Her Majesty the Queen v. Tran [Indexed as: R. v. Tran]
55 O.R. (3d) 161
[2001] O.J. No. 3056
Docket No. C35121
Court of Appeal for Ontario
Weiler, Austin and Borins JJ.A.
August 1, 2001
Charter of Rights and Freedoms--Search and seizure--Blood samples taken from accused for medical purposes following car accident but accused not consenting to use of samples for other purposes--No demand made for blood sample pursuant to s. 254(3) of Criminal Code--No warrant to obtain blood sample under s. 256(1) of Criminal Code--Search warrant used to obtain accused's hospital records based on Information not signed or sworn by officer seeking warrant--Crown relying on expert evidence to establish accused's blood/alcohol level at time of accident and regarding the impairment resulting from that level --Accused unrepresented at trial and requiring interpreter --Trial judge should have entered into inquiry to ascertain whether accused's rights under s. 8 of Charter were violated and whether expert evidence regarding the impairment should be excluded under s. 24(2) of Charter--Trial judge's failure to do so compromised fairness of accused's trial--Criminal Code, R.S.C. 1985, c. C-46, ss. 254(3), 256(1)--Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
Criminal law--Trial--Duties of trial judge--Unrepresented accused--Accused charged with impaired driving causing death and bodily harm and dangerous driving causing death and bodily harm--Unrepresented accused asking trial judge's assistance regarding his plea options--Trial judge offered only minimal assistance to accused--Accused requiring interpreter throughout proceedings--Trial judge should have appreciated that accused needed guidance and that judge needed to be vigilant to ensure that accused received fair trial--Trial judge failed in that duty--Accused's appeal from conviction allowed.
The accused was charged with impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death, dangerous driving causing bodily harm and impaired driving. Following a motor vehicle accident in which he was injured, blood samples were taken from him for medical purposes with his consent. No demand was made of him to provide a blood sample under s. 254(3) of the Criminal Code, nor was a warrant to obtain a blood sample under s. 256(1) of the Code obtained. As a result, the prosecution was unable to rely on the presumption of the accused's blood/alcohol concentration at the time of the offence (provided by s. 258(1)(d) of the Code), and had to prove the impaired driving offences by relying on the results of the analysis of the blood sample performed at the hospital for medical purposes. The Crown adduced expert evidence as to the progressive absorption of alcohol into the bloodstream, relating the results of the analysis back to the time the offences took place. An expert in clinical biochemistry testified that in relation to the presence of alcohol in the accused's blood sample, there was a serum concentration of 40.2 MMOL/L. A toxicologist interpreted the results of that blood analysis and expressed the opinion that at the time of the accident, the accused's blood/alcohol concentration was between 159 and 169 milligrams of alcohol in 100 millilitres of blood. The Crown also sought to prove that two search warrants were obtained by a police officer to procure the accused's hospital records. The search warrants, together with the informations to obtain each of them, were entered into evidence by the trial judge. However, neither information was signed or sworn by the officer who sought the search warrant. The accused was unrepresented at trial and required the assistance of a Cantonese interpreter to understand the proceedings and to testify. The accused testified that he had consumed only one-and-a-half bottles of beer before the accident. The trial judge f ound that the accused had more than one-and-a-half bottles of beer "from knowing that I know one and a half beers would not give a reading of 1.5". The accused was found guilty on all counts. Stays were entered on the dangerous driving charges and the accused was convicted on the other counts. The accused appealed, arguing that the trial judge's failure to provide him with any significant assistance or guidance throughout the trial, and in particular, the trial judge's failure to conduct an inquiry into the admissibility of the evidence of his impairment, resulted in an unfair trial.
Held, the appeal should be allowed.
Where an accused is unrepresented by counsel, the trial judge has a duty to ensure that the accused has a fair trial and to provide guidance to the accused as the circumstances of the case may require. The trial judge in this case did not comply with that duty. Most importantly, he failed to conduct an inquiry into whether the evidence of the accused's blood/ alcohol concentration should have been excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms as having been obtained in violation of the accused's right under s. 8 of the Charter to be secure against unreasonable search or seizure. Although the accused gave his consent to the taking of the blood samples for medical purposes, there was no evidence that he consented to their use for determining his blood/ alcohol concentration at the time of the accident. A hospital patient undergoing treatment for injuries sustained in an automobile accident has a reasonable expectation of privacy, as well as a reasonable expectation that the results of a blood analysis undertaken for medical reasons will not be shared with non-medical personnel without his or her consent. There was a genuine issue as to the admissibility of the evidence of the accused's blood/alcohol concentration at the time of the offence and there was no other evidence, such as physical signs of impairment having been observed, upon which to base the conviction. It was incumbent upon the trial judge to have entered into an inquiry to ascertain whether there had been an infringement of the accused's s. 8 Charter rights and, if so, whether the evidence of impairment should be excluded under s. 24(2). The trial judge should also have considered the admissibility of the accused's hospital records that were obtained pursuant to two search warrants issued in the absence of sworn informations. In failing to enter into such an inquiry, the trial judge compromised the fairness of the accused's trial, thereby committing a reversible error.
