R. v. M.P.S.

2013 BCSC 1953 R. v. M.P.S. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. M.P.S., 2013 BCSC 1953 Date: 20131025 Docket: 16663 Registry: Smithers Between: Regina Respondent And M.P.S. Petitioner Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code there is a ban on publication, broadcast or transmission of the names of the complainants, the accused and any other information that may identify the complainants. Before: The Honourable Mr. Justice S.R. Romilly Reasons for Judgment Counsel for the Respondent: Patrick Fullerton Counsel for the Petitioner: Glenford E. Greene Place and Date of Hearing: Smithers, B.C. October 25, 2013 Place and Date of Judgment: Smithers, B.C. October 25, 2013 [1] This is an application by the petitioner for: 1. An order in the nature of certiorari quashing the order of Judge Wright dated April 24, 2013, committing the petitioner to stand trial; 2. An order reopening the preliminary inquiry to allow the petitioner to make an application pursuant to s. 276 of the Criminal Code; 3. An order in the nature of mandamus requiring Judge Wright to follow the provisions of the Criminal Code by conducting a hearing pursuant to s. 276; and 4. Any other relief this Court considers appropriate. [2] For the reasons stated below, this application is dismissed. Procedural History [3] On March 15, 2013, six days into the preliminary inquiry but before its completion, the petitioner made an application before me for: An order in the nature of mandamus requiring the Honourable Judge T. Wright ("Judge Wright") of the Provincial Court of B.C. to follow the provisions of s. 276 of the Criminal Code during a preliminary inquiry. Also an application for an order in the nature of prohibition prohibiting Judge Wright from proceeding with the preliminary inquiry without complying with the provisions of s. 276 of the Criminal Code. [4] I dismissed the petitioner's application in reasons which are indexed at 2013 BCSC 525. My reasons for judgment were immediately appealed to the British Columbia Court of Appeal. The appeal was dismissed: 2013 BCCA 227. After the unsuccessful appeal, Judge Wright continued the preliminary inquiry for an additional two days and then committed the accused to stand trial. [5] This application by the petitioner was originally set down to be heard by this Court on October 25, 2013. However, when counsel for the petitioner discovered that I was scheduled to hear this application, on October 17, 2013, he made an application for me to recuse myself. The basis for this was that I had heard his original application relating to the preliminary inquiry. This recusal application was also dismissed by me. Background [6] The accused, M.P.S., has been charged with seven counts of sexually related offences contrary to ss. 151, 153, and 271(1) of the Criminal Code in relation to two complainants. The accused is the step-grandfather of the two complainants. [7] The accused was the joint guardian of the complainants from 2004 to 2007. He became their sole guardian and caregiver from 2008 to 2010, after the death of his partner. The allegations of sexual abuse resulted in the ending of the accused's role as caregiver of the complainants. [8] The accused has elected trial by Supreme Court judge alone. The preliminary inquiry in the Provincial Court commenced before Judge Wright on October 9, 2012, for three days and continued on February 26, 2013, for three more days. [9] During the course of the preliminary inquiry, Judge Wright was faced with an application by the defence under s. 276 of the Criminal Code to cross-examine the complainants about their past sexual behaviour. After submissions from both Crown and defence counsel on February 26, 2013, and after reviewing the authorities, Judge Wright reversed his decision to hear the application and declined jurisdiction to allow the defence to conduct a cross-examination of the complainants under s. 276. In doing so, Judge Wright was acutely aware that he was bound by the decision of this Court in R. v. W.S.T., [1996] B.C.J. No. 2609 (S.C.). The decision in W.S.T. is instructive and stands for the proposition that hearings under s. 276 should not occur at the preliminary inquiry stage. In conclusion, Stromberg-Stein J., as she then was, stated: [38] I conclude that a provincial court judge presiding at a preliminary inquiry does not have jurisdiction to hear