J. 1993 S.N. 09208 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN ‑and- JOHN ALEXANDER PARR, CECIL JAMES KEEPING, BARBARA JEAN KEEPING, BRIAN WILLIAM DEMPSEY, JOSEPH ALEXANDER CAMPBELL, ALERT GEORGE MUISE, LAUCHIE FREDERICK CAMPBELL, JOHN WILLIAM OLIVER, ANITA MARIE O’CONNELL, KELLY FLORENCE CAMPBELL, RAYMOND GEORGE MUISE Applicants Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on January 27, 2008. DECISION Heard Before: Justice Robert MacDonald in Chambers Date Heard: October 11 and 12, 1994 in Sydney, Nova Scotia Written Decision Released: November 9, 1994 COUNSEL APPLICANTS William Burchell John Parr John W. Morgan Cecil James Keeping David Raniseth Barbara Jean Keeping Nash Brogan Brian William Dempsey John MacDonald Joseph Campbell Anthony Magliaro John Oliver M. Joseph Rizzetto Albert Muise Art Mollon Anita O’Connell Mary Francis Roach MacDonald Kelly Campbell Darcy MacPherson Lauchie F. Campbell David Campbell Raymond George Muise CROWN RESPONDENT James Martin Her Majesty the Queen Federal Crown Attorney Ban on Publication concerning the charges in this case was placed by Preliminary Inquiry Judge to continue until commencement of trial. Therefore any content of this file which quotes or reveals evidence contained from the Preliminary Inquiry is banned from publication and so will continue until the date of trial. This is an application by way of certiorari to quash the committal order of the Honourable Judge Matheson, Provincial Court Judge against the above named defendants. The defendants are charged that they: "Between the first day of June, 1993 and the 15th day of July, 1993, at or near New Waterford and elsewhere in the Province of Nova Scotia, did unlawfully conspire together the one with the other or others and with persons unknown to commit the indictable offence of trafficking in narcotic, to wit: cocaine, contrary to Section 491 of the Narcotic Control Act, thereby committing an offence under Section 465(1)(c) of the Criminal Code of Canada." All the accused elected trial by Judge and Jury and Preliminary Inquiry was held during seven days between March 27th and April 8th, 1994, after which the learned Judge committed all accused to stand trial. BACKGROUND [This paragraph contains evidence from the Preliminary Inquiry and, thus, has been redacted.] [This paragraph contains evidence from the Preliminary Inquiry and, thus, has been redacted.] The intercepts formed the background of the charges against the accused. I'll come back to them. The powers and jurisdiction of Judge holding Preliminary Inquiry are largely controlled by the following Criminal Code sections: "Section 537.[465] (1) justice acting under this Part may (I) regulate the course of the inquiry in any way that appears to him to be desirable and that is not inconsistent with this Act." "Section 540.[468] (1) Where an accused is before justice holding preliminary inquiry, the justice shall (a) take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross‑examine them..." "Section 541. [469] (1) When the evidence of the witnesses called on the part of the prosecution has been taken down and, where required by this Part, has been read, the justice shall address the accused as follows or to the like effect: Having heard the evidence, do you wish to say anything in answer to the charge or any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence? You are not bound to say anything, but whatever you do say will be taken down in writing and may be given in evidence against you at your trial. You must clearly understand that you have nothing to hope from any promise of favour and nothing to fear from any threat that may have been held out to you to induce you to make any admission or confession of guilt, but whatever you now say may be given in evidence against you at your trial notwithstanding the promise or threat. (2) Where the accused says anything in answer to the address made by the justice pursuant to subsection (1), his answer shall be taken down in writing and shall be signed by the justice and kept with the evidence of the witnesses and dealt with in accordance with this Part. (3) When subsections (1) and (2) have been complied with, the justice shall ask the accused if he wishes to call any witnesses. (4) The justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection, section 540 applies, with such modifications as the circumstances require." "Section 548. [475] (1) When all the evidence has been taken by the justice, he shall, (a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or (b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction. (2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, the justice shall endorse on the information the charges on which he orders theaccused to stand trial. (3) The validity of an order to stand trial is not affected by any defect apparent on the face of the information in respect of which the preliminary inquiry is held or in respect of any charge on which the accused