Ontario Court of Justice

Date: December 17, 2015

Court File No.: Central East Region (Oshawa)

Between:

HER MAJESTY THE QUEEN

— AND —

BRIAN LANG

Before: Justice F. Javed

Heard on: November 13, 2015

Reasons on Pre-Trial Application released on: December 17, 2015

Counsel:

• K. Saliwonchyk — counsel for the Crown
• A. Little — counsel for the defendant Brian Lang

F. Javed J.:

Introduction

[1] The defendant Brian Lang is charged with Over 80 mgs. contrary to s.253(1)(b) of the Criminal Code. His trial is scheduled to commence before me on January 11, 2016.

[2] On March 26, 2015, Mr. Little, on behalf of the Applicant, filed a Notice of Application in Form 1 of the Rules of Criminal Proceedings ("the Rules"), alleging breaches of Mr. Lang's rights under the Charter of Rights and Freedoms ("Charter"). He advanced a breach of s.7, 8, 9, 10(a) and 10(b) of the Charter. By way of relief he seeks to exclude all evidence obtained from the Applicant, including his breath samples as well as any alleged statements, utterances, actions and observations, following his detention and arrest pursuant to s.24(2) of the Charter. Alternatively, he seeks a remedy under s.24(1) of the Charter namely that the Crown not be permitted to rely on the presumption of identity in s.258(1) of the Criminal Code.

[3] On October 13, 2015, Mr. Saliwonchyk on behalf of the Crown, responded in Form 1 and sought two orders: (1) a summary dismissal of the s.8 argument on the basis that the Notice discloses no Charter breach and/or (2) if the application is not dismissed, particulars of the alleged s.7 and s.8 breaches on the basis that they did not specify the complaint.

[4] The Crown does not take any issue with the particularity of the alleged s.9, s.10 and s.10(b) Charter breaches.

[5] On November 25, 2015, the parties appeared before me as the application had been filed by the Crown in advance of the trial. On that date, Mr. Lang was not present but was represented by Mr. Little. I canvassed with both parties the issue of my jurisdiction to address the pre-trial application in the absence of Mr. Lang. Satisfied that I could deal with the matter prior to Mr. Lang's arraignment as part of my case management functions, I asked the parties their position on Mr. Lang's absence and if any issues arose under s.650 of the Criminal Code which provides that an accused shall be present during the whole of his trial. Neither party objected to me hearing the matter in Mr. Lang's absence as "the trial" had not commenced and thus he need not be present. Mr. Little assured me he had specific instructions from his client on the pre-trial issue.

[6] Mr. Little opposes the application and takes the position that he need not particularize the alleged s.8 breach as a seizure of his client's breath demand was a warrantless seizure for s.8 purposes and thus the onus shifts to the Crown.

[7] For reasons that I will expand upon below, I agree with the defence position. I am of the view that the s.8 allegation on this record, need not be particularized.

The Factual Background

[8] There is nothing remarkable in the anticipated factual record that was outlined by both parties in their written materials. In short, a police officer observed Mr. Lang's vehicle leaving a licensed establishment and began to follow it. Shortly thereafter, he stopped his motor vehicle and investigated him and detected an odour of alcoholic beverage emanating from his breath. Mr. Lang denied consuming any alcohol. He then read him the breath demand registering a fail. He was arrested for the offence of exceed. He was read his rights to counsel and cautioned. He ultimately provided two suitable samples of his breath and was released on a promise to appear.

[9] Mr. Little alleges a breach of his client's rights under s.8 of the Charter. He framed his argument as follows: "… the arresting officer did not have the requisite reasonable grounds to believe that the Applicant had committed an offence under s.253(1)(b) of the Criminal Code".

