COURT FILE NO.: CR-20-90 DATE: 2023 05 31 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – Robert Rak
Counsel: Mr. Arish Khoorshed, for the Respondent, Crown Mr. Owen Wigderson, for the Appellant
HEARD: May 29, 2023
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
Conlan J.
I. The Proceeding Below
[1] The appellant, Mr. Robert Rak (“Rak”), was tried in the Ontario Court of Justice on a single count – impaired driving. It was an unusual trial.
[2] Two Informations had been before the trial judge. One contained an “over 80” count and the impaired driving charge, and the other (the first, in time) contained the same “over 80” allegation. By agreement of counsel, the “over 80” charge, in each Information, was withdrawn. The defence agreed not to test the merits of the impaired driving allegation. Instead, the verdict on the impaired driving offence was agreed to be determined as a direct result of whether the defence succeeded in its Charter application. That application sought to quash (not stay) the impaired driving charge under section 24(1) of the Charter, alleging a violation of Rak’s section 7 Charter right.
[3] More specifically, the defence argued that the manner in which Rak was charged with impaired driving was not in accordance with the principles of fundamental justice, in that it (i) blurred the line of separation between the police and the Crown, (ii) was done in the absence of the requisite grounds on the part of the police constable who attended before the justice of the peace to lay a new Information containing, in part, the impaired driving charge, and (iii) involved the issuance of process (a Summons) by the justice of the peace for the impaired driving charge in the absence of grounds to make out a prima facie case for that offence.
[4] The trial judge dismissed the Charter application. Rak was found guilty and convicted of the offence of impaired driving.
[5] The trial judge rejected the defence suggestion that the Crown had “directed” the police to charge Rak with impaired driving. The trial judge also rejected the defence suggestion that the special constable who appeared before the justice of the peace lacked the requisite grounds for the laying of the impaired driving charge. The trial judge agreed, however, with the defence that “a basis for issuing process was not made out on the record of the proceedings before the Justice of the Peace” – paragraph 28 of the Reasons for Judgment dated September 10, 2020 (“Reasons”).
[6] After finding that the “process issued in this case was without lawful authority”, the trial judge held that Rak’s section 7 or section 9 Charter right had been violated – paragraph 28 of the Reasons. No remedy was ordered by the trial judge. The quashing of the Information was considered but rejected, and the quashing of the Summons was considered but also rejected – paragraphs 29 and 30 of the Reasons.
[7] The trial judge’s ruling on the Charter application did not specify whether Rak’s right to life, liberty, and/or security of the person had been violated, or how any or all of those constitutional protections had been deprived in a manner that was not in accordance with the principles of fundamental justice.
[8] Rak appeals from the conviction, and more specifically from the trial judge’s ruling on the Charter application. The remedy sought in this Court is, again, to quash (not stay) the impaired driving charge.
[9] There is no cross-appeal from the Crown.
II. The Facts
[10] First, what led to the attendance of the special constable before the justice of the peace, to have the impaired driving charge laid, is not in dispute.
[11] On July 22, 2018, Rak was stopped by the police and administered a roadside screening device test. He failed the test. He was arrested for “over 80”. The formal breath tests at the police station yielded readings above the legal limit. Rak was released on a promise to appear and charged with “over 80”.
[12] On September 27, 2018, a Crown prosecutor sent the following email to the Crown Brief Review Group at Halton Regional Police Service: “[p]lease prepare and put before the court a new/replacement information in this case – Based on the civilian statements and the indicia of impairment observed at the scene, an impaired charge should have also been laid. Please prepare [typo corrected herein] a replacement information” (the italics are mine).
[13] Hereinafter, the said correspondence is referred to as the “Crown’s email”.
[14] About one month later, a special constable appeared before a justice of the peace. The constable sought to lay a new Information which contained two counts – the original “over 80” and one count of impaired driving. The following is an excerpt from the transcript of the special constable’s attendance before the justice of the peace.
