R. v. Munro, 2022 BCPC 103 (CanLII)
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2022 BCPC 103 |
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Date: |
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File No: |
6930-1 |
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Registry: |
Masset |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
ADAM THOMAS MUNRO
605463 B.C. LTD
MICHAEL ANDREW BULLOCK
RULING RE DEFENDANTS’ APPLICATION TO REOPEN TRIAL
OF THE
HONOURABLE JUDGE D. PATTERSON
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Counsel for the Crown: |
A. Switzer |
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Counsel for the Defendant: |
C. Harvey, Q.C., appearing by teleconference |
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Place of Hearing: |
Prince Rupert, B.C. |
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Date of Hearing: |
May 20, 2022 |
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Date of Judgment: |
May 29, 2022 |
Overview
[1] THE COURT: On April 8, 2022, I found Adam Thomas Munro and 605463 B.C. Ltd. guilty of committing four offences contrary to s. 78(a) of the Fisheries Act. My Reasons for Judgment are published at R. v. 605463 B.C. Ltd., 2022 BCPC 77. Between the finding of guilt and the date scheduled for sentencing, Munro and 605463 B.C. Ltd. filed an Application to a Judge seeking an order to reopen the trial.
[2] Munro and 605463 B.C. Ltd. want the trial reopened so that they can argue that the Fisheries Act does not authorize the making of regulations creating criminal offences and that s. 22(7) of the Fishery (General) Regulations, 1993 (SOR/93-53), is not authorized by the Fisheries Act. If they are correct in their position, they say that s. 22(7) is not valid as it is a regulation that purports to make it a criminal offence to breach fishing licence conditions, which in turn means that the acts alleged in Counts 1 to 4 of the information cannot support a finding of guilt on any of the counts.
[3] The defendants did not file an affidavit in support of their application, preferring to rely upon the submissions of Mr. Harvey and the Constitutional Question Notice filed with the Application to a Judge. The remedy sought is the vacating of the guilty verdicts and the entering of acquittals on all counts.
[4] In most cases, if a trial judge grants an application to set aside a verdict of guilty prior to sentencing and reopens the trial, the court will receive further evidence from the defence followed by any evidence offered by the prosecutor in reply. The court then hears new submissions from the parties and the judge makes a decision on the adequacy of the prosecution's proof in light of the new evidence. In some instances, a decision to reopen the trial might require the declaration of a mistrial. It is well-settled law that a trial judge should only exercise their authority to declare a mistrial in the clearest of cases.
[5] The issues that I have considered on this application are as follows:
1. What are the governing principles and test for reopening the trial when the defendants have made their application to reopen after a finding of guilt, but before the sentencing?
2. How are the governing principles and test for reopening the trial to be applied in the present case?
3. If I find that Munro and 605463 B.C. Ltd. have met the test for reopening the trial, should I carry on with the trial or declare a mistrial?
Issue 1: What are the governing principles and test for reopening the trial when the defendants have made their application to reopen after a finding of guilt, but before the sentencing?
[6] The law in British Columbia is that until the sentencing is completed, a Provincial Court trial judge has the ability to vacate a guilty verdict and reopen the trial, Corrigendum to Reasons for Judgment in R. v. D.L.W., 2013 BCSC 1327, at paragraph 43. In D.L.W., Justice Romilly quoted with approval the governing principles and tests set out at paragraph 62 to 64 in R. v. Kippax, 2011 ONCA 766:
The Governing Principles
[62] A trial judge is not functus officio in a trial without a jury until she or he has imposed sentence or otherwise finally disposed of the case: R. v. Lessard (1976), 1976 CanLII 1417 (ON CA), 30 C.C.C. (2d) 70, (Ont. C.A.), at p. 73. It follows that a trial judge who has made a finding of guilt on disputed facts has the authority to vacate the adjudication of guilt at any time before the imposition of sentence or other final disposition: Lessard, at p. 73. This authority, to vacate an adjudication of guilt, should be exercised only in exceptional circumstances and in the clearest of cases: Lessard, at p. 73.
