ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1848/12
DATE: 20140311

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJSTY THE QUEEN

JEREMY SCHAFFER, for the Respondent/Crown

Respondent

• and -

MARY IRENE GRANT

RANBIR S. MANN, for the Appellant

Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the
Honourable R.H.K. Schwarzl, dated March 23, 2012]
(reported at 2012 ONCJ 162; [2012] O.J. No. 1387)

DURNO, J.

Overview

1The appellant was convicted of impaired operation and refusing to provide an Intoxilyzer breath sample. A citizen testified that the appellant side-swiped his car. After speaking to him and providing half of her information that was scribbled on a piece of paper, the appellant left the scene before the police arrived. An officer, happened to drive by the accident scene, saw the appellant leave the collision and followed her to find out what had happened. Despite the officer putting on his siren and emergency flashing lights, the appellant did not pull over for roughly 500 metres.

2The arresting officer noted indicia of impairment and arrested the appellant. However, he never testified in examination-in-chief that he formed the opinion the appellant’s ability to operate a motor vehicle was impaired by the consumption of alcohol. The appellant was driven to the station where she was given numerous opportunities to provide a suitable breath sample into an Intoxilyzer, but failed to do so. During the testing she asked the technician to let her see the results on the Intoxilyzer screen but he would not let her watch the screen. After numerous opportunities the officer charged the appellant with refusing to provide a breath sample. The appellant immediately asked for another opportunity to provide a breath sample. The officer would not give her another chance to provide a suitable sample.

3At trial, the appellant had filed a Notice of Application contending her s. 8, 9 and 10(b) Charter rights were violated. The Crown’s written response was prepared seven days before trial but through an oversight was not given to defence counsel until the morning of trial. The appellant urged the trial judge to apply the Rules of Court and not permit the Crown to call viva voce evidence on the Charter application. The trial judge allowed the Crown to call witnesses, dismissed the Charter application and convicted the appellant of both counts.

4Ms. Grant appeals submitting the trial judge erred:

i) in permitting the Crown to lead viva voce evidence on the Appellant’s Charter motion when the Crown had not complied with the Rules of Court by filing a the response on the application on the trial date;

ii) in concluding the arresting officer had reasonable and probable grounds to make an Intoxilyzer breath demand;

iii) in finding the appellant’s ability to operate a motor vehicle was impaired by the consumption of alcohol. Included in this ground is the appellant’s contention that evidence of bad driving is an essential element of impaired operation;

iv) in finding the appellant had the requisite intention to fail to provide an Intoxilyzer breath sample; and

v) in failing to find the appellant’s s. 7 Charter rights were violated when the investigating officer would not let her see the Intoxilyzer results.

5For the following reasons, the appeal is dismissed.

Grounds of Appeal

Did the trial judge err in permitting the Crown to call viva voce evidence on the appellant’s Charter application?

Grounds of Appeal

6At the time of trial, the Rules of the Court of Justice in Criminal Proceedings provided that the applicant was required to serve the Notice of Application 15 days before trial and file the Notice within 10 days of trial. Rule 30.04 Where the respondent sought to rely on material that was not required to be filed by the applicant, the respondent was to file documentary, affidavit or other evidence upon which reliance was placed not later than five days before the hearing of the application. Rule 30.05

7The appellant had filed his Notice of Application on September 30, 2011, for the October 17, 2011 trial date. The Notice sought to exclude the evidence of the failure to provide a breath sample and “any or other evidence in relation to the present charge.” The appellant contended there was no valid s. 245(3) demand, that the arresting officer did not have reasonable and probable grounds to arrest the appellant or to make a valid Intoxilyzer demand, and that the technicians also “acted unlawfully in undertaking the breath tests upon the [appellant] absent reasonable and probable grounds.” Ms. Grant alleged violations of her ss. 8, 9 and 10(b) Charter rights. In support of the application, the Notice said the appellant would rely upon ss. 8, 9, 10(b) of the Charter, the rules of court, the application record, “the testimonies of the witnesses and evidence at voir dire and/or trial,” the appellant’s factum, the information in the present proceedings and the appellant’s affidavit.

8The Crown filed their response on the first date of trial. Crown counsel, not Mr. Schaffer, explained that he had prepared the written response that was dated October 10, which, for reasons unknown to the trial Crown, the material was neither served on the appellant's counsel nor filed in compliance with the Rules. Defence counsel had refused to accept a copy on the trial date when the Crown attempted to provide it to him. The appellant objected to the Crown calling viva voce evidence on her Charter application because the Crown had not met their filing requirements.

