COURT FILE NO.: 49/10 DATE: 20120213
ONTARIO SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
DILLON FREMLIN Appellant
COUNSEL:
- Marie Balogh, for the Respondent/Crown
- Michael Caroline, for the Appellant
REASONS FOR JUDGMENT [On appeal from the judgment of the Honourable J. Maresca dated, October 4, 2010]
DURNO J.
[1] The appellant was charged with impaired driving, driving having consumed excess alcohol and dangerous driving. The trial judge acquitted him of dangerous driving, and found him guilty of the impaired and excess alcohol counts, convicting on the excess alcohol count and conditionally staying the impaired operation count. He appeals against the conviction and finding of guilt.
[2] With regards to the excess alcohol count, when the appellant was charged the “evidence to the contrary” defence based on R. v. Carter (1985), 19 C.C.C. (3d) 174 (Ont. C.A.) was available. Before his trial started that defence was altered by Bill C-2. On the first day of his trial there were conflicting judgments whether the amendments applied retrospectively or prospectively. On the first trial date, counsel agreed that the retrospectivity issue would not be dealt with until a later date. The trial judge referred to a recent case that suggested the argument should be at the end of the case but left the issue open for further submissions. Two civilian witnesses were heard on the first date.
[3] By the second and third trial dates, a judge of this Court had ruled that the amendments applied prospectively but the Court of Appeal had reserved judgment on the Crown appeal from that judgment. The trial evidence, including pre-amendment Carter defence witnesses and character evidence, was completed and the case adjourned to await the Court of Appeal judgment with the consent of both counsel. The Court of Appeal held that the defence applied retrospectively. Accordingly, the pre-amendment Carter defence was not available to the appellant.
[4] On the next date, the appellant argued that his s. 7 and s. 15 Charter rights were breached in these circumstances because he could not avail himself of the pre-amendment Carter defence. It was unfair to have the law change from day to day during his trial, for him to retain an expert relating to the pre-amendment Carter defence and to have to call defence evidence when it was irrelevant by the end of the trial. If the Charter argument failed, both counsel agreed that a conviction should be entered for the excess alcohol count and that in those circumstances, there was no need to make submissions on the impaired operation count and no reason for Her Honour to deal with that charge.
[5] The trial judge reserved judgment and gave reasons for acquitting on the dangerous driving count, and finding the appellant guilty on the remaining counts, conditionally staying the impaired operation count and convicting on the excess alcohol count.
[6] On his appeal, the appellant again argues his s. 7 and s. 15 Charter rights were infringed because he was unable to raise the pre-amendment Carter defence. He argues his trial was unfair and in violation of s. 7 of the Charter because the law changed after he had called his defence evidence. The s. 15 breach alleged is based on the inequality that arises where another person charged on the same date could have his or her trial before the amendments while the appellant’s trial was after the amendments. The relief he seeks is a new trial at which the pre-amendment Carter defence can be raised.
[7] For the following reasons the appeal is dismissed.
Chronology
[8] The accused was charged on April 6, 2007. Bill C-2 was enacted July 2, 2008, roughly 15 months later. His trial started on January 7, 2009, 20 months after his arrest. Evidence was heard on three days (January 7, November 3 and 4, 2009), final submissions were heard on July 23, 2010 and the appellant was convicted on October 4, 2010.
[9] On the first trial date, January 7, 2009, from Crown Counsel’s opening submissions it appeared both counsel had agreed to have the retrospectivity issue dealt with after the Crown’s evidence and before the defence evidence was called. Defence counsel told Her Honour that he was not opposed to that suggestion although the retrospectivity argument impacted on the whole case including the Crown’s evidence. The trial judge raised the judgment of Duncan J. in R. v. McDonald, 2008 ONCJ 536, [2008] O.J. No. 4297 (C.J.) where His Honour concluded the retrospectivity issue should be dealt with at the conclusion of all of the evidence, a position Her Honour said was “well taken and very logical.” The trial judge said that if the appellant wanted to raise the retrospectivity issue at the end of the Crown’s case, he would have to make submissions regarding the timing of the application. Defence counsel said he was prepared to do so and noted that he did not have his “evidence to the contrary” witnesses at court, including the expert.
