NR-CRIMADVISOR 2014-12
Criminal Law Newsletters
December 1, 2014
— Milligan's Criminal Law Advisor—By Jeffrey
Milligan (Formerly The David Rose Criminal Law Advisor, and
Neuberger Rose Criminal Law Advisor)
© Thomson Reuters Canada Limited or its Licensors (excluding individual court
documents). All rights reserved.
Table of Contents
1. Failing to advise a driver that he or she has been stopped for an impaired driving
investigation might be a breach of s. 10(a) of the Charter
2. A conviction for sexual interference was set aside owing to errors in evaluating the
evidence of the complainant
3. A stay of proceedings for "over 80 mgs" is upheld by an Ontario summary conviction
appeal court
4. An Ontario trial judge excluded drugs under s. 24(2) owing to Charter breaches arising
from an unlawful arrest
5. A banishment order is upheld by a British Columbia summary conviction appeal court
6. An Ontario Superior Court judge dismisses an application for certiorari from a discharge of
counts of manslaughter for "social host" liability
7. "Evidence to the contrary" cannot depend on an accused's "drinking habits"
1. — Failing to advise a driver that he or she has been stopped for an impaired driving
investigation might be a breach of s. 10(a) of the Charter
An officer responded to a call about a possibly impaired driver of a half-ton truck.
The officer followed the driver and saw it strike a curb while turning. He stopped the driver
and asked where he was going but did not ask the driver if he had been drinking. Upon
smelling the odour of alcohol on the driver's breath, the officer asked the driver to step out of
the vehicle. The officer formed grounds that the driver's ability to drive was impaired by
alcohol and read a breath demand under s. 254(3) of the Criminal Code. He did not advise
him why he stopped him.
The driver refused to comply with the breath demand and was convicted of this offence at
trial.
The trial judge did not find that there was any breach of the driver's rights under s. 10(a) of
the Charter. The trial judge held that the driver was driving a motor vehicle and smelled of
alcohol and ought to have known he was under investigation for impaired driving when he
was pulled over by the officer.
Madam Justice Yungwirth, who heard the summary conviction appeal, summarized the
applicable law on s. 10(a) from the Alberta Court of Appeal, at paragraph 41, as follows:
(1) section 10(a) does not require a formulaic statement by a police officer and the reasons
for the detention may be obvious from other words or actions of the police officer: R. v. Lund,
2008 ABCA 373, at para. 10;
(2) in assessing whether the s. 10(a) requirement has been met, it is the substance of what
the accused can reasonably be supposed to have understood in all the context and
circumstances of the case, rather than th formalism of the precise words used, which
governs: R. v. V. (S.E.), 2009 ABCA 108, at para. 22;
(3) the pertinent question is whether the accused can reasonably be supposed to have
understood the basis for the investigation; R. v. V. (S.E.) at para. 23.
Yungwirth J. held that the trial judge was in error in declining to find a breach of s. 10(a) of
the Charter and had this to say, at paragraphs 47-9:
[47] In the case of impaired driving, have we reached the point where there is no longer any
obligation on the police officer to say anything to the suspected driver and it is sufficient to
look only at what the Accused ought to have known as as result of his/her choice to drink
and then drive?
[48] The logical extension of this approach is that to satisfy the obligation under s. 10(a),
nothing is required by the police officer except for causing the vehicle to be pulled over.
[49] This would, in my view, render s. 10(a) meaningless in the context of impaired driving
offences and this can surely not have been the intention of the court in the Lund and V.
(S.E.) cases when adopting a contextual analysis approach.
Yungwirth J., however, held that the breach was not sufficiently serious to warrant exclusion
of the refusal of the breath demand — only a minute elapsed from the initial detention to the
point of arrest — and the conviction for the offence of refusing to comply with the demand
was upheld.
R. v. Woychuk (2014), 2014 CarswellAlta 1842, 2014 ABQB 622 (Alta. Q.B.)
2. — A conviction for sexual interference was set aside owing to errors in evaluating
the evidence of the complainant
The Ontario Court of Appeal found that a trial judge made reversible errors in assessing the
credibility of a complainant in a sexual interference trial.
The complainant was 19 years of age when she testified at trial about alleged sexual abuse
that spanned a decade in her home.
While, the Court of Appeal noted, at paragraph 7, "deficiencies in a trial judge's credibility
analysis rarely merit appellate intervention", the trial judge made two critical errors.
First, he evaluated the complainant's testimony as if she were a child witness. She was an
adult when she testified at the trial and, thus, the trial judge "was obliged to assess her
credibility according to the criteria applicable to adult witnesses, not the somewhat lessened
standard of scrutiny associated with child witnesses" (paragraph 25).