THE COURT: What do you have for me here? CST. KHAN: I have a replacement information for a Robert Rak, R-A-K. THE COURT: Thank you. And I have the original information before me. It was a charge of over 80, and now it's adding drive impaired. Original information received on the 26th of July, 2018. Do you affirm the content of this replacement information to be true to the best of your knowledge and belief? CST. KHAN: I do so affirm. THE COURT: Thank you. CST. KHAN: On this - the writer is requesting a summons to be served on the accused on the same court date, with an additional charge of impaired operation motor [sic] vehicle, contrary to the Criminal Code. THE COURT: All right, and that's going to be - well, I can't really do that, unless you can give me some particulars... CST. KHAN: Okay. THE COURT: ...as to the, as to the new charge. I can - it's almost all here, given the additional information, but you better tell me something. CST. KHAN: I'm not sure which one I should be - I think it's here. THE COURT: Well, obviously I received this the last time. CST. KHAN: Yes. THE COURT: So I'm satisfied that I heard that he was operating a motor vehicle, and the blood concentrations that you read to me satisfy me that they were over 80 milligrams... CST. KHAN: Yes. THE COURT: ...on that date, the 22nd of July, 2018. Anything about the impaired I would need to hear. CST. KHAN: There was a citizen that called in to the police. It doesn't say.... Sorry. THE COURT: That's okay. CST. KHAN: I've got here just that a citizen - acquired a statement from a citizen - police acquired a statement from a citizen who called in involving the vehicle, and provided grounds for the offence of impaired operation of a motor vehicle. So the police received evidence, a witness statement... THE COURT: That's fine. That's all I need to hear. CST. KHAN: ...collaborating [sic] the driving. THE COURT: That's right. Then there will be a summons issued for the additional charge, in the replacement information, of drive while ability impaired.
[15] The police left the Summons with an adult at Rak’s residence.
[16] Second, what transpired before the trial judge, in terms of the trial procedure agreed upon by counsel and adopted by the court, is also not in dispute. The following is taken from paragraphs 17 through 19 of the Appellant’s Factum.
- The evidence in support of the Charter motion was adduced by way of a statement of agreed facts, with one addition, prompted by the trial judge asking Crown counsel, “[W]hat was the route between the email and the special constable's attendance at the justice of the peace office?” In response, Crown counsel said:
[T]hat email that you see gets sent to the Crown Brief Review Group, which is sergeants receive it, and then they detail instructions out. So it went to a sergeant in the Crown Brief Review Group, who then sent instructions to the Court Bureau to have Special Constable Khan, or some other officer, lay, lay and swear to this information.
The defence argued the manner in which Mr. Rak had been charged with impaired driving contravened s. 7 of the Charter in three respects: (a) The principles of fundamental justice prohibit the Crown from directing the police to lay criminal charges and the impaired driving charge was laid at the behest of Crown counsel. (b) The principles of fundamental justice dictate a person who lays a criminal charge must actually believe he has grounds to do so. The officer who laid the impaired driving charge did not actually believe Mr. Rak had committed that crime, let alone turn his mind to that issue. The officer laid the charge simply because he had been told to do so. (c) The principles of fundamental justice dictate a justice who receives an information may only issue process if satisfied the informant has made out a prima facie case. The justice who received the impaired driving charge issued process in the absence of information to make out a prima facie case.
The defence argued the appropriate and just remedy for the three Charter breaches, individually or in combination, would be to quash – quash, not stay – the impaired driving charge, pursuant to s. 24(1) of the Charter. 14 The defence specifically argued:
• A number of constitutional wrongs were committed in the course of the laying of the impaired driving charge, therefore quashing that charge would meaningfully, directly, and logically redress those wrongs.
• A provincial criminal trial court has the power to quash a criminal charge, therefore the remedy sought by the appellant is a legitimate measure within the framework of our constitutional democracy and one which invokes the function and powers of the court being asked to grant the remedy in question.
• Quashing the impaired driving charge would not be unfair to the Crown because the common-law and statutory principles of fundamental justice that were ignored and violated in the course of laying the impaired driving charge were well-established and well-known.
[17] Third, what the trial judge concluded is also not in dispute, nor should it be as the trial judge released relatively thorough written reasons. The following is taken from paragraph 20 of the Appellant’s Factum and is an accurate synopsis of the trial judge’s findings made at paragraphs 16 through 20 of the Reasons.
- The trial judge dismissed the motion, based on the following findings:
• The Crown did not direct the police to charge the appellant with impaired driving, it merely recommended the police do so.
• The officer who laid the impaired driving charge actually believed he had grounds to do so.
• While the officer who laid the impaired driving charge did not make out a prima facie case for that crime and process should not have issued, the impaired driving charge should not be quashed because the appellant was before the court on the original “over 80” charge.
