ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-12286 (Ottawa)
DATE: 2013/08/19
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SHAWN LEVESQUE
Applicant
Robert Wadden, counsel for the Crown
Michael A. Johnston, counsel for the Applicant
HEARD: July 31st, 2013
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
LALIBERTE, j.
[1] This summary conviction appeal brought by the Appellant, Shawn Levesque, following his conviction under section 254(5) of the Criminal Code on October 5th, 2012, raises two issues for this Court’s consideration, namely:
Did the learned trial judge err in law by failing to address the Appellant’s arbitrary detention, contrary to section 9 of the Charter?
Did the learned trial judge err in law by failing to consider relevant evidence material to the mens rea for an offence under section 254(5)?
[2] The appeal is dismissed for the following reasons:
- Duty to consider Charter violation
[3] The Ontario Court of Appeal articulated the principle dealing with a trial judge’s duty to consider a Charter violation as follows in R. v. Arbour [1990] O.J. No. 1353:
“We are of the view that once there was admissible uncontradicted evidence before the Court, indicating that there had been an infringement of the appellant’s rights under section 10(b) of the Charter it was incumbent on the trial judge to enter upon an inquiry to ascertain whether such an infringement had occurred.”
This duty to protect constitutional standards obviously requires a higher degree of vigilance in cases where an individual is self-represented. However, this onus on a trial judge cannot be assessed in a vacuum. There needs to be a proper evidentiary foundation in order to “trigger” the Court’s obligation to enquire into whether or not there was a Charter violation. Courts have used different words to express this threshold:
“...in the case of apparent constitutional breach...”
R. v. Hein [2006] O.J. No. 1098
“...where there is strong evidence of a prima facie case of breach of a Charter right relevant to the proceeding...”
R. v. Travers 2001 NSCA 71, [2001] N.S.J. No. 154
“...once there was admissible uncontradicted evidence before the Court, indicating that there had been an infringement...”
R. v. Arbour op. cit.
[4] The facts in this case are straightforward. There were only two witnesses, namely Constable Heffler and the appellant. The only significant factual difference between the witnesses relates to the providing of samples in the screening device. The record indicates that the officer never took any positive action to stop the appellant’s motor vehicle. Constable Heffler testified that he noticed a vehicle travelling up the parkade of a shopping centre at 1:00 a.m. He proceeded up to the third level and observed the vehicle that was now stopped. He approached the appellant who was identified as the driver. He then detected an odour of alcohol on his breath and proceeded to the 254(2) demand. The appellant confirmed that he was parked. He stated at page 21:
“...The reason I was parked at the mall was because...”
[5] Clearly, once he was found in care or control of a motor vehicle and an odour of alcohol was noted on his breath, the requirements of section 254(2) of the Criminal Code had been met and the officer could detain the appellant for that purpose. So that the issue becomes whether the trial judge who was faced with a factual situation where an officer approached an individual who was sitting in a parked vehicle in a public parking, was now faced with “uncontradicted evidence” or “strong evidence of a prima facie case of breach” such that her duty to enquire was triggered?
[6] This Court’s position is that it wasn’t. The learned trial judge is presumed to have knowledge of the law on this issue which was clearly articulated by our Court of Appeal in R. v. Calder 2004 36113 (ON CA), [2004] O.J. No. 451:
“The officer needed no legal authority to approach the appellant while he was sitting in his vehicle in the public parking area and he needed no legal authority to speak to the appellant. There is no evidence upon which it could be said that the appellant was detained by the officer within the meaning of detention as explained in R. v. Therens (1985), 1985 29 (SCC), 18 C.C.C. (3d) 481”.
- Failing to consider relevant evidence
[7] In reviewing the learned trial judge’s reasons for judgment, this Court is mandated to take a functional and contextual approach having regards to the totality of the evidence and the critical issues to the case. Reasons for judgment are not required to refer to every piece of evidence. In essence, trial judge’s reasons must show an appreciation of the evidence and the reasoning which led to the decision. As stated by the Supreme Court of Canada in R. v. O’Brien 2011 SCC 29, [2011] 2 S.C.R. 485 at paragraph 17:
“A trial judge has an obligation to demonstrate through his or her reasons how the result was arrived at. This does not create a requirement to itemize every conceivable issue, argument or thought process. Trial judges are entitled to have their reasons received based on what they say, not on the speculative imagination of receiving courts...trial judges should not be held at some “abstract standard of perfection.”
[8] Having reviewed the learned trial judge’s reasons, this Court is satisfied that she met her obligation of explaining how she arrived at such a result. Her reasoning is clear. She stated “...I don’t believe the accused’s assertion that asthma or the bronchial infection had anything to do with the inability to blow.” More importantly, she explained the reasoning which led her to reject his evidence. It is clear on the record why she arrived at her conclusion. It would be speculation for this Court to conclude that she failed to consider “relevant evidence” as suggested by the appellant.
Conclusion
[9] This appeal is dismissed.
Justice Ronald M. Laliberte Jr.
Released: August 19th, 2013
COURT FILE NO.: 11-12286 (Ottawa)
DATE: 2013/08/19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
SHAWN LEVESQUE
Applicant
REASONS FOR JUDGMENT on
SUMMARY CONVICTION APPEAL
Justice Ronald M. Laliberte Jr.
Released: August 19th, 2013