[63] The test for re-opening the defence case when the application is made after a finding of guilt is more rigorous than that which governs a similar application prior to an adjudication of guilt: R. v. Kowall (1996), 1996 CanLII 411 (ON CA), 108 C.C.C. (3d) 481 (Ont. C.A.), at p. 493. The Palmer criteria provide helpful guidance to a trial judge faced with an application to re-open after a finding of guilt has been recorded. But a trial judge must also consider whether the application to re-open is, in essence, an attempt to reverse a tactical decision made at trial: Kowall, at pp. 493-494. See also, R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354 (Ont. C.A.), at para. 46.
[64] A trial judge’s decision about whether to permit re-opening of the defence case after an adjudication of guilt has been made involves an exercise of judicial discretion. Where that discretion has been exercised in accordance with the governing legal principles, its exercise should not be lightly overturned: R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at pp. 1002-1003.
[7] As set out in Kippax, 16 years earlier in R. v. Kowall, 1996 CanLii 411, the Ontario Court of Appeal confirmed that the Supreme Court of Canada's teachings in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, are helpful to judges faced with an application to reopen a trial after a finding of guilt has been made. At paragraphs 31 and 32 of Kowall, the Ontario Court of Appeal succinctly set out the Palmer criteria:
31. The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 1993 CanLII 14679 (ON CA), 86 C.C.C. (3d) 193. However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for the admissibility of fresh evidence on appeal laid down in Palmer [v. R.] … (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193, at page 205 (S.C.C.) (see: R. v. Mysko (1980) , 1980 CanLII 2057 (SK CA), 2 Sask. R. 342 (C.A.).) That test is as follows:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases …
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief;
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
32. These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial.
[8] Because the Crown must prove beyond a reasonable doubt the actus reus of the offence in a strict liability regulatory trial, I am of the opinion that the same test applies to regulatory and criminal trials in respect of reopening the defence case after findings of guilt have been made, but before sentencing has taken place.
[9] In light of the above law, the test for reopening the defence case after findings of guilt have been made, but before sentencing has taken place, requires the following considerations:
1. The process is more rigorous than that which governs the same application made prior to an adjudication of guilt in a regulatory or criminal trial. Why? Because a more exacting standard is required to protect the integrity of the trial process including the enhanced interest in finality.
2. A trial judge must consider whether the application to reopen is in essence an attempt to reverse a tactical decision made at trial.
3. A trial judge should only vacate an adjudication of guilt in exceptional circumstances and in the clearest of cases.
4. The criteria to be met to determine the admissibility of fresh evidence on appeal provides helpful guidance to trial judges faced with an application to reopen the defence case after an adjudication of guilt has been made. The test is:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, provided that this general principle will not be applied as strictly in a criminal case as in civil cases;
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
5. The admissibility and cogency requirements drawn from Palmer ensure that evidence proposed for reception by the trial judge:
i. relates to a decisive or potentially decisive issue at trial;
ii. is reasonably capable of belief;
iii. is probative of the fact the party seeks to establish by its introduction; and
iv. is admissible under the prevailing rules of evidence.
6. The potential probative value of the proposed fresh evidence must be assessed holistically in the context of the evidence heard at trial.
7. The due diligence criterion exists to ensure finality and order, both of which are values essential to the integrity of the regulatory and criminal process. The due diligence requirement calls for a trial judge to consider the reason why the evidence was not presented at trial. However, in regulatory and criminal cases, the due diligence requirement must not lead to a miscarriage of justice.
Issue 2: How are the governing principles and tests for reopening the trial to be applied in the present case?
[10] Mr. Harvey, a very experienced litigator with over 35 years of litigating commercial fishing cases, represents Munro, 605463 B.C. Ltd., and Michael Andrew Bullock. After numerous pretrial conferences and two previous adjournments of the dates scheduled for the trial, the multiday trial proceeded with me as the trial judge. Mr. Harvey mounted a comprehensive and technical defence of his clients' interests at trial. He brought and succeeded in a "no evidence" motion in relation to all counts concerning Bullock, one of the three original accused. There was no constitutional issue before the court. It is clear that the defendants had a concrete trial strategy that, unfortunately for Munro and 605463 B.C. Ltd., did not result in the acquittals they had hoped for.
[11] The present case also has, for lack of a better term, a companion case, R. v. Adam Munro, Silas Levesque, and ATM Fishing Ltd., Masset Court File 6931-1. Mr. Harvey is defence counsel for all three accused in the companion case. After I delivered my Reasons for Judgment in the present case, but prior to the April 21, 2022, start of the trial in R. v. Adam Munro, Silas Levesque, and ATM Fishing Ltd., Mr. Harvey gave notice to the Public Prosecution Service of Canada of his intention to file a Constitutional Question Notice on behalf of the defendants in both cases.
