COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Sandhu,

 

2012 BCCA 73

Date: 20120210

Docket: CA039365

Between:

Regina

Respondent

And

Rajinder Singh Sandhu and Jennifer McCormick

Appellants

 

Restriction on publication: S. 486.5(1) C.C.C.
Unless an order has been made under s. 486.4, an order may be made under this section. An order under s. 486.5(1) bans publication of any information that could identify a victim or a witness.

Before:

The Honourable Madam Justice Ryan

The Honourable Mr. Justice K. Smith

The Honourable Mr. Justice Chiasson

On appeal from: Supreme Court of British Columbia, August 22, 2011
(R. v. Sandhu, 2011 BCSC 1137, Nanaimo Registry 72129)

Oral Reasons for Judgment

Counsel for the Appellant:

A.E. King, Q.C.

Counsel for the (Crown) Respondent:

W.J.S. Bell

Place and Date of Hearing:

Vancouver, British Columbia

February 9, 2012

Place and Date of Judgment:

Vancouver, British Columbia

February 10, 2012


 

[1]             RYAN J.A.: This is an application by the Crown for an order quashing the appeal of Jennifer McCormick and Rajinder Singh Sandhu on the basis that this court has no jurisdiction to entertain it. In my view, for the reasons which follow, the application must be granted.

[2]             By notice of appeal dated September 22, 2011 Mr. Sandhu and Ms. McCormick appeal the August 22, 2011 order of Madam Justice Fitzpatrick removing Ms. McCormick, a lawyer, from acting on behalf of Mr. Sandhu in relation to a number of criminal offences. Justice Fitzpatrick’s reasons may be found at 2011 BCSC 1137.

[3]             On March 16, 2011 Mr. Sandhu was charged along with several others with a number of counts including extortion, theft and possession of prohibited or concealed weapons. A preliminary hearing was set to begin in March of this year.

[4]             By notice of motion dated June 21, 2011 the Crown applied in Supreme Court in Nanaimo for an order removing Jennifer McCormick “as counsel for the accused Rajinder Singh Sandhu.” The Crown alleged that Ms. McCormick, who had once been employed as counsel for the Organized Crime Agency of British Columbia, (“OCA”) was in the possession of confidential information which placed her in a conflict of interest if she acted as counsel for Mr. Sandhu, whose charges arose out of an investigation conducted by the OCA.

[5]             The matter was heard on July 19, 2011. The Supreme Court Justice delivered reasons for judgment August 22, 2011.

[6]             The learned Justice found many areas of conflict and difficulty. I will refer to only two. In her reasons for judgment Justice Fitzpatrick noted:

[112] Even if adequate waivers were provided, concerns would remain. It remains the responsibility of this Court to ensure that the accused obtains a fair trial. As noted above, there remains the real possibility of a conflict between the position of Mr. Sandhu and that of OCA arising from Ms. McCormick’s previous retainer. In these circumstances, what is to be prevented is the argument by Mr. Sandhu that certain steps were, for example, not taken by Ms. McCormick because it would have involved breaching her duties of confidentiality and loyalty to OCA: Brissett, para. 58, 59.

[113] A less vigorous defence or perhaps an unsuccessful defence, of Mr. Sandhu might invite the conclusion that Ms. McCormick did not take certain steps in order to avoid using “inside knowledge” obtained during her time at OCA. A mistrial, or retrial, would of course have serious consequences not only for Mr. Sandhu but the other accused that will be tried with him.

[114] All of these concerns, including the importance of conducting a fair and timely trial for all the accused, again relate to a consideration of the public interest and the need for public confidence in the administration of criminal justice. This goal is achieved, in part, by avoiding not only professional impropriety but the appearance of professional impropriety: Rob//lard at paras. 15, 16.

[7]             The notice of appeal filed in this Court sets out a number of alleged errors made by Justice Fitzpatrick, including the standing of the Crown to seek Ms. McCormick’s removal as counsel. The appellants seek an order that Ms. McCormick be re-instated as Mr. Sandhu’s lawyer.

[8]             Both Counsel for the Crown and counsel for the defence have approached this appeal on the basis that it is an appeal from an order made in a criminal proceeding.

[9]             The Crown took the position that the order of Justice Fitzpatrick should be characterized as an interlocutory order made by “a judge of the court which has jurisdiction to try the appellant”. If the order is criminal in nature and interlocutory, the Crown urges this Court to find that the order cannot be appealed until the conclusion of the appellant’s trial, should he be convicted.

[10]         Underpinning the Crown’s submissions is the undoubted proposition that the Court of Appeal is a statutory court which has jurisdiction to hear criminal appeals only to the extent authorized by statute. Part XXI of the Criminal Code of Canada, RSC, c. C-46 deals with the right of appeal “in proceedings in respect of indictable offences.” Section 674 states:

No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.

[11]         Section 675 provides for appeals against conviction and sentence. It authorizes appeals from Summary Conviction appeals and appeals from other final orders. The Code does not authorize interlocutory appeals.

[12]         Thus, the Crown argues, this appeal should be quashed for want of jurisdiction.

[13]         Counsel for Ms. McCormick and Mr. Sandhu urged us to distinguish a long line of cases (eg. R. v. Druken, [1998 11 SCR 978) and to find that the order in question is not interlocutory.

[14]         On the hearing of this application the Court questioned counsel as to the authority of the Supreme Court Justice to make the order that she did given that at the time she made the order Mr. Sandhu was not an accused before the Supreme Court.

