SUPERIOR COURT OF JUSTICE - ONTARIO

SUMMARY CONVICTION APPEAL – TORONTO REGION

COURT FILE NO.: 5/15

DATE: 20151113

RE: HER MAJESTY THE QUEEN (Appellant) v. BAO LI (Respondent)

BEFORE: Justice N. J. Spies

COUNSEL:
M. Petrie, for the Appellant

A. Morris, for the Respondent

DATES HEARD: October 8 and 23, 2015

E N D O R S E M E N T

Introduction

[1] The Respondent, Bao Li, was charged with driving "Over 80" in December 2014 after she came to the attention of a police officer because of an alleged improper turn on a red light. When stopped, it was alleged that Ms. Li smelled strongly of alcohol. In response to the roadside breath demand, Ms. Li made several unsuccessful attempts to provide a breath sample. She was initially charged with refuse breath sample before she finally registered a "fail" on the device. Following Ms. Li’s arrest for driving "Over 80", she provided two samples of her breath at the police station that showed elevated blood alcohol levels but that were taken more than two hours after the offence.

[2] At the trial before Cleary J. on January 5, 2015, the Crown called the arresting officer, the breath technician and tendered an expert toxicologist's report, which was admitted into evidence on consent. This report confirmed that Ms. Li's blood alcohol content at the time of her driving exceeded the legal limit. The Respondent brought no Charter application for the exclusion of evidence and called no evidence. The Respondent's only attack on the Crown's case at trial was that the breath samples had not been taken "as soon as practicable" as required by s. 258(1)(c) of the Criminal Code.

[3] The learned trial judge accepted the Respondent’s argument and held that the Crown could not prove its case using the breath readings and toxicologist’s report because it had not proven the breath samples had been taken "as soon as practicable."

The Issues

[4] The Appellant raises three issues on this appeal:

1. The learned trial judge erred in law by finding that the toxicologist’s report tendered as evidence in this case could not support a conviction;

2. The trial judge erred in law by finding that the requirement in s. 258(1)(c) that the breath samples be taken as soon as practicable was a pre-condition to the use of the toxicologist’s report as evidence, and;

3. The trial judge erred in law by essentially excluding the results of the breath analysis in this case absent any Charter application being brought.

[5] The Appellant is not conceding the correctness of the trial judge’s finding that the breath samples were not taken “as soon as practicable” but for the purpose of this appeal, is taking the position that this is an irrelevant issue.

[6] The Appellant requests that the acquittal be quashed and substituted with a conviction. Alternatively, the Appellant asks that a new trial be ordered.

[7] In summary, it is the position of the Appellant that the trial judge's finding was clearly in error given established and binding jurisprudence that the Crown's inability to meet the requirements of s. 258(1) deprives the Crown only of the ability to rely on the presumption created by that section (commonly referred to as the “presumption of identity”) but does not prevent the Crown from proving its case through other means. Further, the effect of the trial judge's ruling to exclude the breath readings and toxicologist's report as evidence in a case where the Respondent had not brought any Charter application, offends now-settled jurisprudence that requires Charter applications and timely objections to evidence that is sought to be excluded. The Appellant submits that but for the trial judge's errors, a conviction would have been entered and that as a result, this appeal should be allowed and a conviction entered.

[8] The Respondent concedes the first two grounds of appeal and agrees that the learned trial judge did err in finding that the toxicologist’s report could not be used to support a conviction and in concluding that the “as soon as practicable” requirement was a pre-condition to the use of the toxicologist’s report as evidence. However, it is the position of the Respondent that the trial judge did not err in concluding that the breath samples were not taken “as soon as practicable”. It is the position of the Respondent that while a Charter application to exclude the breath results would have been preferable, and indeed was probably required, the court was within its jurisdiction to consider the applicability of the Charter and to fashion an appropriate remedy. To that extent, the learned trial judge did not commit an error.

[9] It is also the position of the Respondent that, “[a]ssuming that defence counsel was obligated to raise the “as soon as practicable” requirement as a Charter issue, once the issue crystallized in the evidence, the trial judge could raise the issue on his or her own volition or dispense with the Notice requirement”.

[10] However, the Respondent concedes that if the trial judge was considering the “as soon as practicable” requirement as a Charter issue, he was obligated to provide a proper analysis of the issues in order for this Court to undertake meaningful appellate review. It is the Respondent’s submission that the proper remedy, in light of the trial judge’s findings of fact, is to remit this matter for a new trial.

[11] The Respondent further submits that if a new trial is ordered, the matter should be sent back to Justice Cleary to consider the case framed as a Charter issue. The Respondent argues that there is good reason to proceed in this manner. First, the record of the case is complete and the issues have been explored. Second, a new trial would needlessly tie up judicial resources.