[10] Mr. Saliwonchyk in his materials points to the dictum of the Court of Appeal in R. v. Haas, [2005] O.J. No. 3160 (C.A.) and its progeny by taking the position that a "boiler plate" allegation prejudices the Crown by having to guess what aspect of the seizure it should focus on in its evidence to meet the reasonableness standard. As a corollary, a bare claim doesn't comply with Rule 30 of the Rules of Criminal Proceedings which require inter alia, "the grounds to be argued" and an affidavit which included a 'statement of the facts material to a just determination of the exclusionary issue which are not disclosed in any other materials filed in support of the application". Anything less, he submits, would amount to a "trial by ambush".

Analysis

[11] With respect, I disagree with the Crown's position. In R. v. Gundy, 2008 ONCA 284, the Ontario Court of Appeal made it clear that objections to the admissibility of evidence should either be made before or at the time the evidence is being proffered; not after the fact. In particular, the Court explained that objections to the admissibility of evidence on Charter grounds should not be raised after the Crown has closed its case, given concerns that such an approach would occasion unfairness and prejudice the Crown's ability to properly respond. Rosenberg J.A. also stated the following at paragraph 50 which is apt in this case: "if the accused does not challenge the admissibility of the results of the Intoxilizer/Breathalyzer analysis on the basis that the accused's rights under the Charter were violated, the Crown is not required to establish that the officer had reasonable and probable grounds to make the s. 254(3) demand." See also R. v. McCarthy, 2013 ONSC 599, 42 M.V.R. (6th) 114.

[12] Here, Mr. Little filed a Charter application challenging the admissibility of the impugned evidence well in advance of the trial date as he is required to. There can be no issue with the timeliness of the application, nor did the parties press this point. The real issue is whether the alleged "bare" claim occasions unfairness and prejudices the Crown's ability to properly respond – and prepare.

[13] On this record, I find that there is no unfairness to the Crown for two reasons. The first is grounded in law, the second more practical. In R. v. Tash, [2008] O.J. No. 200 (S.C.J.) at para 16, Hill J. stated that the question of compliance with the rules of the court in the sense of sufficient particularity in documentation filed for a Charter application is … largely a fact specific issue. A warrantless seizure, such as one's breath in the absence of reasonable and probable grounds is presumed to violate s.8 of the Charter. To displace that presumption, the Crown bears the burden of establishing on a balance of probabilities, the lawful preconditions for the seizure of Mr. Lang's breath samples. Here, by filing a notice advancing this claim, Mr. Lang is effectively putting the Crown on notice that he will take issue with the officer's grounds to make the demand. The onus is on the Crown and will allow the Crown to anticipate the issue. It seems to me that if the defence did not raise the issue in advance, the Crown could rely on the principles in R. v. Rilling, [1975] S.C.J. No. 72 to effectively prevent the issue to be argued later.

[14] Mr. Little in his submissions argued that in any event, Rilling, supra, has been overtaken by other authorities and is no longer good law. As noted by MacDonnell J. in McCarthy, supra, the Supreme Court of Canada has never directly reconsidered the correctness of its decision in Rilling, supra. For my purposes, I need not resolve this issue but suffice to say, Rosenberg J.A. in Gundy, supra, reviewed the authorities on point and concluded that Rilling remains good law in the post-Charter era – which for Mr. Lang means, he must file a Charter application challenging the investigating officer's grounds if he seeks relief and he has done so.

[15] The Rules require the 'grounds to be argued' and in this case – where the Crown bears the burden on the issue – those grounds are specified. Mr. Little in his materials pleads, through an affidavit of a student in his law firm, Amy McQauig, that his client "advised [the officer] that he had not consumed any alcohol [this evening]". Presumably, this will mean that the court will have to weigh in on the credibility and reliability of the officer's evidence who may say, Mr. Lang did admit to the consumption of alcohol or at the very least, he detected alcohol on his breath. The same assessment may have to be made for the defendant should he choose to testify. In R. v. Bush, 2010 ONCA 554, Durno J. sitting ad hoc for the Ontario Court of Appeal stated "whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered: see Shepherd, at para. 21; R. v. Rhyason, [2007] 3 S.C.R. 108, [2007] S.C.J. No. 39, 2007 SCC 39; R. v. Elvikis, [1997] O.J. No. 234, 31 O.T.C. 161 (Gen. Div.), at para. 26; Censoni, at para. 47. Mr. Little has identified a live factual issue and the Crown has notice of it. The officer's grounds will have to be assessed as a whole.