III. The Grounds of Appeal
[18] The arguments advanced in this Court, very ably, by Mr. Wigderson on behalf of Rak may be distilled into these three submissions: (i) the trial judge erred in finding that the Crown’s email was a “recommendation”, and not a direction or legal advice, to the police, (ii) the trial judge erred in finding that the special constable who appeared before the justice of the peace had the requisite subjective grounds to lay the impaired driving charge, and (iii) the trial judge erred in declining to grant a remedy under section 24(1) of the Charter, and specifically, in refusing to quash the impaired driving charge.
[19] On all three submissions, the Crown disagrees.
IV. The Standard of Review
[20] The within appeal is brought under section 813(a)(i) of the Criminal Code.
[21] Under sections 822(1) and 686(1)(a) of the Criminal Code, there are three discrete bases for this appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.
[22] The burden is on the appellant, Rak.
[23] Factual findings made by the trial judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. This is not a retrial. R. v. Sheahan, 2017 ONCA 159, at paragraph 12, R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.
[24] Questions of law are generally reviewed on a standard of correctness.
V. Analysis
Did the Crown Direct the Police to Charge Rak with Impaired Driving?
[25] Both sides rely heavily, and for good reason, on the decision of the Court of Appeal for Ontario, the judgment of the Court having been delivered by Tulloch J.A., as the Chief Justice then was, in Smith v. Ontario (Attorney General) (2019), 147 O.R. (3d) 305, 2019 ONCA 651.
[26] In that case, Mr. Smith sued two police services boards, several police officers, the Attorney General of Ontario, and two Crown Attorneys for the torts of negligent investigation, unlawful arrest and imprisonment, and intentional infliction of mental distress (paragraph 5).
[27] The lawsuit followed Mr. Smith’s acquittal on the charge of first-degree murder. It was a “Mr. Big” operation case, and Mr. Smith’s confession had been excluded at trial.
[28] Mr. Smith’s civil action was the subject of a motion to have it dismissed. The motion judge struck the claim against the Crown Attorneys on the basis that it was barred by common law prosecutorial immunity. The police had crossclaimed against the Crown Attorneys, however, for negligent legal advice and breach of retainer, and the motion judge allowed most of the crossclaim to proceed. On appeal, the Divisional Court struck the crossclaim entirely. The police appealed further, and that appeal was dismissed by the Court of Appeal on two grounds: (i) plainly and obviously, the crossclaim was barred by prosecutorial immunity, and (ii) it was plain and obvious that the crossclaim did not disclose a reasonable cause of action (paragraphs 1-4).
[29] In the course of its decision, the Court of Appeal commented, in strong language and rather extensively, on the principle of police independence, which doctrine is rooted in three rationales: (i) the original authority of the police, (ii) the need to uphold the rule of law, and (iii) the police’s greater closeness to the community (paragraph 38).
[30] Police independence is a principle that “protects police decision-making in core law enforcement functions from executive interference”, and those core law enforcement functions include conducting criminal investigations, laying charges, and making arrests (paragraph 53).
[31] “Closely linked to police independence is the relationship between police and Crown Attorneys”; “each actor has a separate and distinct role to play in the administration of justice and the relationship between the two actors is not hierarchical” (paragraph 65).
[32] In Ontario, the ultimate responsibility for the laying of charges rests with the police, and not with the Crown (paragraph 79).
[33] There is nothing wrong with, and in fact it should be encouraged, cooperation between police officers and prosecutors, including at the pre-charge stage of a criminal investigation. That cooperation could include, for example, a prosecutor discussing with a police officer what criminal charge(s), if any, might be appropriate on the basis of the evidence gathered to date.
[34] What is not to be condoned, however, and what runs completely contrary to the nature of the relationship between police and Crown Attorneys, is any notion that the advice from the prosecutor is somehow directing police decision-making, or put another way, that the advice from the prosecutor is to be taken as determinative or controlling, effectively eliminating any discretion on the part of the police. “To put it bluntly, while police can seek legal advice from Crown Attorneys, they do not have to take it and the decision whether to lay charges in theirs alone” (paragraph 89).
[35] In our case, the trial judge, after expressly referring to Smith, supra, found that the Crown’s email was neither legal advice (the Crown’s position in the court below) nor a direction (Rak’s position in the court below) but, rather, was a “recommendation” (paragraph 23 of the Reasons).
[36] In his factum, beginning on page 9, Rak appears to concede that the said finding by the trial judge is a finding of fact, which explains why Rak submits that the said finding is infected by “palpable and overriding error”.