[12] There are, therefore, two issues to be decided in order to determine this appeal:

1. Was there an obligation on the trial judge to raise the issue of a s. 8 Charter breach on his own motion and request submissions from counsel as to whether there was, in fact, a breach and if there was, whether or not the breath results should be excluded pursuant to s. 24(2);

2. If so, what is the appropriate remedy?

The Evidence at Trial

[13] The evidence of the Crown’s witnesses at the trial was as follows.

[14] PC Lai was on patrol in a marked police vehicle in the early morning hours of December 24, 2013 in the area of Steeles Avenue East and Brimley Road when he saw Ms. Li driving a white Lexus travelling eastbound on Steeles Avenue East approaching a solid red light. The officer testified that he saw Ms. Li suddenly switch from the right to the left lane and then make an improper right turn by turning from the left passing lane to cut in front of the eastbound curb lane, without stopping, to go south on Brimley Road. Immediately after Ms. Li made the right turn onto Brimley Road, she made a sharp U-turn within approximately 10-20 feet south of the intersection, travelled northbound then turned right to continue going eastbound on Steeles Avenue East. PC Lai observed Ms. Li's vehicle drift over the dotted white line from the eastbound curb lane into the eastbound passing lane. He activated his emergency equipment to effect a stop.

[15] PC Lai first observed Ms. Li’s vehicle at 2:42 a.m. and he estimated that he stopped it within two minutes of that time. He advised Ms. Li of the reason for the stop and demanded her driver’s licence, ownership and insurance. In addition to Ms. Li, a male was seated in the front passenger seat. PC Lai smelled a "very strong odour of alcohol" coming from the vehicle. He spoke with Ms. Li and determined the odour was coming from her breath. Ms. Li admitted to having consumed alcohol prior to driving. PC Lai testified he formed a suspicion that Ms. Li had alcohol in her system when she was operating a motor vehicle just prior to his having stopped the vehicle and that he demanded that she provide a sample of breath into an approved screening device (ASD) at 2:47 a.m.

[16] PC Lai testified that he provided a demonstration and explained in detail to Ms. Li how to provide a breath sample into the ASD. He was satisfied the ASD was in proper working order - it had been recently calibrated and tested and PC Lai had himself performed a self-test on the device at the start of his shift. He testified that he was trained in the use of the device and had been so for 15 years. He testified that Ms. Li appeared to totally understand his demand, explanation and demonstration of the device. PC Lai, whose mother tongue is Cantonese, initially spoke with Ms. Li in English but he testified that he also spoke Cantonese with Ms. Li when she requested that he do so.

[17] Following PC Lai's demonstration and explanation, he testified that Ms. Li made "at least" 11 improper attempts to provide a sample.

[18] At 3:02 a.m. PC Lai testified that he arrested Ms. Li for failing to provide a breath sample. Ms. Li requested several times that she be permitted to provide another sample. PC Lai acquiesced. Finally, at 3:16 a.m. Ms. Li provided a sample that registered a "Fail" result on the ASD. PC Lai then arrested Ms. Li for Over 80 at 3:19 a.m.

[19] Following her arrest, PC Lai testified that he gave Ms. Li her rights to counsel and the breath demand. Ms. Li told him that she did not have a lawyer and she wanted PC Lai to contact her mother. She also told PC Lai several times that her passenger was a visitor from out of the country.

[20] PC Lai requested another officer attend to deal with Ms. Li's vehicle and passenger. The other officer arrived at approximately 3:41 a.m. Upon the arrival of the other officer, PC Lai related the information concerning Ms. Li's passenger to this officer. At 4:01 a.m., PC Lai contacted Ms. Li’s mother.

[21] PC Lai departed the scene with Ms. Li, to travel to 41 Division, at approximately 4:07 a.m. They arrived at the police station at approximately 4:25 a.m. 41 Division is a central lock up facility and when PC Lai and Ms. Li arrived, there was another prisoner being paraded which required them to wait in the sally port of the station. At 4:40 a.m., PC Lai paraded Ms. Li in front of the sergeant at the station. At 4:52 a.m. Ms. Li asked to speak to duty counsel. PC Lai left a message with duty counsel, which was returned at 5:01 a.m. Ms. Li’s call with duty counsel lasted approximately 5-6 minutes. At 5:07 a.m., PC Lai turned Ms. Li over to a qualified breath technician. He remained in the breath testing room while Ms. Li provided a sample of breath. Ms. Li finished providing the first sample of her breath at 5:17 a.m.

