SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: SC 84/11
DATE: 20120411

RE: R. v. Anthony Dunn

BEFORE: M.A. Code J.

COUNSEL:
Elmé Schmid , for the Appellant
Daniel Guttman , for the Respondent

HEARD: April 11, 2012

ENDORSEMENT

[ 1 ] The Appellant Anthony Dunn (hereinafter Dunn) was convicted on April 21, 2011 of the offence known as “over 80”, contrary to ss. 253(1) (b) and 255(1) of the Criminal Code . He was sentenced to a fine of $1,200 and the mandatory twelve month driving prohibition was also imposed.

[ 2 ] Dunn appealed his conviction to this Court and the appeal was heard today. No issue has been raised on appeal concerning the merits of the Crown’s case. Dunn was stopped at a fixed R.I.D.E. check-stop in downtown Toronto on December 10, 2009, he failed a roadside screening test, and he then blew 150 in two Intoxilyzer tests, according to the certificate of analysis. No defence evidence was called at trial. The defence raised a s.8 Charter of Rights argument, based on whether the officer who stopped Dunn and who then made the roadside screening demand had applied the correct statutory test, as set out in s. 254(2). The trial judge, Bovard J., dismissed the s. 8 argument, admitted the certificate evidence, and convicted the Appellant. The trial judge’s ruling in this regard is not challenged on appeal.

[ 3 ] In order to convict the Appellant, the trial judge relied on the presumptions of accuracy and identity, as set out in s. 258(1)(c) and as reinforced by s. 258(1)(d.1) and (d.01). Certain aspects of these presumptions were recently enacted in Bill C-2, as part of the Tackling Violent Crime Act , S.C. 2008, c.6 They came into force on July 2, 2008 and were in force at the time of the offence in the case at bar. It is these provisions that are the subject of the present appeal.

[ 4 ] By the time Dunn’s trial came on before Bovard J. on April 20, 2011, a number of constitutional challenges had already been heard alleging, in particular, that the new statutory provisions violate the presumption of innocence and the right to make full answer and defence, as guaranteed by ss. 11(d) and 7 of the Charter of Rights . In some of these cases, elaborate factual records had been presented setting out the defence evidence that would have been called, but for the new statutory provisions, as well as expert opinion evidence concerning the reliability of breath testing machines. The leading authority in Ontario, at the time of trial, was the decision of Duncan J. in R. v. Powichrowski (2009), 2009 ONCJ 490 , 70 C.R. (6 th ) 376 (Ont. C.J.) in which he thoroughly analyzed the history of “the Carter defence”, which the legislation is aimed at, and went on to dismiss the Charter application. Duncan J.’s decision was appealed to this Court and it was heard by Hill J. He has reserved judgment.

[ 5 ] In addition to the Ontario cases, constitutional attacks have been brought in other provinces. Most significantly, a trial judge in Quebec struck down certain parts of the new legislation in a series of cases but then went on to convict the accused. See: R. v. Drolet , 2010 QCCQ 7719. The accused did not appeal and the Crown could not appeal against a conviction. As a result, the Crown applied directly to the Supreme Court of Canada for leave to appeal in relation to the constitutional issue. The Court granted direct leave on March 31, 2011. This was three weeks before Dunn’s trial in the case at bar. The appeal in the Quebec cases was heard by the Supreme Court of Canada on October 13, 2011, before a seven member panel of the Court. Eleven separate parties and intervenors appeared at the hearing, including six Attorneys General. Judgment was reserved. See: R. v. Lamoureux , [2010] S.C.C.A. No. 432.

[ 6 ] Given the above status of the various constitutional attacks on Bill C-2, defence counsel in the case at bar served and filed a Charter application seeking a declaration that the new statutory provisions are of no force and effect on the basis of the same arguments that had been accepted in part, in Quebec, and that had been rejected by Duncan J. in Ontario. However, defence counsel advised the trial judge that he did not propose to call any evidence in support of the application, or to argue it, and he essentially invited dismissal of the application. He advised the Court that he took this approach for reasons of judicial economy and in order to preserve the issue, in the event of a further appeal, while awaiting the decision in Lamoureux . Defence counsel’s position is succinctly set out in the following submission:

We’re not abandoning it [the Charter application] but we are inviting Your Honour to rule on it without hearing anything further from the defence, anticipating that that would be a ruling that the – without any evidence you have no choice but to find the C2 provisions constitutional.

And bluntly, Your Honour, what this does is should the defence in each case decide to appeal the matter, that preserves the argument should the Supreme Court either read down the C2 provisions or rule that it’s not constitutional, and this way it deals with the matter without burdening the Ontario Court unduly on every trial.

… very detailed evidence was heard over three days I believe [before Duncan J. in Powichrowski ] … it’s on that basis that I wouldn’t be presenting any evidence and would invite Your Honour to accept my friend’s factum [for the Crown] as her argument on it. Bluntly anticipating unless Your Honour has an indication of compelling need to hear evidence on the issue that you would likely be deciding for the Crown for the reason I’ve said.

