J. PROVINCIAL COURT PROVINCE OF SASKATCHEWAN INFORMATION 38762932 HER MAJESTY THE QUEEN v. CARL VINCENT CHECKOSIS Daniel Dahl for the Crown Donald MacKinnon for the accused JUDGMENT KOLENICK, PCJ March 30, 1999 1. The issue which has been raised in these proceedings is whether it is appropriate for the court to require the accused to commence the trial by calling evidence on a Charter voir dire, where the accused has given notice of a Charter application. This would differ from the procedure which is usually utilized, wherein the Crown commences the trial by calling its witnesses in the trial proper, and thereafter the accused applies to the court for leave to apply the Crown evidence to the Charter application, where it is appropriate to do so, and in addition to calling other defence evidence on the application. 2. have reviewed the authorities which have been filed by the Crown. note that the judgment of Finlayson, J.A., in R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 52 O.A.C. 59; 12 C.R. (4th) 152 (C.A.), states the following propositions. 3. First, whatever procedures are utilized must not unnecessarily interfere with the inherent jurisdiction of the trial judge to control the conduct of trial. As well, rather than inventing structured procedures for Charter applications in Provincial Court trials, it is better to leave judges the discretion to determine matters such as sufficiency of notice and the extent of the offer of proof. This may be different for trial court which hears cases that have been through preliminary inquiry and detailed pretrial, and that regularly assigns trial judges to cases well before the date of the trial. 4. In the judgment, Finlayson, J.A., noted also that in Provincial Court it will be for the trial judge to decide what procedure should be followed, but at least, counsel should give timely notice to the Crown of the Charter issue, and at trial, counsel for the accused should be able to state with reasonable particularity the grounds upon which the application for exclusion is made. 5. In addition, Finlayson, J.A., indicated that in his view, it is self-evident that objections to admissibility of evidence must be made before or when the evidence is proffered. This common sense proposition is equally applicable to Charter applications to exclude evidence. Litigants, including the Crown, are entitled to know when they tender evidence whether the other side takes objection to the reception of that evidence. It is obvious that counsel for the accused is not entitled to sit back and hope that something will emerge from the Crown’s case to create Charter argument or assist in one counsel is already prepared to make. 6. The judgment noted as well that the onus is on the accused to demonstrate on balance of probabilities that he or she is entitled to Charter remedy, and must assert that entitlement at the earliest possible point of the trial. Otherwise, the Crown and the court are entitled to proceed on the basis that no Charter issue is involved in the case. 7. Furthermore, Finlayson, J.A., stated that in the interests of conducting an orderly trial, the trial judge is entitled to insist and should insist that defence counsel state his or her position on possible Charter issues, either before or at the outset of the trial. All issues of notice to the Crown and sufficiency of disclosure can be sorted out at that time. Failing timely notice, trial judge, having taken into account all relevant circumstances, is entitled to refuse to entertain an application to assert Charter remedy. 8. In addition, the judgment indicated that it must be recognized that there will be instances where the defence, through no fault of its own, cannot provide detailed summary of the evidence that it anticipates it will call in the Charter application. It may be that fairness requires that the accused be given some latitude at some stage of the trial to explore potential Charter issues which he or she had no opportunity to develop prior to trial. If fairness requires that kind of leeway, the trial judge will grant it, but must also control the proceedings to ensure that the legitimate exploration does not become fishing expedition which will only serve to waste time and delay the expeditious determination of the case. 9. Furthermore, in R. v. Loveman (1992), 1992 CanLII 2830 (ON CA), 52 O.A.C. 94; 71 C.C.C. (3d) 123 (C.A.), Doherty, J.A., made the following observations on this issue, at page 125: “A trial judge must control the trial proceedings so as to ensure fairness to all concerned and preserve the integrity of the trial process. The specific situations in which the trial judge must exercise that power are infinitely variable and his or her order must be tailored to the particular circumstances. In the exercise of this inherent power, trial judge may decline to entertain motion where no notice, or inadequate notice, of the motion has been given to the other side. This must be so even when the motion involves an application to exclude evidence pursuant to s. 24(2) of the Charter. Clearly, where Charter right is at stake, trial judge will be reluctant to foreclose an inquiry into an alleged violation. There will, however, be circumstances where no less severe order will prevent unfairness and maintain the integrity of the process.” 10. note also that in R. v. Habhab (I.) (1997), 197 A.R. 161 (Prov. Ct.), Wenden, P.C.J., was asked to consider endorsing the Charter application procedure which involved entering into voir dire at the commencement of the trial and the Crown proceeding to lead their evidence at the outset regarding the Charter application, and the substantive offence. The court dismissed this proposal, and suggested that the case authorities by implication suggest it is the obligation of the accused to lead the evidence on the voir dire. On this subject, at paragraph 45, the court made the following comments: “[45] Undoubtedly, one of the major concerns that will be raised by defence counsel is that for the most part, witnesses required for the application to exclude evidence will be the police who investigated the offence. Traditionally, counsel have dealt with police witnesses as cross-examiners. Counsel rightly or wrongly take the view that such witnesses might be less than forthcoming in the answers given. There is not in my view, any evidence, to support this belief. Defence counsel, in the event that the witness is, or appears to be adverse, can always ask the court for leave to cross-examine. In situation where an accused