R. v. Alkhalil

2020 BCSC 84 R. v. Alkhalil

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Alkhalil, 2020 BCSC 84 Date: 20200121 Docket: 27393-54 Registry: Vancouver Regina v. Rabih Alkhalil (a.k.a. Robby Alkhalil), Dean Michael Wiwchar and Larry Ronald Amero Restriction on Publication: A publication ban has been mandatorily imposed under s. 648(1) of the Criminal Code of Canada, restricting the publication, broadcasting or transmission in any way of any portion of the trial at which the jury is not present. This publication ban applies until the jury retires to consider its verdict. Before: The Honourable Madam Justice Maisonville Ruling Re: Access to Disclosure - Laptop with Hard Drive of Disclosure Counsel for the Crown: D.A. Jardine, Q.C. D. Darby A. La Bar L. Fillingham Counsel for the Accused, Rabih Alkhalil (a.k.a. Robby Alkhalil): A. Tolliday B. Blok Place and Dates of Trial/Hearing: Vancouver, B.C. January 15 and 17, 2020 Place and Date of Ruling: Vancouver, B.C. January 21, 2020 introduction [1] Rabih Alkhalil (a.k.a. Robby Alkhalil) is seeking an order from this Court that he be allowed to keep a laptop in his cell to review disclosure in relation to these proceedings. background [2] On January 17, 2012, Sandip Duhre ("Duhre") was shot and killed at the Sheraton Wall Centre in Vancouver. Following a lengthy investigation, Mr. Alkhalil was charged as follows: Count 1 Rabih Alkhalil (a.k.a. Robby

Alkhalil) and Dean Michael Wiwchar, on or about the 17th day of January, 2012, at or near Vancouver, in the Province of British Columbia, did commit the first degree murder of Sandip Duhre, contrary to s. 235 of the Criminal Code, R.S.C. 1985, c. C-46; Count 2 Larry Ronald Amero, between the 6th day of August 2011 and the 18th day of January, 2012, at or near Vancouver and Surrey, in the Province of British Columbia, and elsewhere in Canada, did unlawfully conspire together with Rabih Alkhalil (a.k.a. Robby Alkhalil) and Dean Michael Wiwchar and other persons, to commit the murder of Sandip Duhre, contrary to s. 465(1)(a) of the Criminal Code; Count 3 Dean Michael Wiwchar and Larry Ronald Amero, between the 6th day of August, 2011 and the 8th day of August 2012, at or near Vancouver and Surrey, in the Province of British Columbia, and elsewhere in Canada, did unlawfully conspire together with Rabih Alkhalil (a.k.a. Robby Alkhalil) and other persons, to commit the murder of Sukhveer Dhak, contrary to s. 465(1)(a) of the Criminal Code. [3] Mr. Alkhalil is currently serving a life sentence from which his is appealing, and has three pending cases in three different provinces in Canada. Mr. Alkhalil was initially detained at the Regional Reception Centre ("RCC"), a federal institution in St. Anne, Quebec. He is presently detained at the Montreal Detention Centre ("MDC") in Montreal,

Quebec. [4] While in custody at the RCC, Mr. Alkhalil was provided disclosure materials on a laptop. When new production of disclosure was prepared, a laptop containing that disclosure would be shipped to the RCC by Crown Counsel in BC and exchanged for the laptop containing the previously disclosed material. [5] Mr. Alkhalil was transferred to MDC on April 25, 2019, and remains there at present. When he arrived, he was advised that the institution did not permit inmates to have laptops with them in their cells. As a result, Crown Counsel in BC provided disclosure materials on an external hard drive that could be reviewed on the computers located in MDC's computer lab. [6] Four days after arriving at MCD, Mr. Alkhalil brought an application before Judge Jacques of the Quebec Provincial Court in relation to proceedings against him in that province for an order that he be granted access to a laptop while in custody. That order was granted by Judge Jacques on May 21, 2019. Mr. Alkhalil then used that laptop to review the materials disclosed in the Quebec action, as well as the material provided on external hard drives by the BC Crown in relation to these proceedings. [7] In early October 2019, contraband was located in Mr. Alkhalil's cell. As a result, corrections staff confiscated his laptop. [8] On October 15, 2019, Mr. Alkhalil's counsel brought an application before Judge

Jacques for the return of his laptop. I understand from counsel submissions that Judge Jacques refused the application, ruling that the laptop was no longer necessary given the stage of the proceedings in Quebec, but that she might revisit that finding if the need arose. She further determined that she did not have the jurisdiction to make orders regarding the disclosure of materials with respect to the other proceedings against Mr. Alkhalil.

