - Procedure - Adjournments - The accused were charged with first degree murder - A co-accused (Cyz) was being tried separately - The Crown advised that they would not call Cyz as a witness at the preliminary inquiry - The accused unsuccessfully tried to serve Cyz with a subpoena - During the preliminary inquiry, the judge refused the accused's request to issue a material witness warrant for Cyz or to adjourn the preliminary inquiry to permit the accused to secure Cyz's attendance - After the accused were committed to stand trial, they applied for certiorari to quash the committal - The British Columbia Court of Appeal affirmed the dismissal of the application - First, whether to issue a material witness warrant was a discretionary decision which the preliminary inquiry judge exercised judiciously - Since the preliminary inquiry judge acted within his jurisdiction, his discretionary decision was not reviewable by way of certiorari - While it was unnecessary to decide the issue, the court opined that the prerequisites for the issuance of a material witness warrant under s. 698(1) or s. 705 of the Criminal Code were not met - The decision to refuse an adjournment to secure the attendance of Cyz was also a discretionary decision made within the preliminary inquiry judge's jurisdiction and did not breach the principles of natural justice - Although the accused had a statutory right to call Cyz as a witness, the preliminary inquiry judge found that the steps taken by the accused to call Cyz were "too little too late" - In any event, even if the accused had been denied natural justice, a remedy by way of certiorari was available only where they were prejudiced - Since the primary purpose of a preliminary inquiry was to determine whether there was sufficient evidence to commit the accused to trial, and on the evidence already presented committal was a certainty, the accused suffered no prejudice.

Criminal Law - Topic 7124

Extraordinary remedies - Certiorari - Powers of court on certiorari application - The accused sought certiorari to quash their committals on charges of first degree murder - The British Columbia Court of Appeal stated that "certiorari is a discretionary remedy available to superior courts to review the conduct of inferior courts or statutory tribunals. The remedial scope of review on an application for certiorari is much narrower than the scope of review on appeal. Superior courts may quash the decision of an inferior court by way of certiorari only where the inferior court has acted in excess of its assigned statutory jurisdiction or in breach of the principles of natural justice ... Errors of law are generally not reviewable by way of certiorari ... With respect to preliminary inquiries ... [an] application for certiorari will only lie where a preliminary inquiry judge acts beyond the scope of these statutory powers or fails to observe a mandatory provision in the Code. For example, a preliminary inquiry judge has the jurisdiction to conduct the inquiry according to the rules of evidence, and so errors as to admissibility are errors of law made within the scope of the jurisdiction and are not reviewable by way of certiorari ... By way of contrast, the committal of an accused for trial in the absence of evidence on an essential ingredient of the charge constitutes a jurisdictional error reviewable on certiorari ... a denial of natural justice amounting to jurisdictional error might be found where an accused is denied the right to call or cross-examine witnesses at a preliminary hearing." - See paragraphs 23 to 26.

Cases Noticed:

R. v. Russell (D.), [2001] 2 S.C.R. 804; 274 N.R. 247; 150 O.A.C. 99; 2001 SCC 53, refd to. [para. 23].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34; 11 D.L.R.(4th) 161, refd to. [para. 23].

R. v. Forsythe, [1980] 2 S.C.R. 268; 32 N.R. 520; 112 D.L.R.(3d) 385, refd to. [para. 23].

R. v. Deschamplain (D.), [2004] 3 S.C.R. 601; 347 N.R. 287; 211 O.A.C. 323; 2004 SCC 76, refd to. [para. 24].

R. v. Norgren (1975), 27 C.C.C.(3d) 488 (B.C.C.A.), refd to. [para. 25].

Cohen and Quebec (Attorney General), Re, [1979] 2 S.C.R. 305; 27 N.R. 344; 46 C.C.C.(2d) 473, refd to. [para. 25].

R. v. McKenzie (1989), 51 C.C.C.(3d) 285 (B.C.S.C.), refd to. [para. 28].

R. v. Lena (M.A.) (2001), 157 B.C.A.C. 240; 256 W.A.C. 240; 158 C.C.C.(3d) 415; 2001 BCCA 549, refd to. [para. 30].

R. v. Papadopoulos (S.) et al. (2005), 196 O.A.C. 335; 201 C.C.C.(3d) 363 (C.A.), leave to appeal dismissed (2005), 349 N.R. 198; 215 O.A.C. 394 (S.C.C.), refd to. [para. 31].

Credit Foncier Franco-Canadien v. McGuire et al. (1979), 14 B.C.L.R. 281 (S.C.), refd to. [para. 40].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277; 61 C.C.C.(3d) 300, refd to. [para. 43].

R. v. Sazant (M.), [2004] 3 S.C.R. 635; 348 N.R. 1; 210 O.A.C. 376; 2004 SCC 77, refd to. [para. 53].

R. v. Barbeau, [1992] 2 S.C.R. 845; 140 N.R. 211; 49 Q.A.C. 220; 75 C.C.C.(3d) 129, refd to. [para. 53].

R. v. Hynes (D.W.), [2001] 3 S.C.R. 623; 278 N.R. 299; 208 Nfld. & P.E.I.R. 181; 624 A.P.R. 181; 2001 SCC 82, refd to. [para. 53].

R. v. Hazlewood (G.A.) et al. (1994), 42 B.C.A.C. 44; 67 W.A.C. 44 (C.A.), refd to. [para. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 509(2) [para. 34]; sect. 698 [para. 37]; sect. 701(1) [para. 34]; sect. 705(1) [para. 37].

Counsel:

S. Goldberg, for the appellant, Beverley Earhart;

P. Scarisbrick, for the appellant, Ashleigh Hiebert;

M. Brundrett, for the respondent.

This appeal was heard on December 3, 2007, at Vancouver, B.C., before Rowles, Newbury and Low, JJ.A., of the British Columbia Court of Appeal.

On December 12, 2007, Rowles, J.A., delivered the following judgment for the Court of Appeal.