R. v. Harrison

2017 BCSC 1308 R. v. Harrison IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Harrison, 2017 BCSC 1308 Date: 20170131 Docket: 33094 Registry: Williams Lake Regina v. Carl Harrison A publication ban has been imposed under s. 486.4(1) and 486.4(2) of the Criminal Code. Before: The Honourable Mr. Justice Voith Oral Reasons for Judgment Counsel for the Crown: A. Pace Counsel and Agent for the Accused: J. Pakenham T. Mason Place and Date of Application: Williams Lake, B.C. January 31, 2017 Place and Date of Judgment: Williams Lake, B.C. January 31, 2017 [1] THE COURT: The accused, Mr. Harrison, stands charged with one count of sexual assault and a second count of sexual touching. Both charges pertain to events that are alleged to have occurred between September 1, 2002 and December 31, 2005, in or near 100 Mile House, British Columbia. [2] The initial portion of the trial was heard before me for approximately three and a half days between July 11 to July 15, 2016 in Williams Lake, British Columbia. Williams Lake is a short distance from 100 Mile House. At the close of the Crown's case, an issue arose with respect to the accused's fitness to stand trial. That issue was addressed, pursuant to s. 672 of the Criminal Code, R.S.C. 1985, c. C-46, over the ensuing months as three separate medical reports were prepared and delivered by Dr. Morgan of the Forensic Psychiatric Services of British Columbia. The third of those reports dated December 22, 2016, concluded that Mr. Harrison fulfilled "the basic requirements of a finding of fitness to stand trial, albeit at a very rudimentary level". [3] Thereafter, dates were secured, with the agreement of counsel, to complete the trial on February 7 and 8, 2017 in Williams Lake. Shortly thereafter, I advised counsel that I would, for medical reasons, be unable to travel to Williams Lake and that that might be the case for up to eight or nine months. I offered counsel two primary options. First being to move the trial to Vancouver on February 6 to 8, 2017 where I would hear the balance of the trial. The second being that I would determine that there had been a mistrial and the trial would commence again with a new trial judge. [4] I advised counsel if they chose the second option, the Chief Justice would make every effort to provide a trial judge at the earliest date that was convenient for counsel. [5] The Crown applied for change of venue pursuant to s. 599 of the Criminal Code. Counsel for the accused, in turn, opposed that application and applied for a mistrial. The determination and resolution of these applications turn on competing legal principles and factual circumstances. [6] Let me first turn to the legal framework for the mistrial application. Trial judges have a broad common-law power to declare a mistrial; see R. v. Burke, 2002 SCC 55 at para. 74. Mistrials have been ordered in a range of situations; however the test that unifies these circumstances is whether "there is a real danger" of prejudice to the accused, or a danger of a miscarriage of justice; see Burke at para. 74. [7] When addressing that question a trial judge is required to examine the surrounding circumstances. The prospect of injustice to an accused is a major factor to be considered, given the resource asymmetry between the state and the accused. However, other factors such as the seriousness of the offence, protection of the public, and bringing the guilty to justice are other factors that are important; see Burke at para. 75. [8] Let me turn briefly to the authorities that are relevant to a change of venue. There is no common-law right to change a trial's venue; see R.E. Salhany, Canadian Criminal Procedure, 6th ed (Toronto, Ont.: Thompson Reuters Canada Ltd., 2013), ch. 2 at 19. That rule occasionally worked injustice in those instances where the notoriety of the accused poisoned the jury pool, impairing the possibility of empanelling an unbiased jury. To avoid this potential injustice, s. 599 of the Criminal Code was enacted. That provision permits the Crown, or the accused, to apply to the court for a change of venue. Under that provision the court may, at any time before or after the indictment is filed, order the trial to be held in another territorial division of the province "if it appears expedient to the ends of justice". [9] Courts are, however, reluctant to change the place of trial "since the county or district where the offence is alleged to have been committed has prima facie jurisdiction"; see Canadian Criminal Procedure, ch. 2 at 20. The public aspect of a criminal act particularly motivates this reluctance. Such acts are, in part, a wrong against the community. It serves the interests of justice to enable that community, in a sense, to be able to participate in the adjudication process. The ability to "participate" reinforces the rule of law and, to some extent, may serve to heal a wrong. [10] The seminal authority on changing the venue for trial is R. v. Harris (1762), 97 E.R. 858 (Eng. K.B.), where Lord Justice Wilmot said at page 860: There is no rule better established than 'that all causes shall be tried in the County, and by the neighbourhood of the place where the fact is committed' and therefore that rule ought never to be infringed, unless it plainly appears that a fair and impartial trial cannot be had in that County. [11] That statement has more recently been affirmed in R. v. Eng, 1999 BCCA 425 at para 12. In R. v. Costello, 2005 BCSC 694 at para. 13, the court said, "the onus is on the accused to establish on the balance of probabilities that a change in venue is "expedient to the ends of justice". That test is set out in s. 599(1) of the Criminal Code". [12] The proposition that a change in venue may be ordered if it is "expedient to the ends of justice", "confers a broad discretion upon the court but in practice a change of venue has always been exceptional"; see Steve Coughlan, Criminal Procedure, 2nd ed (Toronto: Irwin Law Inc., 2012) at 52. [13] Nevertheless, in R. v. Adams, 1946 CarswellOnt 16, [1947] 1 D.L.R. 634, Justice McRuer wrote: 13 There may be cases where the inconvenience to a party may be so great that without a change in the place of trial there may be a denial of justice. In such cases a "full" trial cannot be had. [14] In R. v. Taylor, 2000 BCSC 1836, the accused sought a change in venue under s. 599 of the Criminal Code arguing or relying on both adverse local publicity and his illness. Mr. Taylor had chronic health problems and the location or the venue of the trial exacerbated those issues. This, the accused argued, impaired his ability to make full answer and