[16] Further, Mr. Saliwonchyk in his material pointed to ten possible areas that could be challenged as a result of issues relating to reasonable grounds which the Crown cannot prepare for without knowing particulars of the complaint. In my view, requiring detailed particulars on an issue where the Crown bears the burden, would amount to improperly shifting the burden on the defendant. Moreover, not all areas as identified by Mr. Saliwonchyk relate to the formulation of reasonable and probable grounds and instead are separate issues that commonly arise in drinking and driving cases. Given that courts must look at the totality of the circumstances on the grounds issue, it would be prudent for the Crown to address any issues in the officer's evidence that would impact the sufficiency of both the objective and subjective grounds to make the breath demand. Moreover, eliciting evidence viva voce whether it's through examination in chief or through cross-examination, can also unveil additional information, which may impact a courts determination of the reasonable and probable grounds issue. In Haas, supra, cited by Mr. Saliwonchyk in support of his position, the Crown didn't call any evidence of reasonable and probable grounds because Mr. Haas chose to challenge the lack of grounds after the evidence was completed. That simply won't arise in this case as the Crown can anticipate the issue in meeting its burden on the s.8 argument.

[17] On the above basis alone, I would dismiss the application for particulars. Given my conclusion, I need not consider Mr. Saliwonchyk's alternative position that there are sound policy reasons as well that particulars should be provided where the defence alleges a "reasonable grounds" breach of s.8. Having said that, I do wish to offer some additional comments which are more pragmatic in nature given the exigencies of busy trial courts where an issue such as this may arise frequently.

[18] The parties advised me in submissions that during pre-trial proceedings, they agreed to a blended hearing of the evidence, which avoids duplication of the evidence. Practically, this means that even in areas where the defence bears a burden, if the evidence touching upon a Charter issue is also going to form part of the Crown's case (such as an application under s.9/10 of the Charter), the evidence will be called once and not twice. In these cases, it is incumbent on the court to maintain control over which party has the burden on each issue and what body of evidence applies to a fair determination of that issue. In my view, this approach should be encouraged not discouraged, as the proper use of the procedure does not operate unfairly to the parties. See R. v. Bujitor, [2003] O.J. No. 4595 (C.A.). Obviously, there may be cases where a blended hearing is not possible but from an administration of justice perspective, blended hearings serve a useful function provided they are not abused. There is no abuse of this process in this case nor was it argued as such.

[19] Here, there will be a blended hearing, which means that the investigating officer who ultimately formed the grounds for the breath demand, will be called by the Crown – on some issues. There is no prejudice to the Crown as the officer will have to be called in any event. He can be asked what his grounds were to make the breath demand.

[20] While I am sensitive to Mr. Saliwonchyk's concerns, I'm of the view that they simply don't arise on this record. Moreover, if the complaint was on a Charter issue where Mr. Lang bore the onus, the analysis may be different but that is not the case. Mr. Lang has discharged his obligations. In my view, there is no legal responsibility on him to do any more. The section 7 allegation is intertwined with the ss.8 and 9 complaints and will likely turn on those issues. There is no unfairness in this case. If issues of unfairness arise as the matter progresses, according to Gundy, supra, trial judges are vested with discretion on how to deal with them. See also R. v. Loveman (1992), 71 C.C.C. (3d) 123 (Ont. C.A.), R. v. Blom (2002) 157 C.C.C. (3d) 322 (Ont. C.A.).

Conclusion

[21] The application to summarily dismiss the ss.8/7 Charter arguments and the request for particulars are both dismissed.

[22] I would like to thank both counsel for their helpful submissions and materials on this issue.

Released: December 17, 2015

Signed: "Justice F. Javed"