ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: CR 808/11
DATE: 20120528

B E T W E E N:

HER MAJESTY THE QUEEN

Jill Macintyre, for the Crown

Respondent

• and -

KENNETH WILLOUGHBY

Adam Little, for the Appellant

Appellant

HEARD: May 23, 2012

REASONS FOR DECISION

[On appeal from the Judgment of Weseloh J.

dated August 18, 2011 at Walkerton, Ontario]

Conlan, J.

[1] This is a summary conviction appeal. The Appellant, Kenneth Willoughby, appeals the decision of Weseloh J.

[2] At trial in Walkerton on 18 August 2011, the learned Justice found Mr. Willoughby guilty and convicted him of over 80 care or control. A stay was registered on the impaired care or control charge. On penalty, Mr. Willoughby received a fine in the amount of $1,100.00 (with six months to pay and the victim fine surcharge waived) and a 12 month driving prohibition Order.

[3] Mr. Willoughby asks this Court to quash the conviction; set aside the stay; and enter acquittals on both counts, or alternatively, order a new trial. The Crown opposes the appeal in all respects.

[4] The appeal was argued in Walkerton for most of the day on 23 May 2012. The parties filed extensive facta and books of authorities.

[5] Mr. Willoughby advances three grounds of appeal: that the trial Justice erred in law in his decision regarding section 24(2) of the Charter; that the Justice erred in law in his ruling on the section 10(b) Charter application; and that the Justice erred in law in providing insufficient reasons on the merits of the over 80 count.

The 24(2) Charter Issue

[6] The learned trial Justice found that the police violated Mr. Willoughby’s section 8 and 9 Charter rights. The Justice admitted, however, the evidence that was obtained by the police as a result of those infringements, including the breath test results. On sentence, the Justice reduced by $400.00 what he would otherwise have imposed as the fine. That remedy was said to have been granted under section 24(2) of the Charter .

[7] Mr. Willoughby submits that the Justice had no authority to reduce the fine as a remedy under section 24(2). The Crown agrees but asserts that His Honour had such authority under section 24(1).

[8] There was no application at trial under section 24(1). That section was not argued by counsel. It was not referred to by the Justice.

[9] The Justice erred in law in providing the remedy that he did under section 24(2) of the Charter . There was no authority to do so.

[10] Mr. Willoughby argues that the Justice’s ruling to admit the evidence under section 24(2) is tainted by an unreasonable conclusion on the first branch of the Grant analysis. I agree.

[11] The standard of review of a trial judge’s section 24(2) determination is well settled. Where the trial judge has considered the proper factors and has not made an unreasonable finding, His ruling is owed considerable deference on appellate review: Regina v. Cote , 2011 SCC 46 , [2011] S.C.J. No. 46, paragraph 44 .

[12] It is not the function of this Court to re-try the case.

[13] Given the findings of fact made by the learned trial Justice, which findings are not challenged by the Crown on appeal, it was unreasonable for His Honour to conclude that the seriousness of the Charter infringing state conduct was “minimal” (page 67 line 6 of the transcript). That was not a determination that a properly instructed trier acting judicially could reasonably make.

[14] The Justice made scathing findings against the police. His Honour disbelieved the officer’s explanation for trespassing on the property. In fact, His Honour concluded that the said explanation was a “fabrication” (page 64 line 28 of the transcript). That means that the Justice found that the officer concocted a false explanation with intent to deceive. His Honour went on to find that the same officer was on a “fishing expedition” (page 65 line 9 of the transcript).

[15] There is a spectrum of seriousness regarding police conduct that violates one’s Charter rights. Given His Honour’s findings, which are not challenged by the Crown on appeal, the only reasonable conclusion would have been to determine that the sections 8 and 9 Charter infringing state conduct was serious.

[16] The following comment of the Supreme Court of Canada in Harrison is relevant:

In sum, the conduct of the police that led to the Charter breaches in this case represented a blatant disregard for Charter rights. This disregard for Charter rights was aggravated by the officer’s misleading testimony at trial. The police conduct was serious, and not lightly to be condoned, 2009 SCC 34 , [2009] S.C.J. No. 34 at paragraph 27 .

[17] The trial Justice’s conclusion on the first branch of the Grant analysis was unreasonable.

[18] On the second branch of the 24(2) framework, His Honour concluded that the impact on Mr. Willoughby’s Charter protected interests was “significant” (page 67 line 30 of the transcript). Neither party on appeal takes issue with that conclusion.

[19] On the third branch of the Grant analysis, His Honour concluded that society would have a substantial interest in having the case tried on its merits. Neither party on appeal takes serious issue with that conclusion, although the Appellant urges that the third factor is largely neutral on the facts of this case.

[20] I agree with the learned trial Justice. Although this was not a drinking and driving case as serious as many that we see in the Courts, any such offence is part of the scourge that impaired driving related crimes have marked in our society.

