R. v. LeBlanc (R.M.) et al.,

• Jurisdiction: New Brunswick
• Judge: Rideout, J.
• Neutral Citation: 2008 NBQB 120
• Citation: (2008), 330 N.B.R.(2d) 329 (TD),2008 NBQB 120,330 NBR(2d) 329,(2008), 330 NBR(2d) 329 (TD),330 N.B.R.(2d) 329
• Date: 14 March 2008
• Court: Court of Queen's Bench of New Brunswick (Canada)

R. v. LeBlanc (R.M.) (2008), 330 N.B.R.(2d) 329 (TD);

    330 R.N.-B.(2e) 329; 845 A.P.R. 329

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Temp. Cite: [2008] N.B.R.(2d) TBEd. MR.053

Renvoi temp.: [2008] N.B.R.(2d) TBEd. MR.053

Ralph Michel LeBlanc, Stéphane Gallant, and Jason Russell Steeves (plaintiffs) v. Her Majesty the Queen (defendant)

(M/M/38/07; 2008 NBQB 120; 2008 NBBR 120)

Indexed As: R. v. LeBlanc (R.M.) et al.

Répertorié: R. v. LeBlanc (R.M.) et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

March 28, 2008.

Summary:

Résumé:

The accused were charged with conspiracy to traffic in cocaine and conspiracy to traffic in hashish. A preliminary inquiry judge committed all the accused to stand trial for conspiring to traffic cocaine. Two accused were also committed to stand trial for conspiring to traffic hashish. The accused challenged the committal orders.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application.

Criminal Law - Topic 3530

Preliminary inquiry - Jurisdiction - Loss of jurisdiction - The accused were charged with conspiracy to traffic in cocaine and conspiracy to traffic in hashish - The Crown intended to rely on, inter alia, wiretap evidence - At the preliminary inquiry, two accused (Gallant and Steeves) did not comply with s. 536.3 of the Criminal Code which required them to outline the issues and the witnesses necessary for the preliminary inquiry - The preliminary inquiry judge granted the Crown's request under s. 540(7) that the judge admit Notices of Intention to Produce Evidence respecting the private communications (Criminal Code, s. 189(5)) and transcripts of intercepted telephone calls or transcripts used to identify different persons including the accused - The accused were committed to stand trial - The accused challenged their committals - Section 189(5) required the Crown to give notice before evidence could be received into evidence - There was no proof that Notices under s. 189(5) were prepared - The New Brunswick Court of Queen's Bench, Trial Division, held that the accused were required to raise the issue of compliance with s. 189(5) in conformity with s. 536.3, which they failed to do - Therefore, they could not now raise the issue - Alternatively, the judge's use of s. 540(7) to admit the evidence did not result in a failure of jurisdiction - It was an evidentiary finding and order that fell within the judge's jurisdiction - The court could not interfere - See paragraphs 38 to 40.

Criminal Law - Topic 3596

Preliminary inquiry - Evidence - Evidence not otherwise admissible that judge considers credible or trustworthy - The accused were charged with conspiracy to traffic in cocaine and conspiracy to traffic in hashish - The Crown intended to rely on, inter alia, wiretap evidence - At the preliminary inquiry, two accused (Gallant and Steeves) did not comply with s. 536.3 of the Criminal Code which required them to outline the issues and the witnesses necessary for the preliminary inquiry - The preliminary inquiry judge granted the Crown's request under s. 540(7) that the judge admit Notices of Intention to Produce Evidence respecting the private communications (Criminal Code, s. 189(5)) and transcripts of intercepted telephone calls or transcripts used to identify different persons including the accused - Section 540(7) permitted a justice to receive as evidence any information that would not otherwise be admissible but that the justice considered credible or trustworthy in the circumstances of the case - The accused were committed to stand trial - The accused challenged their committals - The New Brunswick Court of Queen's Bench, Trial Division, stated that it did not condone the approach adopted by the Crown and judge - Gallant and Steeves failed to comply with mandatory requirements of s. 536.3 - That failure contributed to the way this matter proceeded - The court opined that it would have been more appropriate for the Crown to have requested an adjournment to allow the accused to comply with the requirements of s. 536.3 - See paragraphs 32 to 34.

Criminal Law - Topic 3598

Preliminary inquiry - Evidence - Statement respecting issues and witnesses necessary for hearing - Section 536.3 of the Criminal Code stated that, if a request for a preliminary inquiry was made, the prosecutor or, if the request was made by the accused, counsel for the accused, were to provide the court and the other party with a statement that identified the issues on which the requesting party wanted evidence to be given at the inquiry and the witnesses that the requesting party wanted to hear at the inquiry - The New Brunswick Court of Queen's Bench, Trial Division, held that a self-represented accused was not excluded from the requirements of s. 536.3 - If Parliament wanted a specific exclusion for self-represented accused, Parliament would have done so - It would "defy logic" to require everyone else, except self-represented accused, to comply with s. 536.3 - The plain meaning of the section was clear - See paragraphs 42 to 45.

Criminal Law - Topic 3598

Preliminary inquiry - Evidence - Statement respecting issues and witnesses necessary for hearing - [See Criminal Law - Topic 3530 and Criminal Law - Topic 3596 ].

Droit criminel - Cote 3530

Enquête préliminaire - Compétence - Perte de la compétence - [Voir Criminal Law - Topic 3530 ].

Droit criminel - Cote 3596

Enquête préliminaire - Preuve - Preuve autrement non recevable mais considérée crédible et fiable par le juge - [Voir Criminal Law - Topic 3596 ].

Droit criminel - Cote 3598

Enquête préliminaire - Preuve - Déclaration relative aux questions et aux témoins nécessaires à l'enquête - [Voir Criminal Law - Topic 3598 ].

Cases Noticed:

Cohen and Quebec (Attorney General), Re, [1979] 2 S.C.R. 305; 27 N.R. 344, refd to. [para. 22].

R. v. Blizzard (W.A.) et al. (2004), 284 N.B.R.(2d) 131; 742 A.P.R. 131; 2005 NBQB 67, refd to. [para. 22].

R. v. Forsythe, [1980] 2 S.C.R. 268; 32 N.R. 520, refd to. [para. 23].

R. v. Francis (J.) et al., [2005] O.T.C. 594 (Sup. Ct.), refd to. [para. 26].

R. v. Martin (C.H.), [2007] B.C.T.C. 1197 (S.C.), refd to. [para. 28].

R. v. Kim (W.) et al., [2002] O.T.C. 222 (Sup. Ct.), refd to. [para. 28].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 31].

R. v. Franks (G.G.) (2003), 238 Sask.R. 1; 305 W.A.C. 1; 18 C.R.(6th) 137 (C.A.), refd to. [para. 31].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 536.3 [para. 43].

Authors and Works Noticed:

Hubbard, Robert W., Brauti, Peter M., and Fenton, Scott K., Wiretapping and Other Electronic Surveillance: Law and Procedure (Looseleaf Ed.), pp. 7-6 to 7-9, s. 7.3.1 [para. 21].

Counsel:

Avocats:

Christian Libotte, on behalf of Her Majesty the Queen;

Leslie Matchim, on behalf of Stéphane Gallant;

James Matheson, on behalf of Ralph Michel LeBlanc;

Jason Steeves, on his own behalf.

This application was heard on March 14, 2008, by Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on March 28, 2008.