More generally, the trial judge did little or nothing to assist the accused. His qualification inquiries of witnesses who were to testify as experts were perfunctory, and he failed to explain to the accused the purpose of expert testimony or to afford him an opportunity to participate in the voir dires concerning the qualification of the witnesses as experts. He gave the accused questionable advice regarding his right to testify in his own defence. The fact that the accused asked the trial judge at the outset of the trial what he should plead should have alerted the trial judge that the accused was ignorant of the most basic stage of his trial, his arraignment. It was incumbent upon the trial judge to recognize that the task of conducting a fair trial for this accused would require a significant degree of instruction and vigilance on his part. The trial judge should have explained to the accused the course the trial was to take, beginning with his arraignment, followed by the Crown Attorney callin g her witnesses, his right to cross-examine the witnesses and to object to irrelevant evidence, his right to call witnesses and to testify, the risks inherent in testifying and not testifying and the right to make a closing argument. The trial judge appeared insensitive to the accused's right to a fair trial and failed to fulfill his duty to ensure that the accused received a fair trial.
The trial judge neither accepted nor rejected the accused's evidence of the amount of alcohol he had consumed and his explanation for his manner of driving, nor did he consider whether it raised a reasonable doubt. Given that the presumption of impairment under s. 258(1)(d) of the Code was not available to the Crown, the trial judge did not give appropriate consideration to whether the accused's evidence that he had consumed one-and-a-half bottles of beer raised a reasonable doubt as to the correctness of the toxicologist's opinion that the accused's blood/alcohol concentration at the time of the accident was in the range of 159 to 169 milligrams of alcohol in 100 millilitres of blood. The trial judge apparently attached no weight to the accused's evidence on the basis of his own knowledge that "one and a half beers would not give a reading of 1.5". The trial judge's own experience in this regard was not a fact of which he was entitled to take judicial notice. The trial judge did not find that the accused's ability to drive at the time of the accident was impaired by alcohol. He may have mistakenly thought that the presumption of impairment under s. 258(1)(d) applied.
APPEAL from a conviction on charges of impaired driving causing death and bodily harm.
Cases referred to R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.); R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145, 134 N.S.R. (2d) 321, 119 D.L.R. (4th) 74, 171 N.R. 1, 383 A.P.R. 321, 24 C.R.R. (2d) 51, 92 C.C.C. (3d) 404, 33 C.R. (4th) 147; R. v. Dersch, 1993 32 (SCC), [1993] 3 S.C.R. 768, 158 N.R. 375, 18 C.R.R. (2d) 87, 85 C.C.C. (3d) 1, 25 C.R. (4th) 88, 48 M.V.R. (2d) 161; R. v. Dimmock (1996), 1996 2292 (BC CA), 108 C.C.C. (3d) 262, 47 C.R. (4th) 120 (B.C.C.A.); R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, 73 Nfld. & P.E.I.R. 13, 55 D.L.R. (4th) 503, 89 N.R. 249, 229 A.P.R. 13, 38 C.R.R. 301, 45 C.C.C. (3d) 244, 66 C.R. (3d) 348, 10 M.V.R. (2d) 1; R. v. Kienapple (1974), 1974 14 (SCC), [1975] 1 S.C.R. 729, 26 C.R.N.S. 1, 15 C.C.C. (2d) 524, 44 D.L.R. (3d) 351, 1 N.R. 322; R. v. Littlejohn (1978), 1978 2326 (ON CA), 41 C.C.C. (2d) 161 (Ont. C.A.); R. v. McGibbon (1988), 1988 149 (ON CA), 31 O.A.C. 10, 45 C.C.C. (3d) 334 (C.A.); R. v. Pohoretsky, 1987 62 (SCC), [1987] 1 S.C.R. 945, 47 Man. R. (2d) 295, 39 D.L.R. (4th) 699, 75 N.R. 1, [1987] 4 W.W.R. 590, 29 C.R.R. 238, 33 C.C.C. (3d) 398, 58 C.R. (3d) 113; R. v. Rowbotham (1988), 1988 147 (ON CA), 25 O.A.C. 321, 35 C.R.R. 207, 41 C.C.C. (3d) 1, 63 C.R. (3d) 113 (C.A.); R. v. Stellato, 1994 94 (SCC), [1994] 2 S.C.R. 478, 18 O.R. (3d) 800n, 90 C.C.C. (3d) 160n, 31 C.R. (4th) 60, 3 M.V.R. (3d) 1, affg (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90, 78 C.C.C. (3d) 380, 18 C.R. (4th) 127, 43 M.V.R. (2d) 120 (C.A.); R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1; R. v. Taubler (1987), 20 O.A.C. 64 (C.A.); R. v. Travers, 2001 NSCA 71, [2001] N.S.J. No. 154 (C.A.); R. v. Turlon (1989), 1989 7206 (ON CA), 32 O.A.C. 396, 49 C.C.C. (3d) 186, 70 C.R. (3d) 373 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 11, 24(2) Criminal Code, R.S.C. 1985, c. C-46, ss. 249 [as am.], 254(3), 255, 256(1), 258(1)
Christopher D. Hicks, for appellant. Sandra Kingston, for respondent.