[22] After Ms. Li had provided one breath sample to the qualified breath technician, she asked to phone her mother. PC Lai facilitated this request. At 5:35 a.m., he escorted Ms. Li back to the breath testing room where she provided a second sample of her breath at approximately 5:39 a.m. The Certificate of the Qualified Technician was made Exhibit 1 at the trial.

[23] All of the cross-examination of PC Lai was directed to timing issues. PC Lai testified he could not recall when he requested that the other officer attend the scene to deal with Ms. Li's vehicle and passenger. He testified that it was Christmas Eve, that he had recorded in his notes that it was a "pretty busy night," and that he believed as a consequence, everything took a while longer to occur. When asked about the passage of time until 3:39 a.m. when he made the demand for the breath test, PC Lai testified he believed there was a lot of conversation between when he started giving the right to counsel and the demand. He suggested a review of the in-car video would explain a lot of the delay. PC Lai denied the suggestion he was able to leave the scene the moment the other officer attended and stated he still had to contact Ms. Li's mother as she had requested. He again suggested a review of the in-car video would answer counsel's questions about any delay. At the close of cross-examination, the trial Crown indicated her intention to re-examine the officer with use of the in-car camera to fsh out the officer's evidence. The trial judge pointed out that the issue of "as soon as practicable" was not a new one and the Crown abandoned her request to lead this evidence. As a result, no re-examination took place.

[24] With the consent of counsel for Ms. Li, the Crown filed the report of Dr. Robert Langille, toxicologist with the Centre of Forensic Sciences, which put Ms. Li's blood alcohol concentration between approximately 2:30 a.m. and 2:45 a.m. at 110 to 165 mg of alcohol in 100 ml of blood. Dr. Langille further opined in his report that an individual would be impaired in their ability to operate a motor vehicle with a blood alcohol concentration within this range. No request was made by Defence counsel to cross-examine Dr. Langille.

[25] PC Mailer, a designated breath technician under the Criminal Code and a 12-year member of the Toronto Police Service, testified PC Lai turned Ms. Li over to him at 5:07 a.m. at which time he noticed she smelled of alcohol, had bloodshot, watery eyes and flushed skin. PC Mailer described the preparatory steps he had taken with the approved instrument, an Intoxilyzer 8000c, and that he was satisfied that the instrument was in proper working order. He testified that Ms. Li provided two suitable samples of her breath into the approved instrument, the results of which were 118 and 105 mg per 100 ml blood at 5:17 a.m. and 5:39 a.m. respectively.

[26] In cross-examination, PC Mailer testified he had been notified at 3:20 a.m. that he would be required for the purpose of performing an analysis of Ms. Li's breath and that he had the instrument ready for this purpose at 3:48 a.m. He further testified that between 3:48 a.m. and when Ms. Li was turned over to him at 5:07 a.m., he did not conduct any other breath testing. No questions were asked in cross-examination of PC Mailer challenging the accuracy of his equipment or the results obtained.

Submissions Before the Trial Judge

[27] In her closing submissions at trial, counsel for Ms. Li advised Justice Cleary that “the only issue is as soon as practicable”. Cleary J. queried whether the Crown was required to prove “as soon as practicable” where a forensic toxicologist had testified. Counsel for Ms. Li answered affirmatively and submitted that it was the same as if the breath technician had testified and that "even though there's a toxicologist report in this particular case….that's only because it's outside the two hour limit." Counsel for Ms. Li submitted that it was a requirement "pursuant to the Code" that "in order to relate these readings back they still have to be taken as soon as practicable." She further submitted that the problem period with respect to the “as soon as practicable” issue was the 43 minutes between Ms. Li's arrest at 3:19 a.m. and the departure from the scene at 4:07 a.m., which counsel for Ms. Li submitted was a lot of unexplained delay.

[28] The Crown argued that she was not relying on the presumption of identity and that she did not need to establish “as soon as practicable” and she submitted that the evidence of the toxicologist was admissible. The Crown pointed out that:

[i]t would have been a different story if there was a Charter motion before the court to exclude the evidence of … the certificate and the evidence of the breath technician with respect to what the readings were. If that were the case … if that evidence was excluded, if there was a Charter application before the Court, then there wouldn't have been a basis for the toxicologist opinion. In … that sort of scenario the timing could have mattered…

[29] The Crown submitted in the alternative that the time period between 3:19 and 4:07 was not excessive considering the events that had transpired during that period; that the officer was working solo and was translating his communications with Ms. Li into Cantonese.

