Court File and Parties

COURT FILE NO.: CR-18-40000084

DATE: 20190416

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

IKHAZYAGBE KADIRI

Counsel:

P. Alexander, for the Crown

C. Granek, for the Appellant

HEARD: 26 March 2019

S.A.Q. Akhtar J.

Reasons for Judgment

[1] Ikhazyagbe Kadiri (“the appellant”) was found guilty after operating or being in care and control of a motor vehicle with more than 80 milligrams of alcohol per 100 millilitres of blood in his system. As a result, the trial judge imposed a $1500 fine and a one year driving prohibition. At trial, the appellant sought to exclude the Crown’s evidence by alleging a breach of s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms. He was unsuccessful.

[2] The appellant now appeals his conviction raising, for the first time, the following allegations of a breach of his s. 10(b) Charter rights:

(1) A failure by the police to contact the appellant’s counsel of choice;

(2) The Crown’s failure to demonstrate that the appellant waived his right to counsel; and

(3) The police failure to give a warning as mandated by the Supreme Court of Canada in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236.

[3] The appellant submits that the evidence should be excluded due to the breaches set out in issues (1)-(3).

[4] In response, the Crown asks this court to summarily dismiss the appeal without further hearing pursuant to s. 685 of the Criminal Code, R.S.C., 1985, c. C-46. The Crown submits that these grounds of appeal were never raised or argued at trial. Absent a fresh evidence application or an ineffective assistance of counsel claim, the Crown argues that it would be unfair and highly prejudicial to permit the appellant to argue these grounds on appeal.

The Events at Trial

[5] At trial, the Crown called two officers to prove its case against the appellant. A blended trial, including evidence concerning the appellant’s s. 8 and s. 9 Charter motions proceeded in front of the trial judge. There was no allegation of a breach of the appellant’s s. 10(b) Charter rights.

[6] When P.C. Rohan Smith, the arresting officer, testified, the Crown asked him to recite the wording of the right to counsel given to the appellant. Before the officer could respond, the appellant’s trial counsel (not Mr. Granek), informed the court: “that’s not an issue”. Shortly thereafter, the officer told the court that the appellant understood his right to counsel. During his cross-examination, there was only one reference to the right to counsel and no allegation of any breach.

[7] The Crown also called the breath technician, P.C. Neil Sanders. The Crown began to play the video recordings of P.C. Sanders’ interaction with the appellant. When it became clear that there was limited audio on the recordings, the appellant’s counsel indicated that there was little need to play the videos. In response to the trial judge’s inquiries as to whether there was any issue with respect to the interactions, the appellant’s trial counsel replied that he believed the video would show the breath procedure and taking of samples. He added that “if there’s something in particular my friend wants, we can concede about what’s on these videos. I think identity has been established. We’ve heard the evidence about the taking of the samples.” There was no further reference to the video.

[8] P.C. Sanders testified that he understood the appellant had been read his right to counsel; calls had been made to a specific lawyer; and the appellant had spoken with duty counsel before meeting with the officer. The appellant’s trial counsel had no questions for the witness.

[9] At the conclusion of the Crown’s case, the appellant’s trial counsel indicated that the defence had no evidence to call and further conceded that the Crown had proven its case.

Legal Principles

[10] Section 685 of the Criminal Code is the statutory authority that permits a court to summarily dismiss an appeal which a court determines is “frivolous or vexatious and can be determined without being adjourned for a full hearing”.

[11] This provision is used sparingly. In R. v. Duhamel, 2006 QCCA 1081, at para. 26, the court observed that it should be used only if, on the face of the appeal alone, the appeal is so meritless that it can be dismissed without consideration of the appeal record. In R. v. Haug, 2011 ABCA 153, at para. 8, the court applied s. 685 to strike out an appeal on the basis that it “was bound to fail”.

[12] In this case, the Crown argues that on its face, the appeal has no merit. The grounds of appeal now argued by the appellant were never advanced at trial, foreclosed by the appellant’s trial counsel at the evidentiary stage, and never argued at conclusion. The Crown submits that there is no evidentiary or factual record that an appellate court may use to determine the merits of the appeal.

[13] The appellant, on the other hand, argues that this is not a case that can be said to have no merit on its face. He says that there is sufficient evidence available for the court to determine the appeal even though the grounds now relied upon were never raised at trial. Moreover, he argues, for the first time at this hearing, that his trial counsel acted in “error” in not raising a breach of his right to counsel.

[14] The general rule is that matters not raised at trial cannot be raised on appeal for the first time: R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, at pp. 590-91. Doing so causes great prejudice to the other side because of the lack of ability to respond with evidence adduced at trial and the lack of an adequate factual record to decide the new grounds of appeal: R. v. Perka, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232, at p. 240; R. v. Ryan (1992), 1992 CanLII 15029 (ON CA), 12 C.R. (4th) 173 (Ont. C.A.), at p. 174; R. v. Gayle (2001), 2001 CanLII 4447 (ON CA), 54 O.R. (3d) 36, at para. 72.