Second, the trial judge characterized an admitted "exaggeration" of the complainant's as
"hyperbole...thus a badge of credibility". It was a prior inconsistent statement "on a material
issue" in the proceeding. It could not have the effect of enhancing credibility but rather could
only lessen her credibility. This, too, was an error of the trial judge's.
A new trial was ordered.
The endorsement of the Ontario Court of Appeal sets out an excellent summary of the
principles in assessing the credibility of witnesses.
R. v. M. (A.) (2014), 2014 CarswellOnt 15263, 2014 ONCA 769 (Ont. C.A.)
3. — A stay of proceedings for "over 80 mgs" is upheld by an Ontario summary
conviction appeal court
The Ontario Superior Court recently upheld a stay of proceedings entered by a trial judge for
a charge of "over 80 mgs" where s. 11(b) of the Charter was breached.
In that case, the Respondent was arrested on 19 April 2012 and released. The information
was sworn on 25 April 2012. His trial began on 21 December 2012 but was not completed; it
was adjourned to 29 May 2013 at which time defence counsel brought an application to stay
proceedings and that application was allowed.
There were two grounds of appeal: first, that the trial judge erred in taking account of precharge delay; and, second, that he erred in his analysis of the period of delay from the time
the trial began until the trial continuation some 158 days later.
Appeal courts have long held that time begins to run when the charge or charges were laid.
See, for example, R. v. Carter, [1986] 1 S.C.R. 981. That the trial judge took into account
some 6 days of pre-charge delay was not in error because the Respondent "was engaged in
the criminal justice system" and the rights that s. 11(b) seeks to protect were "placed in
jeopardy". (Paragraph 7)
A proper examination of the delay from the first trial date to the second trial date requires
consideration of: (a) why the trial could not be completed; and (b) why the continuation could
not be scheduled earlier.
The trial judge allotted 1/4 of the delay from the first day of the trial to the second trial date to
the defence and 3/4 of the delay to institutional delay. The trial judge held that the defence,
the Crown, the judge who set the trial date and either he (the trial judge) or the trial coordinator (who booked another matter for trial on 21 December 2012) all shared
responsibility for the fact that the trial could not be completed on the first day.
This was, in the view of the summary conviction appeal court judge, a reasonable conclusion
as to why the case could not be finished on the first day.
The summary conviction appeal court judge noted that the Ontario Court of Appeal held in R.
v. Tran, 2012 ONCA 18, that the delay from rescheduling a trial is generally institutional
delay or inherent delay or both. In this case, the delay from the first day of trial to the second
day was entirely, or at least mostly, institutional delay.
The trial co-ordinator offered only three dates for the continuation of the trial when it could
not be finished in late December (the latest of which was 29 May 2013). Defence counsel
was available on some 55 days within that period, including two dates in December and eight
dates in January 2014. The case went over for so long because it was not given enough
priority by the system.
The summary conviction appeal court held that even if the period of institutional delay were
just over 10 months, the trial judge was justified in staying the proceedings. This fell outside
the "Morin" guideline of 8-10 months; moreover, the trial judge found actual prejudice arising
from a pre-existing nervous condition of the Respondent.
R. v. Nash (2014), 2014 CarswellOnt 14487, 2014 ONSC 6025 (Ont. S.C.J.)
4. — An Ontario trial judge excluded drugs under s. 24(2) owing to Charter breaches
arising from an unlawful arrest
Two police officers arrested three men allegedly engaged in what appeared to be a "hand to
hand" drug transaction in an outdoor shopping plaza. As a result of the arrest, they searched
one of the men and found drugs — marihuana, crack cocaine and oxycotin pill — that he had
in a bag.
The lawfulness of the search incidental to arrest depended on the lawfulness of the arrest.
Because the search was warrantless, the onus rested on the prosecution to demonstrate that
it was a lawful and reasonable search.
The trial judge held that the search was unlawful because the arrest itself was unlawful and
excluded the drugs.
The trial judge disbelieved the evidence of the "experienced" officers in view of
inconsistencies and implausibilities in their evidence. Notably, the trial judge found it
"astonishing" that one of the officers testified that he saw one of the men involved in the drug
deal holding a $50 bill just before the arrest but that he made an "error" and returned it to
him.
The trial judge held at paragraph 27 that the officers acted on what was "essentially a hunch"
that a drug deal was unfolding and instead of "setting up a post nearby and watching for
grounds, they charged in prematurely".
The trial judge excluded the drugs and acquitted the accused in view of the seriousness of
the breaches.
R. v. Palmer (2014), 2014 CarswellOnt 14006, 2014 ONSC 5839 (Ont. S.C.J.)
5. — A banishment order is upheld by a British Columbia summary conviction appeal
court
A probation order with a term banishing the appellant from the City of Kamloops was upheld
by a summary conviction appeal court judge in British Columbia.