The Trial Judge's Reasons for Acquitting

[30] With respect to the timing issue, the trial judge found that the lack of evidence about the need for the 20-minute period between the time of the arrest and when the second officer arrived at the scene to look after Ms. Li’s vehicle meant that he could not make any inference that this time passage was reasonable. He further found that the 26-minute period after the second officer had arrived until PC Lai departed the scene was largely unexplained.

[31] The trial judge acquitted Ms. Li, ruling that the breath samples had not been taken “as soon as practicable” and as such the Crown could not rely upon the evidence of the toxicologist to prove Ms. Li’s blood alcohol content at the time of driving. He reasoned that since the wording of s. 258(1)(c) did not limit “the evidence of the results of the analysis” to certificates of analysis as did s. 258(1)(g), the section’s requirement that breath samples be taken “as soon as practicable” applied equally to the evidence of the toxicologist. He concluded:

(1)(c) says when certain criteria have been met, the evidence of the result of the analysis, in this case 118 milligrams, is deemed in law to be the same as the result – or the amount of alcohol in the system of the accused person at the time that the alleged offence, because it doesn’t limit itself to the form of that evidence. In order for the contents of Exhibit 1, the evidence of the toxicologist to prove alcohol content at the time of driving, one of the legs to rely upon its contents have to be satisfied under 258(1)(c).

[32] In conclusion, the trial judge found:

But that substantial period of time before he arrived at the police station, which is really totally unaccounted for, and for which I cannot make any reasonable inferences, makes it that the results were not obtained as soon as practicable, and therefore the result cannot be related back to the time of driving. The charge is dismissed. [emphasis added]

Analysis

[33] The first position taken in the Respondent’s factum is that the trial judge presided over a trial where the defence position was that the “as soon as practicable” requirement applied. The Respondent concedes that the Crown’s position, during submissions, was that the “as soon as practicable” requirement did not apply but relies on the fact that the Crown elicited evidence related to the timing of various aspects of the investigation. It is submitted that the trial Crown must, therefore, have been of the view that timing was relevant notwithstanding the absence of a Charter application. The Crown provided no case law to support its position that the defence was incorrect in its interpretation of the law. Consequently, the learned trial judge provided a ruling that addressed the issues as they were presented.

[34] I accept the proposition that the learned trial judge could have been given more guidance on the application of the presumption of identity in this case, however, it was counsel for Ms. Li who put a clearly incorrect proposition of law to the trial judge. Mr. Morris made it clear that it is not argued on this appeal and there is no suggestion that counsel for Ms. Li, who is not counsel on this appeal, is not experienced counsel nor is there a suggestion that Ms. Li did not have effective representation at the trial. I can only conclude that the decision of trial Defence counsel to not make a Charter application alleging a s. 8 breach was a deliberate tactical one.

[35] In my view it is not an answer to this appeal that the Crown at trial could have been more effective and that this contributed to the error in law made by the trial judge. The fact is that the trial judge made a clear error in law. The issue now is what flows from this.

[36] I also do not accept the submission that the trial judge implicitly considered the “as soon as practicable” requirement as a Charter issue. There is absolutely no suggestion of that in the reasons of the trial judge. In my view it is clear that the trial judge accepted the submissions of Defence counsel at trial and unfortunately accepted a position in law that was clearly in error.

[37] The Respondent submits that the foundation for a Charter application was in front of the trial judge – and alluded to by the Crown in its submissions. It is submitted that had the issue been reformulated by the trial judge or had the trial judge invited Defence counsel to reconsider the issue as a Charter argument, the ultimate finding made by the learned trial judge would likely not be the subject of this appeal.

[38] In my view this is the issue this appeal turns on: whether or not the trial judge in these circumstances was obligated to raise the issue of a s. 8 breach of the Charter on his own motion and request submissions from counsel as to whether there was, in fact, a breach and if there was, whether or not the breath results should be excluded pursuant to s. 24(2) or whether the failure of counsel for Ms. Li to assert a Charter breach at trial is the answer to this appeal.

[39] The Respondent relies on R. v. Arbour, 1990 CarswellOnt 892, [1990] O.J. No. 1353, 10 W.C.B. (2d) 426, where the Court of Appeal noted:

[8] During the course of the cross-examination of the appellant by counsel for the Crown, it was elicited from the appellant that the police refused to let him call a lawyer before he was questioned by them and the statement obtained. His evidence, if true, indicated a clear infringement of his rights under s.10(b) of the Charter. There was no evidence to indicate that he had waived those rights nor was any inquiry made at the trial with respect to the prima facie proof of such infringement and if found to have occurred, whether the statement would still be admissible under s.24(2) of the Charter. It is apparent from the transcript that the evidence of the infringement was not given by way of a ruse on the part of the defence to circumvent the waiving of a voir dire and thus obtain a mistrial. The evidence was forthcoming as a result of the questions asked by counsel for the Crown on cross-examination.