[37] In my view, while other judges may have drawn a different conclusion from the plain wording of the Crown’s email, it was open to the trial judge to make the finding that he did. I would defer to it. I would, thus, not give effect to this ground of appeal.
[38] There is merit to Mr. Wigderson’s argument. The Crown sent an unsolicited email to a unit within the police service, which email effectively said, please lay an impaired driving charge against Rak. Some would call that a suggestion. Perhaps a recommendation. Others would call it a direction, and a clear one.
[39] Was it intended, or was it received, as a direction, however? Was it intended to be taken, or was it taken, as determinative or controlling? Was it intended to be taken, or was it taken, as, effectively, a command, thereby removing the police’s independent discretion, and the police’s ultimate responsibility, to decide whether to lay the impaired driving charge or not?
[40] It was the burden of Rak, in support of his Charter application, to persuade the trial judge on a balance of probabilities. On my review of the record, there was no direct evidence before the trial judge that would have permitted the trial judge to answer the questions posed immediately above in favour of Rak’s position.
[41] There was some circumstantial evidence in favour of Rak’s position, I agree with Mr. Wigderson on that point. We know, for example, that the police initially elected not to lay an impaired driving charge but later did so only after receiving the unsolicited email from the Crown. One could infer from that something in favour of Rak’s position.
[42] On the other hand, there was some circumstantial evidence against Rak’s position. It is noteworthy, for example, that the Crown’s email was not sent directly to the officer who laid the “over 80” count (the trial judge expressly referred to this at paragraph 22, clause 2 of the Reasons). Further, the police did not act on the Crown’s email immediately, or even very soon, after it was received. One could infer from those things something against Rak’s position.
[43] The bottom line is that this is not a retrial. This Court, on a finding of fact, is not to assess the trial judge’s conclusion on a standard of correctness, nor is this Court to simply look at the evidentiary record and decide for myself what I think on the issue of whether the Crown’s email was an improper direction to the police.
[44] Mr. Wigderson is correct that there are some bases for the trial judge’s finding that are susceptible to attack. Based on what the Crown told the trial judge in answer to the trial judge’s question about how the Crown’s email came to be (page 14 of the trial transcript), the trial judge’s description of a “dialogue” about case management issues or, as here, the laying of additional charges (paragraph 22, clause 3, of the Reasons) may not be accurate, for example.
[45] At the end of the day, though, the trial judge’s finding of fact that the Crown’s email was a “recommendation” is one that is sustainable, even accounting for the alleged weaknesses relied upon by Rak, including the observation made in the immediately preceding paragraph herein.
[46] I would not characterize the trial judge’s finding of fact as being the product of palpable and overriding error. Given the burden of proof on the Charter application, the lack of any direct evidence in favour of Rak’s position, and the conflicting circumstantial evidence available from which the trial judge could draw inferences, I would not interfere with the trial judge’s finding of fact that the Crown’s email was a “recommendation”, and not an improper direction for the police to lay an impaired driving charge.
Did the Special Constable Have the Requisite Grounds to Lay the Impaired Driving Charge?
[47] The trial judge concluded that, because the special constable who attended before the justice of the peace to lay the impaired driving charge had been instructed or directed to do so by an officer in the “Crown Brief Review Group”, and because the special constable possessed information contained in a citizen report, the special constable “possessed reasonable grounds at the time he affirmed” (paragraph 27 of the Reasons).
[48] Under section 504 of the Criminal Code, the special constable was required to have reasonable grounds to believe that Rak had committed the indictable offence of impaired driving.
[49] Of course, the special constable was not required to have personal knowledge of the facts that supported the allegation of impaired driving. He was entitled to rely on hearsay, including reports made by other persons in the course of the investigation. What was necessary is that the special constable be aware of some evidence to support the charge, and that the said evidence amounted to reasonable grounds for believing that Rak committed the offence of impaired driving, and that the special constable himself believed that Rak did so. Regina v. Peavoy (1974), 15 C.C.C. (2d) 97, at page 106.
[50] With respect, in making his conclusion on this issue, I do not understand the trial judge’s reliance on the fact that the special constable was instructed or directed to appear before the justice of the peace by some other officer. Without any evidence about what that other officer told the special constable, and there was no such evidence before the trial judge, the mere fact that the special constable sought to lay the impaired driving charge at the instruction or direction of another officer is irrelevant.
