The defence counsel of the accused; Mr. Mills has placed an application for a judicial stay. The accused has been indicted with fourteen counts. The first four counts are based on the robbery of a drug store on June 5, 1996. He has admited to all the four counts. The others are:
Count 5: Pointing a firearm at Constable Rychkun.
Count 6: Discharging a firearm at Constable Nurani to prevent being arrested.
Count 7: Taking Sheena Middleton hostage using a firearm.
Count 8: Stealing a police car worth $5000 from the police.
Count 9: Firing at Constable Ens to prevent his arrest.
Count 10: Robbing Ms. Yanciw off her car at gunpoint at 33rd and Granville streets.
Count 11: Robbing Ms. Shikamura at 33rd and Granville streets.
Count 12: Robbing Mr.Jean Pierre Forest off his van at gunpoint.
Count 13: Using a firearm during his flight in the event of robbery and escape.
Count 14: Causing bodily harm to Sheena Middleton due to criminal negligence (1998 CanLII 5985).
He openly refutes the rest on the basis that the loss of a very crucial piece of evidence by the police is a breach of section 7:
“Right to life, liberty, and security of the person” (Canada, 1994)
and section 24 of the Canadian Charter of Rights and Freedoms:
“(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”
“(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” (Mitchelle, n.d)
The defence counsel argues that the disposition of the vehicle belonging to the accused by the police is loss of crucial evidence thus depriving him the opportunity to make full answer and defence on these counts.
In as much as the loss of this crucial evidence is a setback to the case in question, a judicial stay is asking for too much. The evidence that is brought before the Crown is enough for the Crown to turn down the aforementioned application. The turn of events at the moment of the police chase clearly contradicts with whatever the accused used in his defence.
Detective Campbell is in the middle of this muddle. The defence accuses him of deliberate destruction and unwarranted disposal of the vehicle belonging to the accused. Detective Campbell admits to having done a ballistic and forensic check on the vehicle and claims to have found no other reason to retain and therefore passed it over to Constable Van Horne. He claims that he only considered the vehicle as a container for evidence and not as a piece of evidence in itself. He claims to have found no bullet holes on the vehicle and regards the claims by the accused as frail and misplaced.
He claims that in the event of examining the vehicle, he had found that the number plates had been stolen and that it could have been used for a series of criminal activities. He however did not see any reason to have the vehicle retained as he could not make any link between the criminal case in question and that of the vehicle having stolen plates. He came to a conclusion that the accused had some interest in the stolen vehicle but treated it as a mere container of evidence.
The defence in its counter says that Detective Campbell was in 1984 found to have partaken in some kind of conspiracy or sharp practice while handling a similar case and this would serve as an edge for the accused to state that whatever Detective Campbell had brought before the Crown was doctored information and thus the need for the Crown to grant him a judicial stay. However, Detective Campbell is fast to refute this and defends himself and states that whatever happened before had served as a lesson for him and he had sworn never to repeat the same.
The defence counsel also argues that the accused had taken off and failed to surrender because the police had shot at the vehicle and he opted to escape in order to get off harm’s way. He had considered doing this because he wanted to get Dolly Middleton and her two children to safety. This however contradicts with his version of the story in that all the witnesses who testify against him claim to have seen him use Sheena Middleton as a human shield and pointed his gun within inches to her head so that the police would not shoot him. It therefore shows that the interest of the mother and her children were not his major concern.
Constable Lines was the only policeman who shot at the accused along Dogwood. Shot to the left of the vehicle and was aiming at the tyres of the vehicle. He however did not shoot at the windscreen which the accused said was shot at thereby leading him to try and get the mother and her children to safety. The accused also shot at Constable Nurani’s vehicle. This adds weight to the fact that the accused was intent on escaping his way to avoid arrest by the police.
There are also some pictures of the missing vehicle that are presented before the Crown by Detective Colonval as evidence. They however do not show any bullet-shattered glass or any bullet holes whatsoever and therefore downplays the application by the accuser. His defence counsel however argues that pictures in themselves cannot fully be used as evidence against the accused and reads foul-play in the inexplicable disposal of the evidence stated before.
A judicial stay is only permitted in the clearest of cases where a very vital piece of evidence has been disregarded and the Crown bears no other link to this evidence. In this case however, the evidence presented before the Crown by all the witnesses and the police counter that of the accused. This serves strongly against him and his application. His submission to the first four counts of indictment also does the same and therefore gives the Crown little reason to believe him (Jenner & Buhr, n.d).
Despite all this, the accused is entitled to the disclosure of the whereabouts of the vehicle that was used in the robbery and attempted escape. He also has the right to have the vehicle tested by private ballistic experts and has the right to present this information before the Crown. Failure to present him with such an opportunity is a breach of his rights as per the Canadian Charter of Rights and Freedoms as such evidence would preclude a fair trial (Canada,1994).
The ruling of the Crown was fair because the reasons for the aforementioned application for a judicial stay are frail. The accused is said to have been under the influence of drugs at the turn of these events and therefore the Crown is obliged to concur with the evidence provided by the other witnesses. The Crown saw no reason as to why the police would withhold evidence. This was treated as an act of negligence by the police and they therefore came to the conclusion that the application would not be granted. In retrospect, Dickson J. said
“In the course of his charge on the issue of necessity
the trial judge instructed the jury…to the effect that they must find facts which amount to an urgent
situation of clear and imminent peril when compliance
with the law is demonstrably impossible” in order for
the appellants’ non-compliance with the law …to be
excused. That is the correct test.”
(Perka et al.v. The Queen, 1984):
Mr. Mills was in a position to take better measures in the mentioned turn of events; which he never did. Instead, he opted to take matters into his hands and left the police with no choice other than to stop him forcefully because he was armed. His deeds are therefore inexcusable because they were voluntary and uncalled for. The verdict rendered was fair and just.
Perka et al. v. The Queen (1984), Retrieved from http://www.canlii.org/en/bc/bcsc/doc/1998/1998canlii5985/1998canlii5985.html on 31st June, 2010.
1998 CanLII 5985 (1998), Retrieved from http://www.canlii.org/en/bc/bcsc/doc/1998/1998canlii5985/1998canlii5985.html . on 31st June , 2010
Canada (1994), Fundamental Freedoms: The Charter of Rights and Freedoms, Retrieved from http://www.charterofrights.ca/language.php on 31st June 2010
Canada (1994), Canadian Charter of Rights and Freedoms, Government of Canada.
Jenner C. ; Buhr L. ( n.d), Canadian charter of rights and freedoms: sources of information, University of Alberta Law Library
Mitchell G. (n.d), Section 24(2) digest, Retrieved from http://www.gov.pe.ca/?number=404page;errorCode=2 on 31st June, 2010