[9] 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 s.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 was not done. Accordingly, the statement should not have been admitted in evidence or, having been admitted, should not have been considered as evidence in the circumstances.

[40] The Respondent also relies, by way of an analogy, on the principle of law that trial judges are obligated to put all available defences to a jury irrespective of whether Defence counsel explicitly raised the issue.

[41] Since Arbour was decided in 1990, I asked Mr. Morris if he had noted it up to determine if there were other relevant cases that referred to it. He had not done so, nor had the Crown. Accordingly, with counsel’s agreement I asked my law clerk to do so and once his results were provided to counsel they re-attended before me to make further submissions on those cases.

[42] I have concluded that Arbour is clearly distinguishable from the facts in the case at bar. Mr. Arbour was hearing impaired and although a statement he had given to police was introduced into evidence without objection, during the course of his cross-examination there was uncontradicted evidence that he had been denied his rights to counsel; a glaring and significant s. 10(b) Charter breach. In this case, as I will come to, if there was a s. 8 breach, it was not serious.

[43] Arbour was considered again by the Court of Appeal in R. v. Kutynec, 1992 7751 (ON CA), [1992] O.J. No. 347 (C.A.), the court considered a case where at trial Defence counsel deliberately deferred bringing a Charter motion until the close of the Crown’s case. The trial judge made some inquiries about the nature and basis for the motion and decided, without hearing it, that the motion was without merit or foundation in law. The Court of Appeal set out its reasons with respect to the desirable practice for raising s. 24 Charter issues and held (at paras. 19-20) that:

In the interests of conducting an orderly trial, the trial judge is entitled to insist, and should insist, that defence counsel state his or her position on possible Charter issues either before or at the outset of the trial. All issues of notice to the Crown and the sufficiency of disclosure can be sorted out at that time. Failing timely notice, a trial judge, having taken into account all relevant circumstances, is entitled to refuse to entertain an application to assert a Charter remedy.

I do not suggest that a trial judge can never consider, at a later point in the trial, the admissibility of evidence which has been tendered without objection. A trial judge has a discretion to allow counsel to challenge evidence already received and will do so where the interests of justice so warrant. For example, as in R. v. Arbour … a question as to the admissibility of evidence already before the trier of fact may arise from evidence given at a subsequent point in the proceedings. In such cases, a trial judge may well be obliged to consider the question of the admissibility of the earlier evidence and, if the circumstances warrant it, allow counsel to reopen the issue.

[44] More recently, the Court of Appeal in R. v. Tran (2001), 2001 5555 (ON CA), 156 C.C.C. (3d) 1 (Ont. C.A.) has reinforced the view articulated in Arbour, but that was a case where the appellant was unrepresented and the court found that in failing to enter into such an inquiry, and generally providing even minimal assistance to the appellant, the trial judge compromised the fairness of the appellant's trial, thereby committing a reversible error.

[45] Arbour has been considered by a number of judges of this court and those decisions confirm my conclusions in this regard. In R. v. Kovac, 1998 14961 (ON SC), [1998] O.J. No. 2347, 17 C.R, 46, Justice Hill came to a similar conclusion in a case where he dealt with an appeal from an Over 80 conviction where the trial judge had refused to hear a s. 8 Charter application that had only been raised in closing argument. After considering Kutynec and other authorities, and noting that the Kutynec practice had, since January 1, 1998, been reduced to a rule of court in the Rules of the Ontario Court of Justice Criminal Proceedings, Justice Hill went on to find that the prosecution was prejudiced by the late notice of an application to exclude evidence on account of an alleged breach of s. 10 of the Charter. He explained, at para. 44 that:

Where it can be fairly said that had the prosecution received appropriate and timely notice, the Crown would have engaged in additional questioning of witnesses or would have called additional evidence, then real, not speculative, prejudice is establish. Such a disadvantage, especially one occasioned by a calculated defence tactic, weighs heavily against consideration of an accused’s Charter application first raised at the conclusion of the trial.

[46] Hill J. went on to consider the court’s independent duty to conduct an exclusionary hearing and concluded as follows:

46. Further, I am not satisfied that the trial judge was legally obliged in this case to herself enter upon an inquiry as to whether there had been an infringement of the appellant's s.8 Charter right.

