Court File and Parties

COURT FILE NO.: SCA 9261

DATE: 2018-12-12

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, Respondent

AND:

Irina Mannhardt, Appellant

BEFORE: The Honourable Mr. Justice C.S. Glithero

COUNSEL: Armin Sethi, Counsel for the Respondent

Frederick S. Fedorsen and A. Little, Counsel for the Appellant

HEARD: December 11, 2018

ENDORSEMENT ON APPEAL

[1] Ms. Mannhardt appeals her summary conviction on a charge of impaired care and control, and her finding of guilt on a charge of “over 80”, which was conditionally stayed at trial pursuant to the Kienapple principle.

[2] While 10 grounds of appeal were raised in the materials, Mr. Fedorsen appeared only in respect of one ground and asked to address it first. After hearing his submissions, and those of the Crown, I indicated that the appeal was allowed, the conviction quashed, the finding of guilt on the other charge set aside and that a new trial was ordered to take place before another justice of the Ontario Court of Justice. I also indicated that I would deliver a brief endorsement in support of that decision.

[3] The trial evidence was heard over two days and involved six witnesses. The first two were civilians, who were security staff at a local entertainment centre and made observations relating to the arrival of the appellant by car and made observations as to her condition. They decided she would be refused entry to the licensed establishment because of the condition they perceived her to be in when she arrived and tried to enter.

[4] Three of the other witnesses were police officers involved in various aspects of the investigation and in processing the appellant through the two stages of alcohol testing. The sixth witness was a pharmacologist called by the Crown.

[5] Counsel agree and it appears on the first page of the transcript that there was an agreement between counsel, to the knowledge of the trial judge, that the two civilian witnesses who testified first, being the the two security staff from the licensed establishment, would be giving evidence on the trial proper, but not on the Charter voir dire. At the conclusion of their evidence, as appears at page 87 of the first transcript, the trial judge knew that they had testified on the trial prior to the Charter voir dire commencing.

[6] Mr. Little was trial counsel for the appellant. At the end of his submissions on December 5, 2017, the trial judge commenced giving oral reasons for dismissing the Charter application in respect of all the Charter breaches raised by the defence. By the third paragraph of those reasons he was referring to and relying on the evidence given by the two security officers even though it had been clearly agreed at the outset of trial that their evidence was not part of the Charter voir dire. Recited by the trial judge in his reasons was the evidence of the two security officers to the effect that the appellant had indicated that she knew her rights, she wasn’t going to tell them how much she had had to drink, and that she knew the police were on their way. Within his reasons, the trial judge determined that there was no s.9 breach because the appellant knew, as a result of her communications with the two security officers, why she was being detained.

[7] At the end of his ruling on the merits of the Charter application, a discussion took place involving what evidence from the voir dire would be agreed to apply at trial and defence counsel made it very clear that the agreement at the outset of trial was that the evidence of the two security persons would not apply on the voir dire, but rather on the trial only. The defence moved for a mistrial on the basis that the Charter ruling was in part based on evidence that did not form part of the Charter voir dire.

[8] After hearing the submissions of both counsel, the court indicated as follows:

“I’m dismissing the motion for mistrial because in my view, in the context of everything that was argued by the defence with regard to reasonable and probable grounds, with regard to the only reason that Constable Murray had was the failure when in fact both officers had other reasons to believe that this accused might be intoxicated. The whole premise when I gave my decision on the Charter motion about the context of all of these alleged Charter application, Charter breaches, involved the entire circumstances of the evidence that I had heard. The evidence of the security officers, by the way, was not on a voir dire, that evidence was part of the trial evidence, and I could be wrong, and if I’m wrong, then I’ll be corrected on appeal, but I am entitled, in this case, to rely on the evidence, which I did, of the security officers in coming to my decision whether or not the police acted reasonably whether there was any delay, it’s all part and parcel of the whole scenario and therefore the motion for a mistrial is dismissed.”

[9] Mr. Fedorsen argues that a mistrial ought to have been granted, and that the course of conduct followed by the trial judge rendered the trial unfair and resulted in a miscarriage of justice.

[10] Respondent’s counsel, Ms. Sethi, much to her credit, readily acknowledged in her factum that the trial judge had erred in applying the security guard evidence in his ruling rejecting the Charter arguments when it had been expressly agreed that their evidence would not form part of the Charter voir dire. She nevertheless sought to maintain the verdict by pointing out that defence counsel had in fact cross-examined the security guards at some length and had questioned them about certain items within their evidence relevant to the issue of their observations of the effects of alcohol on the complainant.

[11] In my opinion, Mr. Fedorsen is correct when he points out that it cannot be said that if trial defence counsel knew that the evidence of the two security guards was going to be part of the voir dire evidence that he would have conducted the cross-examination of them in the way that he did. Indeed, there were discrepancies between their accounts which might have been further explored had it been known that their evidence would be relevant to the outcome of the Charter application in its many prongs. Furthermore, had the defence known that the evidence of the two security guards was going to be taken into account on the Charter application, it may well be that the appellant would have chosen to give evidence herself in answer to the testimony of the two security guards as to their observations. As long as those two were testifying only on the trial proper, and not as part of the voir dire, frankly their evidence was largely irrelevant other than to offer an explanation as to why the police attended at the parking lot of the licensed premises where they worked, and commenced their investigation of the appellant.

[12] As was held in R. v. Conway, 1997 CanLII 2726 (ON CA), [1997] O.J. No. 5224 (O.C.A.) at paragraph 48, evidence previously adduced during a trial cannot be used as the basis for a voir dire ruling, absent consent. The case further notes that the way in which the voir dire is conducted can impact on the trial by influencing defence strategy.

[13] It is fundamental that everyone in this country is entitled to a fair trial, and this includes basic procedural fairness to the accused: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562 at paragraph 40.

[14] In my opinion the appellant was denied procedural fairness, and a fair trial by reason of the trial judge having taken into account, on a Charter ruling, evidence which had been agreed would not apply on that voir dire. As he himself noted in the quoted passage, if he were wrong, he recognized it could be corrected on appeal. I conclude that it has to be corrected and that the only remedy is a new trial. It is regrettable that the mistrial application was not granted, as the considerable costs of an appeal could have been avoided.

C.S. Glithero J.

Date: December 12, 2018