Sulyma J.:
The Applicant, Michael Pawlivsky was charged with offences under s. 239 of the Income Tax Act on March 17, 1995. The charges alleged that false statements had been made by him on his tax returns for the taxation years between 1989 and 1994. The prosecution proceeded summarily.
The defence requested the Court determine the fitness of the accused to stand trial and after a full psychiatric assessment a fitness hearing was directed. At the conclusion of the fitness hearing, including the calling of viva voce evidence, Provincial Court Judge M. G. Stevens-Guille found the Applicant unfit to stand trial and directed that he be released from custody on certain conditions and that the review board hold a disposition hearing. Two subsequent disposition hearings were held by the Alberta Review Board, in September of 1996 and August of 1997, and on each occasion the Applicant was discharged on condition that he reside in Edmonton, in accommodation approved by the Director of Forensic Services, that he attend Forensic Assessment and Community Services every three months, or more often if so directed, and that he keep the peace and be of good behaviour. A further hearing was held on August 25, 1998. At that time the accused was again found to be unfit to stand trial and discharged on the same conditions as had been imposed previously. Since June of 1995 the Applicant’s daughter, Ms. Donna Pawlivsky (Levitt) has been the legal guardian of the Applicant pursuant to a Court of Queen’s Bench order.
There was no trial or other hearing on the merits of the Crown’s allegation prior to the finding that the Applicant is unfit. The prosecution alleges, as part of its case against the Applicant, that he claimed certain expenses for a tour boat company which it states never existed. The Defence, through the Applicant’s Guardian, has denied these allegations and takes the Applicant’s position that he has not violated the Income Tax Act.
On June 19, 1998 a hearing pursuant to the provisions of s. 672.33 of Part XX. I of the Code was commenced before The Honourable Judge R. Chisholm in the Provincial Court of Alberta. At the opening of the inquiry and pursuant to the provisions of s. 672.33(4) of the Code, the Crown introduced a total of 39 affidavits that were entered as exhibits. The Crown states that the affidavits in question were obtained from business people, government registries, government boards and friends and acquaintances of the accused and deal generally with the existence or lack thereof of the tour boat company. The Applicant submits that the bottom lines of the content of the affidavits is that the various affiants had never heard of the Applicant or his tour boat company.
The Applicant applied to cross-examine some of the affiants on their affidavits. The prosecution opposed the request and The Honourable Judge Chisholm ruled that he was not prepared to exercise a discretion to grant the Applicant the right to cross-examination on any of the Crown’s affidavits. The Applicant now seeks an order in the nature of mandamus with certiorari in aid quashing that decision and an order declaring the Applicant’s right to cross-examine and directing the learned Provincial Court Judge permit such cross-examination and continue the proceedings for that purpose. Alternatively, the Applicant seeks an order directing a judicial stay of proceedings. In my opinion, the only remedy in issue is whether it is appropriate to quash the trial judge’s decision and direct him to permit cross-examination and to continue the proceedings for that purpose.
There is no binding or persuasive authority concerning procedures under s. 672.33 and the particular issue before me. This section was enacted in the early ‘90’s and replaced the former s. 615(7) of the Code which provided:
Where the verdict is that the accused is unfit on account of insanity to stand his trial, the court, judge or provincial court judge shall order that the accused be kept in custody until the pleasure of the lieutenant governor of the province is known, and any plea that has been pleaded shall be set aside and the jury shall be discharged.
Section 672.33 makes a substantial change to that former procedure as it provides as follows:
672 .33 (1) The court that has jurisdiction in respect of the offence charged against an accused who is found unfit to stand trial shall hold an inquiry, not later than two years after the verdict is rendered and every two years thereafter until the accused is acquitted pursuant to subsection (6) or tried, to decide whether sufficient evidence can be adduced at that time to put the accused on trial.
(2) On application of the accused, the court may order an inquiry under this section to be held at any time if it is satisfied, on the basis of the application and any written material submitted by the accused, that there is reason to doubt that there is a prima facie case against the accused.
(3) At an inquiry under this section, the burden of proof that sufficient evidence can be adduced to put the accused on trial is on the prosecutor.
(4) In an inquiry under this section, the court shall admit as evidence
(a) any affidavit containing evidence that would be admissible if given by the person making the affidavit as a witness in court; or
(b) any certified copy of the oral testimony given at a previous inquiry or hearing held before a court in respect of the offence with which the accused is charged.