[12] According to the filed Constitutional Question Notice and Mr. Harvey's submissions to the court on May 5, 2022, Munro and 605463 B.C. Ltd. seek to reopen the trial in order to advance a constitutional argument supported by Report No. 75 - Disallowance of the Standing Joint Committee for the Scrutiny of Regulations and the Notice of Disallowance dated March 14, 2005. Report No. 75 - Disallowance states, among other things:
Pursuant to section 19.1(1) of the Statutory Instruments Act, R.S.C. 1985, c. S-22, as amended by S.C. 2003, c.18, and having notified the Minister of Fisheries and Oceans in accordance with section 19.1(2) of that Act, the Joint Committee resolves that subsection 36(2) of the Ontario Fishery Regulations, 1989, as enacted by SOR/89-93, be revoked.
Subsection 36(2) of the Ontario Fishery Regulations, 1989, as it was, states:
36(2) No holder of a commercial fishing licence shall violate any of the terms or conditions of the licence.
[13] Munro and 605463 B.C. Ltd. now want the opportunity to argue that s. 22(7) is the same as s-s. 36(2) of the Ontario Fishery Regulations, 1989. They submit that Parliament has not authorized s. 22(7) and that if I vacate the guilty verdicts and reopen the trial, I will find that Parliament has not authorized s. 22(7) because s. 22(7) converts the breach of a condition of a commercial fishing licence from an administration contravention to a criminal offence.
Exceptional Circumstances
[14] Munro is one of the defendants in the companion case of R. v. Adam Munro, Silas Levesque, and ATM Fishing Ltd.. Munro owns ATM Fishing Ltd.. The defendants submit that exceptional circumstances exist in the present case because of the possibility that Munro and ATM Fishing Ltd. could be acquitted in the companion case on a defence that Munro and 605463 B.C. Ltd. are not currently able to rely upon in the present case.
[15] I have asked myself what, if any, impact could my refusal to allow the constitutional argument in the present case have on the administration of justice. I have done so in the unique circumstances of the two cases being companion cases that are being litigated at the same time, albeit as separate trials. In other words, if the court does not allow the application to reopen in the present case, then acquits in R. v. Adam Munro, Silas Levesque, and ATM Fishing Ltd. based upon the constitutional arguments being advanced, would that scenario bring the administration of justice into disrepute?
[16] Mr. Harvey raised the prospect of inconsistent verdicts during argument on May 5, 2022, not just inconsistent verdicts in related cases, but inconsistent verdicts involving the same person: Mr. Munro. And that, according to Mr. Harvey, is bound to affect adversely on the administration of justice as he reminded the court during submissions by quoting from page 73 of R. v. Lessard, [1976] 30 CCC (2d) 20:
I see no reason why a trial Judge who has
made a finding on disputed facts is not also empowered to vacate the
adjudication of guilt at any time before the imposition of the sentence,
although it is a power which, I cannot stress too strongly, should only be
exercised in exceptional circumstances and where its exercise is clearly called
for.
In S. (An Infant) v. Recorder of Manchester, Lord Morris of Borth-y-Gest
said, at p. 37.
The desire of any court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty.
[17] With respect, I am unable to conclude that Munro and 605463 B.C. Ltd., having been found guilty in the present case -- combined with the possibility that Munro and ATM Fishing Ltd. could be acquitted as a result of the constitutional argument in the companion case -- results in Munro's and 605463 B.C. Ltd.'s situation becoming one of exceptional circumstances.
[18] Furthermore, I do not see it as a situation where there is a prospect of inconsistent verdicts. The guilty verdicts from Munro and 605463 B.C. Ltd. resulted from the Federal Crown proving beyond a reasonable doubt that Munro and 605463 B.C. Ltd. were guilty of the offences set out in the four counts. The defendants did not advance any constitutional arguments. Accordingly, if Munro, Levesque, and ATM Fishing Ltd. are successful in the companion case with their constitutional arguments and acquitted based upon the constitutional arguments, then they will have succeeded because they made the constitutional arguments a key part of their defence.