is trying to establish that constitutionally protected right has been breached, the court ought to give counsel more leeway in cross-examining ones (sic) own witness than is ordinarily done. Moreover, witnesses on Charter voir dire are not always necessarily police witnesses. They can be anyone who happened to be around at the relevant time, or someone with whom the accused consulted at the relevant times. Disclosure requires the Crown to make available to the defence the names of such people, and all other relevant information. Surely it must be left to defence counsel to have these people to attend as witnesses if, in their assessment, the testimony of such witnesses is required in support of the application. Furthermore, no one would suggest that the Crown examine the witnesses-in-chief, first, and then the defence cross-examine them. In light of these observations, and what has been said in the cases, one cannot see any justification for the procedure presently proposed.” 11. With all due deference, if the authorities do imply that there is an obligation on the accused to call evidence first on the Charter voir dire, in my view, this can quite properly occur by the application to it of some or all of the evidence which is already before the court and on the record on the substantive issues. The admissibility of that evidence can be reserved by the court, pending the determination of the Charter issue on its merits, and the application of s. 24 remedy, if any. 12. One of the advantages of having the Crown evidence put on the record at the outset of the trial is that it eliminates any guesswork as to the nature and quality of that testimony as it relates to the Charter application. This surely is superior from procedural standpoint than the accused calling the Crown witness at the outset on the voir dire on speculation, discovering that aspects of that evidence are unfavourable and contrary, and therefore having to attempt to convince the trial judge to grant leave to cross-examine the witness. It also avoids the possible scenario where the Crown witness evidence is led by the defence on the Charter voir dire, and then the accused having to impeach the credibility of that same witness in cross-examination as it relates to the proof of the substantive issues. 13. I must therefore conclude that the fairness of these proceedings, as well as the public confidence in the administration of justice, are best served by the Crown first leading its evidence on the charge as alleged, with the accused having leave to apply to have the evidence applied to the Charter issue, if it is appropriate to do so.
The issue was whether it was appropriate for the court to require the accused to commence the trial by calling evidence on a Charter voir dire, where the accused gave notice of a Charter application. This would differ from the usual procedure, wherein the Crown commences the trial by calling its witnesses in the trial proper, and thereafter the accused applies for leave to apply the Crown evidence to the Charter application, where it is appropriate, in addition to calling other defence evidence on the application.HELD: In R. v. Kutynec, the court made the following determinations: 1) whatever procedures are used should not unnecessarily interfere with the inherent jurisdiction of the trial judge to control the conduct of the trial; 2) instead of creating procedures for Charter applications in provincial court, it is better to leave judges the discretion to determine matters such as sufficiency of notice and the extent of the offer of proof; 3) counsel should give timely notice to the Crown of the Charter issue, and at trial, the accused should be able to state with reasonable particularity the grounds upon which the application is made; 4) objections to admissibility of evidence must be made before or when the evidence is proffered; 5) the onus is on the accused to demonstrate on a balance of probabilities that he or she is entitled to a Charter remedy; 6) the trial judge should insist defence counsel state his or her position on possible Charter issues, either before or at the outset of the trial; 7) failing timely notice, a trial judge is entitled to refuse an application to assert a Charter remedy; 8) fairness may require the accused be given some latitude to explore potential Charter issues which he or she had no opportunity to develop prior to trial; and 9) the trial judge must control the proceedings to ensure this legitimate exploration does not become a fishing expedition. In R. v. Loveman, the court said the trial judge must ensure fairness and preserve the integrity of the trial process. This may require a judge to refuse to hear a motion where insufficient notice has been given, even when the motion involves an application to exclude evidence under s. 24 of the Charter. In R. v. Habhab, the court was asked to consider a procedure which involved entering into voir dire at the start of the trial and the Crown proceeding to lead their evidence at the outset regarding the Charter application and substantive issue. The court dismissed this proposal and stated that the case law implies it is the accused's obligation to lead the evidence on the voir dire. The court was not able to justify the proposed procedure. If the authorities imply there is an obligation on the accused to call evidence first on the Charter voir dire, this can occur by the application of some or all the evidence which is already on the record on the substantive issues. The admissibility of evidence can be reserved by the court pending judgment on the Charter and any s. 24 remedy. An advantage of having the Crown evidence on record at the outset is it removes uncertainty as to the nature of the testimony as it relates to the Charter application. This is preferable to the accused calling the Crown witness at the outset on the voir dire, discovering aspects of the evidence are contrary or unfavourable, and then having to convince the court to grant leave to cross-examine. It avoids a scenario where the Crown witness evidence is led by the defence on the voir dire, and then the accused must impeach the creditability of this witness in cross-examination as it relates to the proof of the substantive issues. The court concluded the fairness of the proceedings and public confidence in the administration of justice, were best served by the Crown first leading its evidence on the charge alleged and the accused having leave to request the evidence be applied to the Charter issue, if appropriate.