(5) The court may determine the manner in which an inquiry under this section is conducted and may follow the practices and procedures in respect of a preliminary inquiry under Part X VIII where it concludes that the interests of justice so require.
(6) Where, on the completion of an inquiry under this section, the court is satisfied that sufficient evidence cannot be adduced to put the accused on trial, the court shall acquit the accused.
The Crown argues that there is no right of cross-examination as the purpose of an inquiry pursuant to s. 672.33 is to ensure that the Crown continues to have sufficient evidence to proceed to trial, despite the passing of time as a result of the accused being found unfit to stand trial. It argues that in essence, the purpose is to ensure that the Crown evidence does not become stale. Since the criminal process includes a preliminary inquiry and trial, the 672.33 inquiry must be for a different purpose and, if the accused subsequently becomes fit to stand trial he re-enters the criminal process and is entitled to a preliminary inquiry (in some circumstances) and a trial. Further, it points out that there is no specific right mandated to cross-examine a witness at a s. 672.33 inquiry, unlike at a preliminary inquiry (pursuant to s. 540(1) of the Criminal Code). Finally, that a right to cross-examination is negated by s. 672.33(5) giving the Court discretion in relation to the manner in which the inquiry is conducted.
The Applicant answers the argument as follows. The purposes of a s. 672.33 inquiry are no different than those of a s. 548(1) preliminary inquiry. It is well established that the primary purpose of a preliminary inquiry is to satisfy the judge that there is sufficient evidence to put the accused on trial, with the result that the Crown has the discretion to present only enough evidence to establish a prima facie case. The secondary purpose of a preliminary inquiry is to afford an accused an opportunity to discover the case to be made against him at trial and to cross-examined Crown witnesses with a view to establishing an evidentiary foundation for challenges at trial as to the admissibility of Crown evidence. The Applicant goes further and states that while in some ways a s. 672.33 inquiry is comparable to a preliminary inquiry, in other respects it is also comparable to a trial. That is because pursuant to s. 672.33(6) an accused is entitled to be acquitted (a result at trial) if the Crown fails to adduce “sufficient evidence” of the charges (the test at the preliminary inquiry).
The accused points out that a s. 672.33 inquiry was designed by Parliament to cover numerous kinds of situations. For example, an accused may be found unfit following extensive bail proceedings, a full preliminary inquiry, and most if not all of the Crown’s case being called at trial. Transcripts of all of those proceedings can be placed in evidence before a s. 672.33 judge, pursuant to the provisions of s. 672.33(4). Under such circumstances it may be that the Guardian of an accused would in effect consent to a finding that “sufficient evidence” exists resulting in the charges against the accused being continued. Such circumstances would be very similar to an accused waiving his Part XVIII preliminary inquiry rights and consenting to his committal to stand trial. However, where, as here, an accused contests the Crown’s allegations, he or she must be accorded appropriate procedural rights and safeguards. Such a situation is, in principle, no different than when an accused who, being entitled to a preliminary inquiry, insists upon his procedural safeguards -- in particular, his right of cross- examination.
I cannot accept the argument of the Crown that the sole purpose of the section is to ensure the Crown evidence is not stale, in view of the contemplation in the section that an accused can be acquitted as a result of the proceedings. In my opinion, acquittal at this stage can occur only if there is a finding that the Crown has submitted insufficient evidence on its own or, that the Crown’s evidence is insufficient after having been tested. As long as acquittal is clearly contemplated by the section, a finding of insufficiency as a result of a failure to pass the tests put to it by defence counsel, including the scrutiny of cross-examination, must be contemplated by the section.
Although s.s. (5) uses the word “may” in dealing with the issue of the manner in which an inquiry under the section is conducted, the Applicant submits that the principles of fundamental justice govern any individual brought into the criminal justice system and, those principles include the following:
(a) fairness;
(b) the presumption of innocence until proven guilty beyond a reasonable doubt;
(c) the right to make full answer and defence;
(d) full disclosure from the Crown; and
(e) the concept of being tried by a tribunal acting reasonably and impartially.
The Applicant states that these fundamental rights exist by common law or are created by the Charter of Rights and Freedoms and are in place throughout the criminal process and exist outside of any rights defined by s. 672.33. Put another way, s. 672.33 must be read in context of the whole of our rules and tenets of criminal procedure. The right of cross-examination is an aspect of the larger right to make full answer and defence and therefore is a principle of fundamental justice and, given the potential for a discharge at preliminary inquiry, and acquittal pursuant to s. 672.33(6), logic compels the conclusion that an accused should have no less a right to cross-examination in a s. 672.33 inquiry than he or she does under a preliminary inquiry pursuant to Part XVIII of the Code.
