R. v. Rao (J.), (2012) 323 B.C.A.C. 165 (CA)

• Judge: Prowse, Garson and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 13, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 323 B.C.A.C. 165 (CA);2012 BCCA 275

R. v. Rao (J.) (2012), 323 B.C.A.C. 165 (CA);

    550 W.A.C. 165

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JN.037

Regina (respondent) v. Justin Rao (appellant)

(CA039148; 2012 BCCA 275)

Indexed As: R. v. Rao (J.)

British Columbia Court of Appeal

Prowse, Garson and Hinkson, JJ.A.

June 21, 2012.

Summary:

The accused and a co-accused were charged on a four count information with break and enter, unlawful confinement, sexual assault and robbery. The preliminary inquiry judge (1) permitted the Crown to file its entire case in paper form without permitting the accused to cross-examine any Crown witnesses and (2) denied the accused an adjournment and ruled that he was not allowed to call evidence under s. 541(5) of the Criminal Code because discovery was not a purpose "relevant to the inquiry" within the meaning of that section. The accused appealed.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 390, dismissed the appeal. The accused appealed.

The British Columbia Court of Appeal, Garson, J.A., dissenting in part, allowed the appeal.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - The accused and a co-accused were charged on a four count information with break and enter, unlawful confinement, sexual assault and robbery - The preliminary inquiry judge (1) permitted the Crown to file its entire case in paper form without permitting the accused to cross-examine any Crown witnesses and (2) denied the accused an adjournment and ruled that he was not allowed to call evidence under s. 541(5) of the Criminal Code because discovery was not a purpose "relevant to the inquiry" within the meaning of that section - A Supreme Court judge affirmed the rulings - The accused appealed - The Crown raised a preliminary issue of whether the Court should consider these issues on the basis that the appeal was moot - The Crown had stayed the proceedings on the information leading to the committal and proceeded against the accused by way of direct indictment - The British Columbia Court of Appeal decided to consider the appeal notwithstanding it was moot - Although the accused's trial had been heard and decided as a result of the Crown proceeding by direct indictment, there was an "appropriate" adversarial context, to the extent that counsel had fully argued the relevant provisions of the Code and had provided relevant history and authorities - The Court was, therefore, in a position to make a determination of the substantive issues, which required a determination of the correct interpretation and application of the relevant provisions of the Code - The court was also satisfied that this was not a case where judicial resources would be wasted by deciding the issues under appeal - Further, since the only way to challenge a committal for trial was by way of certiorari, and since error of law in itself was not a sound basis for pursuing certiorari, the proper interpretation of the relevant provisions of the Code was only likely to be heard in the context of an appeal such as this - Finally, the court was not persuaded that it would be acting outside its proper judicial role, or intruding on Parliament's legislative role, in deciding these issues - On the contrary, Parliament had a vested and public interest in ensuring that its laws were properly interpreted and applied - If the law was being misinterpreted, it was consistent with the mandate of both Parliament and the courts to ensure that this was corrected - See paragraphs 22 to 31.

Criminal Law - Topic 3500

Preliminary inquiry - General principles - Nature and purpose of preliminary inquiry - Garson, J.A., of the British Columbia Court of Appeal discussed the purpose of a preliminary inquiry - She summarized the 2004 amendments to the Criminal Code and the applicable jurisprudence - See paragraphs 100 to 137.

Criminal Law - Topic 3526

Preliminary inquiry - Jurisdiction - General - [See second Criminal Law - Topic 3576 ].

Criminal Law - Topic 3576

Preliminary inquiry - Evidence - General - At issue in this appeal was whether s. 540(7) of the Criminal Code permitted a preliminary inquiry judge to commit an accused for trial based only on a "paper record" where she was satisfied that the information contained in that record was "credible or trustworthy" and sufficient to order a committal - In particular, could she order committal without permitting the defence to cross-examine some or all of the "witnesses" who provided the information, where the stated purpose of the cross-examination was solely to test and further discover the Crown's case - The British Columbia Court of Appeal stated that "s. 540(7) is intended to provide the Crown with an alternative method of presenting its case at the preliminary inquiry, by filing "information" which would not previously have been admissible, as long as the preliminary inquiry judge is satisfied that the information is credible or trustworthy. The section does not displace the Crown's right to call viva voce evidence; nor does it require the Crown to proceed on paper. Rather, it gives the Crown an additional method of proceeding, taking into account such things as the nature of the case, the apparent reliability of the evidence and, presumably, considerations arising from any discussions with defence counsel" - See paragraph 62.

