ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-2247
DATE: 2013/10/29
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Maxime Morin-Leblanc
Applicant
Mathew Humphreys, for the Crown
Lorne S. Goldstein, for the Applicant
HEARD: October 16, 2013
decision on proper time to decide a constitutional question
lalonde j.
[1] An application was brought to declare unconstitutional and of no force and effect, in whole or in part, an enactment of the Parliament of Canada namely section 255(3.2) of the Criminal Code, R.S.C. 1985, c. C-46 as being contrary to sections 7, 8 and 11 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[2] This decision is part of the original motion as it pertains to the applicant’s argument that this matter must be disposed of prior to the opening of the accused’s judge and jury trial in a month’s time. The Crown argues that the appropriate time for the court to hear such an application would be at the closing of the trial.
[3] On October 16, 2013, I gave a short decision orally and stated that I would provide more complete reasons in writing. These are those reasons.
Background
[4] The background in this case is taken in part from the Crown’s factum.
[5] The applicant has been charged with criminal negligence causing death, impaired driving causing death, and refusing to provide a breath sample after causing death contrary to sections 220, 255(3), and 255(3.2) of the Code.
[6] On October 15, 2011 at 3:03 a.m. the applicant drove his Honda Accord with his passengers the wrong way down St. Patrick Street from Dalhousie Street to Cumberland.
[7] At the intersection of St. Patrick and Cumberland Street he struck and killed Ms. Alexandra Dodger as she was crossing the street.
[8] Constable Daniel Levesque, a member of the Ottawa Police Service, arrived on the scene and observed the applicant’s car parked, facing the wrong way on St. Patrick Street.
[9] Cst. Leveque learned that the applicant was the driver of the motor vehicle. The officer detected a strong odour of alcohol coming from the applicant’s breath and noticed the applicant’s eyes were red and glossy. When asked if he had any alcoholic beverages that evening the applicant replied yes, and according to Cst. Levesque, the applicant admitted to the consumption of several alcoholic drinks.
[10] Following a conversation with the applicant and after ensuring the victim was under the care of paramedics, Cst. Levesque demanded that the applicant provide a sample of his breath into an approved screening device. The applicant did so and he registered a “fail.”
[11] The accused was then placed under arrest for impaired driving causing bodily harm and driving with over 80 milligrams of alcohol in 100 millilitres of blood causing bodily harm. The maximum penalty for these offences is 10 years imprisonment respectively.
[12] Cst. Levesque informed the applicant of his right to counsel and provided him with the primary and secondary caution. The applicant indicated that he understood all of these cautions. At 3:21 a.m. Cst. Levesque read the accused the intoxilyzer demand in French.
[13] The applicant was placed in the police vehicle and taken to the police station. Before the applicant spoke with his lawyer, Cst. Levesque learned that Ms. Dodger had died. At 3:48 a.m. re-arrested the applicant for impaired driving causing death pursuant to section 255(3) which carries a maximum penalty of life imprisonment and driving with over 80 milligrams of alcohol in 100 millilitres of blood causing death pursuant to section 255(3.1) which carries a maximum penalty of life imprisonment. The following is the sequence of the conversations between officers and the accused once these new charges were laid:
At 3:53 a.m., after the re-arrest, Cst. Levesque again informed the applicant of his right to counsel and provided him with the primary and secondary caution. Cst. Levesque then made an intoxilyzer demand and re-read the applicant the intoxilyzer demand which involves a caution simpliciter that the accused may refuse to provide a breath sample but that the consequence will be an additional criminal charge.
After being cautioned the second time, the accused stated in French: “Je m’excuse. J’ai voulu eviter le vehicule: and “Fuck man, j’aurais du rentrer dans le char, tata.” This translates to: I’m sorry, I wanted to avoid the vehicle” and “Fuck man, I should have hit the car” in English.
At 3:57 the applicant spoke to his lawyer for approximately 17 minutes.
While the applicant was speaking with his lawyer, Cst. Levesque realized that he had not advised the applicant that he was also under arrest for dangerous operation of a motor vehicle causing death pursuant to section 249(1)(a) which carries a sanction of fourteen years.