The appellant, who had fetal alcohol spectrum disorder, pleaded guilty to two counts of
uttering threats. He was 24 years of age and had lived most of his life in Kamloops.
One of the people he threatened was a Mr. Cadieux, the father of a woman with whom the
appellant had a child.
The appellant had a criminal record that included convictions for breaches of court orders,
harassment, assault and uttering threats. As Justice Dley pointed out in paragraph 18 of his
summary conviction appeal judgment, between January 2012 and the sentencing hearing
that occurred in the fall of 2013, the appellant "had amassed 16 breaches of court orders". At
least some of those breaches involved contacting Mr. Cadieux or his daughter.
The sentencing judge considered R. v. Etifier, 2009 BCCA 292, in which the British Columbia
Court of Appeal set out principles that apply to banishment orders. Etifier suggested that a
banishment order is fit if it is reasonable and is desirable for protecting society and facilitating
the re-integration of the offender into the community. Banishment orders cannot be intended
to be penal such that they promote deterrence or denunciation or retribution.
Justice Dley upheld the term of banishment because the sentencing judge imposed the order
of banishment to protect the community and not to punish the appellant.
The summary conviction appeal court judge also considered the argument that the order was
too broad. Kamloops, Dley J. noted, was not a big place and Mr. Cadieux was a city bus
driver and drove all over Kamloops in the course of his employment.
Justice Dley placed considerable emphasis on the fact that the sentencing judge expressly
contemplated re-visiting the banishment order if the appellant could establish that he had
undergone counseling such that the risk of his re-offending was reduced such that he could
return to the community.
R. v. Adam (2014), 2014 BCSC 1943, 2014 CarswellBC 3074 (B.C. S.C.)
6. — An Ontario Superior Court judge dismisses an application for certiorari from a
discharge of counts of manslaughter for "social host" liability
On 5 February 2012, the late Ms. Korin Howes went to The Angry Beaver, a pub near
Belleville in Eastern Ontario, for a big Super Bowl party.
She was a past employee of The Angry Beaver and a regular there.
That night Angry Beaver was open after 2:00 am for a special "after hours" party. Ms. Howes
arrived sometime in the afternoon or evening and at midnight (after the game had ended).
She paid her bar bill and indicated that she intended to take a taxi home or get a ride home
with friends.
Ms. Howes stayed, together with some other patrons, for the "after hours" and continued her
revels all night.
She left Angry Beaver at about 9:00 the next morning.
She did not take a cab home or take a ride home with friends as she had indicated. There
was at least one person at the party who did not drink and who could have driven her home.
Unfortunately, Ms. Howes drove home. She drove a short distance to the Hwy 401, entered
the eastbound lane and drove west for about 5 km when she collided with an eastbound car.
Both that motorist and Ms. Howes died in the collision.
Ms. Howes' blood alcohol concentration at the time of the accident was in excess of 200 mgs
of alcohol per 100 ml of blood. A toxicologist testified at the preliminary inquiry that at that
level of alcohol, Ms. Howes' ability to drive was impaired by alcohol to the point that she
would have exhibited signs of impairment — loss of balance, lack of coordination and
decreased consciousness — at The Angry Beaver.
The police charged the two directors and shareholders of The Angry Beaver for
manslaughter. The theory of liability was based on the commission of six alleged breaches of
the Ontario Liquor Licence Act that led to the deaths of Ms. Howes and the other driver.
At the conclusion of the preliminary inquiry, the Crown also sought an order committing the
defendants for trial on criminal negligence causing death.
The judge presiding over the preliminary inquiry discharged them of manslaughter and
declined to commit them for trial on charges of criminal negligence causing death.
The Crown applied to the Superior Court of Justice for an order of certiorari, contending that
the justice committed jurisdictional errors in failing to consider the evidence in its entirety.
Justice Tausendfreud, who heard the application for an order of certiorari, dismissed the
application.
An application for certiorari is not the same as an appeal and it is not the function of a judge
hearing such an application to intervene if there are legal errors; intervention is required if the
justice presiding at the preliminary inquiry commits a jurisdictional error, such as, for
example, failing to consider all of the evidence. See, for example, R. v. Deschamplain, [2004]
3 S.C.R. 804.
At paragraph 20 of his reasons for judgment, Tausendfreud J. set out what the Crown was
required to prove for manslaughter:
(a) That the Respondents committed an unlawful act (which may, conceivably, he suggested
earlier in the judgment, include an offence created under provincial legislation: R. v.