POSITION OF THE PARTIES [9] Counsel for Mr. Alkhalil seeks an order that Mr. Alkhalil be granted access to a laptop to review the disclosure materials in these proceedings pursuant to s. 527(5) of the Criminal Code, R.S.C. 1985, c. C-46. In oral submissions, counsel argued that the court also has inherent jurisdiction to give directions with respect to the manner in which a prisoner is kept in custody. Counsel further submits that not having access to a laptop will impair Mr. Alkhalil's ability to make full answer and defence. [10] Crown Counsel in BC does not take a position on this application. Counsel for the Attorney General of Quebec wrote to this Court indicating their position that only a judge of the Quebec Provincial Court can revise Judge Jacques' decision on Mr. Alkhalil's laptop access.

ANALYSIS Application of s. 527(5) of the Criminal Code [11] Section 2 of the Criminal Code provides: In this Act, [ ] prison includes a penitentiary, common jail, public or reformatory prison, lock-up, guard-room or other place in which persons who are charged with or convicted of offences are usually kept in custody [12] The relevant portions of s. 527 of the Criminal Code read as follows: 527 (1) A judge of a superior court of criminal jurisdiction may order in writing that a person who is confined in a prison be brought before the court, judge, justice or provincial court judge before whom the prisoner is required to attend, from day to day as may be necessary, if (a) the applicant for the order sets out the facts of the case in an affidavit and produces the warrant, if any; and (b) the judge is satisfied that the ends of justice require that an order be made. (5) Where the appearance of a prisoner is required for the purposes of paragraph (1)(a) or (b) the judge or provincial court judge shall give appropriate directions in the order with respect to the manner in which the prisoner is (a) to be kept in custody, if he is ordered to stand trial; or (b) to be returned, if he is discharged on a preliminary inquiry or if he is acquitted of the charge against him. [13] Section 527(1) empowers a judge of a superior court to order that a person who is confined in a prison, as

defined in s. 2, be brought before the court before whom the prisoner is required to attend, from day to day "as may be necessary", pursuant to an application and "if the ends of justice require that an order be made". [14] In the case of a prisoner who is not a witness, his appearance in court may be required for a number of reasons, for example, first appearance, bail hearings or bail reviews, preliminary inquiry, pre-trial conferences or motions, and trial. In this case, Mr. Alkhalil has regularly been appearing by video link. In such a case, s. 527(5) provides that the judge shall give appropriate directions with respect to the manner in which the prisoner is to be kept in custody. [15] In R. c. Simpson, 2014 QCCS 6699, Justice Stober noted at para. 135 that s. 527(5) should be interpreted in "liberal and common sense manner, using a contextual approach, in order to best achieve its objectives". In circumstances where an accused was remanded in a provincial detention centre awaiting trial, Stober J. concluded that s. 527(5) empowered a court to make orders respecting not only the place of detention, but also facilities such as access to a laptop computer (at paras. 138-140). [16] I find that I am able to resolve Mr. Alkhalil's application to have access to a laptop computer in his cell on s. 527(5). I find that the "ends of justice" require such an order in this case given

the amount of disclosure, which is ongoing. I reject the Attorney General of Quebec's submission, insofar as it presupposes that an order granting Mr. Alkhalil a laptop to review disclosure is part of Judge Jacques' matter, which can only be revised by a judge of the Quebec Provincial Court. Judge Jacques' decision was made in the context of different proceedings against Mr. Alkhalil that were occurring in Quebec. At the time of Mr. Alkhalil's application for an order to have the laptop returned, Judge Jacques determined that the proceedings were at a stage where Mr. Alkhalil did not require a laptop to review disclosure. [17] I find that I am not precluded from making an order pursuant to s. 527(5) regarding the conditions in which Mr. Alkhalil is to be kept in custody in relation to these proceedings, which are distinct and apart from the matter before Judge Jacques. As well, unlike in the proceedings before Judge Jacques, these proceedings are not at a stage where Mr. Alkhalil does not require access to a laptop to review disclosure. Crown has disclosed in excess of tens thousand documents in this case. I find that the only practical way for Mr. Alkhalil to access these documents, and therefore to ensure his right to make full answer and defence, is by granting him access to a laptop. [18] In submissions, it was argued that there is a territorial limit to the court's ability

to make this order. I disagree. This court has an obligation to ensure that Mr. Alkhalil, as an accused in the proceedings before me, receives a fair and proper trial and is able to make full answer and defence. [19] The proposition that the presiding judge has the authority to make such an order has been affirmed in the case law. [20] In R. v. Petrin, 2013 ABQB 689, the accused made an application under s. 527 of the Criminal Code seeking a transfer from a correctional centre in Saskatchewan to one in Alberta to be able to consult with his lawyer. Justice Veit states at para. 20 that courts have the power under s. 527 to make such an order, which necessarily affects entities in another jurisdiction, where it is required to ensure a fair trial. She notes that the courts generally do not have the authority to make orders over the place and manner of detention of prisoners, but that there is a distinction between prisoners who are convicts and prisoners who are accused. [21] A similar approach was adopted by Justice Berger in R. v. Levesque, [1980] B.C.J. No. 842 (S.C.). In Levesque, the accused was serving a sentence for a drug-related conviction in Quebec when he was charged with attempted murder in BC. Pursuant to s. 460(5) [now s. 527(5)], the accused sought an order in a BC court that he be transferred to a BC institution to be able to consult with his lawyers in preparation

