CITATION: R. v. Hart, 2016 ONSC 1620
COURT FILE NO.: CR-15-5000003800-AP
DATE: 20160307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
MELISSA HART
Appellant
Megan Petrie, for the Crown
Self-represented
HEARD: February 25, 2016
REASONS FOR JUDGMENT [On Appeal from the Judgment of Justice L. Budzinski of the Ontario Court of Justice dated April 2, 2015]
B. p. O’marra, j.
overview
[1] In the early hours of February 22, 2014, the appellant was observed by a police officer to be operating her car at a high rate of speed. The officer observed the car to sway within its lane. The officer signaled for the appellant to stop and she eventually did so.
[2] The interaction between the officer and the appellant was recorded on video. The appellant admitted that she had consumed alcohol two hours prior. The officer detected an obvious odor of alcohol and that the appellant’s eyes were bloodshot. The officer made a demand for an Approved Screening Device breath sample and the appellant complied. The result was a “fail”. The officer then arrested the appellant for driving with a blood alcohol content over 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1) (b) of the Criminal Code, R.S.C. 1985 c. C-46. She was advised of her right to counsel. She was argumentative and said she only wanted to call her husband.
[3] The appellant was transported to a nearby station. She was searched by a female police officer. She was again advised of her right to counsel. She declined to contact counsel. She later provided two breath samples with readings of 130 milligrams of alcohol in 100 millilitres of blood.
[4] The appellant was represented by counsel at trial. At the outset, there was to be a blended voir dire including a Charter application related to the grounds for the breath demand. There was no application related to rights to counsel.
[5] In the course of the arresting officer’s evidence at trial, counsel for the appellant abandoned the Charter application related to the grounds for the breath demand. He also specifically indicated there was no issue related to rights to counsel.
[6] The sole issue litigated at trial was whether the first breath sample was taken as soon as practicable in accord with s. 258(1) (c) (ii) of the Criminal Code. The trial judge ruled that the test was taken as soon as practicable. Based on that and the rest of the evidence, he found the appellant guilty of driving while her blood alcohol content was over 80 milligrams of alcohol in 100 millilitres of blood.
[7] The appellant now claims the following:
(1) The police did not have grounds to stop, arrest and make a breath demand on her; and
(2) Her right to counsel was breached at the police station.
CHARTER ISSUES NOT RAISED AT TRIAL
[8] The Supreme Court of Canada in R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579 at pp. 590-91, dealt with the question whether an appellant may raise an issue for the first time on appeal:
The general rule is that courts of appeal will not allow an issue to be raised on appeal for the first time. I stressed in my dissenting opinion R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918, at p. 923, that the rationale for the severity of that rule is twofold: “first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue”. (See alsoPerka v. The Queen, 1984 23 (SCC), [1984] 2 S.C.R. 232, R. v. R. (R.) (1994), 1994 8728 (ON CA), 91 C.C.C. (3d) 193 (Ont. C.A.), R. v. Trabulsey (1995), 1995 1414 (ON CA), 97 C.C.C. (3d) 147 (Ont. C.A.).) I also expressed in Brown, supra, at pp. 923-24, the basis for the general ban against entertaining issues on appeal which were not raised at trial:
The general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover, society’s expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to the rule that such tactics will not be permitted.
See also R. v. Vidulich (1989), 1989 231 (BC CA), 37 B.C.L.R. (2d) 391 (C.A.), at pp. 398-99.
In addition, this rule recognizes the important responsibility of defence counsel to make decisions that represent his or her client’s best interests and put forward all appropriate arguments throughout the trial. Counsel too has a responsibility to ensure the finality of the litigation process.
However, the general rule prohibiting new issues on appeal is not absolute. There are a number of exceptions, one of which is the admission of fresh evidence on appeal.
[9] The general rule is that Charter issues ought not to be raised for the first time on appeal. There is possible prejudice to the adversely affected litigant who is unable to call the evidence it would have wished on the issue. As well, there may be an absence of a sufficient record for the appellate court to properly determine the matter. However, the rule is not absolute. Where the court has a sufficient factual foundation to appraise the issue without prejudice to the parties and particularly where refusing to do so will result in unfairness, it is proper for the appeal court to hear and determine the question before it. See R. v. Lewis, 2007 ONCA 349 at paras. 20, 21, and R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918.
ANALYSIS
[10] There was significant evidence at trial that amply justified the decision of trial counsel not to pursue any Charter remedies. Specifically, there were clearly grounds for the arresting officer to stop, detain and make a breath demand on the appellant. The appellant was advised of her right to counsel both at the roadside and at the station. She declined to contact counsel.
[11] If either alleged Charter violation had been pursued at trial, the Crown may well have led further evidence in response. The trial record does not reveal any substance to any alleged Charter violations. This is not a case where an appellate court should exercise its limited discretion to entertain such issues that were not addressed at trial.
[12] The trial judge dealt with the only live issue at trial, “as soon as practicable”, in accord with the governing authority of R. v. Vanderbruggen, [2006] O.J. No. 1139 (C.A.). The appellant did not raise any issue related to this on appeal.
RESULT
[13] Appeal dismissed.
B. P. O’Marra, J.
Released: March 7, 2016
CITATION: R. v. Hart, 2016 ONSC 1620
COURT FILE NO.: CR-15-5000003800-AP
DATE: 20160307
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
MELISSA HART
Appellant
REASONS FOR JUDGMENT
B. P. O’Marra, J.
Released: March 7, 2016```