is ordered to stand trial unless, in the opinion of the court before which an objection to the information or charge is taken, the accused has been misled or prejudiced in his defence by reason of that defect." An application for certiorari is an inquiry on the record of the lower tribunal. The Criminal Code, makes it clear that Judge of the Provincial Court entered upon the Preliminary Inquiry, with jurisdiction. The question before me is whether or not the jurisdiction was exceeded, or lost during the course of the Inquiry. The applicants argue that the Honourable Judge Matheson, exceeded or lost his jurisdiction for one or more of the following reasons, which are adopted essentially from the Respondent's brief, but believe cover all the points of argument brought before me by the Applicants: "that the learned Provincial Court Judge exceeded or lost jurisdiction during the course of the preliminary inquiry by: (a) failing to allow cross‑examination of the affiant to the authorization on his supporting affidavit, (b) by allowing the accused to leave the courtroom during the course of the inquiry (c) committing the accused to stand trial when there was insufficient evidence to do so, (d) that the learned Provincial Court Judge was biased against the accused, (e) that the learned Provincial Court Judge denied Lauchie Campbell his right to counsel (f) that the learned Provincial Court Judge denied Lauchie Campbell his right to make full answer and defence. (g) that actions of the learned Provincial Court Judge constituted denial of natural justice (h) that there was not sufficient evidence of the identification of Barbara Keeping." ABSENCE OF ACCUSED FROM THE COURTROOM, AND OPPORTUNITY TO CROSS EXAMINE. Section 540(1) (a) states: (1) Where an accused is before justice holding preliminary inquiry, the justice shall (a) take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross‑examine them; ..." There is some evidence that would indicate the accused came into and went out of the courtroom from time to time at their own volition. This is not surprising considering that there were eleven defendants, eleven counsel, court officers et cetera in the courtroom. Without prisoner's box, there is no way, that the presiding Judge could control this traffic, and at the same time carry on with his Inquiry. At page 73 of the transcript, the Crown made this comment to the court: "Your Honour Mr. Burchell and his client (John Parr) are not in court. am concerned about that, one or the other should at least be here." few minutes later Mr. MacPherson counsel for Lauchie Campbell arrived and indicated to the court that Mr. Parr chose to remain just outside the courtroom. During the debate that followed, it was alleged, that the learned judge was prejudiced; there was so some argument about adjournments of the Prelimiary Hearing. In v. Garofoli 1988 CanLII 3270 (ON CA), 1988, 41 CCC (3d) 97, Martin, J.A. quotes Mr. Justice Brooke in v. Tzimopoulos as follows: "An accused person should not be able to thwart the rights of others in society by deliberately absenting himself from his trial. Balancing his rights against those of others and of society with respect to the trial it is fair that the trial proceed and, indeed, in my opinion, it offends basic principle of fundamental justice if the trial must be aborted because the appellant absconds." [My emphasis] The effect of one absconding, or just absenting himself, is the same insofar as the progress of the hearing is concerned. The case quoted from above, was trial. This application, is from Preliminary Inquiry, created for the purpose of ascertaining whether or not there is sufficient evidence in the hands of the prosecutor, to require the accused to be committed for trial. It also has second purpose, which was emphatically argued before me, that it was for the further purpose of disclosure. Whether that is so or not, both reasons for the Preliminary Inquiry, are for the benefit of an accused, if he chooses to sit it out in the ante room of the court, then that should be "presence" enough to satisfy Section 540. There is also Section 544, which permits justice to carry on an Inquiry when an accused has absconded and permits the accused's counsel to carry on with the proceedings. Whether there is evidence of absconding, or simply absence, does it make any real difference? In my opinion, there was not in this regard, and in these circumstances any breach of mandatory provision of the Criminal Code. believe there was ample opportunity for all counsel to cross examine witnesses called by the Crown. Corporal MacQueen, was cross examined by Mr. Brogan, Mr. Raniseth, Mr. Iannetti, Mr. Morgan and Mr. MacPherson. Other counsel for the defendants, insofar as can see, had no question for the Crown witnesses, and did not wish to make questions when asked. If there were any limitations placed on the cross examining, it was within the jurisdiction of the learned Judge and it was in the exercise of that