R. v. Arabsky

2014 BCSC 2620 R. v. Arabsky IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Arabsky, 2014 BCSC 2620 Date: 20141218 Docket: X076597 Registry: New Westminster Regina v. Bruce Steven Arabsky Before: The Honourable Mr. Justice Ball Oral Ruling Counsel for the Crown: D. Kier Counsel for the Defence: D. Le Dressay Place and Date of Trial/Hearing: New Westminster, B.C. December 18, 2014 Place and Date of Judgment: New Westminster, B.C. December 18, 2014 [1] THE COURT: The appearance today was scheduled for the delivery of reasons for judgment on the case of R. v. Bruce Steven Arabsky in relation to six allegations, charges under the Food and Drug Act, R.S.C. 1985, c. F-27. [2] The accused, through counsel, filed an application late on December 16th, which, as I told counsel, was brought to my attention a few minutes before court opened at 9:00 a.m. this morning. The accused seeks three things. He seeks to adjourn the reading of the reasons today, seeks to reopen the trial for the purpose of entering some evidence, and seeks to change his plea from not guilty to autrefois convict. [3] Apart from other issues, the timing of this application, if granted, would result in a considerable waste of judicial resources and court time. [4] The application to adjourn for a change of plea to autrefois convict or res judicata, as it was also put, is a submission which is based on guilty findings in the Provincial Court for charges against Mr. Arabsky under the Meat Inspection Act, R.S.C. 1985, c. 25 (1st Supp.) in that case making a false statement to an inspector. In this court, the charges relate to falsely labelling chicken as turkey and to selling (using the definition under the Food and Drug Act) that mislabelled chicken as turkey. [5] The elements of the offences, that is, the delicts which are charged, are fundamentally different notwithstanding that they arise out of a single fact scenario. That is not a surprise to anyone who has spent any time in the court system, and Mr. Kier was good enough to bring to my attention the case of R. v. McKinney (1980), 50 C.C.C. (2d) 576, which is an example where, as a result of a single discharge of a firearm, the accused was convicted of hunting out of season and hunting at night with lights. Again, two offences arising out of the same fact scenario where the delicts charged were different. [6] The submission that I have heard this morning on behalf of this accused in relation to autrefois convict or res judicata could well have been brought in a more timely manner. It is a plea which is available after trial, but the trial in this case took place in September. The other convictions took place in September. [7] I am satisfied the submission with respect to autrefois convict or res judicata is not based on a sound legal footing and I reject it as a basis for adjourning this matter at this time. [8] The reopening of the trial to change the evidence of the accused concerning his dealings with prior senior counsel in another matter was, as I raised during argument, a serious concern. I told defence counsel while he was making submissions that the suggestion that senior counsel has acted before a court placing a false document, according to the accused, and placing that document without the instructions of the accused before the court was a very serious allegation, a professional imputation of misconduct against that lawyer. It was an allegation of fraud on the court. That submission made by counsel was based on his client's evidence that the document placed before the court in a set of admissions and, in particular, paragraph 17 of that set of admissions was false. It was also very clear that Mr. Arabsky said he had not met with counsel in preparation of those admissions, that they were prepared on the instructions of others. [9] That situation would have been clear to anyone with a reasonable understanding of the legal system to know that a suggestion that a lawyer - any lawyer - had placed a false document before the court, knowing it was false and thereby creating a fraud on the court, is a very serious allegation. Allegations of that kind should be strictly proved. [10] It was part of the whole theme of Mr. Arabsky's defence in this case that others, not himself, had control of legal proceedings. Therefore, it was a very deliberate statement on his part to testify concerning the involvement of senior counsel and what had gone on, because that testimony was tailored to that theme. [11] Again, I am indebted to Mr. Kier for bringing forward an old chestnut, R. v. Hayward, (1993) 86 C.C.C. (3d) 193, where, at 198, the court says: Certainly, an application to reopen the evidence based on nothing more than a desire to reverse an earlier tactical decision, perhaps because of some comment made during argument, could properly be refused as being detrimental to the orderly conduct of the trial proceedings. [12] That is exactly what the application with respect to reopening the trial is here. At least that is what its effect would be. I reject that portion of the application. As a result, the application to adjourn this case is dismissed at this point in time. "Ball J."