After the applicant had finished speaking with his lawyer, Cst. Levesque informed the applicant that he was also facing a charge of dangerous operation of a motor vehicle causing death by summarizing for the applicant that charges had been increased to dangerous operation of a motor vehicle causing death, impaired operation of a motor vehicle causing death, and over 80 milligrams of alcohol in 100 millilitres of blood causing death.
Cst. Levesque then again informed the accused of his right to counsel and provided him with primary and secondary caution. The accused replied, “oui, oui, c’est fait” indicating that he understood the caution.
At 4:48 a.m., the applicant was taken to a room to perform the intoxilyzer breath test.
In the interview, the applicant was told on multiple occasions what three charges he was facing, and that he could contact his lawyer.
In the interview, the applicant was requested to provide a breath sample. He asked if he could refuse and the officer provided the applicant with a caution simpliciter that the accused may refuse to provide a breath sample but that the consequence will be an additional criminal charge. The applicant refused to give the breath sample.
The applicant was informed that there he would now facing a new charge (a new jeopardy) and was given the opportunity to contact his lawyer.
The applicant was arrested for refusal to provide a breath sample as demanded and the officer informed the applicant of his right to counsel and provided him with primary and secondary caution.
Eventually, the Crown proceeded by charging the applicant with criminal negligence causing death, impaired operation of a motor vehicle causing death and refusal to provide a breath sample where death was caused.
I note that before the applicant chose to refuse to provide a breath sample he had been arrested for impaired driving having caused death pursuant to s. 255(3) of the Code and received advice from his counsel of choice. The maximum penalty pursuant to s. 255(3) is life imprisonment – the same penalty or jeopardy as s. 255(3.2) of the Code.
The Applicant’s Position
[14] The applicant advanced three main arguments in support of his position that the constitutional question ought to be disposed of prior to trial. First, he argues that the public interest in the impugned section of the Criminal Code is high. Second, he argues that for the sake of trial efficiency, the question should be determined ahead of the trial. Finally, he also claims that dealing with the constitutional question at the end of the trial will affect trial fairness.
The Respondent’s Position
[15] It is the position of the respondent that the proper time to argue this application is at the conclusion of the trial with a full evidentiary record should the applicant be convicted by the jury of s. 255(3.2) of the Code.
[16] The Supreme Court of Canada and the Ontario Court of Appeal have stated on more than one occasion that courts should not decide issues of law, particularly constitutional issues, which are not necessary to the resolution of the matter of the court. Unless the applicant is convicted by the jury of the offence pursuant to s. 255(3.2) of the Code there is no reason for the court to rule on the constitutionality of the section.
[17] Charter decisions should not, and must not, be made in a factual vacuum. The presentation of facts is not a technicality. It is essential to a proper consideration of Charter issues. The proper factual basis to consider the Charter issues raised by the applicant will be available at the conclusion of the trial – if the applicant is convicted.
[18] Crown counsel cited Finlayson J.A. in R. v. P.H., 2000 5063 (ON CA), [2000] O.J. No. 306, 143 C.C.C. (3d) 223 (Ont. C.A.) to illustrate that if a constitutional question is decided prematurely, it invites an appeal and a new trial. At paras. 18-20 Finlayson J.A. stated:
This must be returned to the Youth Court for a trial on its merits. This would not have been necessary of the trial judge had heeded this court’s admonition in R. v. Martin (1991), 1991 7340 (ON CA), 2 O.R. (3d) 16 (Ont. C.A.), aff’d. (1992), 1992 93 (SCC), 71 C.C.C. (3d) 572 (S.C.C.), where Griffiths J.A. stated at pp. 29-30:
[An excerpt of Griffiths J.A. reasons are omitted]
I echoed these comments in R. v. Martin (J.) (1994), 1994 225 (ON CA), 72 O.A.C. 316 (C.A.) at 319-20.
This is a matter involving a young offender. The offenses in question are alleged to have taken place on June 27 and July 1, 1997. The trial judge dealt with the preliminary motion on January 15, 1998 and the summary appeals court judge heard the appeal on June 24, 1998. The appeal was heard in this court on January 14, 2000. It looks for all the world that some three years will have elapsed between the alleged commission of this uncomplicated offence and a trial on the merits. There is no excuse for this. The consequence of proceeding without findings of fact by the trial judge meant that the constitutional argument proceeded on a totally hypothetical basis and that, coupled with the gratuitous concession by the Crown counsel, resulted in an unsatisfactory presentation by all parties. [Emphasis added].