47. A number of authorities support judicial activism in raising the question of the admissibility of evidence in light of possible Charter infringement: […]

48. In R. v. Arbour, supra, at 372, the court held that it was incumbent upon a trial judge, faced with "admissible uncontradicted evidence" that there had been an infringement of an accused's Charter rights, to enter upon an inquiry to ascertain whether such an infringement had occurred. In R. v. Rees, supra at 134, Finlayson J.A. noted that there must be "evidence ...that would alert the trial judge" to the Charter problem. […]In R. v. Kutynec, supra, at 297, Finlayson J.A. stated that if the circumstances warrant it, "where the interests of justice so warrant", a trial judge may be obliged to consider an admissibility question. To similar effect, is the observation of Baudoin J.A. in R. v. Boire, supra, at 223-4 that the court should itself act in the face of an apparent "flagrant violation of the Charter".

49. In my view, this is not one of those exceptional cases requiring the court to itself press for an application to exclude evidence during the course of the trial. The state of the trial testimony was far from suggesting a flagrant Charter violation. Nor was the evidence on the constitutional issue uncontradicted or of sufficient clarity to warrant the trial judge intervening in the interests of justice to protect the integrity of the judicial process. [emphasis added]

[47] In R. v. Palma, 2000 22805 (ON SC), [2000] O.J. No. 5874 Justice Watt, as he then was, held (at para. 35) as follows:

Where a party objects to the admissibility of an item of evidence tendered by the opposite party, the usual practice is for the complaining party to object before the evidence is received, not after. See, for example, R. v. Kutynec (1992), 1992 12755 (ON CA), 70 C.C.C. (3d) 289 (Ont. C.A.), at p. 296, per Finlayson J.A. There is, of course, a discretion to allow an admissibility challenge after evidence has already been received. See, R. v. Kutynec, supra, at p. 297, per Finlayson J.A. In deciding whether to permit an ex post facto challenge, to lock the barn door after the horse has escaped, as it were, the trial judge is to consider the interests of justice. See R. v. Kutynec, supra, at p. 297. See also, by example, R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.).

[48] In R. v. Miladinovic, 2002 CarswellOnt 545123, Justice Glithero heard an appeal where reliance was placed on Arbour. As in the present case, all of the evidence on the Charter issue which was raised for the first time on appeal was not available. He distinguished Arbour and held at para. 23:

… Indeed, this case typifies the general proposition that Charter applications should not be made for the first time on appeal, because normally the proper evidentiary basis will be lacking if the matter was not considered at trial. In this case, complaint is made in respect of an alleged breach of s. 10(a) of the Charter. ….. In my opinion it is inappropriate to consider such Charter attacks for the first time on appeal. If they are to be given effect, I would have to allow the appeal and direct a new trial by virtue of the silence of the record, which in turn flows from the failure of the appellant to have raised the issues pursuant to the Charter which imposes on him the obligation of bringing an application, and persuading the trial judge that a breach has occurred to the civil standard. In my opinion the silence in the evidence on this issue, arising from the failure of the accused to raise the issue at trial, should not result in the reward of a new trial because the appellant court cannot be sure what the evidence would have been had the issue been raised.

[49] Finally in R. v. Glaister, [2004] O.J. No. 1126, Justice J. deP. Wright dealt with an appeal that like the case at bar turned on the extent of the trial judge’s duty to raise a Charter issue on his or her own motion. After referring Arbour, he held (at para. 6):

In determining whether the facts call for the trial judge to intervene and raise a Charter issue not raised by the defence the judge might consider:

a) Whether the accused is represented,

b) Whether the true issue at this stage is the original denial of Charter rights or whether the true issue is the accused's failure to claim a remedy for the Charter breach,

c) How cogent is the evidence of a breach?

d) Is there evidence of a consent to the breach or waiver of Charter rights, or a waiver of the right to claim a remedy for the breach?

e) What stage of the trial has been reached? Has the Crown closed its case?

[50] I would add to these factors, the strength of the argument that the evidence would be excluded pursuant to s. 24(2) of the Charter.

[51] Applying these principles to the case at bar, the trial judge did make a finding of fact that the breath samples had not been obtained “as soon as practicable” which arguably would amount to a s. 8 breach since all of the requirements for a proper demand had not been met. However in my view, this was a relatively trivial breach. The evidence at its highest was that there was a delay of 46 minutes in the taking of the breath samples. There was no suggestion that this delay resulted in any issue with the accuracy of the toxicologist’s report based on those samples. There was no evidence of bad faith of the officers or evidence of prejudice to Ms. Li resulting from that delay or any impact on her Charter rights. Ms. Li was represented by experienced counsel. As I will come to the argument to exclude the breath samples is also weak. In my view, this was not a case where the trial judge was under any obligation to raise the issue of a s. 8 Charter breach on his own motion.