The judgment of the court was delivered by
1BORINS J.A.:-- The appellant, Vi Phuong Tran, was convicted on a number of charges arising out of a motor vehicle accident. He submits that his conviction should be set aside and a new trial ordered. The appellant was self-represented at trial. He argues that the trial judge's failure to provide him with any significant assistance or guidance throughout the trial, and, in particular, the trial judge's failure to conduct an inquiry into the admissibility of evidence of his impairment, resulted in an unfair trial.
Overview
2In the early morning hours of October 21, 1996, the appellant, who was driving his motor vehicle in downtown Toronto, collided with a taxi. A passenger in the appellant's car was killed and the driver of the taxi was seriously injured. The appellant, who was also injured, was transported by ambulance to the nearby St. Michael's Hospital where he consented to providing blood samples for medical reasons. No demand was made of him to provide a blood sample under s. 254(3) of the Criminal Code, R.S.C. 1985, c. C-46 so that it could be analyzed to determine the concentration of alcohol in his blood. Nor was a warrant to obtain a blood sample under s. 256(1) of the Code obtained.
3The appellant was charged with five offences: impaired driving causing death contrary to s. 255(3), impaired driving causing bodily harm contrary to s. 255(2), dangerous driving causing death contrary to s. 249(4), dangerous driving causing bodily harm contrary to s. 249(3) and impaired driving contrary to s. 255(1). He was found guilty on all counts, but was convicted of only the first, second and fifth offences. The two dangerous driving charges were stayed under the rule in R. v. Kienapple (1974), 1974 14 (SCC), [1975] 1 S.C.R. 729, 44 D.L.R. (3d) 351, which precludes multiple convictions resulting from the same delict.
4Because the blood sample taken at the hospital was not taken pursuant to a demand or a search warrant or with the consent of the appellant, the prosecution was unable to rely on the presumption of the appellant's blood/alcohol concentration at the time of the offence provided by s. 258(1)(d). When the technical requirements described in s. 258(1)(c), (d) and (d.1) are met, the evidence of the results of an analysis of an accused's blood is, in the absence of evidence to the contrary, proof of the concentration of alcohol in the accused's blood at the time of the offence and proof, where applicable, that the concentration of alcohol in the blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Rather, the Crown sought to prove the impaired driving offences by relying on the results of the analysis of the blood sample performed at the hospital for medical purposes. To that end, it adduced expert evidence as to the progressive absorption of alcohol into the bloodstream, relating the results of the analysis back to the time the offences took place.
The Trial
5To determine whether the appellant received a fair trial, it is necessary to review what occurred at the trial. As I have stated, the appellant was unrepresented by counsel. He required the assistance of a Cantonese interpreter to understand the proceedings and to testify. The only assistance which the trial judge, Hamilton J., provided the appellant before the first prosecution witness testified is contained in the following exchange which took place after the appellant's arraignment:
THE ACCUSED: What should I plead?
THE COURT: Well, you can plead guilty or --
THE ACCUSED: I want to know what should I plead.
THE COURT: Well, there are only 2 ways you can plead, you can plead guilty or you can plead not guilty. If you plead guilty there will not be a trial. If he wants a trial he'll have to plead not guilty.