Criminal Law - Topic 3576

Preliminary inquiry - Evidence - General - The accused and a co-accused were charged on a four count information with break and enter, unlawful confinement, sexual assault and robbery - At issue in this appeal was whether s. 540(7) of the Criminal Code permitted a preliminary inquiry judge to commit an accused for trial based only on a "paper record" where she was satisfied that the information contained in that record was "credible or trustworthy" and sufficient to order a committal - In particular, could she order committal without permitting the defence to cross-examine some or all of the "witnesses" who provided the information, where the stated purpose of the cross-examination was solely to test and further discover the Crown's case - The British Columbia Court of Appeal held that "the preliminary inquiry judge was correct in concluding that, in some cases, the entirety of the Crown's case can be placed before the court in paper form pursuant to s. 540(7). She found that this was such a case and, insofar as that decision concerned the admissibility of evidence, she cannot be said to have acted without jurisdiction or in breach of the principles of natural justice. Questions concerning the admissibility of evidence are not jurisdictional questions; nor are questions concerning the credibility or trustworthiness of that evidence" - See paragraph 63.

Criminal Law - Topic 3576

Preliminary inquiry - Evidence - General - The accused and a co-accused were charged on a four count information with break and enter, unlawful confinement, sexual assault and robbery - The preliminary inquiry judge denied the accused an adjournment and ruled that he was not allowed to call evidence under s. 541(5) of the Criminal Code because discovery was not a purpose "relevant to the inquiry" with within the meaning of that section - A Supreme Court judge affirmed the ruling - The accused appealed - The question was whether the preliminary inquiry judge was correct in concluding that, by virtue of a combination of R. v. Stinchcombe (1991 SCC) and the 2004 amendments to the Code, the words "relevant to the inquiry" meant only "relevant to committal", and that an accused had no "right" to call witnesses under s. 541(5) if his sole purpose in doing so was to test or discover the Crown's case - The British Columbia Court of Appeal allowed the appeal - The preliminary inquiry judge erred in her interpretation of s. 541(5) by restricting the words "relevant to the inquiry" as referring only to the committal aspect of the inquiry, and, she committed jurisdictional error in refusing to allow the accused to call witnesses pursuant to that section - The secondary or ancillary role of the preliminary inquiry (discovery function) had not been superseded or extinguished by the enactment of the 2004 enactments - See paragraphs 76 to 98.

Criminal Law - Topic 3581

Preliminary inquiry - Evidence - Cross-examination of Crown witnesses - The accused and a co-accused were charged on a four count information with break and enter, unlawful confinement, sexual assault and robbery. The preliminary inquiry judge permitted the Crown to file its entire case in paper form without permitting the accused to cross-examine any Crown witnesses - The Supreme Court judge affirmed the ruling - The British Columbia Court of Appeal allowed the accused's appeal - In some cases, the entirety of the Crown's case could be placed before the court in paper form pursuant to s. 540(7) of the Criminal Code - The right of the Crown to tender its initial case by way of paper, however, did not detract from the right of the defence to apply, pursuant to s. 540(9) of the Code, to examine or cross-examine "any person whom the justice considers appropriate", "with respect to information intended to be tendered as evidence under subsection (7)" - It was apparent from the wording of s. 540(9) that it expressly anticipated that witnesses providing the information under s. 540(7) might be subject to cross-examination - The court agreed with the Crown that the absence of an application by the accused pursuant to s. 540(9) militated against a finding that the preliminary inquiry judge acted in excess of jurisdiction - However, the court was satisfied that the accused effectively asserted the right provided for under s. 540(9) - The preliminary inquiry judge failed to address that section, or to consider whether it would be "appropriate" for one or more of the witnesses to be called pursuant to it - She merely reiterated her view that discovery per se was not a proper function of the preliminary inquiry in circumstances where the Crown's evidence was sufficient for a committal - It was reasonable to infer from the ruling that had the preliminary inquiry judge turned her mind to the wording of s. 540(9), she would have denied the request to cross-examine any witnesses for discovery purposes in any event - The fact remained, however, that s. 540(9) appeared to have been overlooked in her analysis - See paragraphs 64 to 75.