[52] However, even if I were to conclude that the trial judge had an obligation to consider a s. 8 breach on his own motion, in my view, applying the principles in Kutynec, the trial judge would likely have decided that it was too late for the issue to be considered given the prejudice to the Crown arising from the fact there was no timely Charter application. Although the Crown had called some evidence as to the timing of different events, when trying to explain the reasons for the delay in cross-examination, PC Lai said on a couple of occasions that playing the in-car video would provide an explanation. The Crown was not able to pursue this evidence in re-examination. Had there been a timely Charter application no doubt all of the Crown’s evidence on this issue would have been introduced in the examination in chief of PC Lai.

[53] Furthermore, in my view, had the trial judge decided on his own motion to consider a Charter application at the end of the case, in order to decide whether the breath samples should be excluded pursuant to s. 24(2) of the Charter, he very likely would have decided that the evidence should not be excluded. In my view, applying the Grant factors, the breach was not serious, the breach had no or very little impact on Ms. Li and the evidence was reliable and essential to proving the Crown’s case. Despite the fact that the breath samples are conscripted evidence, given the seriousness of drinking and driving and the tragic consequences that too often ensue, in my view the trial judge would very likely not have excluded the evidence. In this case the exclusion of relevant and reliable evidence would undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

[54] For these reasons, in my view, the application of the principles in Arbour to this case, as developed in the cases that have considered Arbour, does not lead to the conclusion that the trial judge had an obligation to raise a s. 8 Charter issue on his own motion. Furthermore, in my view, if counsel for Ms. Li raised a Charter issue during the closing submissions, the trial judge would likely have properly exercised his discretion to not hear the application because hearing the application at this stage of the trial would cause real prejudice to the Crown, it was without merit and would tend to diminish the importance of the Rules which require timely notice of Charter applications.

[55] My view in this regard is reinforced by R. v. Charette, (2009) 2009 ONCA 310, 94 O.R. (3d) 721 (Ont. C.A.), also a case dealing with an appeal of an “Over 80” acquittal. In that case, the court was dealing with the issue of whether or not the Crown had to prove that the officer who made a breath demand, had reasonable and probable grounds for making the demand in order to rely on the presumption of identity. Speaking for the court, Moldaver J.A. (as he then was) stated:

When one considers the carnage and destruction caused by impaired drivers, I do not think we should be promoting “trial by ambush” in “over 80” trials. In Gundy [2008 ONCA 284, [2008] O.J. No. 1410 (C.A.)] this court made it clear that the notice requirements for Charter applications should, as a rule, be adhered to and that non-Charter motions to exclude evidence should be raised before or when the evidence is proffered…(at para. 45).

[56] Justice Moldaver went on to find that absent a Charter application the Crown need not concern itself with proving the existence of reasonable and probable grounds if intending to rely on the presumption of identity. He found that otherwise, as a practical matter, it is at least arguable that for an attack on the presumption of identity, which does not technically involve an application to exclude evidence, an accused could wait until the end of the trial, after all of the evidence had been heard, and spring the trap and argue that the presumption should not be available as the officer did not have reasonable and probable grounds for making the breath demand (at para. 46).

[57] Moldaver J.A. concluded that:

As for the interest of society, under the proposed regime, the Crown will be alerted to the s. 8 breach and can prepare for it. With the guesswork removed, the trial can then proceed in a more efficient, orderly and less costly fashion.

[58] By analogy to the case at bar, the Crown in this case correctly took the position that since there was no Charter application the issue of whether or not the breath samples were obtained “as soon as practicable” was not relevant. Although as a result she was not required to tender any evidence on this issue, in my view the fact that she called some evidence on this issue does not affect this principle of law. Nor, in my view, does the fact that the trial judge made a finding that the breath results were not obtained “as soon as practicable”.

[59] The policy reasons identified by Justice Moldaver that support a requirement that the Defence bring a Charter application on notice to the Crown at the beginning of the trial, apply with even more force here as the entire trial has been completed and the Defence now seeks a new trial so that a new Defence strategy can be tried; namely a Charter application alleging a breach of s. 8. Although the Crown would have notice of this before the start of a new trial, clearly this would not be the way to deal with this charge in an “efficient, orderly and less costly fashion.” Counsel should not be rewarded with a new trial in these circumstances when what must have been a deliberate decision to not bring a Charter application was made by trial Defence counsel.

[60] The reasoning in Charette was the basis of the court’s decision in R. v. Forsythe, [2009] M.J. No. 438 (Man. C.A.), a case very similar to the case at bar, that is relied upon by the Crown. This decision strongly supports the conclusion that I have come to. As in the present case, the defence complaint in Forsythe was that the breath samples had not been taken “as soon as practicable” and that police had waited too long after arresting the defendant to take him to the station to provide samples of his breath. As in the present case, Defence counsel had not brought a Charter application to exclude the breath results that had shown an elevated blood alcohol content but argued that the breath tests and anything stemming from them was inadmissible because the breath samples were not taken “as soon as practicable” (at para. 22).