The Applicant states that the right of cross-examination must be permitted to allow this accused to make full answer and defence. As stated by Cory, J. in À. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.), it is the ultimate means of demonstrating truth and of testing veracity and reliability. On cross-examination, counsel are accorded wide latitude in order to enable them to test the evidence of the witnesses and their credibility and are not limited to subjects which are strictly relevant to the essential issues in the case, or as in the present matter, the inquiry: Aalders c. R. (1993), 82 C.C.C. (3d) 215 (S.C.C.).
Counsel for the Crown notes that an accused who is denied an opportunity to cross-examine on affidavit evidence at an extradition hearing has been held by the Supreme Court of Canada to not have been denied due process or a fair hearing. He submits the reasoning is that an extradition hearing is a mere inquiry and is not held to determine guilt or innocence and the accused is therefore not required to answer the case and that that reasoning applies to this situation. In my opinion, although the section in question contemplates an inquiry, the fact that it contemplates acquittal distinguishes this situation from that which is contemplated by the extradition cases. In this case, the statement of Mr. Justice Rothman in R. v. Zaor (1984), 12 C.C.C. (3d) 265 (Que. C.A.) at p. 271 is applicable:
While it is undoubtedly true that a justice conducting a preliminary inquiry has a great deal of discretion in regulating how it will proceed, he is none the less bound by the provisions of the Criminal Code and the principles of natural justice. At the stage of preliminary inquiry, an accused is entitled to try to show that the evidence is not sufficient to put him on trial and to obtain his discharge at that stage, if he can (s. 475) [now s. 548(1)]. If that is the case, his right to cross-examine Crown witnesses and to call his own witnesses must not be impaired or limited.
I would therefore conclude that the refusal of the judge to permit him to cross- examine was a jurisdictional error which should be remedied by certiorari.
It is true that the right to cross-examine at a preliminary inquiry is mandatory and at a s. 672.33 inquiry procedure is left to the discretion of the Court. This apparent discretion over procedure was granted the trial judge by Parliament and the provision therefore ought not to be lightly revised by me to read “shall” where “may” is used. This is particularly so as Parliament has used the word “shall” elsewhere in the section and has thereby distinguished the various powers of the Court in this type of inquiry.
In my opinion, Parliament chose the mandatory direction to deal with the issue of the admission of affidavit or transcript testimony as evidence as clearly evidence in that form would not otherwise be admissible at all. Parliament was making it clear to the Court that it contemplated evidence being admissible in this form in addition to the usual viva voce evidence.
However, s.s. (5) and the word “may” must be read in context of the whole of s. 672.33 and in context of the elements of fundamental justice that govern our criminal law and procedure. When so read, and noting that acquittal is contemplated, I find that the accused has a right to test the case against him and that right must include the right of cross-examination where requested.
I further find the right of cross-examination to be present and worthy of protection given the vulnerability of any accused in the position of this Applicant vis à vis the State that chooses to prosecute him. Finally, it is significant that in this case that the accused was found unfit before any evidence of the Crown was led against him and, this is the first occasion where he has any ability to see the Crown’s case or test it. The procedural right and safeguard of cross-examination is of great significance to this stage of the proceedings against him and, the section must be interpreted to cover this situation. His situation differs from that of an accused who may be found unfit following extensive bail proceedings, a full preliminary inquiry, and most if not all of the Crown’s case being called at trial. Again, this latter and distinguishable situation is what was contemplated by the mandatory direction to the Court to admit transcript testimony as evidence.
The Crown conceded that the trial judge can be found to have lost jurisdiction if I find that the denial of the opportunity to cross-examine the affi- ants on their evidence was a denial of natural justice. He conceded that the principle of natural justice includes the right to a fair hearing. However, he notes that a breach of a Charter right, in and of itself, is not a jurisdictional error and as such is not a breach of natural justice.
I find that the denial of the opportunity to cross-examine was a breach of the principle of fundamental justice and of the principle of natural justice and the trial judge, in denying the right to cross-examine, lost jurisdiction. Accordingly, I direct that the matter be returned to be heard by the learned Provincial Court Judge and that he grant the Applicant the right to cross- examine affiants as is requested by counsel for the Applicant.
Application granted.
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