DeSousa, [1992] 2 S.C.R. 944 at paragraph 198);
(b) The unlawful act was objectively dangerous in the sense that a reasonable person would
realize that it gave rise to a risk of harm;
(c) The unlawful act was, at the least, a significant contributing cause to a death;
(d) The fault requirement of the predicate or underlying unlawful offence which cannot extend
to absolute liability offences was in existence.
The judge presiding at the preliminary inquiry found that a breach of a provincial statute, like
the Liquor Licence Act ("LLA"), could be a predicate offence to support a charge of
manslaughter. He found that the Respondents breached the provisions of the LLA in that:
(a) Ms. Howes became intoxicated at The Angry Beaver and the Respondents, as licencees,
supplied the alcohol;
(b) Immoderate consumption was encouraged and Ms. Howes participated;
(c) The Respondents permitted drunkenness.
The judge presiding at the preliminary inquiry found, however, that these breaches were not
singularly or collectively "objectively dangerous".
Tausendfreud J. held that this finding, even if incorrect, is an error of law and is not
reviewable in a certiorari application. For that reason, the application for review of the order
of the presiding judge must be dismissed.
Justice Tausendfreud also dismissed the application that the presiding judge ought to have
committed the Respondents for criminal negligence causing death. There was no evidence
of any contact between the Respondent and Ms. Howes or that they saw her leave or were
aware of her intoxication and the criminal law does not, as does tort law, allow for the
application of the doctrine of vicarious liability.
R. v. Stoll (2014), 2014 ONSC 5242, 2014 CarswellOnt 14370 (Ont. S.C.J.)
7. — "Evidence to the contrary" cannot depend on an accused's "drinking habits"
An Ontario summary conviction appeal decision shed light on what "evidence to the contrary"
is not after R. v. St. Onge, [2012] 3 S.C.R. 187 ended the "Carter" defence.
The appellant was convicted for the offence of "over 80 mgs" but acquitted of the offence of
impaired driving, because the evidence of impairment was not sufficient to support a
conviction for impaired driving. He appealed his conviction for excess alcohol.
He was stopped by police officer who noted a strong odour of alcohol and a half-open bottle
of vodka in the car. The officers made a demand that the appellant provide a sample of his
breath into an approved screening device and the appellant failed that test. He was taken to
a police station.
The results of his breath tests were 194 and 170 mgs of alcohol per 100 ml of blood. In
cross-examination, the breath technician testified that a person with that blood alcohol
concentration would be "falling down drunk" (which the appellant was not).
An affidavit from a toxicologist was filed at the trial. It was to the effect that someone with a
blood alcohol concentration in the range of the appellant's "would be expected to exhibit
obvious signs of impairment such as slurred speech, motor difficulties such as staggering,
stumbling and lack of balance while walking".
Friends of the appellant's testified that that he was not an alcoholic and did not drink a great
deal, thus casting doubt on the possibility that high tolerance, gained from years of heavy
drinking, accounted for the lack of indicia of impairment. Thus, because a man like the
appellant would be expected to show marked signs of impairment at the BAC found from
breath testing — and there were no marked signs of impairment — something may well have
gone wrong with the breath tests.
The trial judge rejected the defence evidence because it was not credible or reliable and
found, at all events, that it amounted to an "indirect Carter defence".
Goldstein J., who heard the summary conviction appeal, said that a defence meant to cast
doubt on the accuracy of breath testing that relies on "evidence of a person's drinking habits"
is not "evidence to the contrary". To quote Justice Goldstein at paragraph 33, "I agree with
the trial judge that the Appellant's attempt to raise a reasonable doubt by calling evidence of
his drinking habits amounted to an indirect attempt to raise a Carter Defence."
This case might be regarded as an extension of R. v. Latour (1997), 34 O.R. (3d) 150 (Ont.
C.A.), in which the Ontario Court of Appeal held:
... this evidence is not capable of constituting "evidence to the contrary". Even accepting as a
fact that a "normal, average" person with the same breathalyzer readings should exhibit
stronger indicia of impairment than that observed in the respondent, this fact is of no
consequence in the absence of evidence on the respondent's tolerance to alcohol. This
opinion evidence, as presented, without any connection to the respondent, is merely
speculative and of no evidentiary value.
Latour was not cited by the learned summary conviction appeal court judge.
Quaere: What if the appellant called a toxicologist at trial in addition to his friends? The
toxicologist gave evidence that he conducted sobriety tests on the appellant at a blood
alcohol concentration lower that the range he was said to be by the police and found
profound intoxication? One would think that this is very probative and capable of raising a
reasonable doubt as to the accuracy of the breath results.
R. v. Agrawal (2014), 2014 CarswellOnt 14486, 2014 ONSC 5843 (Ont. S.C.J.)