R. v. Sutherland, 2017 BCPC 42 (CanLII)
Citation: R. v. Sutherland Date: 20170214
2017 BCPC 42 File No: FC00072059-1
Registry: Ucluelet
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
MICHAEL ROSS SUTHERLAND
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
Counsel for the Crown: T. Johnson and I. McFadgen
Appearing in person: Mr. Sutherland
Place of Hearing: Nanaimo, B.C.
Date of Hearing: December 19, 2016
Date of Judgment: February 14, 2017
The Issues
[1] Mr. Sutherland is charged with camping in a national park: (i) without a camping permit; and (ii) in an area where camping is not permitted, contrary to section 3 of the National Parks of Canada Camping Regulations SOR/80-127 (“the Regulations”). He acknowledges that he was camping in an area where camping was not permitted, and that he had no camping permit. He defends the charge on the grounds that: (i) the prohibitions infringe his Charter rights to equality before the law and security of his person; and (ii) delays in the court process have denied him his right to be tried within a reasonable time. In support of his position on the first issue, he relies on Victoria (City) v. Adams, 2009 BCCA 563 (CanLII), [2009] BCJ No. 2451; 2009 BCCA 563 and Abbotsford (City) v. Shantz, 2015 BCSC 1909 (CanLII), [2015] BCJ No. 2266; 2015 BCSC 1909. In support of his position on the second issue, he relies upon R. v. Jordan 2016 SCC 27.
[2] Mr. Johnson says that the Charter issues raised by Mr. Sutherland lack sufficient plausibility to justify a hearing of them on their merits, and that I should rule on that submission before embarking on such a hearing.
The Process
[3] Mr. Johnson says that I should conduct a “Vukelich hearing”: R. v. Vukelich, 1996 CanLII 1005 (BC CA), [1996] BCJ No. 1535; 108 CCC (3d) 193 (leave to appeal refused @ [1996] SCCA No. 461). In order to decide the point, it is necessary to consider exactly what issue was before the court in Vukelich, and what was decided in that case.
[4] Mr. Vukelich was tried before a Supreme Court judge and jury on charges of conspiracy to import cocaine, conspiracy to traffic in cocaine and possession of cocaine for the purpose of trafficking. He objected to the admissibility of certain documentary evidence tendered by the Crown on the ground that: (i) the evidence had been seized by the police by execution of a search warrant; and (ii) the search warrant had been obtained by material misrepresentations of fact in the information to obtain. He sought exclusion of the evidence under section 24(2) of the Canadian Charter of Rights & Freedoms. The trial judge declined to direct a voir dire on the issue, and admitted the evidence. The jury convicted Mr. Vukelich, who brought an appeal to the British Columbia Court of Appeal. Chief Justice McEachern gave judgment for the court. He said at paragraphs 25 – 26:
Counsel referred to many authorities …. With respect, I do not think it is necessary to review those authorities, although Garofoli, Feldman, and Hamill, in particular, provide useful guidance. I find it necessary to quote only a passage from Hamill, which was quoted with approval in both Kutynec and Feldman. In Hamill, Esson J.A., at pp. 366-7 said this:
It is not in every case in which an accused applies to exclude evidence under s. 24(2) that it will be necessary to conduct an inquiry as to the reasonableness of the search, or that it will be necessary to hear evidence at all. Where an accused applies for an order to exclude evidence on the ground that there has been a breach of s. 8 of the Charter, the onus is on him to assert and establish:
1. that the evidence was obtained in a manner which infringed or denied his right to be secure against unreasonable search or seizure;
2. that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.
In those cases where the accused does apply to exclude the evidence, it will be for the trial judge to decide what procedure should be followed but, at the least, counsel for the accused should be required to state with reasonable particularity the ground upon which the application for exclusion is made. That much is essential for an orderly trial of the issue. It follows that, if the statement of grounds does not disclose a basis upon which the court could make an order excluding the evidence, the application may be dismissed without hearing evidence.
Based on these authorities, it does not follow that an accused is always entitled as of right to a voir dire in the course of a criminal trial in order to challenge the constitutionality of a search. The trial judge must control the course of the proceedings, and he or she need not embark upon an enquiry that will not assist the proper trial of the real issues. I reach that conclusion because it is clear from cases such as Grant and Garofoli that a warrant remains valid if there is enough left in the supporting affidavit to support the issuance of the warrant after all the impugned portions are deleted. In other words, the trial judge does not revisit the application for the warrant ab initio in the light of subsequent information, but rather considers whether, as stated in Garofoli at 1452, "... there continues to be any basis for the decision of the authorizing judge" to issue the warrant.
[5] In this case, Mr. Sutherland does not seek to exclude any evidence. Rather, he says that section 3 of the Regulations is constitutionally incapable of applying to him by reason of sections 7 and 15 of the Charter.
[6] A voir dire is a process for determining the admissibility of evidence. Because no question of admissibility is raised in this case: (i) a voir dire is not a useful process; (ii) there is no need for me to decide whether to hold one; and (iii) Vukelich is not directly applicable to the problem which I face.
