nan IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 130 Date: September 9, 2010 Information: 43397893 Location: Saskatoon Between: Her Majesty the Queen and Michael Anthony Pesenti Appearing: Dorinda Stahl For the Crown Michael Owens For the Accused INTERIM DECISION D.E. LABACH, [1] The accused, Michael Pesenti, is charged that on or about August 9, 2009, at Saskatoon, Saskatchewan, he did: a) commit an offence under s. 254(5) of the Criminal Code and, at the time of committing the offence, knew or ought to have known, that his operation of the motor vehicle caused an accident resulting in bodily harm to another person, contrary to s. 255(2.2) of the Criminal Code; and b) operate motor vehicle while his ability to operate the vehicle was impaired by alcohol or drug and did thereby cause bodily harm to Neil Honatzis, contrary to s. 255(2) of the Criminal Code. [2] He came before me for preliminary inquiry on these charges on July 26, 2010. After the Crown had called all of their witnesses on the preliminary inquiry, asked Defence Counsel if they had any witnesses to call on behalf of the accused. They advised that they had one witness they wished to call but required an adjournment as that witness was not available to testify on this date. The Crown opposed the Defence adjournment request. It is on this request that must now make decision. [3] By way of background, the accused’s charges were first before the Court on August 10, 2009 and shortly thereafter he retained Mr. Owens to represent him. On August 19, 2009, Mr. Owens wrote to the Crown requesting full and complete disclosure. [4] An initial disclosure package was prepared and forwarded to Defence Counsel on August 24, 2009. Since this incident involved a motor vehicle accident, included in this package was a narrative, notes and calculations done by Sergeant Barbar, an accident reconstructionist with the Saskatoon Police Service as well as eight pages of Crash Data Retrieval Information. [5] On August 26, 2009, Defence Counsel wrote the Crown requesting that they review his August 19th disclosure request and forward any further disclosure that had yet to be sent. [6] Both charges the accused was facing were indictable. On December 21, 2009, Mr. Owens, on behalf of the accused, elected trial by Queen’s Bench Judge without Jury and requested preliminary inquiry date. The inquiry was set to July 26, 2010 and Case Management hearing was set to May 4, 2010. [7] Subsequent disclosure was forwarded by the Crown to Defence Counsel as follows: February 25, 2010 photographs taken by Sergeant Barbar and witness list for the preliminary hearing; March 4, 2010 an audio disk and the MDTT; April 14, 2010 the booking photograph of the accused and the hospital records of the complainant. [8] It is of some significance that in the witness list forwarded by the Crown on February 25, 2010, they advised that they would be calling four witnesses at the preliminary inquiry. Sergeant Barbar was not listed as one of those witnesses. [9] On May 4, 2010, case management conference on this matter took place in front of my colleague, Judge Agnew. review of his notes from the case management shows that Mr. Owens took no issue at this time with the witness list provided by the Crown or with the fact that Sergeant Barbar was not going to be called by the Crown at the preliminary inquiry. [10] Following the case management conference, the Crown forwarded further disclosure as follows: May 28, 2010 detention video of the accused; June 15, 2010 Highway Traffic Board Report; June 16, 2010 further notes of Sergeant Barbar. [11] On June 22, 2010, Mr. Owens wrote to the Crown. According to the Crown, in this letter, Mr. Owens asked that they have Sergeant Barbar available as a witness for the preliminary hearing. According to Mr. Owens, his letter asked that Sergeant Barbar be made available for the preliminary inquiry as the Defence may wish to call him as witness. However it read, this was the first occasion that Defence Counsel made the Crown aware that they wished Sergeant Barbar to be present as witness at the preliminary inquiry. [12] The Crown responded to Mr. Owens by way of e-mail dated June 23, 2010. In their e-mail they advised that Sergeant Barbar was not available to testify at the preliminary inquiry as he was out of the country for 2010 having being seconded to peace keeping mission in Afghanistan. Despite his absence, the Crown requested the Defence agree to admit Sergeant Barbar’s calculations regarding the accident and the accompanying data he accumulated including the crash data retrieval information for the purposes of the preliminary inquiry. [13] Mr. Owens wrote back to the Crown and advised that he was not prepared to simply let this evidence be admitted at the preliminary inquiry without Sergeant Barbar being called as witness. [14] The preliminary inquiry proceeded on July 26, 2010. The Crown called the four witnesses they advised they were going to call and then they closed their case. The Court heard no evidence of any measurements, observations or calculations made by Sergeant Barbar in relation to an accident reconstruction nor did the Crown attempt to file any crash data retrieval information. [15] The Court then asked Mr. Owens if he had any witnesses to call on the preliminary inquiry and he advised that he wished to call Sergeant Barbar. Since Sergeant Barbar was not available at present, Mr. Owens requested an adjournment to call him. The Crown opposed this adjournment request. [16] The only issue need address is whether the Defence is entitled to an adjournment to call Sergeant Barbar as witness. [17] The primary purpose of preliminary hearing is to satisfy the justice that there is sufficient evidence to put the accused on trial, with the result that the Crown has discretion to present only enough evidence to establish prima facie case. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-6, para. 13:0060; R. v. Barbeau 1992 CanLII 76 (SCC), [1992] S.C.R. 845 at para. 22; R. v. Sazant 2004 SCC 77 (CanLII), [2004] S.C.R. 635 at para. [18] The secondary purpose of preliminary inquiry is to provide the accused with an early opportunity to discover the Crown’s case against him. However, this discovery function remains incidental to the main focus of the preliminary inquiry, that is, the determination of whether there is sufficient evidence to put the accused on trial for the offences charged. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-6, para. 13:0060; R. v. Hynes 2001 SCC 82 (CanLII), [2001] S.C.R. 623 at para. 31; v. B.