THE ACCUSED: I don't know what I can plead to.
THE COURT: Pardon me?
THE ACCUSED: I don't understand why I am being tried.
THE COURT: All right. Well, I'll enter a plea of not guilty for him.
THE ACCUSED: That's right.
MS CRAWFORD: Your Honour, I wonder--
THE COURT: I do notice this matter has been going on for sometime. He's had various lawyers and he's discharged lawyers. It's been ordered on with or without counsel. I notice in June of this year his second counsel wished to be removed from the record. Various trial dates have been set and not proceeded because of change in plea. In any event, he's pleading not guilty and we'll have a trial.
(Emphasis added)
6From the trial judge's comments it is obvious that he was aware of the background of the case which, in any event, was apparent from a number of endorsements on the indictment. There had been several court attendances by the appellant so that the case could be spoken to or to set trial dates. On two occasions, the appellant's counsel was removed as counsel of record. On June 18, 1999, McRae J. fixed September 27, 1999 as the date for a seven-day jury trial "with or without counsel". Hamilton J. was aware that at one time the appellant had intended to plead guilty because he was the presiding judge on June 14, 1999. At that time, he removed the appellant's second counsel from the record and endorsed the indictment: "matter was to be a plea".
7Following the above exchange between the appellant and the trial judge, the prosecution commenced its case. The evidence presented by Ms. Crawford for the Crown dealt, first, with the circumstances of the accident, and, second, with the concentration of alcohol in the appellant's blood at the time of the accident. At the conclusion of the testimony of each witness, the trial judge asked the appellant whether he had any questions to ask the witness. On each occasion, the appellant said that he had no questions to ask.
8One of the witnesses called by the Crown was Police Constable Andersen, whom the Crown intended to qualify as an expert in accident reconstruction. This prompted the following exchange.
THE COURT: What are you calling him for?
MS CRAWFORD: He's the accident reconstructionist. He has an expertise in accident reconstruction and he's going to do a diagram or give point of impact, information on the point of impact, the estimated speed of the vehicles, that sort of stuff. I could qualify him.
THE COURT: Have you been qualified before as an expert in accident reconstruction?
THE WITNESS: Yes, Your Honour.
THE COURT: Testified in court on that subject?
THE WITNESS: Yes, several times.
THE COURT: I'm satisfied.
9The trial judge failed to explain to the appellant the purpose of expert testimony or afford him an opportunity to participate in a voir dire concerning the qualification of the witness as an expert. Indeed, the manner in which the trial judge took over the qualification inquiry of P.C. Andersen -- his perfunctory inquiry of the witness and his failure to permit the appellant to participate -- was typical of how he subsequently dealt with the qualification of the expert witnesses called by the Crown to prove the appellant's blood/ alcohol concentration.
10Although the trial had been scheduled for seven days with a jury, Crown counsel took less than one day to present her evidence on how the accident occurred and half a day to present her evidence of the appellant's impairment. Dr. Blundell described how a blood sample was taken from the appellant for medical purposes. Part of the blood sample was sent to the Wellesley Hospital for toxicology analysis, while the remainder was analyzed at the St. Michael's Hospital. Ms. Dibartolomeo, a health records technician, identified the appellant's hospital records, including the laboratory reports which contained the results of the toxicological analysis performed on the appellant's blood at the Wellesley Hospital.
11The Crown then called two expert witnesses. Dr. Suria was qualified as an expert in clinical biochemistry with special expertise in the testing and interpretation of bodily fluid. He testified that in relation to the presence of alcohol in the appellant's blood sample there was a serum concentration of 40.2 MMOL/L.
12Ms. Mammoliti was qualified as a toxicologist with expertise in the areas of the physical effects of alcohol and impairment. She interpreted the results of the blood analysis provided by Dr. Suria and expressed the opinion that at the time of the accident the appellant's blood/alcohol concentration was between 159 and 169 milligrams of alcohol in 100 millilitres of blood. In her opinion, a person's ability to operate a motor vehicle would be impaired at this concentration. She testified that she would be basing her opinion on four assumptions, including that Mr. Tran consumed no alcohol after the accident and before the blood was drawn, that he consumed no large quantities of alcohol just before the time of driving, and that the rate of elimination of alcohol from Mr. Tran's blood and the plateau of alcohol concentration were both normal.
