ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 58/10
DATE: 20120523

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – GORDON RAMBISSOON Appellant

Jason A. Gorda, for the Crown/ Respondent

Frederick S. Fedorsen, for the Appellant

HEARD: May 15, 2012

TROTTER J.

INTRODUCTION AND BACKGROUND

1This appeal concerns the exercise of discretion by a very experienced trial judge, Justice Brent Knazan of the Ontario Court of Justice, who refused to permit the appellant to bring a separate application for relief under s. 24(1) of the Charter after his application to exclude evidence under s. 24(2) had already failed. I have concluded that the learned trial judge properly exercised his discretion and the appeal should be dismissed.

2By way of background, the appellant was charged with impaired driving and driving while “over 80.” He argued that his rights were infringed under ss. 8 and 10( b ) of the Charter based on the arresting officer’s delay in making a demand that the appellant provide a breath sample into an approved screening device. Under s. 24(2), he sought exclusion of the subsequent breathalyzer readings that were obtained. Oral submissions were heard on September 4, 2009, a few months after the Supreme Court’s decision in R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 (S.C.C.). The learned trial judge found that the appellant’s rights under s. 8 had been infringed, but declined to exclude the evidence under s. 24(2). The decision not to exclude was based largely on the trial judge’s conclusion that the breach was not particularly serious: see [2009] O.J. No. 6354 (“the s. 24(2) reasons”). These Reasons were given on October 6, 2009.

3The case was adjourned to November 18, 2009 for further evidence. At that time, counsel for the appellant (who was not Mr. Fedorsen) sought a remedy under s. 24(1) of the Charter , based on the same breach previously found by the trial judge. Counsel wished to argue that, as a remedy under s. 24(1), the trial judge could prevent the Crown from relying on the presumption of identity in s. 258(1) ( c ) of the Criminal Code . This idea came to counsel after finding an old, unreported decision of Belleghem J. in R. v. Daniel Coghlan (January 5, 1993), (Ont. Gen. Div.) [unreported], in which he granted the same remedy sought by counsel in this case. Counsel came across this judgment after Knazan J. ruled on the s. 24(2) issue.

4Counsel at trial was buoyed in his position by a recent pronouncement of the Court of Appeal in R. v. Charette (2009), 2009 ONCA 310 , 243 C.C.C. (3d) 480 (Ont. C.A.). Charette dealt with the presumption of identity, but in a slightly different context. In framing the issue on appeal as one that did not involve the Charter , Moldaver J.A. (as he then was) said the following at paras. 30 and 31:

Turning to the issue at hand, I wish to emphasize that on these appeals, we are not concerned with the Charter or any remedies that might be available under it; rather, the issue is whether, in the absence of a Charter application, the Crown may rely on the presumption of identity where samples of breath have been provided pursuant to a demand under s. 254(3) in circumstances where the officer making the demand did not have reasonable and probable grounds for doing so. I leave for another time whether the presumption of identity might factor into the s. 24(2) analysis, if at all, where an accused has challenged the admissibility of the test results and the court has found a s. 8 Charter breach on the basis that the arresting officer did not have reasonable and probable grounds to make the demand. I also leave open the question whether an accused who seeks to prevent the Crown from relying on the presumption of identity could possibly seek relief under s. 24(1) of the Charter where a s. 8 breach has been established but the evidence of the test results has been admitted under s. 24(2).

In sum, the Charter issues, if any, relevant to the application of the presumption of identity, are matters to be determined another day. [emphasis added]

I note that these comments, which are, with respect, obiter dicta , were made months prior to R. v. Grant , supra, and months prior to the oral argument on the appellant’s application for relief under s. 24(2) of the Charter .

5After hearing extensive submissions on the issue of whether the appellant’s renewed application ought to proceed on the merits in light of his non-compliance with the Rules of the Ontario Court of Justice in Criminal Proceedings , SI/97-133, 1997 Canada Gazette, Part II , p. 3204 (amended SI/98-102) (hereafter “the Rules”), Knazan J. provided thorough reasons for not permitting the appellant the opportunity to litigate this issue, reported at (2010), 214 C.R.R. (2d) 315 (“the s. 24(1) reasons”). The appellant was subsequently convicted and challenges the trial judge’s refusal to consider the s. 24(1) issue.

ANALYSIS

6The type of discretionary decision challenged on this appeal is entitled to deference and should not be second-guessed in the absence of an error in principle. The ambit of this discretion was addressed in R. v. Loveman (1992), 1992 2830 (ON CA) , 71 C.C.C. (3d) 123 (Ont. C.A.), a case decided prior to the creation of the Rules. Doherty J.A. outlined the relevant considerations in para. 7 of his reasons:

A trial judge must control the trial proceedings so as to ensure fairness to all concerned and preserve the integrity of the trial process. The specific situations in which the trial judge must exercise that power are infinitely variable and his or her order must be tailored to the particular circumstances. In the exercise of this inherent power, a trial judge may decline to entertain a motion where no notice, or inadequate notice, of the motion has been given to the other side. This must be so even when the motion involves an application to exclude evidence pursuant to s. 24(2) of the Charter . Clearly, where a Charter right is at stake, a trial judge will be reluctant to foreclose an inquiry into an alleged violation. There will, however, be circumstances where no less severe order will prevent unfairness and maintain the integrity of the process.

