Court File and Parties

COURT FILE NO.: SCA (P) 666/17 / SCA(P) 734/17 DATE: 2018 12 11

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Mario Thomaidis, for the Crown Appellant

- and -

BRIAN SAVOIE and KEVIN HURTIS Adam Little, for the Respondents

HEARD: November 23, 2018

REASONS FOR JUDGMENT

[On appeal from the judgments of Madam Justice J. Copeland (Savoie) dated September 8, 2017 and Mr. Justice Duncan (Hurtis) dated September 29, 2017]

D.E. HARRIS J.

[1] The Crown argues in these two summary conviction appeals from “over 80” acquittals that, in only slightly less blunt language, I should overrule a judgment of the Court of Appeal for Ontario. It is said the Court of Appeal decision is per incuriam and ought not to be followed.

[2] I decline the Crown’s invitation and would dismiss both appeals.

[3] The issue at hand revolves around the decision of the Court of Appeal in R. v. Soules, 2011 ONCA 429, 105 O.R. (3d) 561, 273 C.C.C. (3d) 496, leave refused [2011] S.C.C.A. No. 375. Soules is best understood as an application and extension of the Supreme Court judgment in R. v. White, [1999] 2 S.C.R. 417. In White, the court was dealing with provincial highway traffic legislation which required a driver who had been in an automobile accident to make a statement to an investigating police officer. Justice Iacobucci held for the court that if the driver is responding to the statement requirement, the statement made constitutes compelled evidence. To admit it into evidence in a criminal trial would violate the right against self-incrimination prohibited by Section 7 of the Charter of Rights and Freedoms.

[4] The decision in Soules extends White. It applies the ratio from a trial at large context to a Section 8 Charter voir dire context. As I understand the Crown argument, it is their position that the tendering of evidence detrimental to an accused on a Charter voir dire is not a “self-incriminatory” use and the reasoning propelling White should not apply. The problem is, Soules, which the Crown concedes is directly on point for both these appeals, says the White reasoning does apply.

[5] In both cases currently under appeal, there was a question whether the accused was the driver of the vehicle. In both cases, acting under the Highway Traffic Act (HTA) provision in Section 199, the accused, aware of the statement requirement, had stated that they were the driver. Defence counsel challenged the admission of each statement under Sections 7 and 8 of the Charter.

[6] Justice Copeland (as she then was) in R. v. Savoie, [2017] O.J. No. 7081, 2017 ONCJ 951 and Justice Duncan in Hurtis (oral judgement September 29, 2017) found that the statements were statutorily compelled and, following Soules, held that use immunity prohibited their admission on the Charter voir dire challenging the grounds for the approved screening device (ASD) demand. In the result, the demands could not be justified, they were unlawful and unreasonable and the Section 8 right to be secure against unreasonable search or seizure was violated. The evidence of the subsequent breath results was tainted and was excluded under the Charter. The accused were acquitted.

[7] The attack on Soules in this court was essentially the same as mounted against it at trial. Justice Copeland described the Crown’s trial position this way in Savoie:

2 Crown counsel resists the motion [seeking to exclude evidence] primarily by arguing that Soules is wrongly decided. In very brief summary, the Crown's argument is that using a statutorily compelled statement for the purposes of providing reasonable suspicion to make an ASD demand or reasonable and probable grounds to make a breath demand as part of the Charter voir dire is not a self-incriminating use of the evidence, because it is being used only on the voir dire, and it not being used to prove an element of the offence charged.

[8] Relying on stare decisis, Justice Copeland rejected the Crown’s assault on Soules. I agree with her approach. Soules is a decision of a higher court and is binding upon all lower courts. This is not merely a minor wrinkle. Chief Justice McLachlin said in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101:

38 Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.

44… a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.

(Emphasis Added)

[9] The Crown in these appeals flies headlong at the Soules judgment, resorting to a full-frontal attack, claiming that it was wrongly decided and is per incuriam. This is not a viable ground upon which a lower court can depart from a higher court decision. It is beyond dispute that none of the prerequisites for reconsideration of a judgment from a higher court are present: see Bedford, at paras. 38-47, and the decision of Justice Paciocco, as he then was, in R. v. Gebrekirstos, 2013 ONCJ 265, at paras. 4-13, relied upon by Justice Copeland in Savoie, para. 4.

[10] Although lip service is paid with respect to Supreme Court precedent after Soules having shifted the playing field, principally R. v. Nedelcu, 2012 SCC 59, earlier cases which were decided before Soules are also invoked in a bid to urge me not to follow Soules (R. v. Orbanski, 2005 SCC 37, , R. v. R.(J.S.), [1995] S.C.J. No. 10). The real thrust of the Crown argument is that the court in Soules was just plain wrong.