13In addition to the above evidence, the Crown sought to prove that two search warrants were obtained by Police Constable Britton to procure the appellant's medical records at St. Michael's Hospital relating to "blood alcohol/drug levels found during [Mr. Tran's] treatment at [the hospital] on October 21, 1996". Search warrants dated October 24, 1996 and February 10, 1999, together with the informations to obtain each of them, were entered into evidence by the trial judge. However, neither information was signed or sworn by P.C. Britton.
14The Crown closed her case before noon on the second day of the trial, following which the trial judge stated:
THE COURT: Well, I'll put the matter over to 2:15. Mr. Tran, at 2:15 if you wish to give evidence and tell your story you can. If you have any witnesses you want to call have them here at 2:15. If you do not want to testify you don't have to but if you are going to testify and tell me your story you're going to do that at 2:15. I don't want you to feel you're compelled to testify. You need not testify if you don't wish to.
15When court resumed in the afternoon, this exchange took place:
THE COURT: Mr. Tran do you have any witnesses you wish to call?
THE ACCUSED: I have witnesses but I want to speak for myself.
THE COURT: All right. Do you want to testify?
THE ACCUSED: I have all these papers.
THE COURT: Do you want to testify under oath or do you want to just tell me from the counsel table there your submissions?
THE ACCUSED: Yep.
THE COURT: Yes what?
THE INTERPRETER: He will testify under oath.
16The appellant's testimony began with the trial judge asking: "What do you wish to tell me, Mr. Tran?" The entirety of the appellant's testimony-in-chief followed questions asked by the trial judge. He was then cross-examined.
17As I understand the appellant's evidence, he was attempting to make two points: (1) before the accident he had consumed only one-and-a-half bottles of beer; and (2) the accident was caused by slippery road conditions produced by rain, not by the manner of his driving.
18At the completion of his evidence, the appellant was asked by the trial judge if he had any witnesses he wished to call. He replied that he had friends he wanted to call, presumably to testify about the amount of alcohol that he had consumed before the accident, but that he was unable to locate them. He said that he felt his best witnesses would be the police and the doctor to whom he spoke at the hospital, because they could say that he was "clear and sober" when he spoke to them. He also told the trial judge that before the trial he had heard nothing about there being alcohol in his blood.
19Although the Crown and the appellant made closing submissions, they were not transcribed.
The Trial Judge's Reasons
20The trial judge appreciated that the central issue was whether the appellant was impaired at the time of the accident. He stated:
The issue is was Mr. Tran impaired. He indicates he only had one and a half beers. From the blood sampling there is a reading of 1.5 which is twice the legal limit and the expert that I heard, Ms. Mammoliti, indicates that type of a reading could indicate one was impaired and said that not only would that impair one's vision but judgment is impaired, muscle coordination would be impaired and attention span would be impaired.
From the evidence I find that Mr. Tran had more than one and a half beers and even though he is small of statuture and from knowing that I know one and a half beers would not give a reading of 1.5. And also it's 3:00 in the morning and I understand that at least from the evidence that this beer was drank around midnight when he comes back to the bar but in any event I find that there was more than one and a half beer consumed in order to give this particular reading of 1.5 and I find that the alcohol had some effect on his driving.
I accept the opinion of the toxicologist that says notwithstanding her opinion was based on some assumptions, one being there was no alcohol after the accident, no evidence there was any alcohol consumed after the accident, no large quantities beforehand, Mr. Tran said he only had a beer and a half the whole evening, and the elimination rate, she can't say what the elimination rate was, there was nothing on the evidence to the contrary of what Mr. Tran's elimination rate was other than the assumption it was a normal rate and there is another assumption of a two hour plateau.
I find he was driving dangerous in the circumstances and as well I find his blood alcohol reading was over .08 and he'll be convicted on all counts.
(Emphasis added)
Analysis
21Counsel for the appellant relied on a number of grounds why his client, as an unrepresented defendant, did not receive a fair trial, including the fact that his client received virtually no assistance from the trial judge and that what assistance he did receive was either misleading or unhelpful. Of the several grounds raised by counsel, in my view, the most significant ground has to do with the trial judge's failure to conduct an inquiry into whether the evidence of the appellant's blood/alcohol concentration should have been excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms as having been obtained in violation of the appellant's s. 8 Charter right to be secure against unreasonable search or seizure.