[15] This rule is not absolute. If the court has a factual record to evaluate the grounds of appeal without prejudice to the opposing side and no unfairness accrues, a court may decide the new issues: R. v. Lewis, 2007 ONCA 349, 86 O.R. (3d) 46, at paras. 20-21; R. v. Hart, 2016 ONSC 1620, at para. 9.

[16] Moreover, a fresh evidence application would justify the evaluation of a new ground of appeal. No such application has been made in this case.

Can the Crown Launch a Section 685 Application?

[17] Before determining whether to grant the application, I turn, briefly, to a procedural point the appellant raised.

[18] At the outset, the appellant takes the position that the Crown has no jurisdiction to commence a s. 685 application. That power, says the appellant, is reserved for the Registrar of the court.

[19] I disagree.

[20] First, s. 822 of the Criminal Code enables s. 685 to apply to summary conviction appeals with necessary modifications. Those modifications, in my view, accord the Crown the power to commence a s. 685 application which in the normal appeal process would be brought to the Registrar who, in turn would provide notice to the appellate court.

[21] In Duhamel, a case relied upon by the appellant, at para. 22, the court stated that “if the Crown believes that an appeal based on grounds of law is frivolous, improper, vexatious or clearly unfounded, it must trigger the application of s. 685 Cr. Code by addressing the Clerk of the Court. The Clerk will then act according to what this provision provides and, if the Clerk finds it to be appropriate, will refer the case to the Court”.

[22] That is what happened here when the Crown launched its application at the Summary Conviction Appeal’s clerk’s office.

[23] I would add that the strict interpretation of the section which the appellant advances would render it meaningless and unusable.

Should the Application be Granted?

[24] For the following reasons, I grant the Crown’s application and dismiss the appeal.

[25] First, there is no dispute that the Charter issues now raised on appeal were never advanced at trial. Moreover, the appellant’s trial counsel explicitly told the court that the right to counsel “was not an issue”. Generally speaking, the burden of raising and arguing a Charter breach falls on the accused. Here, the appellant was represented by very experienced trial counsel who made clear, early on, that s. 10(b) was not a concern. Moreover, when the Crown sought to play the evidence that the appellant now relies on to establish a breach of s. 10(b) - the breath video - the appellant’s trial counsel again told the court that the video was unnecessary and added little to the case. I find it telling that although the appellant argues that his trial counsel made an “error” in not mounting a s. 10(b) challenge, he does not appeal on the basis of ineffective assistance of counsel.

[26] Second, any factual record that might have emerged, even in the absence of a formal Charter application, vanished with the appellant’s trial counsel’s comments. The Crown proceeded on the basis that police had fully complied with the appellant’s right to counsel and called no evidence to deal with that issue beyond the narrative of events.

[27] The appellant’s trial counsel’s concessions, presumably on instructions, meant that the Crown need not call any evidentiary response to the right to counsel issue. This distinguishes case such as Lewis, where the court permitted the appellant to raise a s. 10(b) ground for the first time because “a very full evidentiary record” existed. The appellant’s reliance on R. v. Brown (1992), 1992 CanLII 12795 (AB CA), 73 C.C.C. (3d) 481 (A.B.C.A.), also fails. In Brown, the court found that a hearing was justified both on the basis that a full record existed, as in Lewis, and on the basis that the law relating to the use of undercover officers to take statements had changed between the trial and appeal.

[28] Moreover, it is hard to understand how the appellant can now seek to rely on the video when it was not played at trial after his trial counsel’s interjection. I agree with the Crown that the prejudice to the Crown is heightened because it could have called evidence at trial if the appellant made the video and its contents an issue.

[29] Third, it is clear that the appellant’s trial counsel did not neglect the Charter at the appellant’s trial. He brought an application to exclude the breathalzyer evidence under s. 8 and s.9, and confirmed to the court at the sentencing stage that the Crown had resolved the “potential pitfalls” in its case. Significantly, when the trial judge, asked appellant’s counsel whether there “was any issue with respect to the interactions”, counsel’s response was a clear “no”. I agree with the Crown that the only inference to be drawn is that the appellant’s experienced trial counsel had evaluated the right to counsel issue, decided it had no merit, and proceeded with the issues that he thought would succeed.

[30] In my view, allowing the appeal to proceed on the new grounds would cause the Crown substantial prejudice. There would be no evidentiary record to refute the appellant’s claims, no trial record for the court to determine the merits of the appeal, and no opportunity for the Crown to call evidence to fully respond to the grounds of appeal. This being the case, the new grounds of appeal cannot be raised and the appeal will obviously fail.

[31] Finally, although I have referred to the existing s. 685 jurisprudence, I would also add that the culture change directed by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, should also apply to appeals. The following comment, made by the court in Cody, at para. 38, is also relevant to the appellate process:

In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss "applications and requests the moment it becomes apparent they are frivolous" (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel -- Crown and defence -- should take appropriate opportunities to ask trial judges to exercise such discretion.

[32] For these reasons, the Crown’s application is granted and the appeal is dismissed.

S.A.Q. Akhtar J.

Released: 16 April 2019

COURT FILE NO.: CR-18-40000084

DATE: 20190416

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

IKHAZYAGBE KADIRI

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.