ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
CITATION: R. v. D’Souza, 2015 ONSC 2615
COURT FILE NO.: SCA(P) 341/14
DATE: 20150513
B E T W E E N:
HER MAJESTY THE QUEEN
C. van den Broek, for the Appellant
Appellant
- and -
JOEQUIN D’SOUZA
Michael Dineen, for the Respondent
Respondent
HEARD: April 7, 2015 at Brampton
DECIDED: May 13, 2015
REASONS FOR JUDGMENT
[On appeal from the judgment of Currie J.
dated May 16, 2014]
André J.
[1] The Crown appeals the acquittal of the respondent by Currie J. of the Ontario Court of Justice of the charges of impaired driving and excess blood alcohol. The Crown submits that the trial judge erred in law when he prevented the Crown from entering into a voir dire to determine the admissibility of Mr. D’Souza’s statements to a police officer. Mr. D’Souza submits that the trial judge’s decision constituted a valid exercise of his trial management power.
[2] The appeal therefore raises the following issue: Did the trial judge err in law when he prevented the Crown from calling evidence on a voir dire to determine the admissibility of Mr. D’Souza’s statement to the police?
Background Facts
[3] Members of the Peel Regional Police force charged Mr. D’Souza on August 10, 2013 with impaired driving and excess blood alcohol.
[4] During a judicial pretrial, the Crown indicated that it would be relying on Mr. D’Souza’s statement as part of its case against him. Defence counsel advised the pretrial judge that he would be opposing the Crown’s application.
[5] The trial commenced on May 6, 2014. The Crown called evidence that on August 10, 2013, the respondent drove into a Tim Horton’s parking lot along with a companion. The two then entered the restaurant and were observed to have been quite intoxicated. A civilian called the police. Upon arrival at the restaurant, two police officers arrested and charged Mr. D’Souza with impaired operation of a motor vehicle and excess blood alcohol.
[6] During the trial the Crown called a civilian witness who had seen Mr. D’Souza at the Tim Horton’s restaurant. Under cross-examination, the witness testified that he had asked his friends who the driver was before he advised the police that Mr. D’Souza had been the driver. The Crown then called the two arresting officers without advising the court at that time that it would be entering into a voir dire to determine the voluntariness of Mr. D’Souza’s statement. The Crown only raised this issue while questioning the breathalyzer technician.
[7] Thereupon, the trial judge stated, upon being advised of the Crown’s intention, that Mr. D’Souza’s statements “won’t be admissible”. Mr. D’Souza’s counsel then objected to the holding of the voir dire on the ground that he had not received notice of the Crown’s intention to do so and because he had already concluded his cross-examination of the two arresting officers. The Crown then advised Mr. D’Souza’s trial lawyer that the Crown had stated its intention, in the judicial pretrial, to embark on a voluntariness voir dire during the trial. Mr. D’Souza’s lawyer then conceded that there was a note in his file from a lawyer in his office confirming what the Crown had advised him.
[8] The trial judge however, ruled that the Crown should have given notice to the court and Mr. D’Souza, at the commencement of the trial, of its intention to enter into a voluntariness voir dire. He stated: “You have to declare your intention at the outset when you call any witnesses who have anything to do with the, the voluntariness issue. You did not. You are precluded from raising that issue now.” The judge then ruled that the Crown would be prevented from tendering Mr. D’Souza’s statement given its failure to give notice until after the arresting officers had already testified. At the conclusion of the trial, the trial judge then held that the Crown had failed to prove beyond a reasonable doubt that Mr. D’Souza had been the driver of the vehicle and, accordingly acquitted Mr. D’Souza.
Respondent’s Submissions
[9] Mr. D’Souza submits that the trial judge properly exercised his wide discretion to manage the trial to ensure efficiency and fairness to all parties. He also submits that it is essential for the efficient functioning of a very busy court that proper notice be given of important evidentiary applications including applications to adduce a statement of the accused. The failure to give notice in this case, Mr. D’Souza submits, “risked undue delay and unfairness to the accused” and that the remedy chosen by the trial judge was reasonable and does not constitute a reversible error.
Analysis
The Law
[10] Prior to analyzing the issue raised in this appeal it is necessary to elucidate the principles of law that apply to this case.
[11] The first relates to a court’s inherent jurisdiction to manage its process, particularly in a busy jurisdiction such as Peel Region.
[12] For example, in R. v. Felderhof 2003 CanLII 37346 (ON CA), [2003] O.J. No. 4819, (2003), 180 C.C.C. (3d) 498 (Ont. C.A.), the Court of Appeal noted that:
[40] Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please. Until relatively recently a long trial lasted for one week, possibly two. Now, it is not unusual for trials to last for many months, if not years. Early in the trial or in the course of a trial, counsel may make decisions that unduly lengthen the trial or lead to a proceeding that is almost unmanageable. It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. I do not see this power as a limited one resting solely on the court's power to intervene to prevent an abuse of its process. Rather, the power is founded on the court's inherent jurisdiction to control its own process.