[51] On the basis of the transcript of the intake proceeding before the justice of the peace, however, and on that basis alone, I am not satisfied that the trial judge’s conclusion on this issue is the subject of palpable and overriding error (as alleged in the factum filed on behalf of Rak, commencing at page 14), or even that the trial judge’s conclusion is incorrect. Despite some initial reservations, I, in fact, have come to agree with the trial judge’s conclusion.
[52] My initial reservations were based on the rather flimsy evidentiary record that was put before the trial judge. There was no evidence from the special constable. No evidence from the officer who instructed or directed the special constable to lay the impaired driving charge. And the citizen report was not filed, nor was anything filed that was in the possession of the special constable either prior to or during his attendance before the justice of the peace.
[53] Having said that, I think that the trial judge committed no error in concluding that the special constable had the requisite grounds to lay the impaired driving charge, based on section 504 of the Criminal Code and the jurisprudence, including Peavoy, supra.
[54] We know from the transcript of the intake appearance that the special constable was aware that the impaired driving was an additional charge, that is on top of the already-existing “over 80” allegation. We know, further, from the transcript that the already-existing “over 80” allegation related to the operation of the vehicle (as opposed to the care and control of the vehicle); that a citizen had called into the police; that the police obtained a statement from that citizen; and that the statement from the citizen “provided grounds for the offence of impaired operation”, in that the statement “collaborating [sic] the driving”.
[55] The latter, in my view, must have been intended to say “corroborating”, meaning that the witness statement confirmed or gave support to the allegation of impaired driving.
[56] That was enough, in my opinion, for the trial judge to safely conclude that the special constable had the requisite grounds to lay the impaired driving charge - the special constable was aware of some evidence to support the charge (the necessary ingredients of the “over 80” charge already laid, plus the citizen report), and the special constable believed that the said evidence amounted to reasonable grounds for believing that Rak committed the offence of impaired driving (the special constable specifically averted to that belief while speaking with the justice of the peace), and the special constable himself believed that Rak did so (otherwise, it must be surmised that the special constable swore or affirmed falsely, which conclusion the trial judge, properly in my view, was not prepared to draw). Peavoy, supra, at page 106.
[57] Again, there was a rather flimsy evidentiary record that the trial judge had to wrestle with. But, after a fair bit of reflection, I think he made the right call.
[58] The intake transcript, though imperfect because the justice of the peace, after specifically asking about the grounds for the impaired driving charge, then quickly interrupted the special constable while the officer was in the process of addressing the justice’s query, does not evidence the type of perfunctory swearing or affirming of an Information that the courts have routinely guarded against.
[59] I would not give effect to this ground of appeal. I would not interfere with the trial judge’s conclusion that the special constable had the requisite grounds to lay the impaired driving charge.
Should the Impaired Driving Charge be Quashed?
[60] To repeat, the Crown has not appealed the trial judge’s finding that there was a violation of Rak’s section 7 or section 9 Charter right. This Court, on its own accord, is in no position to interfere with that finding or with the finding that it was based on – that there was no prima facie case for impaired driving put before the justice of the peace, and thus, the justice of the peace erred in issuing the Summons.
[61] In light of all of that, did the trial judge err in refusing to quash the impaired driving charge?
[62] There was no error committed by the trial judge, in my opinion.
[63] The remedy sought in the court below, the quashing of the impaired driving charge, was discretionary. Under section 24(1) of the Charter, the trial judge had to be satisfied that the said remedy was “appropriate and just in the circumstances”.
[64] Those circumstances included the trial judge having already been told by counsel that, not only did the evidence establish a prima facie case against Rak for impaired driving, but the evidence proved that offence, on its merits, beyond a reasonable doubt such that the defence would not be contesting a finding of guilt being entered.
[65] In light of that circumstance, and in the absence of any evidence as to how Rak’s right to life, liberty, and/or security of the person was infringed, I fail to see how the trial judge could be faulted for declining to toss the whole case out.
[66] In fairness to Mr. Wigderson, whose presentation to this Court was very sound, the appeal was not seriously argued on the basis that this Court would interfere with the trial judge’s discretion not to quash the Information even if this Court, as it has done, rejected the other arguments made on behalf of Rak regarding the Crown’s email and the special constable’s reasonable grounds to lay the impaired driving charge.
[67] Put another way, given this Court’s adjudication of the first two issues, it is not surprising that I would not give effect to the final ground of appeal.
VI. Conclusion
[68] For all of these reasons, the appeal is dismissed.
Conlan J.
Released: May 31, 2023