COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Moore, 2016 ONCA 964
DATE: 20161219
DOCKET: C59387
Simmons, van Rensburg and Miller JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Thomas Moore
Appellant
Breana P. Vandebeek, for the appellant
Lucas W. Schwalm, for the respondent
Heard: December 8, 2016
On appeal from the convictions entered by Justice J. Christopher Corkery of the Superior Court of Justice, sitting with a jury, on February 18, 2014.
ENDORSEMENT
[1] We allowed this appeal and ordered a new trial for reasons to follow. These are our reasons.
Background
[2] Following a jury trial, the appellant was convicted of one count of dangerous driving causing bodily harm and one count of assault with a weapon, namely a motor vehicle.
[3] The charges arose out a road rage incident involving the appellant, who was driving a car, and the driver of a van. Following a verbal altercation, the van driver followed the appellant's car and cut the appellant off near a stop sign. The van driver got out of the van and approached the appellant. The appellant initially reversed and then drove forward striking the van driver. It was the appellant's position that he was scared, tried to avoid hitting the van driver and the van, but lost control of his car. The Crown asserted that the appellant struck the van driver intentionally.
Issues
[4] The appellant raises two issues on appeal.
[5] First, the appellant argues that the trial judge erred in failing to find that the police breached his rights under s. 10(b) of the Canadian Charter of Rights and Freedoms and further erred in failing to exclude the evidence of his formal police interview under s. 24(2) of the Charter.
[6] Second, the appellant submits that the trial judge erred in his charge to the jury concerning the standard of proof.
Discussion
(1) The Charter Issue
[7] Following his arrest for dangerous driving, the appellant was able to contact and speak to duty counsel. However, the police officer who was going to conduct the formal interview later told the appellant that, in addition to the charge for dangerous driving causing bodily harm, he was also going to be charged with assault with a weapon. At that time, the appellant asked to contact his own lawyers. The interview officer attempted to contact the two lawyers named by the appellant. In the meantime, while waiting for a call back from the appellant’s counsel, the arresting officer told the interview officer that the appellant had agreed to, and did, speak to duty counsel after his arrest. Upon receiving this information, the interview officer concluded that the appellant had had an opportunity to consult with counsel and continued the interview.
[8] While the trial judge acknowledged that, under R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the appellant would have been entitled to a second opportunity to speak to counsel had there been a change in the jeopardy he was facing, he found that the second charge did not constitute a change in jeopardy. Both charges arose from the same circumstances and the appellant was fully aware of those circumstances. Both offences carried the same maximum penalty. And while assault with a weapon is a hybrid offence, dangerous driving is a straight indictable offence. Further, various cases have made it clear that an accused person need not be made aware of the specific charge he or she faces: R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at pp. 14-15; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 30.
[9] In the alternative, the trial judge held that even if there had been a breach of the appellant's s. 10(b) Charter rights, the appellant’s statement should not be excluded under s. 24(2) of the Charter. The interview officer acted in good faith. He made efforts to contact that appellant's own lawyers and continued the interview only after being informed that the appellant had earlier spoken to duty counsel. In any event, the appellant had repeatedly stated that he wanted to tell his story to the police. The trial judge was satisfied that the outcome would not have been different had the appellant been given a further opportunity to speak to a lawyer.
[10] In our view, in determining whether the appellant’s jeopardy had changed, the trial judge erred in focusing on the fact that the charges arose from the same circumstances, that the offences carried the same maximum penalty and that the new charge was a hybrid offence. Considered in the circumstances of this case, the assault with a weapon charge significantly increased the appellant’s alleged moral blameworthiness in relation to the charge in that it required proof that he acted intentionally to harm the van driver, rather than simply that his driving constituted a marked departure from the norm. This, in turn, markedly increased the potential penalty that the appellant faced.
[11] The Crown argued that the appellant had received adequate advice from duty counsel that was sufficient for the new charge since the appellant stated in the interview that he had been told by duty counsel not to make a statement, but continued with the interview in any event. The Crown claimed that the appellant would have provided a statement regardless of any advice about the additional charge. We disagree. On the record in this case, it would be speculative to assume that the advice, and the accused's reaction to the advice, would necessarily have been the same. As we have said, the new charge of assault with a weapon was significantly different and carried more serious potential consequences than the original charge of dangerous driving causing bodily harm. Moreover, it is apparent from the accused's reaction to being informed of the new charge that he believed there was something amiss.[^1] In the particular circumstances of this case, we conclude that the police breached the appellant's s. 10(b) Charter rights by failing to afford him a second opportunity to speak to counsel.
[12] The trial judge, thus, erred in failing to find that the police breached the appellant’s rights under s. 10(b) of the Charter.
[13] Further, the trial judge's s. 24(2) Charter analysis attracts no deference as he did not find a breach; nor did he consider all of the relevant R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 factors.
[14] In our view, the admission of the evidence would have a negative impact on society’s confidence in the justice system. We say this with specific regard to the three Grant factors. First, in terms of the seriousness of the Charter-infringing state conduct, depriving the appellant of access to counsel in the face of his increased jeopardy was serious. Second, this deprivation had a serious impact on the protected interests of the appellant, namely the appellant's right to make a meaningful and informed choice of whether to speak to the police. Third, with respect to society’s interest in adjudicating the case on its merits, declining to admit the evidence does not undermine the ability of the prosecution to proceed. As noted by the Supreme Court in Grant, at para. 91, there is no absolute rule of exclusion for Charter-infringing statements. However, as a matter of practice, courts have tended to exclude such statements on the ground that admission on balance would bring the administration of justice into disrepute. For the reasons that we have explained we consider that to be the case here.
(2) The Jury Instructions Issue
[15] We did not call on the Crown to address the appellant’s second ground of appeal. Suffice it to say that we are not satisfied that the trial judge erred in his charge to the jury concerning the standard of proof.
Disposition
[16] The appeal is allowed, the convictions are set aside and a new trial is ordered.
“Janet Simmons J.A.”
“K. van Rensburg J.A.”
“B.W. Miller J.A.”
[^1]: The transcript of the appellant’s video statement to the interview officer demonstrates that upon being informed of the new charge of assault with a weapon the appellant said, “That can’t be right” several times and stated, “It wasn’t an assault.” It is also noteworthy that the appellant had a prior conviction for assault with a weapon.