R. v. Pearson

2020 BCSC 700 R. v. Pearson

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Pearson, 2020 BCSC 700 Date: 20200505 Docket: 30345W Registry: Vancouver Regina v. Derrick Ronald Pearson Before: The Honourable Mr. Justice Dley Oral Reasons for Judgment Counsel for the Crown: B.L. Macdonald Counsel for the Accused (Applicant): S. Tate Place and Date of Hearing: Vancouver, B.C. April 22, 2020 Place and Date of Judgment: Vancouver, B.C. May 5, 2020 [1] Section 525 of the Criminal Code, R.S.C. 1985, c. C-46 [Code] mandates an application for a pre-trial detention review for a detained accused if the trial had not commenced within 90 days. The issue in this hearing is to determine whether the trial has commenced such that s. 525 no longer applies. [2] For the reasons that follow, a detained person is not entitled to a s. 525 review after a voir dire has commenced. Background Facts [3] Mr. Pearson and Ms. Dorrington were charged with a number of offences, including dangerous driving and possession of stolen property. They elected to be tried by judge alone. [4] All parties had agreed that the matter would proceed with the calling of evidence within a voir dire. The accused intended to argue that the owner of a stolen truck had effected a citizen's arrest and assaulted them. In the circumstances, the accused argued that their Charter rights had been breached and they were entitled to a stay of proceedings,

or, in the alternative, a reduced sentence if found guilty. [5] Counsel for Ms. Dorrington stated that if her application to exclude evidence was not successful, then the evidence within the voir dire could be rolled over into the trial proper. [6] If his application for exclusion was unsuccessful, Mr. Tate, on behalf of Mr. Pearson, acknowledged that portions of the evidence taken in the voir dire would be rolled over into the trial proper. He did not expect a recall of evidence that did not need to be repeated. However, Mr. Tate expressed his reservations about the evidence of Mr. Pearson's co-accused and cautioned that he was not aware of what Ms. Dorrington would say. He reserved his decision as to whether the evidence of either or both of the accused could be part of the trial proper. [7] The Crown provided an opening and called its entire case within the voir dire. Both of the accused were permitted to cross-examine the witnesses at length. The accused both testified. The applications to exclude evidence were dismissed. [8] Ms. Dorrington has entered pleas and is no longer part of this proceeding. [9] Mr. Pearson had been granted a hearing date pursuant to s.

525. Mr. Pearson simply adjourned the s. 525 hearing as this matter proceeded through the voir dire. [10] Mr. Pearson now seeks to have his detention reviewed. The Crown says that he is not entitled to have his detention reviewed under s. 525 because the trial has commenced. [11] Mr. Pearson's position is that trial has not commenced because the evidence was taken entirely within the voir dire. He also argues that he was entitled to a s. 525 hearing but it had simply not been scheduled at the time the voir dire began. Purpose of a s. 525 Review [12] In R. v. Myers, 2019 SCC 18, the Court reviewed the purpose of s. 525 and concluded that it was to prevent prisoners from languishing in detention prior to trial and to ensure a prompt trial. At paras. 21-24, the Court stated: [21] Section 525 Cr. C. was first introduced in the 1972 Bail Reform Act, S.C. 1970-71-72, c.

37. In a speech at second reading in the House of Commons, then Justice Minister John N. Turner summarized the purposes of the Act as follows: The objectives of this bill are fourfold: First, to avoid unnecessary pre-trial arrest and detention; second, to ensure that in cases where arrest with or without warrant has taken place, the person accused, whatever his means, is not unnecessarily held in custody until his trial; third, to ensure an early trial for those who have been detained in custody pending trial; fourth, to provide statutory guidelines for decision making in this part of the criminal law process relating to arrest and bail and thereby preclude the possibility of "discretionary injustice". (House of Commons Debates, Vol. III, 3rd Sess., 28th Parl., February 5, 1971, at p. 3116) [22] This Court has recognized that Parliament's overarching vision of the Bail Reform Act was the creation of "a liberal and enlightened system of pre-trial release" in which accused individuals would normally be granted bail: R. v. Morales, [1992] 3 S.C.R. 711, at p. 725, quoting R. v. Bray (1983), 40 O.R. (2d) 766 (C.A.), at p. 769; Antic, at para.

29. The purpose of that Act, which was influenced by both the academic work of Professor Martin L. Friedland and the findings of the Ouimet Report, as delivered by the Canadian Committee on Corrections examining the law on bail, was to reform a system that many experts saw as punitive, arbitrary, and inconsistent with the presumption of innocence: M. L. Friedland, Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates' Courts (1965); Report of the Canadian Committee on Corrections -- Toward Unity: Criminal Justice and Corrections (1969). There was also particular concern regarding the relationship between prolonged pre-trial detentions and induced guilty pleas. In Minister Turner's words: there is an indication that those who are held under pre-trial detention will have, on the basis of statistics, a lesser opportunity for an acquittal and, certainly, they will have less of an opportunity to present a reasonable defence and assemble the evidence necessary for that defence. I think that we cannot ignore, either, Mr. Speaker, the high incidence of guilty pleas by persons who are detained and kept in custody under pre-trial detention. [p. 3115] [23] The third purpose of the Bail Reform Act as articulated by Minister Turner -- to ensure an early trial for those who have been detained in custody -- is of specific relevance to this appeal. It is a longstanding principle of our criminal justice system that individuals in pre-trial custody should be given a certain priority in scheduling trials. This general guiding premise has not been displaced by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R.

