R. v. VandenElsen-Finck

R. v. VandenElsen-Finck Court Supreme Court Date 2005-01-11 Citation 2005 NSSC 73 Docket CR 226996 Judge/Registrar/Adjudicator Kennedy, Joseph P. (Honourable Chief Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. VandenElsen-Finck, 2005 NSSC 73 Date: 20050111 Docket: CR. 226996 Registry: Halifax Between: Carline Antonia VandenElsen-Finck and Lawrence Ross Finck Applicants and Her Majesty The Queen, Nova Scotia Crown Attorney Nova Scotia Sheriff’s Department, East Coast Forensic Psychiatric Hospital (Capital District Health Authority), and Central Nova Scotia Correctional Facility Respondents Judge: The Honourable Chief Justice Joseph Kennedy Heard: January 7, 11, 2005 in Halifax, Nova Scotia Oral Decision: January 11, 2005 Written Release: April 8, 2005 Revised Decision: The text of the original judgement has been corrected incorporating the text of the erratum (released April 13, 2005). Counsel: Lawrence Finck and Carline VandenElsen-Finck, self-represented Leonard J. MacKay for the Crown Edward Gores with Jacqueline Scott for the Attorney General By the Court: (Orally) [1] This is the application on the part of Ms. VandenElsen and Mr. Finck, seeking to have this Court issue a subpoena requiring the Minister of Justice for the Province of Nova Scotia to be made available as a witness in an on-going habeas corpus application, presently before Justice David MacAdam of this Court. The Minister was represented by counsel before me, and counsel on behalf of the public prosecution service also attended. [2] There is no dispute as to the reality that a representative of the Crown, including the Minister of Justice, is a competent and compellable witness for the applicants, if that individual has material relevant evidence to be given in respect to the issues raised by the larger application. [3] Section 698(1) of the Criminal Code states as follows: Where a person is likely to give material evidence in a proceeding to which this Act applies, (that Act being the Criminal Code) a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence. [4] Where a person is likely to give material evidence; ‘likely’ and ‘material’ being the operative words. It is implicit in this section (S. 698(1)) that before issuing a subpoena, the justice or judge as the case may be, having the power to issue, conduct an inquiry to determine if the proposed witness has material evidence to give. This hearing serves as that inquiry. [5] I am satisfied that the burden of establishing that the potential witness is likely to give material relevant evidence rests with the parties seeking to call the witness. R. v. Brown [1997] O.J. 6171 (Ont. Gen. Div.) and numerous other cases establish the burden. The threshold “likely” is not very high. [6] I have inquired of these self-represented applicants as to what material relevant evidence the Minister is likely to give in this matter. The applicants made numerous, submissions before me, in the effort to satisfy the burden upon them. With one exception which I will speak to subsequently, I have concluded that none of these submissions, and I do not intend to repeat them, satisfies me that the Minister had likely material evidence to give. It was the position of counsel for the Minister that his client, the Minister, had properly delegated to bureaucrats within his department, the authority and power to oversee the functions and facilities that were the subject of these submissions and that if there was any material relevant evidence to give, it would be the officers of the Correctional Service Division of the department who would be in a position to provide that evidence. [7] Minister’s response, indicated through his counsel, is that he had no direct knowledge and would have to refer the questions to his operatives. I accept the submission of this officer of the court in that respect. The one exception that I refer to is as follows: Section 27(1) on the Regulations made pursuant to s. 22 of the Corrections Act. It sets out circumstances in which the Superintendent of a Provincial Correction Facility may place an inmate in segregation. Regulation 27(4) reads: Where an inmate is placed in segregation for a continuous period of thirty days, the Superintendent shall report to the Minister the reasons for the continued segregation of the inmate. [8] The applicant, Larry Finck, submits that he has been segregated in a provincial institution. He has been in segregation for a period of time that would cause that section to be applicable. He wants to ask the Minister if the Minister received a report from the Superintendent specific to the segregation of Larry Finck, pursuant to s. 27(4) of the Regulations. [9] This would seem to be a question of likely relevance to the larger application. Counsel for the Minister recognizing this, I presume, has responded to the submission. He says, counsel for the Minister says, he is authorized by the Minister to say for record purposes, on the record, speaking for the Minister, that the Minister has not received such report. [10] That question having been answered, I conclude that the Minister, then has no likely material evidence to give, specific to the larger application, and I will not issue a subpoena causing him to be a witness therein. I will not issue the subpoena sought. It would seem that if the Department of Justice has material evidence to provide at that habeas corpus hearing, it would be officers of the Correction Division who would be in the position to provide that information. Again, operative word being ‘if’. I’ll say, finally, that the Minister of Justice of this Province should not be required to attend as a witness in our courts, without good reason. Otherwise he would be here much of the time. No subpoena. Thank you. Chief Justice Kennedy