jurisdiction that the learned Judge placed these limitations. It is not for this court, on certiorari, to interfere with the exercise of the Judge's decisions within his jurisdiction. BIAS Following the argument over the absence of Mr. Parr. from the courtroom, an argument ensued between various counsel and the learned Judge, in which an allegation of prejudice was made against the Judge. Although the transcript indicates that statements were made by the learned Judge which perhaps would have been better unsaid, upon the reading of the whole of the transcript, such statements did not in my opinion inhibit or intimidate counsel and the inquiry went on for further five days. In my opinion there was no loss of jurisdiction. INTERCEPTED TELEPHONE CALLS [This paragraph contains evidence from the Preliminary Inquiry and, thus, has been redacted.] [This paragraph contains evidence from the Preliminary Inquiry and, thus, has been redacted.] Corporal MacQueen at page 155 (Volume 1) of the transcript: [This paragraph contains evidence from the Preliminary Inquiry and,thus, has been redacted.] [This paragraph contains evidence from the Preliminary Inquiry and, thus, has been redacted.] IDENTIFICATION Certain counsel argued that their clients had not been properly identified. Section 548 (1)(a) and (b) state: [475] (1) When all the evidence has been taken by the justice, he shall (a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or (b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction." [my emphasis] "If in his opinion", this places the jurisdiction over committal for trial in the hands of the Judge of the Preliminary Inquiry. His opinion dominates, providing he has some evidence, which he considers sufficient, to place the accused on his trial. It is not for the Chambers Judge to second guess the Judge of the Preliminary Inquiry, as long as there is some evidence. On all the evidence, and against the background of the intercepted telephone calls, there is some evidence pertaining to identification, which justifies the learned Judge's committal in this respect. SUFFICIENCY OF EVIDENCE Whether or not there is sufficiency of evidence against the accused to commit them or any of them for trial on the conspiracy charge, is matter within the jurisdiction of the Judge of the Preliminary Inquiry. It is to be determined by the exercise of his opinion. If the Court of Review can find some evidence upon which the judge could form the opinion that is sufficient to an extent that jury could reasonably find an accused guilty of conspiracy, then the Reviewing Court should not speculate further, the committal should be confirmed. MANDATORY STATUTORY PROVISIONS Section 541 dictates what the Judge of the Preliminary Inquiry will do following presentation of all the evidence called by the prosecution. On page 398 to 401 of the transcript, the following exchanges took place: “THE COURT: was just going to exclude ah Lauchie Campbell and ah..is it Mr. Oliver...ifs Keeping.? Yes it's Cecil James Keeping., Oliver and Keeping maybe seated. MR. RANISETH: Your Honour with respect to my client would ah like... THE COURT: Exclude her too? MR. RANISETH: Yes. THE COURT: And that is? MR. RANISETH: Mrs. Keeping. THE COURT: Yes, Barbara Keeping. MR. MARTIN: Alright, Your Honour, just wish to confirm the particular individuals for which your reading the address... MR. MACPHERSON: Excuse me, there maybe some confusion here...it was my understanding that Your Honour excluded Mr. Campbell...but he's not being addressed at this point, is that correct? THE COURT: Lauchie Campbell is not no. MR. MARTIN: John Oliver is. THE COURT: John Oliver is. MR. MARTIN: Thank you, Your Honour. THE COURT: I'll go back over them again. John Parr, Albert Muise, John Oliver, Raymond Muise, Joseph Alexander Campbell, Brian William Dempsey, Kelly Campbell and Anita O’Connell. I'm going to address all of you and then ask you some questions individually through your counsel. So, ask you not to respond until your counsel responds. Having heard the evidence do you wish to say anything in answer to the charge or any other indictable offence in respect to the same transaction founded on the facts that are disclosed by the evidence. You are not bound to say anything, but whatever you do say will be taken down in writing and maybe given in evidence against you at your trial. You must clearly understand that you have nothing to fear from any threat that may have been held out to you to induce you to make any admission or confession of guilt. But whatever you now say maybe given in evidence against you at your trial notwithstanding the promise or threat. Ah John Alexander Parr do you wish to say anything? MR. BURCHELL: Nothing to say, Your Honour. THE COURT: Do you wish to call any witnesses? MR. BURCHELL: No evidence to call Your Honour. THE COURT: commit him to stand in the Supreme Court before Jury. Albert Muise. MR. MUISE.: My counsel is not present, Your Honour. THE COURT: Yes? MR. MUISE.: My counsel is not present. THE COURT: appreciate that. Do you wish to say anything? MR. MUISE.: No Your Honour. THE COURT: Do you wish to call any evidence? MR. MUISE: No Your Honour. THE COURT: commit you also to stand trial ah before the Supreme Court with Judge and Jury. Ah John William Oliver. You're without counsel today too? Page 400 MR. OLIVER: Yes Your Honour. THE COURT: Do you have anything you wish to say? MR. OLIVER: Nothing. THE COURT: And do you wish to call any evidence? MR. OLIVER: No Your Honour. THE COURT: commit you to stand trial in the Supreme Court before Judge and Jury. Ah...Raymond Muise. MR. IANETTI: Raymond Muise has nothing to say, Your Honour, and he has no witnesses to call, but will make submission on his behalf on the issue of committal. THE COURT: commit him to stand trial in the Supreme Court...did you have submission to make? MR. IANETTI: Yes did your Honour, will. THE COURT: Well I'll come back to you. If any counsel have submissions to make, I'll hear you, and interrupt me and ask for the right to speak. Ah..Joseph Alexander Campbell? BY DEFENCE: Ah, nothing at this time, Your Honour. THE COURT: Very good, commit him to stand trial in Supreme Court before Supreme Court Judge and Jury. Ah..Brian William Dempsey. MR. BROGAN: He has nothing to say Your Honour, no witnesses. THE COURT: commit him to stand trial before the Supreme Court Judge and Jury. Ah, Kelly Campbell. Kelly Campbell is she here. MS. MACDONALD: Yes, she is standing at the back Your Honour. THE COURT: Oh there she is, and your acting for Kelly Campbell.. Does she wish to say anything or call any evidence? MS. MACDONALD: Well Your Honour there are few..or no evidence, but there are some comments would want to make. THE COURT: You want to make..well I'll ask you to hold them for now, you maybe seated Miss. Campbell. And Anita O’connell. ah Mr. Mollon? MR. MOLLON: No evidence, no witness being called at this time Your Honour, no argument. THE COURT: commit here to stand trial in the Supreme Court before Judge and Jury. So we have to hear from ah Mr. lanetti for Raymond Muise and we have to hear from Miss MacDonald, and then we have the other three remaining..." As interpret that somewhat confused exchange, Section 541(1) was read to the following and they were committed for trial: John Parr, Albert Muise, John Oliver, Raymond Muise, Joseph Campbell, Brian Dempsey, Kelly Campbell and Anita O’Connell. Excluded from the reading of Section 541(1) were Barbara Keeping, Lauchie Campbell and James Keeeping (page 398, Volume II of the transcript). On subsequent day, on page 286 of my transcript (the pages of which were badly mixed up and out of sequence) the following appears: "THE COURT: Mrs. Keeping,, would you stand please? read to you yesterday about your opportunity to speak and so on. Do you wish to say anything? MR. RANISETH: We have no statement to make, but we..we do wish to make submission." and on page 288: "THE COURT: I'm satisfied that on the whole of the evidence Barbara Keeping should be committed to stand trial and so commit her..." This was after the calling for examination of couple of witnesses on behalf, believe, of Barbara Keeping, Lauchie Campbell and James Keeping. Judge Matheson did not address these accused as set out in Section 541(1), the day previous, when he did address the accused in those words, he excluded the Keepings and Laurie Campbell. The question now before me, is whether the above quotes are "to the like effect" of the address required under Section 541. [Emphasis added] The learned Judge having specifically excluded the Keepings and Laurie Campbell from the reading of Section 541(1), cannot bring them back under this mandatory requirement by simply reminding them that they heard it read yesterday. Neither do believe the words "your opportunity to speak out and and so on" are to the "like effect" of the words of Section 541(1). The avoidance of the literal formality of the required reading of Section 541 should not be so easily accomplished. In my opinion the learned Judge neglected the mandatory requirements of Section 541 in respect to Barbara Keeping and Cecil James Keeping and Lauchie Campbell and their committal for trial should therefore be quashed. In summary then, the committals of the following are confirmed: John Parr, Albert Muise, John Oliver, Raymond Muise, Joseph Campbell, Brian Dempsey, Kelly Campbell and Anita O’Connell; and the committal of Barbara Keeping, Cecil, James Keeping and Lauchie Campbell are quashed. ROBERT MACDONALD
This is an application by way of certiorari to quash the committal order of the preliminary inquiry judge. Quashing three of the 11 committals, that the judge failed to follow the literal formality of s. 541(1) of the Criminal Code. After specifically excluding the three from the reading of s. 541(1), the judge simply reminded them they had heard the reading on the previous day. The jurisdiction of the preliminary inquiry judge was also discussed.