an application pursuant to s. 276 of the Criminal Code to cross-examine a complainant on her past sexual history. The decision of the Supreme Court of Canada in Forsythe v. R. (1980), 15 C.R. (3d) 280 is not binding authority in light of both the Supreme Court of Canada decisions in R. v. Seaboyer (1991), 6 C.C.C. (3d) 321 and O'Connor v. The Queen (1995), 103 C.C.C. 1, and the subsequent amendments to the Criminal Code. Judge Wright made his decision in accordance with this authority. [10] On this application for an order in the nature of certiorari, it is not for me to review the legal principle from the decision in W.S.T. I must only determine whether Judge Wright acted correctly in following it. [11] Because s. 276 of the Criminal Code has figured so prominently in the petitioner's applications, it may be prudent for me to canvass some of the law on that section. Section 276 of the Criminal Code [12] A recent authority on s. 276 is R. v. M.T., 2012 ONCA 511, where Watt J.A. summarized the law. He wrote: [34] The admissibility rules of s. 276 apply only where the evidence proposed for admission is of extrinsic sexual activity on the part of the complainant. A previous allegation of assault, without more, would fall outside the section: R. v. Gervais (1990), 58 C.C.C. (3d) 141 (Que. C.A.), at p. 154. Questions that focus on the fact, rather than the details, of an allegation of sexual assault are not prohibited by the section: R. v. M. (A.G.) (1993), 26 C.R. (4th) 379 (Que. C.A.), at p. 393. ... [39] Section 276 is an admissibility rule. Like other admissibility rules, it excludes evidence that meets the foundational requirements of relevance and materiality. Its application is superfluous where evidence that would otherwise be subject to its exclusionary effect is irrelevant or immaterial. [40] The admissibility rule in s. 276(1) does not exclude all evidence of extrinsic sexual activity of a complainant. What is prohibited is the use of evidence of extrinsic sexual activity to support either or both of the specific, illegitimate inferences described in the section: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 32. [41] Evidence of extrinsic sexual activity of the complainant is rarely relevant to support a denial that the sexual activity charged took place: Darrach, at para. 58. The fact that others may have sexually assaulted a complainant is irrelevant to charges of sexual assault against another and to the defences that other person may raise: R. v. B.(A.R.) (1998), 41 O.R. (3d) 361 (C.A.), at p. 365, aff'd 2000 SCC 30, [2000] 1 S.C.R. 781. [42] Section 276(1) excludes evidence that the complainant "engaged in sexual activity" with another person at another time and place if it is tendered for either purpose proscribed by the subsection. The exclusionary rule in s. 276(2) rejects all evidence of other sexual activity unless the evidence satisfies each of the requirements of the inclusionary exception. [43] The exceptional admission of evidence of other sexual activity under s. 276(2) requires satisfaction of the three conditions precedent listed in the subsection. One of those requirements, s. 276(2)(c), involves a balancing of probative value and prejudicial effect. But the balance is calibrated differently than we see in the general exclusionary discretion or the more circumscribed discretion to exclude otherwise admissible defence evidence. The addition of the terms "significant", as descriptive of the probative value, and "substantially", as the extent to which significant probative value must predominate over "prejudice to the proper administration of justice", appears to require a more nuanced or qualitative assessment of the competing interests. These interests are incommensurables. Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof. Prejudicial effect relates to trial fairness. [13] It is clear from the above passage that a judge has to be very careful and cautious before permitting the cross-examination of complainants under s. 276. Stare Decisis [14] The doctrine of stare decisis is as old as the common law itself. This principle directs courts to follow "decided matters" and is at the core of our legal philosophy. As Rinfret C.J.C. remarked in Woods Manufacturing Co. Ltd. v. R., [1951] 2 D.L.R. 465 at 475 (S.C.C.): It is fundamental to the due administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced, including the interpretation by this Court of the decisions of the Judicial Committee, should be accepted and applied as our tradition requires; and even at the risk of that fallibility to which all judges are liable, we must maintain the complete integrity of relationship between the courts. If the rules in question are to be accorded any further examination or review, it must come from this Court or from the Judicial Committee. [15] A useful treatise on the subject is that published by William F. Ehrcke (now Mr. Justice Ehrcke of the British Columbia Supreme Court) entitled "Stare Decisis" and indexed at (1995) 53 Advocate 847. At 850, he cited the above passage from Woods Manufacturing Co. Ltd. and stated that there "can be no doubt that trial judges are bound to accept as binding the law as pronounced by appellate courts above them in their judicial hierarchy." [16] The learned author went on to refer to the decision in Wolf v. The Queen, [1975] 2 S.C.R. 107, in addressing the principle of stare decisis as it relates to courts in other provinces: No court at any level in one province is bound to follow a decision of a court in another province. The principle as it applies to the Court of Appeal of any province was articulated by the Supreme Court of Canada in Wolf v. The Queen, [1975] 2 S.C.R. 107, at p. 109: A provincial appellate court is not obliged, as a matter of either law or practice, to follow a decision of the appellate court of another province unless it is persuaded that it should do so on its merits or for other independent reasons. The same rule applies to lower courts. The principle of stare decisis cannot bind a court in one province to follow a court in another province since, apart from the Supreme Court of Canada, no court outside a given province has the power to overturn a decision within the province. [17] The British Columbia Court of Appeal reiterated this point in Regina v. Active Trading Ltd. (1975), 26 C.C.C. (2d) 412 (B.C.C.A.) at 414. [18] Clearly, courts are bound by decisions of their superior courts. In R. v. Arcand, 2010 ABCA 363 at para. 183, the Alberta Court of Appeal stated: [183] Stare decisis is essential to law. It is a "central pillar of our law". Unpredictability is unworkable. Unprincipled differing results in similar cases are unjust. Since the top court (anywhere) can hear few cases, most predictability and consistency have to come from courts of appeal. Trial courts would be immediately overwhelmed if every case (civil or criminal) had to go to trial on every issue. Settlements and plea bargains are vital. Accused persons and counsel have to know what the case law is and what sentence to expect. Without that, no negotiation can be realistic, and every trial would become a horse race. [19] The Court in Arcand went on to comment upon the breadth of the doctrine, cautioning trial courts to defer and give liberal breadth to rulings of appellate courts: [184] A trial court (and intermediate appeal courts) must follow precedents of appellate courts which hear appeals (directly or indirectly) from those courts. Appellate decisions bind even if the lower court thinks that the higher court's precedent is clearly wrong or that the higher court's decision is wider than its rationale requires. Court of appeal decisions also bind trial judges even if the trial judges think that the court of appeal decisions were based on some reasoning or precedent now shaken or even gone, or that the general trend of higher courts' views is now contrary. [20] On the basis of the foregoing, there could be absolutely no doubt that the learned Judge Wright was correct when he felt he was bound by the British Columbia Supreme Court decision in W.S.T. Certiorari Proceedings [21] A useful summary of the law on certiorari proceedings is found in Jones v. British Columbia (Attorney General), 2007 BCSC 1455 at para. 43: [43] Certiorari is a discretionary remedy and may be denied by the reviewing court particularly where the administration of justice may be interfered with by causing unnecessary delays: R. v. C.(S.T.) (1993), 140 A.R. 259, 81 C.C.C. (3d) 407 (Alta. Q.B.). Certiorari may be refused where other more appropriate remedies are available, such as an appeal: R. v. Dubois, [1986] 1 S.C.R. 366, 25 C.C.C. (3d) 221 [Dubois cited to S.C.R.]. In R. v. Villota, [2002] O.J. No. 1027, 163 C.C.C. (3d) 507 (QL) (Ont. S.C.J.), Hill J. stated at paras. 