631. Sections 525(9) and 526, which confer on the reviewing judge a discretion to give directions for expediting the trial of and any proceedings in relation to an accused, continue to operate as a reflection of that principle. In discussing these provisions, Minister Turner stated specifically: [T]here are important new proposals in the bill which provide that where an accused does not achieve bail after an arrest, there are methods for expediting his trial .... The provisions of the bill also ensure that where an accused is being held in custody pending his trial, or pending an appeal of his conviction, the situation must be reviewed by the courts within set periods of time, and directions may be given by the courts for getting the case on to trial. [p. 3117]. [24] Regardless of which test is applied, courts across Canada share an overarching consensus that the purpose of the s. 525 hearing is to prevent accused persons from languishing in pre-trial custody and to ensure a prompt trial: see e.g., Fraser Regional Correctional Centre v. Canada (Attorney General), 1993 CanLII 354 (B.C.S.C.), at pp. 2-3; Gill, at para. 3; Sawrenko, at para. 26 (CanLII); Sarkozi, at paras. 8-11 (CanLII); Haleta, at paras. 8-10. It is, moreover, clear that Parliament sought to achieve this purpose by subjecting lengthy pre-trial detentions to judicial oversight at set points in time, by affording

an opportunity to have a judge consider whether the continued detention of an accused person is justified, and by conferring on the judge a discretion to expedite the trial of an individual in pre-trial detention. [13] The detention review provisions set out in ss. 520-525 are designed to ensure that the accused has ongoing access to bail. Section 520 allows an accused to have his detention reviewed before trial on the basis that the detaining judge made an error of law, the decision was clearly inappropriate, or there has been a material and relevant change in circumstances: R. v. St-Cloud, 2015 SCC 27 at paras. 6, 121. Section 525 requires the jailor holding the detainee to bring his or her status before the court to determine if continued detention is justified pending trial. Section 523(2) allows an accused to apply to the trial judge for his or her release. [14] It is apparent that a s. 525 hearing is only with respect to pre-trial custody and, once the trial begins, a hearing under that section is no longer available. The accused continues to have the ability to apply for bail under s. 523(2) during the trial. When Does the Trial Commence? [15] The question of when a trial commences is dependent on the section of the Code under consideration: Basarabas and Spek v. The Queen, [1982] 2 S.C.R. 730 at 740. Although the Court in Basarabas was addressing the commencement of a

jury trial, s. 525 does not distinguish between jury trials and trials by judge alone. This general principle should apply equally in either case. Thus, s. 525 must be read in the context of the surrounding sections and the intent of the legislation. [16] Myers makes it clear that the purpose of s. 525 is to ensure that an accused is not left to languish in prison pending trial where the trial is not commenced within the stated time periods. It is the concern with the trial dates that triggers the import of a s. 525 review. [17] Here, Mr. Pearson was required to be present for the voir dire which encompassed the entire case for the Crown. Evidence in the voir dire was not to be evidence in the trial proper unless found to be admissible. The admissibility issue and the relief being asked for placed Mr. Pearson's vital interests at stake. [18] Mr. Pearson has referred to R. v. Sadikov, 2014 ONCA 72, for the proposition that the voir dire is not part of the trial and, therefore, any proceedings within it should be regarded as pre-trial matters. At para. 30, the Court stated: [30] A voir dire is held to determine the admissibility of evidence proposed for admission by a party to a criminal proceeding: R. v. Parsons (1977), 17 O.R. (2d) 465 (C.A.), at p. 469, aff'd [1980] 1 S.C.R.

785. On the voir dire, it is for the trial judge to determine whether the conditions precedent to the admissibility of the proposed evidence have been met. The voir dire is a separate proceeding from the trial proper and the evidence taken on a voir dire forms no part of the evidence at trial unless the parties expressly agree to its incorporation: R. v. Erven, [1979] 1 S.C.R. 926, at p. 932; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 66; R. v. Dela Cruz, 2007 MBCA 55, 220 C.C.C. (3d) 272, at para. 24; and R. v. Gauthier, [1977] 1 S.C.R. 441, at p. 454. [Emphasis added.] [19] Sadikov does not stand for the proposition urged by Mr. Pearson. Although Sadikov states that a voir dire is a separate proceeding, the Court was addressing a different issue. Sadikov says that a voir dire determines the admissibility of evidence and that evidence taken in a voir dire does not incorporate into the trial proper unless the parties expressly agree. However, the determination of the admissibility issue is decided by the presiding trial judge. The separateness discussed in Sadikov is not to suggest the voir dire is not part of the trial, especially in the particular context of s. 525. [20] Mr. Pearson has referred to several other cases including R. v. Della Penna et al, 2008 BCPC 326, for discussions regarding the commencement of a trial. Della Penna provides a helpful review of