[61] The trial judge in Forsythe found the samples were taken “as soon as practicable” and admitted the breathalyzer evidence. On appeal, however, the summary conviction appeals court ruled (as the trial judge did in the present case), that the samples had not been taken as soon as practicable and that this requirement was a pre-condition to the admissibility of the test results.

[62] On appeal to the Manitoba Court of Appeal, the court held that, as is the case with a defendant who alleges a lack of reasonable and probable grounds for the breath demand as the basis to exclude the breath samples, a defendant alleging a failure to comply with other requirements of s. 254(3), such as that the samples be taken “as soon as practicable”, must make application under the Charter to have the evidence excluded. In the result, the court in Forsythe determined that the requirement of s. 254(3) that police take an accused’s breath sample “as soon as practicable” was not a pre-condition to the admissibility of the test results and restored the conviction. There was no suggestion that there was an onus on the trial judge to raise the Charter issue on his own motion. In fact the principles set out by Justice Moldaver in Charette provide otherwise and clearly put the onus on trial counsel to give notice in advance of trial if there will be a Charter application.

[63] I turn then to what is an appropriate remedy in this case. The Appellant submits that but for the learned trial judge’s errors of law, the verdict in this case would not have been the same and Ms. Li would have been found guilty of Over 80. The Appellant submits that all of the findings necessary to support a finding of guilt were made, either explicitly or implicitly, or were not in issue. This was not a case where, for example, there were important issues of credibility that were not decided by the trial judge. The Appellant submits that this is an appropriate case for this Court to substitute a verdict of guilty for the acquittal.

[64] The Respondent submits that the Appellant has not established that a conviction was the inevitable result but for the error and that the relief should be confined to a new trial. The Respondent’s factum refers to the decision of the Supreme Court of Canada in R. v. McRae (2013), 2013 SCC 68, 307 C.C.C. (3d) 291 where it is submitted that the court has made it clear that to set aside an acquittal and enter a conviction [after a judge-alone trial], an appellate court must be satisfied that the trial judge's findings of fact, viewed in light of the applicable law, supported a conviction beyond a reasonable doubt. An appellate court should exercise this power only in the clearest of cases (at para. 39). The Respondent argues that this is not the clearest of cases.

[65] This conclusion followed the Court's earlier jurisprudence in R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326 where the Court found that an appellate court may only substitute an acquittal with a conviction if the trial judge's findings of fact, viewed in light of the applicable law, support a conviction beyond a reasonable doubt.

[66] McRae is distinguishable from the case at bar as in that case the trial judge had not made a finding of fact as to the defendant’s intent, an essential element of the counts of threats. In Katigbak, the Court found that because of the errors made by the trial judge, the trial judge did not make the necessary findings of fact for an appellate court to find the defendant guilty of the offence.

[67] Defence counsel at trial did not contest any of the evidence led by the Crown save for the evidence that went to what the Defence said was the sole issue; whether the breath results had been obtained “as soon as practicable”. There was no issue that the person before the court was Ms. Li, that she had been operating a motor vehicle, that she had alcohol in her system; nor was any issue raised with the accuracy of the results obtained by the breath technician which were 118 and 105 mg per 100 ml blood at 5:17 a.m. and 5:39 a.m. respectively and the opinion of the toxicologist that at the time Ms. Li was pulled over her blood alcohol was over 80 mg per 100 ml blood. Mr. Morris did not suggest that the Defence would have called evidence and in my view it is clear that there was no intention on the part of trial counsel for Ms. Li to do so. She did not ask for any ruling from the trial judge before announcing that she would call “no evidence”.

[68] In my view this is one of those clearest of cases where but for the error in law made by the trial judge the only conclusion that he could have come to is that the Crown had proven its case beyond a reasonable doubt and that Ms. Li is guilty of Over 80.

Disposition

[69] For these reasons, the appeal is allowed, the acquittal is quashed and a conviction is entered. The matter is remitted to Justice Cleary for sentencing. Counsel shall arrange a date for that attendance as soon as possible.

[70] I would add that even if I had been persuaded that a new trial is the appropriate remedy, I would conclude that I have no jurisdiction to send the matter back to Justice Cleary; see R. v. Labadie, 2011 ONCA 227, [2011] O.J. No. 1257 (Ont. C.A.) at para. 54.

SPIES J.

DATE: November 13, 2015