[10] Because of a snow storm and defence counsel’s medical appointment in Toronto, only two civilian witnesses were heard and the case was adjourned for the remaining three Crown witnesses. At the end of the first day the trial judge said she intended to have the retrospectivity argument after all of the evidence was completed despite the appellant’s submission that calling his pre-amendment Carter defence evidence would take one half day of court time and he would have additional costs bringing the toxicologist to court. Her Honour said that without finally determining the issue she was inclined to find the amendments were not retrospective.
[11] The second and third days of evidence were November 3 and 4, 2009. By that time, a Superior Court judge had ruled that the legislation was not retrospective (R. v. Dineley, (2009), 86 M.V.R. (5th) 34) and, on October 14, 2010, the Court of Appeal heard an appeal from that decision but had not released the judgment. However, at the end of the arguments on appeal, the panel indicated that they would release their judgment shortly.
[12] At the start of the proceedings, the Crown suggested the evidence be completed and the judgment reserved pending the Court of Appeal decision. Defence counsel said he was in the Court’s hands. After further discussions, defence counsel said he would call his evidence as though the amendment was prospective.
[13] At the end of the Crown’s evidence, defence counsel queried whether the retrospectivity issue would be dealt with at that time and Her Honour said the argument would be at the end of the evidence because they were waiting for the Court of Appeal decision. The defence evidence was then called. Crown Counsel suggested the case be adjourned to await the Court of Appeal judgment and defence counsel left the determination to Her Honour who adjourned the trial to await the Court of Appeal judgment. At the end of the second day, defence counsel waived s. 11(b) delay and asked to make submissions after the Court of Appeal judgment.
[14] On November 18, 2009, the Court of Appeal held the amendments applied retrospectively. R. v. Dineley, 2009 ONCA 814. Accordingly, the pre-amendment Carter defence was not available to the appellant.
[15] On July 23, 2010 final submissions were heard with the appellant contending his s. 7 and 15 Charter rights were violated. It was apparent that the trial judge was not inclined to accept the Charter arguments and that a conviction would follow. During submissions, Mr. Caroline conceded that in the absence of a successful Charter application in relation to the “over .80” charge that the appellant should be convicted of that count. In those circumstances, the Crown said he would not be seeking a finding of guilt on the “impaired operation” count. The trial judge was told by both counsel that they did not feel it was necessary to make submission on the impaired operation count or for Her Honour to deal with it in her reasons in those circumstances.
[16] Her Honour did not make a finding of guilt on that date as she wished to provide written reasons for judgment. In addition, defence counsel asked that the finding be deferred until after the Interlock provisions became effective on August 3, 2010. Her Honour provided her reasons and convicted the appellant on October 4, 2010.
Reasons for Judgment
[17] The trial judge gave reasons for a finding of the appellant guilty of impaired operation. As noted earlier, neither counsel made submissions on that charge and both submitted that Her Honour should not deal with it in her reasons because there was going to be a finding of guilt on the “over .80” count. The Crown appropriately concedes that in the absence of submissions, the trial judge erred in finding the appellant guilty and that a new trial must be ordered on that count if a new trial is ordered on the “over .80” count. R. v. Aucoin, [1979] 1 S.C.R. 554. In these circumstances, it is not necessary to review the reasons.
[18] In relation to the “over .80” count, the trial judge rejected the appellant’s argument that his s. 7 and s. 15 Charter rights were violated because he was not permitted to rely on the pre-amendment Carter defence. While there was no challenge to the constitutionality of the amendments, Her Honour noted the appellant argued that because the evidence had been completed before the Court of Appeal judgment in Dineley, his rights were violated by the retrospective application of the amendments.