22It is not an enviable task for a trial judge to conduct a criminal trial where the defendant is without counsel. Although an individual charged with an indictable offence is guaranteed the right to counsel by the combined effect of ss. 7 and 11(d) of the Charter (R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1, 63 C.R. (3d) 113 (Ont. C.A.)), there will be cases where, for various reasons, the defendant does not have a lawyer. When this occurs, the trial judge's duty is to ensure that the defendant has a fair trial, and to provide guidance to the defendant as the circumstances of the case may require. This duty was described by Griffiths J.A. in R. v. McGibbon (1988), 1988 149 (ON CA), 45 C.C.C. (3d) 334, 31 O.A.C. 10 (C.A.) at p. 347 C.C.C.:
Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must of necessity be a matter of discretion.
In McGibbon, the trial judge directed the Crown Attorney to have witnesses subpoenaed for the defendant and advised the defendant when certain evidence was irrelevant or not helpful in his defence.
23Similar expressions of the duty of a trial judge to provide appropriate assistance to an unrepresented defendant to ensure the fairness of the trial were expressed by this court in R. v. Littlejohn (1978), 1978 2326 (ON CA), 41 C.C.C. (2d) 161 (Ont. C.A.) per Martin J.A. at pp. 170-72; R. v. Taubler (1987), 20 O.A.C. 64 at p. 71 (C.A.); and R. v. Turlon (1989), 1989 7206 (ON CA), 49 C.C.C. (3d) 186 at p. 191, 32 O.A.C. 396 (C.A.). In Taubler, Thorson J.A. stated at p. 71 O.A.C.:
While it is undoubtedly true that a trial judge has a duty to see that an unrepresented accused person is not denied a fair trial because he is not familiar with court procedure, the duty must necessarily be circumscribed by what is reasonable. Clearly it cannot and does not extend to his providing to the accused at each stage of his trial the kind of advice that counsel could be expected to provide if the accused were represented by counsel. If it did, the trial judge would quickly find himself in the impossible position of being both advocate and impartial arbiter at one and the same time.
24In R. v. Dimmock (1996), 1996 2292 (BC CA), 47 C.R. (4th) 120, 108 C.C.C. (3d) 262 (B.C.C.A.), the court was of the opinion that where a defendant is unrepresented, there is a heavy onus on the trial judge to assist the defendant. In that case, a new trial was ordered where the trial judge had not intervened to hold a voir dire as to the admissibility of certain evidence, or to obtain the defendant's informed waiver of the voir dire. At pp. 127-28 C.R., McEachern C.J.B.C. stated:
Mr. McKinnon emphasized that the accused was unrepresented by counsel at both the pre-trial conference and at trial. He refers to R. v. Darlyn (1946), 1946 248 (BC CA), 88 C.C.C. 269 (B.C.C.A.), which was endorsed by this Court in R. v. Wheelton (1992), 1992 2816 (YK CA), 71 C.C.C. (3d) 476 (Y.T.C.A.) at 488, and which places a heavy onus on the trial judge to assist the unrepresented accused. In Darlyn, at pp. 271-272, this Court said:
There are two traditional common law rules which have become so firmly imbedded in our judicial system that a conviction is very difficult to sustain on appeal if they are not observed. The first is, that if the accused is without counsel, the Court shall extend its helping hand to guide him throughout the trial in such a way that his defence, or any defence the proceedings may disclose, is brought out to the jury with its full force and effect. The second is, that it is not enough that the verdict in itself appears to be correct, if the course of the trial has been unfair to the accused. An accused is deemed to be innocent, it is in point to emphasize, not until he is found guilty, but until he is found guilty according to law.
There can be no doubt that the evidence of what the accused said to the police officers could not be admitted without a voir dire unless there was an informed waiver by the accused of the right to have voluntariness tested on a voir dire: Park v. R. (1981), 1981 56 (SCC), 59 C.C.C. (2d) 385 at 389 to 392 (S.C.C.); Korponey v. Canada (Attorney General) (1982), 1982 12 (SCC), 65 C.C.C. (2d) 65 (S.C.C.).
[25] In R. v. Travers, 2001 NSCA 71, [2001] N.S.J. No. 154 (C.A.), another case in which the defendant was unrepresented, the Nova Scotia Court of Appeal also considered the effect of the trial judge's failure to intervene to rule on the admissibility of evidence obtained as a result of a warrantless search that infringed the defendant's s. 8 Charter rights. Oland J.A. held that the trial judge should have intervened. At para. 34 she stated:
In my view, the evidence at trial was more than sufficient to alert the trial judge that he should raise the question of the admissibility of evidence in light of possible Charter infringement. The trial judge should have conducted an inquiry into whether there had been any violation of the appellant's Charter rights. At that time, after hearing submissions from the appellant and the Crown, the judge could have considered any argument by the Crown based on exigent circumstances. If he found any infringement of rights, he should have then determined whether the evidence obtained pursuant to it, namely the clock radio, should be excluded under s. 24(2) of the Charter.