[15]         As noted earlier, at the time Justice Fitzpatrick made her order, Mr. Sandhu was waiting to begin his preliminary hearing in Provincial Court. There were no criminal proceedings pending against him on this matter in the Supreme Court. (This is highlighted by the fact that the court number assigned to the file in the Supreme Court is the Provincial Court file number.) In my view, the jurisdiction of the Supreme Court Justice in this matter is dubious. However, the question of the Supreme Court Justice’s authority to remove counsel about to appear on a matter to be heard in Provincial Court was not raised before her. The application proceeded on its merits.

[16]         If the appeal were permitted to proceed in this Court one of the issues would inevitably be whether the Supreme Court Justice had the jurisdiction to make the order now under appeal. The question remains whether this Court may entertain the appeal at all.

[17]          In R. v. Cianclo, 2006 BCCA 311 [2006]; B.C.J. No. 2977;232 B.C.A.C. 1 ;71 W.C.B. (2d) 56, this Court was required to determine whether an order, made during Ciancio’s trial for murder, directed toward the Warden of a prison in which Ciancio

was being held, was criminal or civil in nature. If the order was civil in nature it could be appealed to this court independently of the trial proceedings as a civil appeal. If it was criminal in nature there was no authority provided by the Criminal Code to appeal such an order, the Warden would be required to seek leave to the Supreme Court of Canada under s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26.

[18]         In Cianclo the Court accepted as accurate the statement of the law as found in Ewaschuk’s Criminal Pleadings and Practice in Canada at p. 23-4:

An appeal is either civil or criminal in nature. The nature and character of the appeal is not determined by the result of the proceedings being appealed from but, rather, by the nature of the law upon which the proceedings are based. The test is whether the proceedings being appealed are criminal or civil in nature and founded on the federal criminal law power, or whether the proceedings are civil in nature and founded on provincial legislative powers.

[19]         The order directed to the Warden in Cianclo was that he provide his prisoner with certain facilities during the course of Ciancio’s trial. Since the order was made to ensure that Mr. Ciancio received a fair trial, the majority in Ciancio found that the order was criminal in nature. As the Code did not specifically provide for an appeal from this type of order the appeal was quashed for want of jurisdiction.

[20]         I would apply the same analysis in the case at bar. As can be seen from the paragraphs quoted earlier from the judgment, the order made by Justice Fitzpatrick was designed to ensure a fair proceeding for Mr. Sandhu, for the Crown and in the public interest. The order was therefore criminal in nature because it related to Mr. Sandhu’s hearings with respect of the indictable offences with which he was charged.

[21]         I would characterize this order as a final order of a collateral issue relating to those criminal proceedings. Mr. Sandhu’s representation at trial is collateral to the issues raised by the indictment tendered against him. The Criminal Code does not provide for the appeal of a collateral issue. In the result this appeal must be quashed for want of jurisdiction.

[22]         I will add that we are proceeding today on the basis that the material given to us without the benefit of an entered order, but, in my view, whatever that order might state, the result would the same. This count has no jurisdiction to entertain this appeal.

[23]         K. SMITH J.A.: In my view, this Court has decided the point in R. Ciancio, and I see no reason why we ought not to follow. I agree with the reasons given by my colleague presiding.

[24]         CHIASSON J.A.: I must respectfully disagree with my colleague. At the time the Supreme Court judge ordered the removal of counsel a preliminary hearing was pending in the Provincial Court. There were no criminal proceedings in the Supreme Court. Subject to the result of the preliminary hearing, there might never be criminal proceedings in that court.

[25]         Based on the decision in R. v. Druken, [1998] 1 S.C.R. 978, the Crown applies to quash the judge’s order as being interlocutory and one this Court does not have the jurisdiction to entertain. At the outset of the hearing, we questioned the jurisdiction of the Supreme Court judge to make the order. Counsel for the Crown relies on the fact that at the time the order was made, the Supreme Court would have been the trial court if Mr. Sandhu were committed for trial. A court’s jurisdiction to remove counsel is based on its inherent jurisdiction to control its own process. The process at issue at the time the order was made was in the Provincial Court, not the Supreme Court.

[26]         In Druken, the Chief Justice stated:

The decision to remove counsel does not go to jurisdiction. The issue as to whether there is an appeal on a jurisdictional ground is not before us.

[27]         I read this as leaving open the question whether there is an appeal from an interlocutory order where a ground of appeal is that there was no jurisdiction to make the order.

[28]         In R. v. Ciancio, 2006 BCCA 311, this Court considered the order in issue as having been made to preserve the integrity of the trial. It could be said that the order in this case was made to preserve the integrity of the preliminary hearing, but the questions remains whether the Supreme Court has the inherent jurisdiction to preserve the integrity of a preliminary hearing in the Provincial Court on the basis the proceeding in that court might become a proceeding in the Supreme Court.

[29]         In both Druken and Ciancio the orders were made in criminal proceedings before the court that made them. That is not the situation in this case.

[30]         There appear to be three issues in this matter: one, is the order covered by the Supreme Court of Canada’s decision in Druken; two, did the British Columbia Supreme Court have the jurisdiction to make the order; if it did, should the order be affirmed or set aside on its merits?

[31]         In the absence of full and considered submissions on the point, I am not prepared to conclude at this stage of the proceeding that the order is covered by Druken. If it is not, the appeal should go ahead and the issues of jurisdiction and the merits addressed. In my view, all matters should be dealt with by a single division of this Court.

[32]         I would dismiss the Crown’s application to quash the appeal and refer all issues concerning the appeal to a division of this Court with the admonition that an early hearing date should be obtained.

[33]         RYAN J.A.: The appeal is quashed, Mr. Justice Chiasson dissenting.

[34]         I would simply add to my reasons that they will be edited once they are transcribed.

“The Honourable Madam Justice Ryan”

“The Honourable Mr. Justice Chiasson”