120-123: The prerogative writ of certiorari is a discretionary remedy: Forsythe v. The Queen, supra at 574; Dubois v. The Queen, supra at 232; Harlekin v. University of Regina, supra at 574 per Beetz J. Accordingly, the extraordinary writ does not issue ex debito justitiae, or as of right, simply because significant jurisdictional error is identified. How the discretion is to be judicially exercised depends on the circumstances of each case: Harlekin v. University of Regina, supra at 575-6 per Beetz J. While there is perhaps no closed list of factors informing the exercise of discretion as to whether certiorari will issue, there is abundant authority for consideration of the relevance of the applicant's conduct including delay in the proceedings, and, the existence of an adequate alternative remedy. Unreasonable delay is a relevant consideration: Harlekin v. University of Regina, supra at 575 per Beetz J. and at 610 per Dickson J.; The Queen v. Board of Broadcast Governors and the Minister of Transport, ex parte Swift Current Telecasting Co. Ltd., [1962] O.R. 657 (C.A.) at 670 per Laidlaw J.A. Similarly, the remedy may be denied where the applicant has done something to disentitle itself to relief (Regina v. Corbeil, supra at 251), for example, misconduct of some sort (Harlekin v. University of Regina, supra at 575 per Beetz J.). Certiorari is an extraordinary remedy. Resort to this prerogative writ cannot be routine - wherever possible, the legal complaint should be resolved in the context of established criminal process: Regina v. Paterson (2000), 132 O.A.C. 266 (C.A.) at 268 per curiam. To this end, Chief Justice Laskin noted at page 3 of the Forsythe case that the discretionary remedy "may be refused where there is another recourse". Alternative remedies to cure the injustice, other than an appeal, have been considered to justify a refusal of certiorari, "i.e. where the statute sets out specific alternatives other than an appeal": Dubois v. The Queen, supra at 232-3. The alternative in question must, however, be an "adequate" or efficacious alternative (Harlekin v. University of Regina, supra at 575, 588 per Beetz J.), at times referred to as "truly alternative" (Dubois v. The Queen, supra at 233). [22] In general, the jurisdiction of the superior court to review errors of an inferior court by way of certiorari is limited to errors relating to jurisdiction and errors of law on the face of the record: see R. v. Patterson, [1970] S.C.R. 409; Quebec (Attorney General) v. Cohen, [1979] 2 S.C.R. 305; R. v. Forsythe, [1980] 2 S.C.R. 268; R. v. Skogman, [1984] 2 S.C.R. 93; R. v. Dubois, [1986] 1 S.C.R. 366; and Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. [23] An order in the nature of certiorari is not available to attack non-jurisdictional errors in a decision, particularly an interlocutory decision which is not ordinarily appealable except within the framework of an appeal from conviction. [24] In R. v. Black, 2011 ABCA 349 at paras. 20-28, Ritter J.A. dealt with the availability of certiorari in a criminal case. After reviewing the law, he held that the Crown was also able to seek the discretionary order of certiorari for both errors of jurisdiction and errors of law on the face of the record. Certiorari and Preliminary Inquiry Hearings [25] Where the accused seeks an order of certiorari under Part XXVI of the Criminal Code, the remedy is only available where there is a jurisdictional error. In the course of a preliminary inquiry, there are few instances in which jurisdiction can be lost. In R. v. Dawson, [1997] O.J. No. 2188 (Gen. Div.), Watt J., as he then was, stated: [44] There are few situations in which jurisdiction will be lost in the course of a preliminary inquiry. The most frequent source of complaint, not applicable here, is that an applicant has been ordered to stand trial in absence of evidence capable of meeting the requirement of s. 548(1)(a) of the Criminal Code. Failure to observe a mandatory provision of the Criminal Code, or a denial of natural justice, will also result in jurisdictional error. See, Forsythe v. The Queen (1980), 53 C.C.C (2d) 225, 228-9 (S.C.C.), per Laskin C.J.C. [26] In R. v. Deschamplain, 2004 SCC 76, and R. v. Sazant, 2004 SCC 77, it was held that the preliminary inquiry judge's failure to consider the whole of the evidence amounts to a jurisdictional error. In Sazant, the Court