[7] However, Mr. Johnson submits that the underlying principle of Vukelich can and should be applied whenever an accused person raises a constitutional issue of doubtful merit. Attempting my own paraphrase of his submission, he says that judicial economy demands a preliminary assessment of such issues to determine whether the issue raised is of sufficient merit to justify hearing evidence and full submissions on the issue. In support of that submission, he relies on R. v. Kapp 2006 BCCA 277; [2006] BCJ No. 1273; 56 BCLR (4th) 11; 271 DLR (4th) 70.
[8] In Kapp, a number of non-indigenous fishers were charged with fishing in an area and at a time not permitted by their commercial fishing licenses, the fishery in question being then reserved by the Department of Fisheries & Oceans for a First Nations fishery. The accused defended the charge on the ground that their exclusion from the fishery infringed their equality rights under section 15 of the Charter. The learned trial judge acceded to that defence, and directed a stay of proceedings under section 24(2) of the Charter. However, the Crown successfully appealed to the Supreme Court of British Columbia, which set aside the stay of proceedings. The accused then appealed to the British Columbia Court of Appeal. The appeal was heard by a division of five Justices, each of whom gave independent reasons for dismissing the appeal. A further defence appeal to the Supreme Court of Canada was also dismissed: R. v. Kapp, 2008 SCC 41 (CanLII), [2008] 2 SCR 483. In the course of those proceedings, commencing in this court, continuing through the Supreme Court of British Columbia and the British Columbia Court of Appeal, and culminating in the Supreme Court of Canada, only one judge referred to the procedural issue now before me. At paragraphs 94 – 95 of the Court of Appeal judgment, Justice Low said:
There is no point to the airing of a Charter issue in a criminal or quasi-criminal proceeding unless resolution of the issue might lead to the end of the prosecution or to the exclusion of evidence. This was the subject of discussion in R. v. Vukelich …, and in R. v. Pires …. In Pires, Charron J. said this at para. 35:
The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago when Garofoli … was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.
I do not wish to elaborate on this point because it was not fully argued before us. But I think the Crown would have been well advised to take the position at the beginning of the trial that, regardless of the merits of the Charter equality claims with respect to the ACFLR or the PSP, no remedy was available because the appellants deliberately broke a law other than the law they challenge. The lengthy trial in this case might have been avoided on this basis.
Justice Low’s remarks have no application to this case. There are some cases in which there exists an issue which, if decided one way, will render a number of other issues moot. In such cases, it is sometimes appropriate to order that issue to be severed and tried first. Justice Low thought that Kapp might be such a case. No such issue exists in this case. Mr. Sutherland admits that he committed the offence. He raises two Charter issues in his defence. It might be efficient to try one before the other, but that is not the position taken by the Crown on the present application. On the contrary, the Crown submits that both of the Charter issues should be dismissed without a hearing. Nothing in Justice Low’s comments supports the idea that such a procedure is permissible.
[9] I am mindful of the right of the accused to make “full answer and defence”: R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668. If the court is empowered to reject a Charter defence advanced by the accused without hearing either the evidence which the accused proposes to tender in support of it or full submissions on the issue, it is difficult to see how the accused can be said to have had the opportunity to make full answer and defence.
[10] I am also mindful that:
… it is a firmly established principle that the Charter must receive contextual application. The scope of a particular Charter right or freedom may vary according to the circumstances.
R. v. Jarvis, 2002 SCC 73 (CanLII), [2002] 3 SCR 757 @ paragraph 63
Judges should be wary of ruling on Charter issues in the absence of a full exposition of the circumstances, supported by evidence.
[11] The rules of civil procedure in most jurisdictions provide two procedures analogous to the Vukelich hearing: (i) a pleading may be struck where the facts alleged, even if proven, do not give rise to a meritorious claim or defence; (ii) a claim or defence may be summarily dismissed if no sufficient evidentiary basis exists to justify a trial of the issue. I observe that the Criminal Code contains no provision for similar procedures. I have no doubt that those who advise Parliament in criminal matters are well aware of the summary procedures commonly found in rules of civil procedure. If Parliament considered that such procedures should be available in criminal cases, Parliament would undoubtedly have made express provision for them in the Criminal Code.
[12] Shortly put, the Criminal Code does not expressly authorize me to summarily dismiss Mr. Sutherland’s Charter defences without hearing either the evidence which he wishes to tender in support of them or his submissions in respect of them. It might be that I could do so by exercising the implied jurisdiction of a statutory court to prevent abuses of its own process: R. v. Gunn 2003 ABQB 314; [2003] AJ No. 467; R. v. Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331. However, the issues raised by Mr. Sutherland cannot be described as an abuse of process. He raises them in good faith, and not in an attempt to hinder or delay the proceedings. They may or may not be strong points - that remains to be seen - but they are not frivolous.
Disposition
[13] I decline to decide summarily the Charter issues raised by Mr. Sutherland. He is at liberty to lead such evidence as he considers to be relevant, and to present his submissions after the evidence is concluded.
The Honourable Judge T. Gouge
Provincial Court of British Columbia