[21] On the overall balancing of the 24(2) factors, which the defence argues was blurred by the trial Justice with the third step, His Honour concluded that the evidence ought to be admitted. I disagree. That conclusion is not owed deference in that it was tainted by the learned trial Justice’s unreasonable finding as to the seriousness of the Charter infringing state conduct. That error allows this Court to conduct its own balancing exercise.

[22] The first factor clearly supports exclusion of the evidence. The second factor, not challenged by the Crown on appeal, was found to favour exclusion of the evidence (His Honour did not say that explicitly, but counsel agree that there is no other reasonable inference to draw from His Honour’s finding that the impact on the Appellant’s Charter protected interests was “significant”). The third factor favours admission of the evidence, although not to the extent of many drinking and driving related cases. Remember that this was a case where Mr. Willoughby was found guilty of over 80 care or control arising from him resting in his motor vehicle on private property.

[23] To admit the evidence in this case would harm the long-term repute of the administration of justice. It would result in a perception that the fabricated evidence of the police; the concocted explanation for trespassing on private property; the deliberate “backfilling” of the evidence by the police officer (page 64 line 27 of the transcript), all culminating in an unreasonable search under section 8 and an arbitrary detention and arrest under section 9 of the Charter , were being condoned by the Court. This Court must dissociate itself from that police misconduct.

[24] The appeal is allowed. All evidence obtained by the police as a result of the initial breach (the first trespass on to the property by Officer Courtney), ought to have been excluded under section 24(2) of the Charter . If that had been done, there would have been no evidence at trial of the Appellant’s alleged impairment by alcohol or his blood alcohol content, and thus, he would inexorably have been acquitted of both counts. This is not an appropriate case to order a new trial.

[25] The finding of guilt and conviction on the over 80 charge are quashed. An acquittal is entered on that count. The stay on the impaired charge is set aside. The authority to set aside the stay can be found in the decision of the Manitoba Court of Appeal in Regina v. Foti , [1994] M.J. No. 23 . An acquittal is entered on that count.

The 10(b) Charter issue

[26] Although it is not strictly necessary to deal with this matter given the conclusions above, I will do so in the event that this decision is appealed further.

[27] The Appellant argues that the learned trial Justice applied the wrong standard of proof in determining whether Mr. Willoughby’s right to counsel had been violated by the police. The Crown indicates that the Justice simply misspoke when His Honour said “the defence has failed to prove beyond the balance of probabilities that there was a Charter breach under s.10(b) and I dismiss the defence application under s.10(b)” (page 66 lines 25-28 of the transcript, emphasis added by this Court).

[28] If there was something else in the record that suggested that His Honour in fact applied the correct legal standard on the 10(b) issue, I would be inclined to agree with the Crown. But there is not. Thus, I find that the Justice erred in law. This is an experienced trial Judge who conducted a very fair and respectful hearing and who is presumed to know the law, however, I cannot ignore the obvious error on such an important matter.

[29] Mr. Willoughby asserts that the trial Justice erred in law in finding that there was no violation of the Appellant’s right to counsel.

[30] His Honour made these findings: “Police Constable Fields on the facts of this case read the Charter rights to counsel, the caution, the reason for his arrest, the breath demand. All of those were read fully and properly to the accused person while the accused was in the cruiser at the scene. The accused

appeared to understand, although he maintained what appeared to the officer to be an angry demeanour and was not responsive, he did shake his head in the negative when asked if he wanted to contact counsel” (page 66 lines 10 -19 of the transcript).

[31] With respect, there was no evidence capable of supporting the conclusion that Mr. Willoughby “appeared to understand”. The learned trial Justice erred in law in making a conclusion without any evidence to support it.

[32] The Crown concedes that Officer Courtney testified that Mr. Willoughby appeared not to understand.

[33] The Crown concedes further that, according to Officer Fields, there was no response to the question “do you understand?” which came after the recitation of the right to counsel and the 1-800 Legal Aid information. On the question of whether he wanted to call a lawyer now, Mr. Willoughby shook his head in the negative.

[34] Mr. Willoughby was never read or informed of his right to counsel again. There is no requirement that the police do so, however, it is good practice: Regina v. Devries , 2009 ONCA 477 , [2009] O.J. No. 2421 (Court of Appeal), at paragraph 42 .

[35] In my view, there ought to be a requirement that the right to counsel be provided again at the police station. There is absolutely no reason that I can think of not to have that requirement. It would take less than a minute in most cases. It places no unreasonable burden on the police. It reinforces one of the most important constitutional rights that any individual in Canada has. And it also protects the police in alleviating any uncertainty that may exist as to whether the accused person understood the right to counsel as provided at the scene.

[36] In any event, that is not the law currently and, thus, I find no 10(b) violation on that basis.

[37] I do find, however, that the informational component of Mr. Willoughby’s right to counsel was infringed.