[19] Her Honour noted that the appellant was offered an opportunity to re-open his case and call further evidence after the Court of Appeal ruling but declined to do so. Defence counsel told the trial judge that he did not know if different evidence would have been called had Dineley been decided in the Court of Appeal before the evidence was completed. Her Honour continued:
In my view, the argument of the defence was addressed directly in Dineley. The change in the evidentiary requirement under s. 258 of the Code does not prejudice the accused in making full answer and defence; nor does it place this defendant in any different position than any other defendant charged before the amendment who is now subject to a higher evidentiary burden after it.
Analysis
Did the trial judge err in finding the appellant’s Charter rights were not violated when he was unable to rely upon the Carter defence?
[20] The appellant submits that the trial judge erred in dismissing his Charter application because Her Honour misunderstood the argument during submissions and that her reasons reflect that misapprehension. He submits that contrary to Her Honour’s findings, the Court of Appeal did not deal with the s. 7 and s. 15 Charter issues in Dineley. The appellant was raising a different issue that had been addressed by other trial judges before and after the Court of Appeal ruling.
[21] The appellant relies on those cases in which courts noted either the potential for unfairness and Charter violations or found such violations where an accused was unable to raise a defence that was available to him or her at the time of the offence but was not available at the end of the trial. Mr. Caroline fairly concedes that with two exceptions, all of the comments are obiter and that none of the cases are binding on this court.
[22] Turning to the authorities relied upon, in Dineley, the trial started on June 18, 2008, and would have been completed on the first date had the Crown agreed that the defence could file the toxicologist’s report. However, the Crown wanted to cross-examine the expert and the case was adjourned to July 15, 2008. The amendments became effective July 2, 2008. When the Crown argued the toxicologist’s evidence was rendered irrelevant by the amendment the trial judge found, “[i]t would be contrary to the proper administration of justice as well as the principles of fundamental justice and fairness to permit the Crown to raise the issue at this stage of the proceedings.” At the conclusion of the trial, Dineley was acquitted of impaired operation and “over .80.” The Crown appealed in relation to the excess alcohol charge only.
[23] On the SCA, Sproat J. found the amendments were prospective and commented that they were retrospective, unfairness may result for the accused. These comments were obviously obiter. His Honour held that any unfairness could be addressed by requests for appropriate remedies including additional disclosure, an adjournment, the right to recall witnesses and a stay of proceeding if relevant evidence was destroyed. None of those criteria apply in this case.
[24] In R. v. Marn (2009), 87 M.V.R. (5th) 72, (S.C.J.) the Crown appealed an acquittal where the trial started before the amendments and was completed after. The first indication that the Crown sought to rely on the amendments was during closing submissions. The trial judge rejected the Crown’s argument because the case started before the amendment. The SCA judgment, released on April 6, 2009, before the Court of Appeal judgment in Dineley, examined four cases in which the legislation was applied retrospectively, but in none had the evidence “crystallized” and defence arguments been completed before the retrospectivity argument was first raised. Where that occurred, Thomas J. found there would be irreparable prejudice to the accused at that stage of the trial and dismissed the Crown’s appeal. Here, the retrospectivity issue was an issue from the first day of trial.
[25] In R. v. Slen, 2008 ONCJ 555, in obiter comments, the trial judge held that the amendments were retrospective but found “there could very well be substantive Charter issues arising as a result of the amendments.” The issues of fairness, whether a particular accused was able to receive a fair hearing, disclosure and making full answer and defence, and perhaps others, could be addressed. There could be cases where an accused could lead pre-amendment Carter evidence where charged before the amendments and the trial was held after, but he or she could not, for any one of a number of reasons, show that the machine malfunctioned or was operated improperly. In that context, the accused “could and might reasonably be well advised to bring an application for constitutional relief citing breaches of s. 7 and s. 11(d) of the Charter.” Here, there was no evidence or submission why the appellant could not show the machine malfunctioned or was operated improperly.