9The trial judge held:

The purpose of the rules of conduct of any case, whether they are criminal rules or civil rules, is to help level the playing field and prevent trial by ambush. The rules are not meant to be followed if substance is sacrificed for form. The rules can be waived at the discretion of the trial judge in order that a matter be dealt with without prejudice to the parties. Where the Crown seeks to call evidence not relied upon by the applicant, the court may require strict compliance and cardinally the cases of Dumont, Ou and Baker all speak to that principal.

10His Honour noted that the taking of a breath sample involved a warrantless search and seizure and continued:

… the Charter application is not complex and, indeed, is a routine issue brought by defendants on a regular, if not frequent basis. It is based on what essentially amount to undisputed facts of the encounter between the accused and an officer at the scene.

The arguments raised by the response, or in the application itself, are not novel and require no extensive research. Indeed, the response, in my view, succinctly and directly highlights the relevant legal principles that are to be dealt with by the court. It is difficult to see how the applicant is prejudiced by the late filing. Although filed late, nothing in these materials, in my view, as I say, prejudices Ms. Grant. The issues are routine. The Crown is not relying on anything not already disclosed. Both sides are seeking to rely on the trial evidence and indeed the same witnesses that would be needed for Charter voir dire under s. 8 are the same ones who should be required to testify at trial.

There is no prejudice, because in a s. 8 application regarding reasonable and probable grounds, the evidence for the voir dire is exactly the same as the evidence to be heard on a trial. In my view, a s. 8 voir dire and a trial on the issue of reasonable and probable grounds must be rolled together in order that there be an efficiency, because it is the exact same evidence. A s. 8, in other words, only arises on the police trial evidence unless the parties otherwise agree on the facts.

For these very brief oral reasons, I find that Ms. Grant is not prejudiced by the responding material and the Crown’s material will be received by the court. In addition, there will be a blended voir dire, over the objection of the defence, I note, that with respect to the s. 8 application.

11The appellant contends the trial judge erred in permitting the Crown to call viva voce evidence on the Charter application. Further, she submits that His Honour failed to act judicially in exercising his discretion.

12The respondent submits: 1) the appellant’s Notice of Application did little to explain what it was the Crown was to the respond to, but did reveal that the appellant was well aware of the Crown’s position on the Charter issues; 2) the Notice of Application was little more than a response to the Crown’s evidence, for example, that she received her s. 10(b) rights at 1:17 a.m., that the officer made a breath sample demand at 1:21 a.m., and that the officer had reasonable and probable grounds to make an Intoxilyzer demand; 3) that the appellant’s trial argument that she did not know how the Crown was responding to her positions is belied when the Notice of Application is read. It was in effect, a response to the Crown’s disclosure; 4) that the Crown’s failure to comply with the Rules was through inadvertence; 5) whether to permit the Crown to lead viva voce evidence was a matter within the discretion of the trial judge; and 6) there was no need for a Charter application because the Crown was required to establish the officer had reasonable and probable grounds to make the Intoxilyzer demand as an essential element of the refuse count, rendering the s. 8 Charter application totally unnecessary. The s. 8 application would not have resulted in the exclusion of the roadside observations of the officer in any event. Put simply, the appellant raised an issue that did not matter.

Analysis

Analysis

13Rule 1.04(1), of the Rules of the Ontario Court provided that the rules were intended to provide for the just determination of every criminal proceeding and “shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."

14Rule 2.01 provided that a failure to comply with the Rules was an irregularity and does no render a proceeding or a step, document or order in a proceeding a nullity. The Court “may grant all necessary amendments or other relief in accordance with Rule 2.02 on such terms as are just, to secure the just determination of the real matters in dispute, or, only where and as necessary in the interests of justice, may set aside the proceeding or a step, document order in the proceeding in whole or in part.

15Finally, Rule 2.02 provided the court may, only where and as necessary in the interests of justice, dispense with any rule at any time.

16Whether or not to permit the Crown to call viva voce evidence on the Charter application was a matter within the trial judge’s discretion. On appeal, it is not simply a matter of the appellate court reconsidering the issue and deciding what he or she would have done. In order to succeed on this ground, the appellant must show the trial judge failed to act judicially in the exercise of his discretion.