Practice - Topic 8858

Appeals - Bar or loss of rights of appeal - Moot issues - [See Courts - Topic 2286 ].

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. 22].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 57 D.L.R.(4th) 231, refd to. [para. 26].

Evers v. Adult Forensic Psychiatric Services (B.C.) et al. (2009), 280 B.C.A.C. 216; 474 W.A.C. 216; 2009 BCCA 560, refd to. [para. 26].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [paras. 28, 115].

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. 48].

R. v. Earhart (B.) (2007), 305 B.C.A.C. 1; 515 W.A.C. 1; 2007 BCCA 614, refd to. [para. 48].

R. v. P.M. (2007), 222 C.C.C.(3d) 393; 2007 QCCA 414, refd to. [para. 71].

R. v. Forsythe, [1980] 2 S.C.R. 268; 32 N.R. 520, refd to. [para. 83].

R. v. Anderson (D.W.), [2001] B.C.A.C. Uned. 67; 2001 BCCA 176, dist. [para. 89].

R. v. Canning, 2005 ONCJ 144, refd to. [para. 94].

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. [paras. 95, 120].

R. v. S.J.L.-G. et al., [2009] 1 S.C.R. 426; 386 N.R. 1; 2009 SCC 14, refd to. [para. 95].

R. v. Howells (B.E.D.) et al., [2009] B.C.A.C. Uned. 90; 2009 BCCA 460, refd to. [para. 101].

R. v. Arviv (1985), 8 O.A.C. 92; 19 C.C.C.(3d) 395; 20 D.L.R.(4th) 422 (C.A.), refd to. [para. 112].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 30 C.C.C.(2d) 424, refd to. [para. 112].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34; 13 C.C.C.(3d) 161, refd to. [para. 115].

R. v. L.R. (1995), 127 D.L.R.(4th) 170; 100 C.C.C.(3d) 329 (Ont. C.A.), refd to. [para. 116].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 117].

R. v. Girimonte (F.) (1997), 105 O.A.C. 337; 121 C.C.C.(3d) 33; 37 O.R.(3d) 617 (C.A.), refd to. [para. 118].

R. v. S.A.B., [1998] B.C.J. No. 3087 (S.C.), refd to. [para. 119].

R. v. Gill (P.), [2006] B.C.T.C. Uned. 455; 69 W.C.B.(2d) 692; 2006 BCSC 927, refd to. [para. 123].

R. v. McKenzie (1989), 51 C.C.C.(3d) 285 (B.C.S.C.), refd to. [para. 132].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 133].

Cohen and Quebec (Attorney General), Re, [1979] 2 S.C.R. 305; 27 N.R. 344, refd to. [para. 150].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 540 [para. 35].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, vol. 124, 2nd Sess., 36th Parliament (Sept. 2008), p. 1645 [para. 127].

Canada, Hansard, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights, No. 62, 1st Sess., 37th Parliament (Oct. 2, 1994), p. 1650 [para. 128].

Canada, Hansard, Senate Debates, vol. 139, 2nd Sess., 27th Parliament (November 1, 2001), p. 1500 [para. 61].

Hansard - see Canada, Hansard, House of Commons Debates.

Library of Parliament, Parliamentary Research Branch, Legislative Summary, Bill C-15A: An Act to Amend the Criminal Code and to Amend Other Acts (Oct. 12, 2001), p. 13-15 [para. 129].

Paciocco, J., A Voyage of Discovery: Examining the Precarious Condition of the Preliminary Inquiry (2003), 48 Crim. L.Q. 151, pp. 81 [para. 125]; 184 [para. 96].

Pomerant, David, and Gilmour, Glenn, A Survey of the Preliminary Inquiry in Canada (1993), generally [para. 131].

Counsel:

D. Tarnow, for the appellant;

G. McKinnon, Q.C., for the respondent.

This appeal was heard at Vancouver, B.C., on February 13, 2012, by Prowse, Garson and Hinkson, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on June 21, 2012 and the following opinions were filed:

Prowse, J.A. (Hinkson, J.A., concurring) - see paragraphs 1 to 99;

Garson, J.A., dissenting in part - see paragraphs 100 to 157.