[26] In R. v. Tsanis, 2010 ONCJ 35, in obiter comments, the trial judge held that where the evidence had been called and submissions heard on the pre-amendment law, it would be unfair to change the rules that should be applied. Given the trial judge’s findings of fact that resulted in convictions for both offences, His Honour appropriately characterized these comments as “somewhat academic.” Here, the trial proceeded on the basis that the retrospectivity issue would be addressed at the earliest after the Crown’s case. The appellant did not object to waiting for the Court of Appeal judgment. The submissions followed the Court of Appeal judgment.
[27] In R. v. Scott, 2009 ONCJ 64 the trial started before the amendments and was completed after. In a February, 2009, ruling the trial judge found the amendments were retrospective having altered the essence of the defence by taking away the substance of the “evidence to the contrary” defence that was otherwise available when he was charged and when the trial started. His Honour concluded it did so in a way that was unfair, noting that the trial could not be completed on the first date because of insufficient court time.
[28] First, the ruling pre-dates the Court of Appeal judgment in Dineley. Second, there were several reasons why this trial was not completed on the first date including a snow storm, defence counsel’s medical appointment and the absence of the defence expert. While the Crown did not tell defence counsel that he wished to cross examine the expert until the day before the trial, the expert was unavailable because he was on vacation out of the country.
[29] In R. v. Ellacott, [2009] O.J. No. 5869, (C.J.), the trial judge in Scott, supra, in obiter comments, after the Court of Appeal judgment in Dineley, found there was no difference if the trial had not started before the amendments were enacted. However, His Honour excluded the breath readings as a result of a breach of s. 10(b) of the Charter. To the extent that the obiter comments seem to suggest that applying the Court of Appeal judgment in Dineley would always result in a Charter breach, a position not advanced by the appellant, I disagree.
[30] In R. v. Mariano, [2008] O.J. No. 4431 (C.J.), after finding the amendments applied retrospectively, the trial judge noted, “To the extent that disclosure issues arise or the prosecutorial approach to the amendments creates unfairly differential treatment of an accused person in a particular case, those matters can be properly addressed by a Charter application.”
[31] These comments were cited with approval in R. v. Habinski, [2008] O.J. No. 4431 (C.J.) where the trial judge said that in her view it may impact on trial fairness if a trial commenced before the amendments but was completed afterwards. Here, there were no disclosure issues and no direct submissions regarding “the prosecutorial approach to the amendments” although inferentially the Charter argument is based on the Crown’s unwillingness to agree that the pre-amendment law should apply.
[32] Finally, the appellant relies on R. v. McDonald, 2008 ONCJ 536, [2008] O.J. No. 4297 (C.J.) where the trial judge referred to the s. 15 argument – that some persons charged with offences on the same date had their trial before the amendments and accordingly, had the pre-amendment Carter defence available while those who had a trial date after July 2, 2008 did not. I will address the s. 15 argument later in the reasons.
[33] The Crown relies on the Court of Appeal judgment in R. v. Bickford (1989), 51 C.C.C. (3d) 181. When Bickford was charged the Crown was required to call corroborative evidence for a child witness. By the time the trial was held that requirement had been legislatively abolished. In dealing with the appellant’s argument that his s. 7 rights were violated, the Court found the appellant had no vested right in the evidentiary or procedural rule that required a child’s evidence to be corroborated, nor could it be argued that he acquired such a right by being charged before the rule was abolished. In effect, the Crown submits that the appellant had no vested right in the pre-amendment Carter defence.
[34] In addition, R. v. Kimmel, 2009 ABPC 289 is relied upon by the Crown. There, the charge was laid in November, 2007, the accused was acquitted and a new trial ordered on a Crown appeal. The new trial was held June 1, 2009, after amendments were enacted. The trial judge held “that development may work unfortunately for the [accused], it did not work unfairly.
