Court File and Parties

Court File No.: CR-1614-101-AD Date: 20171117 Superior Court of Justice Summary Conviction Appeal Toronto Region

Between: HER MAJESTY THE QUEEN Respondent – and – MICHAEL JOHNSTON Appellant

Counsel: Neville Golwalla, for the Respondent Gregory Lafontaine, for the Appellant

Heard: October 20, 2017

byrne J.

Reasons for Decision

Introduction

[1] On September 29, 2016, Michael Johnston was convicted after trial in the Ontario Court of Justice on one count of Over 80.

[2] On April 21, 2015, at approximately 11:49 pm, Constable Sidhu and Constable Morphet were on general patrol in the City of Toronto. The officers were in uniform and operating a marked police vehicle when they observed the appellant operating a motor vehicle at a high rate of speed. The officers pursued the vehicle and activated their emergency lights. They observed the vehicle pull into an alleyway, at which point the appellant exited the car and began to run. The officers pursued him on foot and instructed him to stop. He did not stop. Ultimately, Constable Sidhu caught up with the appellant. The officer took him to the ground and after a short struggle took physical control of the appellant and placed him under arrest.

[3] At the outset of trial, defence counsel brought and applied for relief pursuant to s. 24(2) of the Charter on the basis that the appellant’s Section 8, 9, and 10(a) rights had been violated. Crown counsel at trial, conceded the section 10(a) breach.

[4] The evidence adduced on the trial proper and the Charter voir dire proceeded as a blended hearing. The evidence was heard over the course of four days.

[5] Despite the Crown conceding the s.10(a) breach, the trial judge found that there were no Charter breaches, convicted the appellant on the one count of over 80, and stayed the impaired driving charge.

[6] The appellant appeals that conviction and submits that the trial judge erred by: (i) Failing to address to the section 10(a) Charter issue; (ii) Finding that the officer had sufficient reasonable and probable grounds to arrest the appellant for “failure to stop”; and (iii) Finding that the police had reasonable and probable grounds to arrest the appellant for impaired driving.

[7] I will first turn to the issue of the section 10(a) Charter breach.

[8] At trial, Crown counsel conceded that the appellant’s 10(a) rights under the Charter had been breached. This was communicated to the trial judge during the trial and again during submissions.

[9] At the end of her succinct reasons, the trial judge stated: As a result, I find there was no Charter violation and the readings were properly obtained.

[10] The trial judge makes no reference to the 10(a) Charter breach in her reasons. She does briefly touch on the facts surrounding the breach when she states: He was apprehended by Office Sidhu who by that time was very out of breath and told he was under arrest without specifics of what he was under arrest for.

[11] The appellant submits that the trial judge erred by failing to provide reasons for her rejection of the breach and by failing to allow counsel to make submissions on the point.

[12] Crown counsel takes the position that the trial judge did not reject the concession. Crown counsel submits that the trial judge launched into a 24(2) analysis when she stated: I find no grounds for excluding those reasons in the totality of the circumstances the police were acting in good faith following up on their need to investigation and the result was his apprehension and the subsequent activities resulting in those breath readings.

[13] I don’t accept the Crown’s position. If this were a section 24(2) analysis, it is completely inadequate and totally misses the mark. This excerpt from trial judge’s reasons was her final sentence in a paragraph dealing with reasonable and probable grounds for the arrest. In my view, it was directly linked to the section 8 and 9 alleged breaches and had no connection or relevance to section 10(a) of the Charter. Moreover, this single sentence cannot serve as adequate reasons to dispose of the three alleged Charter breaches attached to this case.

[14] A trial judge is never bound by concessions made by counsel during a trial. A trial judge is, however, obliged to notify counsel if they are not going to accept a concession and give counsel an opportunity to make argument on the point. This falls under the umbrella of the rules of procedural fairness. Unfortunately, in this case, that did not happen. Defence counsel was not notified that the trial judge was not going to accede to the concession and was never given an opportunity to make submissions on the point. In denying counsel this opportunity, the trial judge fell into error.

[15] There is one other possibility that comes to mind. Did the trial judge simply forget to deal with the 10(a) issue? Given the complete lack of reference to it in her reasons combined with the lesser role that it played at trial, it may have well been an inadvertent oversight on the part of the trial judge which, although unfortunate, does not change the outcome.

[16] Given my finding on this issue, I find it unnecessary to deal with the other grounds of appeal.

[17] Appeal allowed. A new trial is merited on the over 80.

Byrne J.

Released: November 17, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – MICHAEL JOHNSTON Appellant

REASONS FOR DECISION BYRNE, J.

Released: November 17, 2017