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[13] The respondent would divide the challenge to the ruling declining a voir dire into two parts: 1) whether the trial judge erred in relation to the application to have identification evidence ruled inadmissible under s. 24(2) of the Charter; and 2) whether he erred in declining to stay the proceedings because of abuse of process. I accept this distinction and have found it convenient to separate the two complaints as they engage somewhat different principles.
[14] The decision whether to hold a voir dire engages the discretion of the judge: R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193, 37 C.R.R. (2d) 237 (B.C.C.A.) (leave to appeal to S.C.C. refused [1997] 2 S.C.R. xvi (note)). In Vukelich, Chief Justice McEachern observed that avoir dire is not required merely because an accused alleges a Charter breach; the question for the judge is whether a voir dire will assist the proper trial of the real issues. Chief Justice McEachern said at para. 26 :
Based on these authorities, it does not follow that an accused is always entitled as of right to a voir dire in the course of a criminal trial in order to challenge the constitutionality of a search. The trial judge must control the course of the proceedings, and he or she need not embark upon an enquiry that will not assist the proper trial of the real issues. ...
This statement was applied in R. v. Bains, 2010 BCCA 178 (CanLII), 254 C.C.C. (3d) 170 at para. 69.
[15] As the issue of holding a voir dire engages the discretion of the judge, this court must accord deference except in cases in which the discretion has not been judicially exercised: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at 1465, referred to in R. v. Pires; R. v. Lising, 2005 SCC 66(CanLII), [2005] 3 S.C.R. 343 at para. 46. See also Bains, para. 76.
[16] In the extradition context, the party seeking a Charter voir dire bears the onus of establishing one should be held. As stated by Chief Justice Finch in United States of America v. Earles, 2003 BCCA 20 (CanLII), 171 C.C.C. (3d) 116, “before a fugitive will be allowed to embark on a Charter inquiry, there must be some ‘air of reality’ to a contention that the extradition hearing risks being unfair” (para. 34, citing United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462).
[17] On behalf of Mr. Ranga it is said that the failure to hold a voir dire denied his counsel the opportunity to establish a foundation through cross-examination, for the argument that the alleged Charter breaches were part of such a pattern of disregard for his rights, and the rights of others, as to warrant the exclusion of the identification evidence under s. 24(2). He refers to cases that discuss the exclusion of evidence as a response to police violation of an accused’s Charter rights, particularly where there is a pattern of disregard for Charter rights including the Charter rights of third parties; he calls upon the value of our democratic standards, and highlights the need to comply with Canadian law in the context of extradition cases: R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980; R. v. Wittwer, 2008 SCC 33 (CanLII), [2008] 2 S.C.R. 235; R. v. Lauriente, 2010 BCCA 72 (CanLII), 251 C.C.C. (3d) 492; R. v. Bohn, 2000 BCCA 239 (CanLII), 145 C.C.C. (3d) 320; R. v. Larosa (2002), 2002 CanLII 45027 (ON CA), 163 O.A.C. 108, 166 C.C.C. (3d) 449; R. v. Cornell, 2010 SCC 31 (CanLII), [2010] 2 S.C.R. 142; R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562; United States of America v. Khadr, 2011 ONCA 358 (CanLII), 106 O.R. (3d) 449; and United Stated of America v. Anekwu, 2009 SCC 41 (CanLII), [2009] 3 S.C.R. 3.
[18] Mr. Ranga’s submission invokes high principles in aid of his contention that the judge should have declared a voir dire. In my view, this ground of appeal, however, cannot succeed.
[19] The judge gave two reasons for denying the voir dire. The first was that there was no air of reality to the notion that the officers’ identification evidence was affected by the alleged breaches. The second was, assuming the many breaches posited, that the cumulative effect of such breaches would not justify the remedies sought.
[20] It appears to me that this latter reason is unassailable in this appeal. In his oral ruling of June 17, 2010, the judge acknowledged that:
... breaches ... must sometimes, even in the absence of their having an effect on particular items of evidence, result in a condemnation and consequences so that the public will continue to be aware that the courts view Charter rights very seriously.
Yet he concluded:
However, what occurred in this case does not approach the kind of circumstances where that kind of statement is required from the court, and I cannot imagine, based on anything I have heard about this case, that that kind of remedy could flow from these breaches, even if, I say again, they were considered in the strongest way that they could be considered from the defence point of view.
[21] Both the decision to hold a voir dire, and the granting of a remedy under s. 24(2) of the Charter, are discretionary decisions. Assuming that on the voir dire Mr. Ranga would establish Charter breaches in terms most favourable to him, the judge concluded he would not exclude the evidence. In other words, holding a voir dire was found to be unnecessary for the proper adjudication of the issue of admissibility of the evidence. In my view, this conclusion, in the circumstances disclosed in the record, is a complete answer to the complaint that denying Mr. Ranga the opportunity to cross-examine the officers in a voir dire so reduced the force of his application for a s. 24(2) remedy that we should quash the committal order.
[22] There is another equally cogent basis for rejecting the submission that failure to hold a voir dire and failure to exclude the officer’s evidence of identification demonstrates reversible error. The judge said, in his reasons for judgment in committing Mr. Ranga for extradition:
[20] Counsel has referred me to many of the authorities with judicial commentary about the frailties and dangers inherent in and with identification evidence. Many of the cases he refers me to deal with evidentiary problems and identification problems similar to those that he has pointed out here, and I agree that each of the problems with the identification evidence from those cases is present here, to some extent. I also agree with his assessment of the law relating to frailties and dangers of such evidence, and I caution myself accordingly to exercise the special care required.
[21] Having accepted all of that, I am unable to accede to the argument of counsel for the following reasons:
1. One the burden of proof on the applicant on this issue is the balance of probabilities. If it were necessary that I be satisfied of the identification beyond a reasonable doubt, I might arrive at a different conclusion, but given what the burden here is, I am satisfied that the evidence, even considering all of the weaknesses that are present, satisfies that burden.
2. I also look at the picture which I have referred to several times, which is in evidence, and as I am entitled to do, and again while I might come to a different conclusion if I were required to be satisfied beyond a reasonable doubt, with the burden as it is, I am satisfied that the person in the photograph is probably the same person who appears before me. For those reasons, I reject that argument of the respondent.
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