[35] I am not persuaded Her Honour misapprehended the argument including the distinction between retrospectivity and unfairness resulting in a s. 7 and/or s. 15 breaches during submissions. Her Honour was aware of what was referred to as “the straddle argument” involving charges before the amendments with trials after. At p. 7 of the July 23, 2010 transcript, Her Honour said:
… it’s the fact that this case, by nature of its unique facts, was argued partially before and partially after, not only the legislation, but the decisions that came to consider those questions.
[36] And further at p. 9:
… The only question here is whether the evidence that was called – and it was called in the expectation that the legislation was prospective. So in other words, you called all of the evidence that you would call if you felt that a Carter defence was available. Right? So there wasn’t evidence that you didn’t call because you didn’t think it was available, you called your evidence on the assumption that it was going to be applicable right?
[37] In both instances, defence counsel agreed with Her Honour. The trial judge expressed concerns for what would have been different and what the unfairness was to the appellant. Mr. Caroline explained that had the appellant known he could not avail himself of the Carter defence, “he wouldn’t have called it and we wouldn’t have spent as much time as we did and he wouldn’t have retained Bernard Yen (a toxicologist) and all of those things wouldn’t have gone into the mix. But --- it’s not just that.” He went on to read the quotation from Tsanis, supra at para. 22.
[38] When counsel read from the Dineley SCA judgment, Her Honour asked which of the enumerated examples of unfairness applied on these facts. Counsel advised the unfairness was that the case “proceeded through binding law at the time … and if the decision hadn’t been delayed with respect to the applicable law, Mr. Fremlin’s evidence to the contrary could be considered.”
[39] During submissions, Her Honour understood the appellant’s Charter arguments. I am also persuaded that the trial judge appreciated the issues raised by the appellant in his s. 7 argument as reflected at para. 31 of her written judgment.
[40] However, I agree with the appellant that the trial judge erred in her reasons for judgment, noted at para. 16 above, in concluding the Court of Appeal in Dineley had addressed the Charter arguments being advanced in this case. The Dineley judgment did not address Charter arguments that the amendments created prejudice in making full answer and defence or any equality considerations because those issues were never raised in Dineley. The sole issue, on appeal, was whether the amendments operated retrospectively, at para. 17.
[41] Indeed, the judgment refers to the reasons in R. v. Ng, [2008] ONCJ 534 at para. 21 where the trial judge noted:
Whether the additions to the law fatally impede the defence ability to make full answer and defence or amount to an unjustifiable reverse onus provision will need to be considered in another court in relation to the constitutional arguments. However, at this stage, I don’t believe that the extent of the additional requirements changes their essential evidentiary character as identified in Cvitkovic and confirmed in Rigitano. (emphasis added in the Court of Appeal judgment)
[42] In these circumstances, it falls to this Court to examine the Charter issues. The appellant appropriately does not suggest that in every case where the amendments applied retrospectively there is a breach of s. 7 and/or s. 15 of the Charter. Mr. Caroline submits that on the fact of this case, there were violations.
[43] Each application must be examined on its own facts to determine if there was a breach. While other cases are of assistance, it remains a fact-specific determination. On these facts, I am not persuaded there was a breach of the appellant’s s. 7 or s. 15 Charter rights. I reach that conclusion for the following reasons.
[44] First, cases including McDonald, supra, had referred to the amendment as having neutered or abolished the defence. The Court of Appeal addressed that issue in Dineley as follows at para. 26:
With respect, these descriptions strike me as both speculative and overstated. The Carter defence has not been virtually eliminated, neutered or abolished. It has been changed, but it survives in a different form, subject as always to the ingenuity of defence lawyers and the new jurisprudence that the courts will inevitably enunciate. As explained by Pringle J. in Ng at para. 28:
[I]t's true that the amendments redirect the defence to a new area and require it to address the reliability of the approved instrument in order to secure an acquittal. However, the legislation doesn't direct the content of the evidence necessary to raise a reasonable doubt: the defence is free to achieve this through cross-examination of the operator, pointing to an error on the face of the test records, or reliance on a problem with, for example, the alcohol standard solution.