for trial. Justice Berger granted that application, drawing on the unreported decision of Chief Justice McEachern in R. v. Newman et al. [unreported, December 17, 1979, at the Vancouver Assizes]: [10] Chief Justice McEachern, , directed that several of the accused in that case be held at the Lower Mainland Regional Correctional Centre, though some of them were serving sentences in Kent Institution. The Chief Justice said: I am concerned only with the conduct of the trial and I am only concerned with ensuring as best I can that these accused receive a fair and proper trial. In that case the accused, being held at Kent, were being driven in to the Court House in Vancouver each day and then back to Kent each afternoon. This meant that they were on the road for 4 or 5 hours a day. The Chief Justice said: I do not regard it as reasonable to expect them to withstand the rigours of a trial, arduous as that is for counsel, let alone for the accused, if they are in a regime that requires them to be on the road as it were for up to 4 to 5 hours minimum per day in addition to the usual length of time in Court, and ... I would order that they be moved for the period of the trial to the Lower Mainland Regional Correctional Centre. Chief Justice McEachern's order entailed the transfer of the accused from a federal to a provincial institution. He based his decision on his inherent

jurisdiction to ensure that the accused received a fair and proper trial and that they were able to make full answer and defence to the charge they faced. I think the powers that a County Court Judge may exercise are, like those of a magistrate, entirely statutory. But the judgment of Chief Justice McEachern indicates why Section 460 should be given a fair, large and liberal interpretation, so that trial judges will be able to make effective orders under s. 460(5). [22] In sum, this court has an obligation to ensure the ends of justice are met and that Mr. Alkhalil receives a fair trial. While this order necessarily affects entities in another jurisdiction, this court has the power under s. 527(5) to make orders regarding the conditions under which Mr. Alkhalil is to be kept in custody where it is necessary to guarantee his right to make full answer and defence. Inherent jurisdiction of the Superior Court [23] I have relied on s. 527(5) of the Criminal Code, which should be sufficient to resolve the present application. I nonetheless note that this court has additional jurisdiction to render the aforementioned order. The inherent jurisdiction of a superior court consists of a residual source of powers which the court may utilize as required when it is just or equitable to do so, authorizing courts "to uphold, to protect and to fulfil the judicial function of administering

justice according to law in a regular, orderly and effective manner". These powers do not originate in a statute or a rule of law but flow from the very nature of the court as a superior court of law. A superior court "may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision": R. v. Carron, 2011 SCC 5 at para. 24. [24] In Ontario v. Criminal Lawyers' Association, 2013 SCC 43, Justice Karakatsanis stated at para. 26: [T]he superior courts' inherent jurisdiction must also support their independence in safeguarding the values and principles the Charter has entrenched in our constitutional order. Thus, the inherent jurisdiction of superior courts provides powers that are essential to the administration of justice and the maintenance of the rule of law and the Constitution. It includes those residual powers required to permit the courts to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner [25] In this matter, the court may exercise these residual powers as is necessary for the just and equitable administration of justice. The court may exercise its inherent jurisdiction regarding matters which are governed by law, so long as the statutory enactment is not infringed: Carron at para. 32. [26] The right to make full answer and defence is a principle of fundamental justice protected by s. 7 of the Charter: R. v. Mills, [1999] 3 S.C.R. 668 at para.

69. In order to make full answer and defence, the accused must be able to follow proceedings and have knowledge of the evidence alleged against him: Criminal Code, s. 650(3). The accused is thus entitled to have before him the full case to meet before responding to the Crown's case. This right to full disclosure has been entrenched as a constitutional right: R. v. Stinchcombe, [1991] 3 S.C.R. 326 at 336. Clearly, access to disclosure follows the right to receive disclosure. The evidence is of no use to Mr. Alkhalil if he is not able to see or review it. [27] Superior Courts have exercised their inherent jurisdiction to permit an accused to use a laptop computer in his cell: Desjardins v. Landreville, 2013 QCCS 4872 at para. 29; Simpson at para. 143. [28] In addition to my ability to make this order pursuant to s. 527(5) of the Criminal Code, this court has inherent jurisdiction to make the order to safeguard Mr. Alkhalil's Charter rights and ensure the just and equitable administration of justice.

CONCLUSION [29] In conclusion, I make the following orders: 1) The person having custody of Rabih Alkhalil (a.k.a. Robby Alkhalil) must ensure that Mr. Alkhalil is permitted to have access to a laptop containing his disclosure materials with respect to this indictment (the "Disclosure Laptop"); 2) The person having custody of Rabih Alkhalil (a.k.a. Robby Alkhalil) must ensure that Mr. Alkhalil is permitted to use the Disclosure Laptop in his cell. "Maisonville J."