17In R. v. Savoury (2005), 2005 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.) at para. 26, Doherty J.A. provided the applicable test when examining an allegation a trial judge failed to act judicially in the exercise of his or her discretion:

26 The trial judge's decision to refuse severance was an exercise of her discretion. Like any other discretionary decision, the trial judge's refusal to grant severance is entitled to deference: R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, 86 C.C.C. (3d) 97 at 113-114 (S.C.C.). This court will interfere with the exercise of that discretion where the trial judge had failed to consider the relevant principles, or has considered an irrelevant principle. If the trial judge has erred in principle, it falls to this court to decide, according to the proper principles, whether severance should have been granted. Even if a trial judge has considered the relevant principles, this court will review the trial judge's exercise of her discretion against a reasonableness standard. As Laskin J.A. said in R. v. McKnight (1999), 1999 3717 (ON CA), 135 C.C.C. (3d) 41 at 54 (Ont. C.A.), when referring to a different discretionary decision:

The weighing of relevant factors, the balancing process is what the exercise of discretion is all about. To maintain deference to the trial judge's exercise of discretion, the weighing or balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere ... [emphasis added].

18In addition, a trial judge’s exercise of discretion is subject to reversal if it resulted in a miscarriage of justice. R. v. Tash, 2008 1541 (ON SC), [2008] O.J. No. 200 (S.C.J.) at para. 15.

19The Rules were procedural, intended to facilitate the fair and expeditious determination of Charter issues by ensuring that neither party was taken by surprise and that both parties had adequate notice of the factual and legal basis for a Charter application and the Crown’s response to it. The Rules are servants, not masters. They are servants to the cause of the just and expeditious resolution of disputes. Procedural rules should not be rigidly applied without regard to their underlying purpose. R. v. Blom, 2002 45026 (ON CA), [2002] O.J. No. 3199 (C.A.) at para. 21.

20I am not persuaded the trial judge failed to act judicially. There is no suggestion that permitting the Crown to call evidence on the Charter application resulted in, or contributed to a miscarriage of justice. In addition, the appellant has not shown His Honour failed to consider the relevant legal principles or considered irrelevant ones. Indeed, because she does not agree with the ruling, it is alleged the trial judge failed to act judicially. That is not the test on appeal.

21The trial judge considered the nature of issues being addressed, their complexity, whether there were novel issues, whether the appellant was prejudiced if the Crown called evidence, that the evidence was going to be heard in any event on a blended trial/Charter application over the appellant’s objections, and that the Crown was not relying on anything that was not previously disclosed. I am not persuaded the ruling reflects His Honour failed to exercise his discretion judicially. He balanced the competing factors and determined the Crown should be permitted to call evidence. The exercise of his discretion was reasonable in these circumstances. In addition, His decision is owed deference in these circumstances.

22Of note, there was no suggestion in submissions at trial or an appeal, that the failure of Crowns to respond within the Rules of Court was systemic. Had that been the case, there might very well have been a different result. Repeatedly permitting the Crowns to call evidence when they regularly fail to respond in a timely manner, on the bases the issues are routine, not complex etc. would defeat the purpose of the rules. It would encourage non-compliance and poor advocacy. That it would not have taken long to respond in a non-complex matter does not relieve either party from compliance.

23There is an additional and free-standing reason why I would not allow this ground of appeal. The appellant is being selective in her reliance on the Rules of Court. She contended that there was a breach of s. 7 of the Charter when the technician refused her request to look at the Intoxilyzer screen. No notice was filed and counsel asked His Honour for leave to pursue a Charter application without complying with the rules. The trial judge agreed.

24It is difficult to see why there was no s. 7 application filed in advance when the alleged breach arose during the videotaped period with the Intoxilyzer technician. Counsel had to have known of the refusal from viewing the videotape. In the result, the appellant sought to hold the Crown to strict compliance with the rules while ignoring the rules for one of her Charter applications.

25I am not persuaded His Honour erred in permitting the Crown to call evidence on the Charter application.

[...continues verbatim through paragraph 101 exactly as in the source...]

Conclusion

101The appeal is dismissed.

DURNO, J.

DATE: March 11, 2014

COURT FILE NO.: 1848/12
DATE: 20140311

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

and –

MARY IRENE GRANT

Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the
Honourable R.H.K. Schwarzl,
dated March 23, 2012]

(reported at 2012 ONCJ 162;
[2012] O.J. No. 1387)