26Applying R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.), Oland J.A. was of the opinion that, even when the defendant is represented by counsel, there are circumstances in which it is appropriate for a trial judge to raise Charter issues. These circumstances include when the evidence indicates a possible infringement of a defendant's Charter rights. In Arbour, where the defendant had counsel, this court stated at p. 372 C.R.R.:
We are of the view that once there was admissible uncontradicted evidence before the court, indicating that there had been an infringement of the appellant's rights under s. 10(b) of the Charter, it was incumbent on the trial judge to enter upon an inquiry to ascertain whether such an infringement had occurred. This was not done. Accordingly, the statement should not have been admitted in evidence or, having been admitted, should not have been considered as evidence in the circumstances.
27Oland J.A. added at para. 37 that the principle stated in Arbour, that it is incumbent on a trial judge to inquire into any possible infringement of a defendant's Charter rights, "is equally applicable, if not more so, to proceedings involving a self-represented litigant who is unfamiliar with the law".
28As I have explained, following the accident, a blood sample was taken from the appellant for medical reasons. Because it was not obtained pursuant to a demand under s. 254(3) of the Code or a warrant under s. 256(1), the Crown was not able to rely on the presumption of the appellant's blood/ alcohol concentration at the time of the accident as provided by s. 258(1)(d). Instead, the Crown had to prove this fact by relying upon the blood sample that was taken for medical purposes, and on the expert evidence which I have reviewed. In addition, the Crown had to execute two search warrants to obtain the appellant's hospital records, each of which had been issued in the absence of a sworn information by the applicant for the search warrant.
[29] Although the appellant apparently gave his consent to the taking of blood samples for medical purposes, there is no evidence that he consented to their use for determining his blood/alcohol concentration at the time of the accident. The Supreme Court of Canada has held that a hospital patient undergoing treatment for injuries sustained in an automobile accident has a reasonable expectation of privacy, as well as a reasonable expectation that the results of a blood analysis undertaken for medical reasons will not be shared with non- medical personnel without his or her consent. See: R. v. Pohoretsky, 1987 62 (SCC), [1987] 1 S.C.R. 945, 39 D.L.R. (4th) 699; R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, 55 D.L.R. (4th) 503; R. v. Dersch, 1993 32 (SCC), [1993] 3 S.C.R. 768, 85 C.C.C. (3d) 1; R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145, 119 D.L.R. (4th) 74. Where the use of the blood samples for a non-medical purpose infringes a defendant's s. 8 Charter rights, the court is required to conduct a s. 24(2) anal ysis to determine whether the evidence should be excluded. Generally speaking, conscriptive evidence -- such as when a defendant is compelled to incriminate himself or herself by means of the use or production of bodily samples -- will be excluded. See: R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, 144 D.L.R. (4th) 193.
[30] We are not required to decide the admissibility of the evidence of the appellant's blood/alcohol concentration at the time of the accident. However, it is clear that there was a genuine issue as to its admissibility. Absent this evidence, the Crown had no case. That is, there was no evidence of the appellant's impairment at the time of the accident sufficient to convict him of the impaired driving offences. See: R. v. Stellato (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90, 78 C.C.C. (3d) 380 (C.A.), affd 1994 94 (SCC), [1994] 2 S.C.R. 478, 31 C.R. (4th) 60. As in Dimmock, Travers and Arbour, the evidence of consumption was more than sufficient to alert the trial judge that he should have raised the issue of admissibility. It was incumbent upon the trial judge to have entered into an inquiry to ascertain whether there had been an infringement of the appellant's s. 8 Charter rights and, if so, whether the evidence of impairment should be excluded under s. 24(2). This is particularly true given that the appellant was unrepresented. Included in the trial judge's inquiry ought to have been the admissibility of the appellant's hospital records that were obtained pursuant to two search warrants issued in the absence of sworn informations. In failing to enter into such an inquiry, the trial judge compromised the fairness of the appellant's trial, thereby committing a reversible error.
31Although the trial judge's failure to intervene and conduct an inquiry into the admissibility of the evidence of the appellant's impairment is sufficient to decide this appeal, there are several other aspects of the trial that are very troubling. Although the amount of assistance which a trial judge should provide an unrepresented defendant is a matter for his or her discretion, and although a trial judge is not required to become the defendant's advocate, there is a minimum level of assistance that is required in order to ensure that the defendant obtains a fair trial. This minimum level of assistance was not provided by the trial judge in this case.