defence to the charges he faced. While the application was dismissed, Mr. Justice Halfyard did consider Mr. Taylor's health problems for the purposes of the s. 599 application. [15] The present circumstances, where I am unable to travel to Williams Lake for an extended period of time as a result of health concerns would, I am satisfied, satisfy the requirements of s. 599(1) and support a change in venue. In particular, that circumstance would cause a change in venue to be "expedient to the ends of justice". Nevertheless, the authorities make clear that both a mistrial and a change in venue are significant and exceptional orders. [16] There are several factors that militate in favour of directing a mistrial. They include the fact that Williams Lake is close to where Mr. Harrison lives and where the offences are alleged to have occurred. Mr. Harrison is 77 years old. His hearing is impaired. The medical reports, I referred to earlier, reveal that he has high blood pressure and suffers from atrial fibrillation. In addition, and importantly, he suffers from serious dementia and the testing that Dr. Morgan administered to Mr. Harrison identified that Mr. Harrison is now cognitively impaired. The affidavit that was filed by Mr. Harrison's brother, who is 79 years old, reveals that Mr. Harrison is easily confused and cannot care for himself. Mr. Harrison's brother, or his wife, prepares Mr. Harrison's meals and they ensure he takes his medication. Mr. Harrison's brother drives Mr. Harrison to his court appearances, to meet with his bail supervisor and to all medical appointments. [17] Mr. Harrison's brother also suffers from various health conditions and would be unable to drive to Vancouver. Finally, Mr. Harrison's brother lives on a fixed pension and his means are limited. [18] These various conditions, in combination, require that Mr. Harrison be cared for and, as I have said, that care is provided to Mr. Harrison by his brother. If the trial were to be held in Vancouver, both Mr. Harrison and his brother would have to travel to Vancouver for several days. Mr. Harrison is also impecunious. In order for Mr. Harrison and his brother to come to Vancouver, they would have to secure some funding from the province. [19] I was advised that some funding could and would be made available to cover travel expenses. Such funding would be available for Mr. Harrison and his counsel. No such provision has yet been made for Mr. Harrison's brother, but it appeared that that too would likely be considered appropriate if appropriate medical and other supporting documentation were made available. [20] Several further considerations are relevant. One of the material witnesses that the defence intends to call, an RCMP officer who was recently transferred to Inuvik, would not be available during the February 6 to 8, 2017 period. For various reasons defence counsel has had difficulty securing an interprovincial subpoena for this RCMP officer. Counsel for Mr. Harrison is adamant that this officer attend at trial and that a video link would not be adequate or appropriate to hear his evidence. Still further, the defence intends to call a further witness. That witness would also have to travel to Vancouver. That witness would also have to be re-served with a subpoena compelling his attendance in Vancouver. [21] Finally, counsel for Mr. Harrison has recently filed two Charter applications, to which I will return, and he argues that the three days that are presently available for trial would no longer be sufficient. [22] On the other hand, several considerations militate against a mistrial and in favour of a change in venue. The offences that Mr. Harrison has been charged with are serious. The Crown's case has been completed. Its witnesses would have to be recalled. Having said this, the Crown was able to complete its case in less than four days, or in a relatively short period of time. I am particularly mindful that the complainant, who is still in her mid-teens, would have to testify again. I am mindful of the inevitable emotional toll that this would take on her. [23] Neither of the options before me is palatable. Both have significant disadvantages and difficulties. On balance, however, I consider that both the authorities I have referred to, as well as the considerations I have identified, support the mistrial application that was brought on behalf of Mr. Harrison. I am concerned that a change in venue would prejudice the accused. Furthermore, I do not consider the Crown has satisfied the onus that rests with it and that would justify a change in venue. [24] Three further matters arise. In the last week, as I have said, counsel for the accused has filed an application seeking further disclosure from the Crown, or alternatively, a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Counsel has also filed an application seeking a stay on the ground that the accused's right to be tried in a reasonable time as protected by s. 11(b) of the Charter has been jeopardized. [25] By virtue of the order I have just made, I do not consider that it would be appropriate for me to deal with either of these matters. They should be addressed by the trial judge who hears this matter when the matter is reset. [26] I will state that I consider it important that counsel, on the delay application, obtain the transcripts for the various hearings, applications and conferences that were made during the time that Mr. Harrison's fitness was being assessed and thereafter. The issue of delay was raised during the context of some of those hearings. [27] Finally, I return to the issue of Mr. Harrison's fitness to stand trial. When Mr. Harrison's fitness to stand trial was initially being discussed his counsel took the position that because he was uncertain he could get instructions from Mr. Harrison he would be unable to act for Mr. Harrison. Accordingly, he sought to get off the record. He suggested that if it was ultimately determined that Mr. Harrison was fit he might then again act for the accused. His application to withdraw was set down for hearing. Before that hearing, Dr. Morgan delivered his last report and the conclusions I referred to. At that point, counsel for Mr. Harrison withdrew his application to get off the record and accepted, as I understood it, Dr. Morgan's conclusions. Nevertheless, to the extent that the relevant authorities require that the court be satisfied an accused is fit to stand trial, I wish to make clear that I am so satisfied. That conclusion is necessarily based on Dr. Morgan's views or opinions as expressed in his reports, and in particular, in his final report. "Voith J."