(E.) (2002) 2002 CanLII 23582 (ON CA), 162 C.C.C. (3rd) 451 (Ont. C.A.) at para. 41. [19] There was some argument from Defence Counsel that should adjourn the preliminary inquiry and force the Crown to call Sergeant Barbar once he returns from Afghanistan because to do otherwise would limit the accused’s ability to make full answer and defence. Defence Counsel seemed to be of the view that since the Crown asked him to admit Sergeant Barbar’s data and calculations regarding his accident reconstruction at the preliminary inquiry, this was an indication they would be relying on his evidence at trial. They pointed to the fact that Crown counsel would not commit to not calling Sergeant Barbar at the accused’s trial as an indication that they viewed his evidence as important. cannot say that agree with Defence Counsel’s position in this regard. And even if did, have no authority to force the Crown to call particular witness at preliminary inquiry, let alone their entire case. [20] Unlike at trial, justice conducting preliminary inquiry has no power to direct Crown counsel to call certain witnesses. The Crown has an unfettered discretion to call whatever witnesses it requires. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-4, para. 13:0040; Salhany, R. E., Canadian Criminal Procedure (6th ed.) p. 5-16, para. 5.480; R. v. Brass (1981), 1981 CanLII 2366 (SK QB), 64 C.C.C. (2nd) 206 (Sask. Q.B.). [21] Moreover, the evidence adduced at preliminary inquiry does not reflect the whole of the evidence which will be presented at trial nor does it reflect the strength of the Crown’s case at trial. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-6, para. 13:0060; R. v. Power, 1994 CanLII 126 (SCC), [1994] S.C.R. 601 at para. [22] If am to grant this adjournment it must be on the basis that the Defence wishes to call Sergeant Barbar as witness rather than that the Crown has an obligation to call him as part of their case. [23] Section 537(1)(a) of the Criminal Code states as follows: justice acting under this Part may: a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of witness, the inability of witness who is ill to attend at the place where the justice usually sits or for any other sufficient reason; [24] The principles which must guide justice in the exercise of the discretion to adjourn preliminary inquiry because witness is unavailable are those developed at common law and applied at trials. The conditions which must ordinarily be established were put succinctly in R. v. Darville (1956) 113 C.C.C. 117 (S.C.C.): a) That the absent witnesses are material witnesses in the case; b) That the party applying has been guilty of no laches or neglect in omitting to endeavour to procure the attendance of these witnesses; c) That there is reasonable expectation that the witnesses can be procured at the future time to which it is sought to put off the trial. See R. v. McKenzie 1989 Carswell BC 592 (B.C.S.C.) at para. 18; R. v. Abel 2009 CarswellNWT 63 (N.W.T. Terr. Ct.) at paras. and 5. [25] Applying the first principle in Darville, supra, to the present case, I cannot be certain that Sergeant Barbar is not a material witness in this preliminary inquiry. He was present at the accident scene and took measurements, made notes and did some calculations. How he did his measurements, the assumptions and notes he made and the formulas he used to do his calculations may prove very material especially since the Defence has engaged their own accident reconstructionist. have also been advised that Sergeant Barbar had discussion with the accused shortly after the accident. The questions and answers from that meeting may be very material to the accused’s state of mind or knowledge at the time he refused to comply with the Intoxilyzer demand or speak to whether there is casual connection between the accused’s alleged impairment and the accident that caused the bodily harm to the complainant. [26] I am also not satisfied that the Defence is guilty of neglect in procuring the attendance of Sergeant Barbar at the July 26 preliminary inquiry date. month earlier, Defence had written letter to the Crown requesting that they have Sergeant Barbar available at the preliminary hearing. Crown immediately replied advising that he was out of the country in Afghanistan. If Sergeant Barbar was in Saskatoon but the Crown was refusing to call him then without taking the time to issue and serve subpoena on him, would find the Defence negligent in procuring his attendance. But when the Defence is advised that Sergeant Barbar is halfway around the world on peace keeping mission in the middle of war zone, do not think that they are negligent in not going to the trouble and expense of preparing subpoena that could not be effectively served on him in any event. [27] Lastly, have been advised by Crown counsel that Sergeant Barbar’s secondment is finished in January, 2011 and he is expected back in Saskatoon at the Saskatoon Police Service at that time. I am satisfied that there is a reasonable expectation that he can be procured on the adjourn date and that such adjournment is relatively short in duration. [28] Therefore I grant the Defence request for an adjournment so that they can make the necessary arrangements to call Sergeant Barbar as a witness for the Defence in this preliminary inquiry. At this time, see no need to deal with the Defence request to be able to cross-examine Sergeant Barbar when he appears as their witness. In my view, Sergeant Barbar is being called as Defence witness and as such can be examined-in-chief by Mr. Owens. If situation arises in the course of his examination that creates basis for Mr. Owens to make an application to cross-examine Sergeant Barbar then we will deal with it at that time. D.E. Labach,
Defence sought an adjournment of a preliminary hearing to call a police accident reconstructionist as a witness. Prior to the commencement of the hearing, defence counsel was aware that the Crown did not intend to call this person as part of its case. One month prior to the preliminary hearing, defence counsel requested that the accident reconstructionist be made available as witness. The Crown advised defence that the officer was out of the country on peace keeping mission. The officer was expected back within months of the commencement of the preliminary hearing. HELD: The defence request for an adjournment was granted. The Court could not be satisfied that the officer was not a material witness to the preliminary inquiry. The Court was not satisfied that defence was guilty of neglect in failing to procure the officer's attendance when they had been advised by the Crown that he was out of the country. The length of the adjournment would not be lengthy.