32First, unlike the trial judge in McGibbon, supra, who took great pains to assist the unrepresented defendant, Hamilton J. did little or nothing to assist the appellant in this case. I have already referred to the questionable manner in which he conducted the voir dires concerning the qualification of expert witnesses, and to his questionable advice regarding the appellant's right to testify in his own defence. His perfunctory comments respecting the appellant's right to testify are to be contrasted with the thorough explanation given by the trial judge to the unrepresented defendant in Littlejohn, supra, who took care to ensure that the defendant was aware of both his right to testify, and his right to elect not to testify. In that case, the trial judge also explained to the defendant that if he testified he would be cross-examined by the Crown Attorney, and that he might be asked about his criminal record if he had one.
33Second, the exchange between the trial judge and the appellant at the outset of the trial, which is reproduced in para. 5 of these reasons, should have alerted the trial judge that the appellant was ignorant of the most basic stage of his trial--his arraignment. This is highlighted by the fact that in addition to being unrepresented, the appellant required the assistance of an interpreter to participate in his trial. It was incumbent upon the trial judge to recognize that the task of conducting a fair trial for this unrepresented defendant would require a significant degree of instruction and vigilance on his part. At this stage of the trial, to satisfy the minimum requirement of providing assistance for the appellant, the trial judge should have explained to the appellant the course which the trial was to take, beginning with his arraignment, followed by the Crown Attorney calling her witnesses, his right to cross-examine the witnesses and to object to irrelevant evidence, his right to call witnesses and to testify, the risks inherent in testifying and not testifying, and finally, the right to make closing argument. Regrettably, throughout the trial Hamilton J. appeared insensitive to the appellant's right to a fair trial and failed to fulfill his duty to ensure that the appellant received a fair trial.
34I am further troubled by the trial judge's treatment of the appellant's evidence of the amount of alcohol he had consumed and his explanation for his manner of driving. The trial judge neither accepted nor rejected the appellant's evidence, nor did he consider whether it raised a reasonable doubt. Given that the presumption of impairment under s. 258(1) (d) of the Code was not available to the prosecution, the trial judge did not give appropriate consideration to whether the appellant's evidence that he had consumed one-and-a-half beers raised a reasonable doubt as to the correctness of the toxicologist's opinion that the appellant's blood/alcohol concentration at the time of the accident was in the range of 159 to 169 milligrams of alcohol in 100 millilitres of blood. This is particularly true in light of the assumptions on which she based her opinion. It appears that based on his own knowledge that "one and a half beers would not give a reading of 1.5" the trial judge attached no weight to the appellant's evidence. Yet the trial judge's own experience in this regard was not a fact of which he was entitled to take judicial notice. The appellant's evidence of the amount of alcohol he had consumed may therefore have been capable of raising a reasonable doubt as to the correctness of the toxicologist's opinion.
35Fourth, the trial judge did not find that the appellant's ability to drive his motor vehicle at the time of the accident was impaired by alcohol. He found only that "alcohol had some effect on [the appellant's] driving" and that the appellant's "blood/alcohol reading was over .08". Indeed, it appears from the passage from his reasons quoted in para. 20 of this judgment, that the trial judge may have thought that the presumption of impairment under s. 258(1)(d) applied, which, as I have explained, it did not.
[36] I have one final concern regarding the June 14, 1999 endorsement which the trial judge wrote on the indictment. At that time, the appellant's counsel was removed from the record and the trial was adjourned. Hamilton J. wrote: "matter was to be a plea". Although this information may be of assistance to a trial co-ordinator or to the court in considering whether a defendant's s. 11(b) Charter right to be tried within a reasonable time has been infringed, ordinarily it is not information that should be placed on an indictment as it may prove prejudicial to a defendant who subsequently asserts his or her right to a trial. It is also information irrelevant to whether the defendant committed the offence. In my view, the fact that a defendant once intended to plead guilty and later decided to require the prosecution to prove his or her guilt beyond a reasonable doubt should not be known to the trial judge or to the jury.
Conclusion
37For all of the above reasons, the appeal is allowed, the convictions on the impaired driving charges are set aside and a new trial is ordered. In exercising its discretion as to whether to proceed with a new trial, I expect that the Crown will take into account the fact that the appellant has served the two-year sentence imposed by the trial judge, as well as the problems surrounding the admissibility of the evidence of his impairment.
Appeal allowed.