[19] Doherty J.A. in R. v. RK, 2005 21092 (ON CA), [2005] O.J. No. 2434, 198 C.C.C. (3d) 232 (Ont. C.A.) at para. 59 admonished trial judges not to decide constitutional questions prematurely. He stated:
It has been repeatedly held that courts should not decide issues of law, particularly constitutional issues, that are not necessary to the resolution of the matter before the court: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 86 (SCC), [1995] 2 S.C.R. 97 at paras. 5-11. As outlined earlier, the trial judge made it clear that regardless of whether s. 85(4) was constitutional or not, he would have imposed exactly the same sentence – a suspended sentence followed by probation. As the disposition the trial judge deemed appropriate was unaffected by the constitutionality of s. 85(4), it was wrong for the trial judge to decide the constitutionality of the section. By introducing the constitutional issue, the trial judge added to the complexity, cost and length of the trial proceedings and provoked an entirely meritorious appeal by the Crown. Had the trial judge not addressed the constitutional issue and simply determined, as he was required to do, a fit sentence, Kinnear could have been sentenced a month earlier. Presumably, had the trial judge sentenced him a month earlier, he would still have imposed a sentence of time served given the trial judge’s strong views of conditions of Kinnear’s pre-trial incarceration. Kinnear spent an extra month in the terrible conditions at the Don Jail because the trial judge raised and pursued a constitutional issue that had no effect on the sentence he ultimately would have imposed. [Emphasis added].
[20] Appellate courts have underlined the rationale for a factual foundation on many occasions. In Re: Application under s. 83.28 of the Criminal Code 2004 SCC 42, [2004] 2 S.C.R. 248 at paras. 30-31 the court stated:
To begin with, although specific provisions of the Act are directly before us, there are other sections that may be implicated on which we do not wish to pronounce absent a factual foundation. As well, we intend to decide only what is necessary to resolve the specific dispute in issue. We hope otherwise, but there will likely be other cases to arise for further elucidation, and we prefer to await that development.
In addition, context in the law is of vital importance and that is certainly the case with respect to terrorism. What we say in these reasons is influenced by the adjudicative facts we have before us. Although constitutional opinion on legislative facts is a difference exercise, again, we wish to emphasize how important it is to examine the particular factual setting of each case prior to determining the legally required result. [Emphasis added.]
Decision
[21] I agree with Crown counsel when the states at para. 24 of his factum:
In this case, although the Applicant and the Crown have done their best to lay out what the anticipated evidence will be at trial – it is impossible to know what the actual factual setting of this case will be. The hypothetical facts upon which a pre-trial motion would be decided could very well be different at the end of the trial – and the landscape upon which an argument to declare s. 255(3.2) of the Code invalid [may be] altered.
[22] I find that the public interest in getting this matter disposed of promptly will be satisfied in one month’s time when a jury has given its verdict on the charges laid against the accused. The efficiency of the trial will not be affected and perhaps it will even be enhanced. Should the evidence at trial be different from the evidence heard on this voir dire (a blended voir dire was heard to determine the admissibility of the accused’s out of court statement) and the court has prematurely made a decision on the constitutional issue, a new trial might be ordered on an appeal.
[23] The trial fairness argument is more difficult. However, with consent of the Crown and defence, the facts underlying the 255(3.2) charge of refusing to provide a breath sample after causing death can be deferred until the jury has heard the charges of criminal negligence causing death and impaired driving causing death. If a trial judge can excise portions of an accused’s criminal record to ensure trial fairness, I believe that accommodations can be made in this case to ensure that the accused is not unduly prejudiced by the potential drawing a negative conclusion with regard to the criminal negligence and impaired driving charge from the fact that the accused is also charged with failing to give a breath sample.
Mr. Justice Paul Lalonde
Released: October 29, 2013
COURT FILE NO.: 11-2247
DATE: 2013/10/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
MAXIME MORIN-LEBLANC
Applicant
decision on proper time to decide a constutional question
Lalonde J.
Released: October 29, 2013