distinguished between an error in law or an error as to the sufficiency of evidence offered at the preliminary inquiry, both non-jurisdictional errors not reviewable on a motion to quash, and various jurisdictional errors all of which involved a preliminary inquiry judge going beyond the very limited function assigned under s. 548 of the Criminal Code. In Sazant, McLachlin C.J.C. provided examples of jurisdictional errors at para. 25 of her reasons. These include drawing inferences from the evidence rather than determining what inferences could reasonably be drawn. This distinction is important because if the inferences urged by the Crown are within the field of inferences that could reasonably be drawn, the preliminary inquiry judge must commit the accused to stand trial even if those are not the inferences that the preliminary inquiry judge would draw. See also R. v. Hawley, 2012 ONCA 528. Refusal to Allow Cross-Examination on Preliminary Inquiry [27] The refusal to allow defence counsel to cross-examine a Crown witness on a preliminary inquiry could, in some instances, amount to a decision on the admissibility of evidence, but would not amount to a jurisdictional error. In Dawson, Watt J. went on to say at paras. 45-46: [45] The complaint here concerns the refusal of the presiding judge to permit counsel for the applicants to cross-examine the affiant and/or sub-affiant concerning the contents of the affidavit filed in support of the application for authorization. The relationship between the right to cross-examine and a denial of natural justice that results in loss of jurisdiction was discussed in Forsythe, supra, where Laskin C.J.C. held at p. 229 C.C.C.: In the case of a preliminary inquiry, I cannot conceive that this could arise otherwise than by a complete denial of that accused right to call witnesses or of a right to cross-examine prosecution witnesses. Mere disallowance of a question or questions on cross-examination or other rulings on proffered evidence would not, in my view, amount to jurisdictional error. However, the Judge or magistrate who presides at a preliminary inquiry has the obligation to obey the jurisdictional prescriptions of s. 475 [am. R.S.C. 1970, c. 2 (2nd Supp.), s. 8] of the Criminal Code. [46] Attorney General of Quebec v. Cohen, [1979] 2 S.C.R. 305, 46 C.C.C. (2d) 473 exemplifies what is meant by "a complete denial to the accused of a right to cross-examine prosecution witnesses". [ ] It was held that the decision made which denied the right to cross-examination was a ruling on the admissibility of evidence which, even if erroneous, did not go to jurisdiction. Analysis [28] After a review of the law as enunciated above, I find that there is absolutely no merit to the petitioner's application. Under s. 276 of the Criminal Code, there is no cross-examination of complainants as of right. The preliminary hearing judge acted in accordance with binding authority when he refused to allow the petitioner to cross-examine the complainants on their previous sexual conduct. [29] Even if the learned preliminary hearing judge was incorrect in not allowing the cross-examination of the complainants on their prior sexual conduct, this amounts to an error of law, not an error of jurisdiction, and is only reviewable as such on appeal. [30] The concept of jurisdiction was described by Watt J. in R. v. Sarson (1992), 73 C.C.C. (3d) 1 at 24-25 (Ont. Gen. Div.), aff'd 88 C.C.C. (3d) 95 (Ont. C.A.), further aff'd (1996), 107 C.C.C. (3d) 21 (S.C.C.): The extraordinary remedies, including habeas corpus, are concerned with jurisdiction. It is their purpose, even under Gamble, supra, to ensure that courts of limited jurisdiction do not exceed, or for that matter decline their mandate. It necessarily follows that what is said to warrant their grant must be a loss, refusal or excess of jurisdiction. Nothing less will suffice. Neither is more required. A trial judge has as much jurisdiction to decide an issue wrongly as he or she does to determine it rightly. Jurisdiction is not acquired or retained only by a correct decision. Neither is it lost by a wrong decision. Jurisdiction is concerned with the authority to decide an issue. It matters not to that authority the correctness of the decision. Conclusion [31] I conclude that Judge Wright acted correctly in applying the principle from W.S.T. The application is dismissed. "Romilly J."