[42] One of the "evolving social and material realities" is that litigation, even in the Provincial Offences Court, has become more complex and trials longer. Part of this is a result of the greater complexity of society that produces cases such as this one, which are based on complex commercial transactions. The other reality is the impact of the Charter of Rights and Freedoms. It may be that this would have been a lengthy case before 1982. However, the Charter has introduced an additional level of complexity. It cannot be forgotten that these proceedings became so difficult, in part, because of the various Charter motions for disclosure and abuse of process. Although she was referring only to the impact of the Charter, it seems to me that the following comments of McLachlin C.J.C. at para. 41 of R. v. 974649 Ontario Inc. can have a broader application when attempting to define the implied powers of the Provincial Offences Court:
Moreover, forcing these courts and tribunals to function as if the Charter were never enacted, even where their operation squarely implicates Charter rights and freedoms, risks seriously (and unnecessarily) compromising their effective functioning. It may also impact the quality of justice rendered at the end of the day.
[13] However, this trial management power, the Court of Appeal cautioned in Felderhof, at para. 38, must be exercised with caution. The exercise of the trial management power in a manner which was unfair or caused irreparable damage to the prosecution may well constitute jurisdiction error. See: Felderhof, at para. 52.
[14] Second, the trial management power of a trial judge must be considered in conjunction with the right or discretion of the prosecution to decide how it will present its case including what witnesses it will call. R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113. However, the prosecution does not have an inalienable right to present evidence in a manner that interferes with defence counsel’s right to properly cross-examine these witnesses or to adversely affect trial fairness. R. v. Steven Lucas et al., Superior Court of Justice, unreported, September 28, 2009, at para. 7.
[15] Applying these principles to the facts of this case, the trial management authority of the trial judge should not have been used to prevent the Crown from embarking on a voluntariness voir dire. In the first place, the Crown had indicated its intention, during the course of a judicial pretrial, to rely on the respondent’s statements as part of its case against Mr. D’Souza. Both the respondent and the court were therefore put on notice, even before the trial, of the Crown’s intention to do so.
[16] Second, the Crown could not be faulted if the respondent’s counsel did not know before the trial, of the Crown’s intention to rely on the respondent’s statement as part of its case against Mr. D’Souza. A lawyer in the office of Mr. D’Souza’s trial lawyer had participated in the judicial pretrial. He had placed a note in Mr. D’Souza’s file indicating the Crown’s intention to have a voluntariness voir dire and his intention to oppose the Crown’s application. The fact that Mr. D’Souza’s trial lawyer only became aware of this note after the Crown had advised him that the matter had been discussed in a judicial pretrial was not the fault of the Crown.
[17] Third, I am unable to conclude that the Crown’s failure to give notice at the start of the trial of its intention to embark on a voluntariness voir dire “risked”, as the respondent suggests, “undue delay and unfairness to the accused”. Had the Crown recalled the two arresting officers on the voir dire, the trial judge could have exercised his trial management power to have the Crown and defence counsel agree that the officers’ testimony in the trial proper would apply to the voir dire. Questioning the officers would therefore be limited to the narrow issue of the voluntariness of Mr. D’Souza’s statement. Such an approach, in my view, would not have unduly delayed the trial.
[18] Even if the trial had to be adjourned to enable the Crown to recall the two arresting officers, Mr. D’Souza could have sought constitutional redress if his s. 11(b) rights had been infringed by the delay caused by the Crown’s actions. To that extent, his rights would not have been unfairly impacted by the Crown’s failure to embark upon a voir dire earlier in the trial.
[19] Fourth, there is no indication that the Crown had an oblique or improper motive for failing to notify the court at the onset of the trial, of its intention to conduct a voluntariness voir dire. Indeed, the Crown’s decision appeared to have been motivated by a desire to bolster the identification evidence in the trial. Absent such evidence of an oblique motive, or an abuse of its discretion, the Crown should have been allowed to enter into a voir dire to determine the voluntariness of Mr. D’Souza’s statement.
[20] Furthermore, allowing the Crown to proceed with a voluntariness voir dire would not have been unfair or prejudicial to Mr. D’Souza. His right to cross-examine all the police witnesses called by the Crown would not have been affected in any way. Second, the Crown’s failure to call the two arresting officers on the voir dire would have inured to Mr. D’Souza’s benefit, given the Crown’s obligation, during the voir dire, to call evidence from all persons in authority who had any significant contact with Mr. D’Souza prior to any statement given to a person in authority.
[21] That said, it would have been preferable had the Crown indicated its intention to have a voluntariness voir dire after its civilian witness had testified and before the testimony of the two arresting officers. Such an approach would clearly have engendered trial efficiency to a greater degree than having to recall the two arresting officers on the voir dire.
[22] The Crown’s failure to proceed in that manner however, cannot justify the exercise of the trial judge’s trial management power in a manner that causes irreparable damage to the prosecution’s case. The exercise of the trial management power in such a manner, as the Court of Appeal noted in Felderhof, constitutes jurisdiction error.
[23] In my view, the trial judge in this case committed such an error. To that extent, the acquittal of Mr. D’Souza is set aside and the matter remanded for a new trial.
André J.
Released: May 13, 2015
CITATION: R. v. D’Souza, 2015 ONSC 2615
COURT FILE NO.: SCA(P) 341/14
DATE: 20150513
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and –
JOEQUIN D’SOUZA
Respondent
REASONS FOR JUDGMENT
André J.
Released: May 13, 2015