[45] To the extent that the judgments relied upon by the appellant are premised on the Carter defence being abolished etc., they have to be read in light of the Court of Appeal judgment.
[46] Second, to the extent that Ellacot, supra, a case decided before the Court of Appeal judgment in Dineley, holds that in every case where the charge was laid before the enactment and the trial held after the effective date, the result is a Charter violation based on unfairness by proceeding under the amended legislation, I disagree. Bickford, supra
[47] Third, the cases not covered by paragraphs 44 to 46 are distinguishable from the facts of this case. Here, the retrospectivity issue was “on the table” from the outset of the trial. The issue was not raised for the first time after the evidence and/or submissions were completed. The decision to deal with the retrospectivity issue after the Crown’s case or at the conclusion of the evidence was within Her Honour’s discretion. The appellant agreed that the issue would not be addressed on the first date for valid reasons.
[48] When the case continued, it was apparent the issue would be determined by the Court of Appeal shortly. Her Honour decided to complete the evidence and await the Court of Appeal judgment before hearing submissions. The appellant testified, called his pre-amendment Carter defence witnesses, character witnesses and relied upon the toxicologist’s report, not having to call the expert. Once the Court of Appeal’s Dineley judgment was released, the appellant was offered an opportunity to call further evidence, but declined to do so. There was no suggestion evidence had been lost, destroyed or was otherwise unavailable that may have assisted in a post-amendment Carter defence. As I read Mariano, supra, the trial judge’s comments apply where the defendant cannot make full answer and defence and defence because of the unavailability of evidence. There is no suggestion that this appellant was precluded from making full answer and defence because of the amendments and the timing of the trial.
[49] While I agree with the facts as outlined by counsel, on the first day of trial because of the weather and defence counsel’s medical appointment both counsel that it would be best to hear the civilian witnesses and return for the balance of the evidence and submissions. The trial could not have been completed on the first date in any event because the toxicologist was not present.
[50] On the second and third trial dates, November 3 and 4, 2009, the appellant’s defence evidence encompassed roughly 185 transcript pages. No doubt the appellant called some evidence that turned out to be irrelevant. However, with the cooperation of the Crown, the appellant’s expert evidence was filed as a report so there was no cost involved in the witness’ attendance at court. In the pre-amendment Carter world a toxicologist’s input was required. In the post-amendment world a toxicologist’s opinion is still required to determine if the accused has a valid defence although I appreciate that the costs would be less if no report was required and the expert did not have to attend court.
[51] On these facts I am unable to see any unfairness. No doubt it was unfortunate, frustrating, and disappointing - but it was not unfair.
[52] Turning next to the s. 15 argument, that other similarly situated persons charged with the same offence on the same date had their trial before the amendments were enacted yet the appellant did not. In McDonald, supra, the trial judge found the amendments were retrospective. His comments relied upon here are obiter. To the extent that they are premised on His Honour’s views regarding the effect of the abolition of the Carter defence, that view has been rejected by the Court of Appeal.
[53] There are other problematic aspects to the s. 15 argument. First, the appellant was charged 15 months before the amendments. While there is no evidence that others charged on the same date had trials within that period, it would be a reasonable inference in most jurisdictions. However, questions remain. Would the s. 15 argument apply if one person charged on the same date had his or her trial before the amendments or would more be required? Would the accused have to establish that they sought a trial date before the amendments?
[54] Second, it appears that the comments in McDonald were directed to systemic delay and there is no evidence, on this record, why this trial could not be scheduled earlier. The information contained in the Appeal Book reflects a defence adjournment of a May 14, 2008 one day trial date. That was before the amendments were enacted.
[55] While there might be cases in which there would be a s. 15 breach, I am unable to find a violation on this record.
Conclusion
[56] The appeal is dismissed.
DURNO J.
Released: February 13, 2012
COURT FILE NO.: 49/10 DATE: 20120213
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and –
DILLON FREMLIN Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable J. Maresca dated, October 4, 2010]
DURNO J.
Released: February 13, 2012