SUPERIOR COURT OF JUSTICE
CR 156-00AP
HER MAJESTY THE QUEEN
V.
DAVID COUTU
RULING ON SUMMARY CONVICTION APPEAL
BY THE HONOURABLE MR. JUSTICE R.D. CORNELL
On January 3, 2017, at Sudbury, Ontario.
APPEARANCES:
K. Ludgate Counsel for the Crown
D. Coutu (self-represented)
January 3, 2017
CORNELL, R.D. (Orally):
INTRODUCTION
This is an appeal by the Crown from a decision of Guay, J. that all evidence of a toxicologist, including the toxicologist’s report, would be excluded based upon a violation of the accused’s s. 7 and s.24(1) Charter rights. In accordance with the reasons that follow, the appeal is allowed.
BACKGROUND
Mr. Coutu was charged on February 16th, 2015, with obstruct police and having care and control of a motor vehicle when his blood alcohol level was over .08. Between February 25th, 2015 and April 22nd, 2015, there were four appearances in Provincial Court. Disclosure was provided on March 17th, of 2015. That disclosure indicated that at the time of the alleged offence, Mr. Coutu had a blood alcohol reading of 150 and 170. By April 8th, of 2015, trial counsel had been retained. A pre-trial was conducted on April 16th, 2015. At that time, Crown counsel advised defence counsel that it was his intention to obtain a toxicologist’s report in order to provide evidence as to the blood alcohol readings alleged to be in existence at the time of the offence. This report was necessary due to the fact that the breathalyzer readings were taken more than two hours after the arrest, with the result that the Crown could not rely upon the presumption that is contained within the Criminal Code.
On April 16th, 2015, defence counsel wrote to the Crown, asking for the toxicology report at least 90 days prior to the arrest. Crown counsel responded by letter of April 21st, 2015, indicating that the toxicologist’s report would indicate that the blood alcohol readings were higher at the time of the alleged offence and that there was a possibility that a further charge of impaired care and control might be laid.
On April 22nd, 2015, there was a further court appearance by way of agent. At that time, no concerns were raised about production of the toxicology report within the 90 day window.
ISSUES
At trial, the matter appeared to proceed on the basis that the issue involved whether the failure of the Crown to provide the toxicology report within 90 days constituted a violation of the accused’s s. 7 Charter rights. With the greatest of respect, I believe that the issues are, in fact, somewhat different.
Firstly, it appears to me that the question at hand really involves whether or not the accused has a constitutional right to drive.
Secondly, the question arises as to whether or not the accused has a constitutional right to participate in what I will refer to as the provincial interlock program.
ANALYSIS
A pre-trial was conducted on June 15th, of 2015. During the course of preparing for that pre-trial, Crown counsel wrote to the police on June 10th, 2015, concerning a toxicology report. The report was received by the Crown the following day. Much of the material that was filed before me focused on the issue as to whether or not the accused was deprived of an opportunity to make full answer and defence. Before I become involved in more detailed analysis, let me say that I do not regard this as the issue at hand. Insofar as the trial itself is concerned, this is not an issue. The toxicology report was provided some four months after the date of the alleged offence and some eight months prior to trial. In the circumstances, it can hardly be said that, in a classic sense, the accused was denied the opportunity to make full answer and defence. Rather, the focus appeared to be on the accused’s alleged inability to make an informed decision about whether or not to apply to participate within the provincial interlock program.
A “RIGHT TO DRIVE”?
I turn now to a discussion as to whether or not there is a constitutional right to drive. In my opinion, there is not. This issue was addressed by the Ontario Court of Appeal in Horsefield v. Ontario (Registrar of Motor Vehicles) 1999 2023 (ON CA), 44 O.R. (3d) 73. In that case, the Court stated as follows:
“37. However, the weight of judicial authority is firmly against the conclusion that the right to drive is a liberty within the meaning of s. 7 of the Charter. While the question has not been directly considered by the Supreme Court of Canada, several provincial appellate courts have ruled on the matter.
A leading case is the early Charter decision of the Alberta Court of Appeal in R. v. Neale (1986), 1986 ABCA 169, 28C.C.C. (3d) 345 from which the Supreme Court denied leave to appeal: [1987] 1 SCR XI (note). This decision was not referred to by Stong J. in Horsefield. In Neale, the Court held that circulation in a motor vehicle is not a right protected by s. 7 of the Charter. In the words of Lieberman J.A. for the Court at page 352: “On the face of it, a suspension of driving privilege has no affect on the accused’s liberty as the suspension does not restrict his right to go where he chooses. There is no physical restraint on him.” In Yehia v. Alberta (Solicitor General) (1992), 1992 ABCA 173, 40MVR (2d) 57, the Alberta Court of Appeal reaffirmed its decision in Neale.
Neale was referred to by the Manitoba Court of Appeal in R. v. Grey (1988), 1988 1374 (MB CA), 54 Man. R (2d) 240 as establishing that the suspension of a driver’s license does not constitute a deprivation of liberty under s. 7 of the Charter.”