the various provisions in the Code that show how the language of the Code will cause the treatment of the commencement date to vary according to the particular circumstances. [21] A voir dire is a trial within a trial to determine questions of admissibility. The voir dire is part of the trial: Duhamel v. The Queen, [1984] 2 S.C.R. 555 at 563; Della Penna at para. 55. [22] In R. v. Lee and Wu (2002), 170 C.C.C. (3d) 225 (Ont. C.A.), the Court ruled that evidentiary rulings made in advance of the trial proper were part of the trial. Although Lee was decided in the context of a jury trial, the comments apply with equal force to a judge alone trial. [23] The vital interests test is another factor that determines whether a proceeding forms a part of the trial. There is no question that Mr. Pearson's vital interests were at stake throughout the voir dire. Rulings on the admissibility of evidence directly affect the decision of the guilt or innocence of the accused: R. v. Barrow, [1987] 2 S.C.R. 694 at 707-708. [24] In R v. McCreery (1996), 110 C.C.C. (3d) 561 at paras.19-22 (B.C.S.C.), the Court commented on when a trial commenced and the characterization of parts of a trial: [19] The leading case as to when a trial commences in Canada is now Basarabas v. The Queen, . [20] The unanimous judgment of the Supreme Court was delivered by Dickson J. [as he then was]. One of the principles

His Lordship extracted from the case law is : First, the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied. Thus, the word "trial" in s. 577(1) which assures the accused the right to be present "during the whole of his trial" will be liberally construed to afford the accused the right to be present during the selection of the jury. In like manner, the word "trial" in s. 566 which denies the prosecutor the right to direct a juror to stand by on the trial of an indictment for the publication of defamatory libel will be interpreted to embrace the proceedings preceding the empanelling of the jury. In other sections "trial" may have a different connotation depending upon the section of the Code being applied. [21] The Supreme Court of Canada and the Ontario Court of Appeal have also considered what constitutes a part of the trial in other contexts. In R. v. Branco, [41 C.C.C (3d) 248 (Ont. C.A.) at p 254], Finlayson J.A. quoted from the judgment of Martin J.A. in R. v. Hertrich, Stewart and Skinner, (1982) 67 C.C.C. (2d) 510 at p. 527: However, "trial" for the purpose of the principle that an accused is entitled to be present at trial clearly includes proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea,

the empanelling of the jury, the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, arguments of counsel, addresses of counsel to the jury, the judge's charge, including requests by the jury for further instructions, the reception of the verdict and the imposition of sentence if the accused is found guilty. and at p. 537: ... the characterization of a proceeding as part of the trial in relation to the accused's right to be present at the proceeding would seem to depend upon whether his exclusion from the proceeding violates his right to be present so that at all times he may have the direct knowledge of anything that transpires in the course of his trial which could involve his vital interests. [22] This definition was approved by S.C.C. in Vézina v. The Queen; Côté v. The Queen [1986] 1 S.C.R. 2, 23 C.C.C. (3d) 481 (S.C.C.), and in R. v. Barrow (1987), 61 C.R. (3d) 305, 38 C.C.C. (3d) 193 (S.C.C.). These cases involved the examination of potential jurors on questions relating to partiality and bias. The Supreme Court adopted the vital interests test in both decisions. [Emphasis added.] [25] The following factors are determinative: 1) Mr. Pearson's vital interests were at stake when the voir dire began and he had a right to be present; and 2) The evidence in the voir dire was heard by the trial judge. [26]

Mr. Pearson's vital interests were at stake during the voir dire. The admissibility issues went to the core of the Crown case. There can be no question that the voir dire was part of the trial. I, therefore, conclude that the trial commenced when evidence was tendered with respect to pre-trial motions. [27] It is no answer to say that the entitlement to a s. 525 review remained because it had been scheduled for a hearing, but the hearing date had been interrupted by the commencement of the trial. Mr. Pearson could have scheduled his hearing at an earlier date. There is no suggestion that the Crown or lack of court availability were to blame for the hearing not taking place. Once the jailer brings the matter to the court there is some onus on a detained person to address the detention in a timely manner. The detained person cannot simply "bank" the review and decide to have it heard after the trial commences. [28] I, therefore, conclude Mr. Pearson's detention cannot be reviewed under s. 525 because the trial has commenced. [29] Mr. Pearson may still seek a detention review under the provisions of s. 523(2). DLEY J.