7As noted above, after Loveman was decided, the Rules were created in part to deal with this issue. The Rules set out notice requirements for various types of applications. In this case, Rule 26 required that the applicant (appellant) provide written notice of at least 15 days. Importantly, Rule 2.02 provides: “The court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time.” This was the issue facing the trial judge in this case.

8The discretion to dispense with the compliance with the Rules was considered in R. v. Blom (2002), 2002 45026 (ON CA) , 167 C.C.C. (3d) 332 (Ont. C.A.). The concern expressed in Loveman , supra, about deference was noted. But as Sharpe J.A. observed at para. 28:

I am mindful of the difficult task confronting the judges of the very busy trial courts of this province. Trial judges are expected to run their courts efficiently and they are entitled to insist upon adherence to rules designed to ensure the proper administration of justice. I am also mindful of the discretionary latitude that should be accorded to trial judges, who are often required to balance competing factors and make difficult choices on the spot. Appellate courts should hesitate to interfere with these decisions. No doubt, the trial judge in the present case was only trying to apply the Rules fairly and to run an efficient court when he refused to consider the appellant's Charter application. However, in my respectful view, in the absence of any significant prejudice to the Crown arising from the defective notice, the trial judge erred in principle by foreclosing the appellant's Charter application.

See also R. v. Dumont (2000), 2000 16861 (ON CA) , 149 C.C.C. (3d) 568 (Ont. C.A.), in which the trial judge’s exercise of discretion (as well as the summary conviction appeal judge’s ruling) was upheld.

9There are many other decisions dealing with the repercussions of failing to comply with the Rules, and especially the notice requirements. Each exercise of discretion must be based on the specific factual matrix that develops before the trial judge. Moreover, the required level of deference must lead judges on appeal to be sensitive to the exigencies of a very busy trial court, such as the Ontario Court of Justice. As Justice Hill usefully noted in R. v. Tash (2008), 2008 1541 (ON SC) , 166 C.R.R. (2d) 358 (Ont. S.C.J.), at para. 23 :

In any given case, as said, the trial court may decline to hear a Charter application where, on balance, and having regard to all relevant circumstances such as the degree of non-compliance, the measure of prejudice to the Crown, the degree of disruption in the proceedings, the history of the litigation, and the absence of any real indication of a prospect of success on the application, justice and fairness to all parties justifies such a disposition.

The bottom line is that judges should permit litigants to advance legitimate Charter arguments, while ensuring fairness to the opposing party and preserving the integrity of the criminal trial process. Sometimes, this is no easy task in the Ontario Court of Justice, given its crushing caseload. Because of this workload and constant miscalculations about how long cases will take to complete, proceedings often become fragmented, providing counsel with fresh opportunities to consider new arguments to advance. Given the realities of this environment, trial judges have a duty to preserve the integrity of the process and, where appropriate, prevent trials on routine matters from cascading into interminable cat-and-mouse games.

10In this case, the trial judge’s decision on the s. 24(1) issue involved a consideration of all of the relevant factors discussed in the cases above. The trial judge fairly noted that, while the law had changed since the appellant had been charged and filed his Charter application ( i.e. , R. v. Grant , supra, and R. v. Charette , supra, were decided), the changes had occurred months prior to the oral argument of the s. 24(2) application. While the unreported decision of Coghlan may have been difficult to find, the same remedy was contemplated in Charette .

11Furthermore, the trial judge noted that the Crown is entitled to know all of the bases upon which the defence might advance Charter claims in order that it may take reasonable decisions on how to proceed and what evidence to adduce. While the trial judge acknowledged that the defence would consent to an adjournment should the application succeed and the Crown request leave to call further evidence, he noted that the trial had become unwieldy. As he said at para. 22 of the s. 24(1) reasons: “The timing of this application involves not only a forward lengthening of the trial but a backward distortion.” I agree with this characterization. Moreover, the trial judge also identified “strategic and economic decisions” at play in the timing of the s. 24(1) application.

12It is impossible to gauge the reasonableness of the trial judge’s decision on the s. 24(1) issue without remembering an important aspect of his ruling on the application to exclude evidence under s. 24(2). The trial judge debated whether, based on conflicting authority, a breach had been established at all. In the end, he concluded that a breach had been made out, but just barely. As he said at para. 29 of the s. 24(2) reasons, the officer’s “breach was very minor indeed.” He also found that the officer acted in good faith and that the breach was not deliberate. I agree with these characterizations. And while they were tailored to the analytical framework in R. v. Grant , supra , on a more general level, they must have some relevance to whether any remedy ought to have been granted under s. 24(1) of the Charter . That is, acknowledging that the Court of Appeal in R. v. Charette , supra, contemplated that applicants may be entitled to a remedy under s. 24(1) in these circumstances when one is not available under s. 24(2), it is difficult to imagine that any remedy would have been considered “appropriate and just” given the trifling or tenuous nature of the underlying breach.

CONCLUSION

13Despite Mr. Fedorsen’s characteristically persuasive advocacy, the appeal is dismissed.