[38] The standard of waiver of the right to counsel is high. Valid waivers of the informational component of section 10(b) are rare. If the circumstances reveal that a detainee does not understand, then the authorities are required to take additional steps to ensure that the detainee comprehends: Regina v. Bartle , 1994 64 (SCC) , [1994] S.C.J. No. 74, at paragraphs 38 and 39 .

[39] In the case at bar, the police received no response at the scene to the question whether Mr. Willoughby understood his right to counsel. Silence on these facts could not possibly constitute a waiver. Silence on these facts could not possibly cause a reasonable police officer to conclude that Mr. Willoughby understood, which is precisely why Officer Courtney’s evidence was what it was. The shaking of the head in the negative does not, in this case, clear up the uncertainty as to whether Mr. Willoughby understood his right to counsel. The failure of the police to do anything further was a violation of the Appellant’s right to counsel.

[40] The appeal is allowed on the basis that the learned trial Justice erred in law in finding no violation of section 10(b) of the Charter . This Court would have excluded the evidence of the breath tests under section 24(2) of the Charter on the basis of the breaches of sections 8, 9 and 10(b). This Court would have quashed the finding of guilt and conviction on the over 80 count and entered an acquittal on that charge. This Court would have set aside the stay on the impaired count and entered an acquittal on that charge. If the only breach was the section 10(b) matter, then this Court would have done the same thing regarding the over 80 count but ordered a new trial on the impaired because there still would have been some evidence of impairment, although weak, which preceded the violation and which could possibly be capable of grounding a finding of guilt on impaired care or control.

The Sufficiency of Reasons Issue

[41] The Appellant submits that the learned trial Justice erred in law in providing insufficient reasons on the merits of the over 80 count.

[42] Although it is not strictly necessary to deal with this matter given the conclusions above, I will do so in the event that this decision is appealed further.

[43] Trial judges are not expected to give perfect reasons. This was a particularly short trial with few witnesses and straightforward issues.

[44] The following are the oral reasons for conviction on the over 80 count in their entirety:

Stand up please, sir. On the facts of this case you were found in the driver’s seat of your pickup truck, you were highly intoxicated at the time, you had the odour of alcohol upon your breath and, while still in the driver’s seat, you reached and endeavoured to start the pickup. Fortunately the keys weren’t in the ignition at the time but they were, in the police officer’s evidence, handy to your reach at the time. I do not believe your evidence that you had it in mind to rest in the vehicle for a while and then head out to the property owner’s to request a drive home. At the time you were in that pickup you were there, you were intoxicated, and the presumption that you were there in care and control of the vehicle, which is contained in the Criminal Code , has not been rebutted on the evidence before me. The finding of guilt will be made on count number two, the blood alcohol levels being well over the legal limit. (page 69 of the transcript)

[45] There are dozens of Court decisions from the Court of Appeal for Ontario and the Supreme Court of Canada setting out the test for and the factors to consider in deciding whether a trial judge’s reasons for conviction are sufficient.

[46] The bottom line is that the accused is entitled to know why the trial judge is left with no reasonable doubt: Regina v. Ezard , 2011 ONCA 545 , [2011] O.J. No. 3575 (Court of Appeal), at paragraph 16 . And unless there is some reason why the accused’s evidence is inherently unbelievable or obviously incredible, then the accused is entitled to know why the trial judge did not accept his or her evidence.

[47] There was nothing inherently unbelievable or obviously incredible about Mr. Willoughby’s evidence that he did not intend to operate the motor vehicle. If that evidence was accepted, then there would have been a basis for the trial judge to find the Appellant not guilty.

[48] The learned trial Justice was perfectly entitled to reject Mr. Willoughby’s evidence. His Honour’s credibility findings are owed deference on appeal.

[49] These reasons are sparse. It would have been preferable for the trial Justice to make it clearer why he did not believe Mr. Willoughby. But I find that the reasons are sufficient for this case. They are just capable of meaningful appellate review. They are just enough to reveal a pathway to conviction, namely, that Mr. Willoughby’s testimony was rejected because it was contrary to his behaviour in trying to start the truck and because he was intoxicated. Again, it would have been preferable for the Justice to have stated it that way as opposed to merely referring to those facts and then making a conclusory statement that His Honour did not believe Mr. Willoughby’s evidence.

[50] The appeal is dismissed on the sufficiency of reasons issue.

Conclusion

[51] The appeal is allowed. The finding of guilt and conviction on the over 80 count are quashed and an acquittal is entered on that charge. The stay on the impaired count is set aside and an acquittal entered on that count.

[52] This was a well agued appeal by both counsel. The facta were extensive and helpful, as were the casebooks. The oral submissions were lengthy but focused and competent. Thank you.

Conlan J.

Released: May 28, 2012

COURT FILE NO.: CR 808/11
DATE: 20120528

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – KENNETH WILLOUGHBY Appellant REASONS FOR DECISION Conlan J.

Released: May 28, 2012