Later in that decision at para. 55, the court states:
“There is, I repeat, no constitutional right to acquire or preserve a license to drive a car.”
INTERLOCK PROGRAM
I now turn to whether or not the accused has a constitutionally protected right to participate in the interlock program. I conclude that he does not.
My first difficulty lies in the fact that the factual basis, even to raise this argument, was not properly put before the Provincial Court judge. Counsel for the accused stated on the record that he was well aware of what usually happens in the circumstances where the Crown is unable to rely upon the presumption contained in the Criminal Code. Defence counsel pointed out that it was common practice for the Crown to retain toxicologists to provide evidence on this subject. In the circumstances, it is difficult to understand why the absence of a toxicology report would have been a factor that might have affected the accused’s decision as to whether or not to apply to participate in the program.
The second evidentiary concern that I have is that it is common knowledge amongst experienced defence counsel that it is possible to contact the Centre of Forensic Science directly in order to assist in obtaining evidence, the assessment of evidence, or the general assistance of the Centre of Forensic Science. To suggest that this should be the Crown obligation, in my opinion, is a proposition which cannot be supported.
Finally, I observe that there are some 12 eligibility requirements that must be satisfied before an accused can participate in the interlock program. There was no evidence tendered whatsoever to indicate whether or not this accused could have satisfied any, or all of such criteria.
Putting aside these concerns, I now turn to the legal basis to reject the proposition that there is a constitutionally protected right to participate in the interlock program.
I am guided in this effort by the decision of Bovard J., a decision of the Ontario Court of Justice in R. v. Poyntz 2012 ONCJ 245, [2012] O.J. No. 1877. Although I am not bound by this decision of the provincial court, I do find it instructive. In that particular case, a similar argument was raised due to the fact that there was late disclosure of the police video of the breath test procedure. As in this case, the accused alleged that the failure to provide this evidence as part of the disclosure caused the accused to miss a deadline for applying to the ministry for a reduced license suspension under the ignition interlock program. When addressing this issue, the court had the following to say.
“[71] This derogates substantially from the defence argument that the police and the Crown caused unfairness to Mr. Poyntz or breached Mr. Poyntz’s right to mount full answer and defence by precluding him from participating in the interlock program, or that the late disclosure breached any right to apply for the program. Appendix “A” shows clearly that Mr. Poyntz did not have a right to participate in the interlock program. At its highest, Mr. Poyntz’s complaint is that he was prevented from having the opportunity to apply to participate in the program. This does not constitute a denial of any right under s. 7 of the Charter.
72Many courts have held that driving is a privilege, not a right. The length of time that Mr. Poyntz’s privilege of driving would be suspended is at the heart of the defence’s complaint. Therefore, the procedures that are followed in the suspension of this privilege in drinking and driving cases do not attract Charter scrutiny under s. 7. Driving is not a right that is protected by s. 7. In R. v. Coombs [1991] O.J. No. 356, at paragraphs 20- 28, Mr. Justice Libman made this point forcefully and cited many high authorities to support it.
73See also Horsefield v. Ontario(Registrar of Motor Vehicles) (1999) 1999 2023 (ON CA), 134 C.C.C. (3d) 161 (C.A.). At paragraph 51 Finlayson J.A. held as follows:
I adopt the latest word on this subject as expressed by Hinds J.A. in Buhlers, supra. On the Charter challenge, he had this to say at paragraph 109: In my view, the broadened scope of liberty interest protected by s. 7, as expressed by some of the members of the Supreme Court in B.(R.) v. Children’s Aid Society, [1991] 1 S.C.R. 315 and in Godbout v. Longueil (City) 1997 335 (SCC), [1997] 3 S.C.R. 844, does not extend to the driving of a motor vehicle on a public highway. It is not a matter that is fundamental or inherently personal to the individual. It is not a matter that goes to the root of a person’s dignity and independence. To hold otherwise would trivialize the liberty sought to be protected by s. 7.” I accept and adopt that analysis. If there is no constitutionally protected right to drive, how can there possibly be a constitutional right to participate in a discretionary interlock program? The answer is that there cannot.
CONCLUSION
There is no evidence whatsoever that the accused was unable to make full answer and defence in this case. I have found that there is no right to drive. Accordingly, I have found that there is no Charter protected right to participate in the provincial reduced driver suspension interlock program.
The appeal is allowed. The s. 7 violation is set aside and the matter is remitted back to the Ontario Court of Justice for a trial.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Helene Brydges, certify that this document is
a true and accurate transcript of the recording of
R. v. Coutu, in the Superior Court,
held at 155 Elm Street, Sudbury, Ontario,
On January 3, 2017,
Taken from Recording
4011_CrtRmL_20170103_133947__10_CORNELD.dcr
which has been certified in Form 1.
Helene Brydges