[11] Neither Justice Copeland nor Justice Duncan had the benefit of the recent Ontario Court of Appeal decision in R. v. Roberts, 2018 ONCA 411, [2018] O.J. No. 2279. Although Roberts opens the door to a reconsideration of Soules by a five-member panel of the Court of Appeal or the Supreme Court, it reaffirms its status as binding authority on all other Ontario courts. It definitively refutes the Crown argument to overturn Soules.

[12] In Roberts, Justice Paciocco in dealing with a virtually identical attack on Soules held,

42 … the Crown claims that …the Supreme Court has effectively overruled Soules in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202. The Crown claims that, after Paterson, statutorily compelled statements are now admissible to prove reasonable and probable grounds in a Charter voir dire.

43 In making this submission, the Crown relies, in part, on a footnote in the majority decision in Paterson, in which Brown J. states: "Without commenting on the correctness of Soules, I observe that [the direction in R. v. Orbanski, 2005 SCC 37] that the police may rely upon roadside statements for the purpose I have described was categorical." The "purpose ... described" was establishing grounds for a breath demand during a Charter voir dire.

44 Although this remark by Brown J. does invite debate about the correctness of Soules, I do not agree that Paterson has resolved the question. The issue is too complex and important for the Supreme Court to have done so in a footnote; particularly a footnote that expressly refrains from commenting on the correctness of the Soules decision.

45 Moreover, the fact that Paterson foregoes the need for voluntariness voir dires during Charter voir dires does not impel the conclusion that statutorily compelled statements are now admissible during Charter voir dires …

48 Paterson cannot, therefore, be taken to have overruled Soules. Nor is it appropriate, in my view, for a three-member panel of this court to reconsider our decision in Soules based on the Paterson decision. In my view, the Soules decision remains binding law in Ontario unless and until it is properly brought before this court for its reconsideration or is overruled by the Supreme Court.

(Emphasis Added)

[13] A lower court judge cannot finesse this crystal clear, directly-on-point statement in paragraph 48 by attempting to relegate it to the realm of obiter. A comment as direct and specific as Justice Paciocco’s leaves no room for mistake. It was obviously intended to be authoritative and binding: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57, per Binnie J., also see R. v. Prokofiew 2010 ONCA 423, [2010] O.J. No. 2498, at para. 21, aff’d but not on this point, 2012 SCC 49, [2012] 2 S.C.R. 639.

[14] If a panel of three judges of the Court of Appeal are bound by Soules as Justice Paciocco concludes in Roberts, the Crown submission that a Superior Court judge is not so bound is perplexing. While I appreciate the prosecution has to pass this level of court before proceeding to the Court of Appeal with these appeals if so advised, it would have been preferable if the Crown had not made an argument which lacked any vestige of merit. The request to overrule Soules amounted to an invitation to “foment judicial anarchy”: R. v. Rybansky et al. (1982), 36 O.R. (2d) 22, 66 C.C.C. (2d) 459, 26 C.R. (3d) 91, at pp. 25-26 O.R (S.C.).

THE SECTION I ISSUE WITH RESPECT TO SAVOIE

[15] Section 1 was not argued in the Hurtis trial. It was argued in Savoie. The Crown says Justice Copeland erred in dealing with it.

[16] Justice Copeland cited three reasons to reject the Section 1 argument (see Savoie, paras. 11-16). First, the Supreme Court has been skeptical whether a Section 7 breach is amenable to Section 1 justification in light of the internal qualifier in Section 7. Second, because the Charter problem occurs only when the accused’s statement is sought to be used by the Crown at trial, there is no limit on a Charter violation “prescribed by law.” Third, using statements compelled from accused drivers to prove reasonable suspicion on Charter voir dires is not minimally intrusive under the Oakes rubric. A police officer could announce that he is not relying on the provincial mandatory reporting provision, thus avoiding the entire compelled statement conundrum. This was Justice Iacobucci’s suggestion at paragraphs 65 and 80 of White. It was heavily relied upon in Soules as well, albeit not specifically on the Section 1 issue: see paras. 51-54.

[17] In sum, I agree with Justice Copeland’s Section 1 reasons. She committed no error. I would only emphasize with reference to the “prescribed by law” aspect that it is not a law, statutory or common law, which results in the Charter violation in this case. The Charter is only implicated at the point in time when the driver’s statement is tendered into evidence by the Crown at trial. It is at this juncture that use immunity under Section 7 of the Charter is triggered: White at para. 71, Soules at paras. 60-61. Use immunity being prospective and based on government action, there is no legal rule being infringed which can be conceptualized as “prescribed by law.” See generally R. v. Clayton and Farmer, 2007 SCC 32, [2007] 2 S.C.R. 725 at para. 102, R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 59-61.

[18] Both Crown appeals are dismissed.

D.E. HARRIS J.

Released: December 11, 2018