CITATION: R. v. Shaw, 2016 ONSC 658
COURT FILE NO.: 13747/14
DATE: 2016-01-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DERVAN SHAW
Appellant
M. Flagg, for the Crown
N. Xynnis, for the Appellant
HEARD: January 20 & 26/ 2016
Justice B. Glass
Reasons for Judgment for Summary Conviction Appeal
[1] The Appellant was convicted in the Ontario Court of Justice on one charge of failing to provide a breath sample into a roadside screening device contrary to section 254(5) of the Criminal Code.
[2] The Appellant appealed upon being found guilty of the charge.
Background for the Appeal
[3] The summary conviction appeal came before the court on January 20, 2016 when I noted that the evidence at the trial had been given following the two adult witnesses being asked by the clerk of the court if they promised to tell the truth rather than being sworn or affirmed.
[4] Counsel asked for an opportunity to review this circumstance and to file further materials.
Positions of the Parties
[5] The Appellant seeks an order that there was no sworn or affirmed evidence upon which the trial court could make a decision. The notice of appeal had requested that the conviction be set aside and an acquittal be issued or in the alternative that a new trial be ordered.
[6] The Appellant submits that there is a formality legislated for the presentation of evidence pursuant to the Criminal Code and the Canada Evidence Act.
[7] Sections 13 and 14 of the Canada Evidence Act provide for evidence to be given under oath or solemn affirmation.
[8] Section 16 of the Canada Evidence Act provides that adult persons who do have a disability to testify or lack of understanding are to be sworn or affirmed. The alternative routine of having a person promise to tell the truth is related to persons under the age of 14 years and not under oath or by solemn affirmation. Further, an older person, who is found not to understand the nature of an oath or solemn affirmation but is able to communicate the evidence, may testify upon promising to tell the truth. If the person who is older than 14 years does not understand the nature of an oath or solemn affirmation and is not able to communicate the evidence, that person shall not testify.
[9] The Crown submits that this is a procedural matter which should not be fatal to the trial. In effect, the Crown submits that there is no harm because of using a different way to have witnesses undertake to testify truthfully. If this court finds the shortfall exists, it can be remedied by reliance on section 686((1)(b)(iv) of the Criminal Code because it involves a minor procedural circumstance that did not deprive the Appellant of a fair trial.
[10] The Crown relied on R. v. Gray (1991) 68 C.C.C. (3d) 203-207 at the Ontario Court of Justice General Division and R. v. Krack (1990) 1990 CanLII 10976 (ON CA), 56 C.C.C. (3d) 555 at 557-60 at the Ontario Court of Appeal. In the Krack decision the court reviewed the issue of a preliminary inquiry judge not conducting a mandatory inquiry under section 16 of the Canada Evidence Act. The court found that the failure was a minor procedural irregularity and did not dislodge the process followed.
[11] Both the Gray and Krack decisions involved children as witnesses.
[12] The case of Mr. Shaw does not involve child witnesses or older persons who do not have an understanding of an oath.
[13] On the other side of the coin, the Appellant relies on R. v. Matheson, (1981) 1981 CanLII 202 (SCC), 59 C.C.C. (2d) 289 at 291 wherein the Supreme Court of Canada held that it was not proper for a judge who had heard the evidence at a preliminary inquiry to apply the evidence automatically at a subsequent trial without taking the required steps to have the evidence before the court. With a failure to follow strict compliance with having evidence taken under oath, the process was rejected. The Appellant relies on this reasoning here for Mr. Shaw.
[14] Further, the Appellant relies on R. v. Kalkhorany, (1994) 1994 CanLII 687 (ON CA), 89 C.C.C. (3d) 184 from the Ontario Court of Appeal. Here, the Court determined that a trial procedure could not be remedied when a trial began as a summary conviction trial in a provincial court but then was converted into a trial by indictment because the 6 month time limit for commencing the summary conviction trial had expired. The trial court had simply switched gears without being re-constituted as a court hearing a trial by indictment and continued as a trial. The Ontario Court of Appeal however found that the formality of reconstituting the court and taking a proper plea on the process by indictment had to be followed or specifically waived.
[15] Mr. Xynnis for the Appellant argues that the process with Mr. Shaw was not followed and urges the court to follow the reasoning in the Kalkhorany case and find that the Shaw trial evidence was not properly taken under oath and was therefore inadmissible.
Analysis
[16] The Crown cases provided on the current issue focus on witnesses with specific considerations for testifying. Mr. Shaw’s case involves adult witnesses without disabilities such that the proper way to receive their evidence at a trial is to testify under oath or by solemn affirmation. The witnesses were the OPP police officer and Mr. Shaw himself.
[17] There is no indication on the record why these witnesses were not either sworn to testify or solemnly affirmed to do so. One of the two formal ways should have been followed. This is not a minor procedural mistake that can be remedied by section 686 (1) (b) (iv) of the Criminal Code.
[18] I am persuaded that failure to have the witnesses testify under oath or by solemn affirmation must result in the trial court having no properly sworn or affirmed evidence before it upon which to make a determination. The trial was improper.
[19] Without evidence for a verdict, the decision is quashed.
Conclusion
[20] The conviction is quashed.
[21] If the Crown wishes to re-prosecute, a new trial will have to be conducted.
Justice B. Glass
Released: January 26, 2016