[19] Finally, although Munro is a defendant in two on-going commercial fishery cases, there is nothing exceptional about Munro’s situation. Likewise with the numbered companies. There is nothing exceptional about the situation. Many persons and entities go to trial with more than one active file before the courts. It does not make their situation exceptional. Quite the contrary. It is rather common. Munro no doubt regrets one or more tactical decisions made in the planning of his defence and in the running of the trial. Likewise with Bullock and 605463 B.C. Ltd.. That said, the duty of the court is to ensure, as far as possible, a fair trial and that no person or entity is found guilty of an offence they did not commit. In all the circumstances of the present case, Munro and 605463 B.C. Ltd. received a fair trial and were judged guilty of the offences as per the law as it presently exists. There are no exceptional circumstances in the present case such as to allow for the rare remedy of vacating the guilty verdicts.
Due Diligence
[20] The Standing Joint Committee for the Scrutiny of Regulations presented Report No. 75 - Disallowance and its accompanying appendices to the 38th Parliament of Canada in 2005. In other words, Report 75 - Disallowance and its accompanying appendices have been available to the public for scrutiny for some 17 years.
[21] Given the timing of the Application to a Judge and the argument being advanced by Munro and 605463 B.C. Ltd., the reasoning in the first two paragraphs at paragraph 40 in Kowall is applicable to the present case:
A trial is not some kind of preliminary inquiry allowing the parties to recast their case depending upon the reasons for judgment. This was not a case where some minor fact unexpectedly took on overwhelming importance in the trial judge's reasons.
[22] Based upon the totality of the evidence at trial, the defences advanced by Munro and 605463 B.C. Ltd. at trial, the Constitutional Question Notice, and the submissions of counsel, I can only conclude that the defendants failed to exercise due diligence in the present case. The court information was sworn on January 2, 2020. There were numerous pretrial conferences and two previous scheduled trial dates. The defendants should have advanced their constitutional arguments at the onset of the trial as part of their overall trial strategy. In considering all aspects of the trial, including the defences advanced and the fact that Report No. 75 - Disallowance and its accompanying appendices are now some 17 years old, I conclude that the Application to a Judge is an attempt to reverse a tactical decision made at trial.
Clearest of Cases
[23] Mr. Harvey, in his usual articulate fashion, has submitted that the basic principle in support of the application to reopen the trial hearkens back to the role of the trial judge and the role of counsel in a case. Counsel present the evidence and argue the points considered relevant by their respective counsel. Counsel have a duty to bring relevant authorities to the notice of the court, whether they are for or against counsel's position. However, the role of the trial judge is quite different. It is to ensure, as far as possible, that only those who are, in fact, guilty are punished and, in Mr. Harvey's submission, that requires in the present case consideration of the points raised in the Constitutional Question Notice.
[24] Interestingly, the defendants:
1. failed to file an affidavit in support of the application to reopen the trial;
2. did not set out the reason they failed to file their Constitutional Question Notice before they were found guilty at trial; and
3. did not provide the court with an explanation as to why the constitutional argument did not form part of their original strategy at trial.
[25] I have based my decision upon the totality of the evidence and the submissions made by counsel. In doing so, I have concluded that denying the Application to a Judge will not bring the administration of justice into disrepute even if the defendants in R. v. Adam Munro, Silas Levesque, and ATM Fishing Ltd. are subsequently acquitted based upon the constitutional arguments being advanced in their trial.
[26] In light of my determination that exceptional circumstances do not exist in the present case and the Application to a Judge is an attempt to reverse a tactical decision made at trial, a miscarriage of justice will not result from my refusal of the application. Accordingly, the circumstances of the present case are anything but the clearest of cases for reopening a trial. Would it be in Munro's and 605463 B.C. Ltd.'s best interests to reopen the trial and allow Mr. Harvey to make the constitutional arguments on their behalf? Yes, of course it would. Nevertheless, as the trial judge, I am required to protect the integrity of the trial process including the enhanced interest in finality.
[27] Given my reasons set out above, this is not the clearest of cases such that I should allow for the reopening of the trial.
Conclusion
[28] The defendants have the burden of establishing that this is one of the rare cases in which the court should vacate guilty verdicts and allow the reopening of the trial. Munro and 605463 B.C. Ltd. have failed to do so.
[29] I do not have to consider Issue Number 3 as I will not be reopening the trial.
[30] I dismiss the defendants' Application to a Judge.
(RULING CONCLUDED)