[ 7 ] Bovard J. agreed to proceed in the manner proposed by defence counsel. The Crown then called its case. No defence evidence was called, either on the trial or on the Charter application. In closing argument, defence counsel repeated his earlier submission:

On the C2 Charter application, Your Honour, as indicated, at some length earlier, while it has not been abandoned I am not presenting any evidence nor making any submissions to the Court on the challenge to the constitutionality of the new provisions to the Criminal Code , and therefore while I’m asking Your Honour to rule on the Charter application, I have nothing further by way of legal argument.

[ 8 ] In light of defence counsel’s acknowledgement that “without any evidence you have no choice but to find the C2 provisions constitutional”, the trial judge proceeded to dismiss the Charter application. He stated:

“I will dismiss that application … since there is no evidence to support it.”

[ 9 ] The principle on which Bovard J. proceeded, in dismissing the Charter application at the end of the case on the basis that “there is no evidence to support it”, is now well established. It has been repeatedly held that Charter attacks on legislation require a proper factual record and cannot be argued in a vacuum. See: MacKay v. Manitoba , 1989 26 (SCC) , [1989] 2 S.C.R. 357; Danson v. Ontario , 1990 93 (SCC) , [1990] 2 S.C.R. 1086. It has also been held that constitutional issues are, generally, best decided at the end of the case so that there is also a factual record relating to the merits. See: R. v. DeSousa (1992), 1992 80 (SCC) , 76 C.C.C. (3d) 124 (S.C.C.); R. v. Martin (1991), 1991 7340 (ON CA) , 63 C.C.C. (3d) 71 at 85 (Ont. C.A.); aff’d. 1992 93 (SCC) , 71 C.C.C. (3d) 572 (S.C.C.); R. v. H. (P.) (2000), 2000 5063 (ON CA) , 143 C.C.C. (3d) 223 at 231-2 (Ont. C.A.).

[ 10 ] On the present appeal, both parties now challenge the procedure that was followed at trial in relation to the constitutional attack on Bill C-2. The Appellant, now represented by counsel who did not conduct the trial, submits that the trial judge should not have acceded to defence counsel’s proposal, that he notionally hear and rule on the Charter application without any factual record. The Appellant submits that authorities such as MacKay and Danson require a factual record and that the trial judge should have ordered defence counsel to either file a proper record and argue the application fully or else withdraw it. The Appellant submits that he is entitled to a new trial at which this proper procedure will be followed.

[ 11 ] The Respondent Crown submits that the defence should have been required to call any evidence of adjudicative facts, at trial, relevant to the Charter application. For example, the Crown submits that any “ Carter defence” evidence should have been called so that the trial judge could make findings of fact in relation to the proposed defence. The Crown agrees that there was no need for defence counsel at trial to call evidence of legislative facts, such as the expert evidence called on the Charter application in Powichrowski . The Crown also agrees that the defence was entitled to preserve the constitutional issue, pending further appeal and depending on the outcome in Lamoureux , provided all of the essential adjudicative facts were in the record.

[ 12 ] I cannot accept the Appellant’s submission. It would require all litigants who wish to preserve a constitutional issue, that is pending for decision in a higher court, to fully argue the matter on a complete factual record in every applicable case that is scheduled in busy trial courts. This would result in an extraordinary waste and duplication of judicial resources. The Respondent Crown’s submission is more nuanced but I need not decide it. Defence counsel at trial made a considered decision not to call any evidence relevant to the Charter application, whether adjudicative facts or legislative facts. Depending on how the Supreme Court of Canada decides Lamoureux , and assuming Dunn manages to keep his case “in the judicial system” by further appeals, defence counsel’s approach may or may not succeed. As I do not yet have the result in Lamoureux I cannot predict whether defence counsel’s decision at trial was wise or unwise.

[ 13 ] As things presently stand, the relevant legislation in Bill C-2 is still good law in Ontario. Furthermore, the trial judge was clearly right to dismiss the Charter application on the basis that “there is no evidence to support it” in this particular case. Accordingly, the appeal must be dismissed.

[ 14 ] The Appellant will have to decide whether he wishes to continue to keep his case “in the judicial system”, by pursuing further appeals, in the hope that the Supreme Court of Canada strikes down the legislation. That is a matter between the Appellant and his counsel. See: R. v. Wigman (1987), 1985 1 (SCC) , 33 C.C.C. (3d) 97 (S.C.C.); R. v. Thomas (1990), 1990 141 (SCC) , 75 C.R. (3d) 352 (S.C.C.); R. v. Sarson (1996), 1996 200 (SCC) , 107 C.C.C. (3d) 21 (S.C.C.).

[ 15 ] For all these reasons, the appeal is dismissed.

M.A. Code J.

Date: April 11, 2011