ASAP: Constitutional or Evidentiary Requirement, it depends

Shady Mawad was convicted of over 80. Mawad had argued that the police, in making a demand for his breath and taking the samples violated section 8. The trial judge found that there was a section 8 violation in relation to the making of the demand but admitted the evidence under section 24(2) and convicted Mawad who appealed. That appeal was dismissed: R v Mawad, 2016 ONSC 7589.

Shady Mawad was driving his car. Someone thought he was impaired. They called the police. Officer Guthrie received a radio call at 4:34 am. Guthrie located Mawad at 4:41. After speaking with Mawad and forming a reasonable suspicion, Guthrie made a ASD demand at 4:47 am Mawad produced a fail at 4:53 am. At 4:57 Guthrie arrested Mawad and read his rights to counsel (a minute later) – leaving the scene at 5:29. The arresting officer failed to make a breath demand. At 6:20 the breath technician took custody of Mawad and made the breath demand at 6:26.

Given that the first sample was obtained beyond two hours of the time of driving, at trial the Crown called a forensic toxicologist to “read back” the samples and provide direct evidence regarding Mawad’s BAC at the time of the offence.

Mawad argued that his s8 rights were violated – by the failure to make the demand as soon as practicable and by the failure to take the samples as soon as practicable. The trial judge concluded that the breath demand was not made by the officer as soon as practicable but admitted the evidence under s24(2). The trial judge did not find that the failure to obtain the samples as soon as practicable violated s8. Mawad was convicted. He appealed.

On appeal Mawad argued, inter alia, that the trial judge erred in not finding that the delay in taking the samples violated s8.

With respect to the taking of the samples, Mawad asserted that the failure to take the samples as soon as practicable amounted to a violation of s8. The summary conviction appeal court rejected that notion. The requirement that samples be taken as soon as practicable in section 258(1)(c) is an evidentiary requirement that permits the Crown to take advantage of the presumption of identity. Where the samples are not taken as soon as practicable the Crown loses that presumption. The results are still admissible however. The summary conviction appeal court, citing R v Deruelle, [1992] 2 SCR 663 and R v Newton, 2013 ONSC 644 in support, held:

With great respect, I fail to see how a statutory short cut given to the Crown to prove a charge of “Over 80” against an accused can be elevated to a violation of his or her constitutional rights. [@26]

Mawad is a helpful decision that clarifies the impact and scope of provisions that are sometimes misconstrued. In short, three points summarize the principles elucidated by this decision. First, s254(3) requires that an officer makes a breath demand as soon as practicable upon forming grounds. This provision is the statutory authority that permits the obtainment of breath samples. Failure to comply with that requirement undermines that authority and thus has constitutional implications – a section 8 violation.

Second, s258(1)(c) requires that samples be taken as soon as practicable. This provision is merely an evidentiary assist, however. Failure to comply with this requirement has no constitutional implications – merely evidentiary ones (the loss of the presumption of identity).

Third, the requirement that samples be “provide[d]” as soon as practicable in s254(3) is not one that is imposed on the state. It follows that the failure to obtain samples as soon as practicable has no constitutional implications.

DM

Cataloging the basis for an Inventory Search

Winston Ellis was driving an Acura. He fled from it. The police searched it - they searched him too. They found a firearm in the car - the keys were in his possession. He sought to exclude the firearm. The trial judge admitted it - having found no violation of s8 but a violation of s10. Ellis appealed. His appeal was dismissed: 2016 ONCA 598.

Ellis was seen street racing in an Acura. The officer who spotted him followed the Acura into a neighbourhood where he briefly lost sight of it. He then spotted the vehicle parked in a shared driveway between two residences – neither of which matched the address for the registered owner of the Acura (who was not Ellis). The officer then noticed Ellis walking away from the Acura. He radioed for back-up. Ellis was stopped by responding officers who placed him under “investigative detention” and advised him of such – they did not however advise him of his right to counsel. During the detention Ellis advised the officers that there was an outstanding warrant for his arrest. The officers also learned that (i) his address matched that of the registered owner of the Acura; (ii) that he was a gang member; and (iii) that he was potentially armed and dangerous and had a previous firearms conviction.

The officers conducted a pat down search for safety during which he asked Ellis to empty his pockets. Keys, two cell phones and cash were discovered. The items were immediately returned to Ellis. With respect to the vehicle Ellis denied driving it, but said his girlfriend had earlier in the night (although he later admitted he had left it in the driveway where police had recovered it).

Ellis was eventually arrested for careless driving. The police decided to impound the vehicle, pursuant to section 221 of the Highway Traffic Act, as it was apparently abandoned. Following from that decision, the police chose to do an inventory search. Sgt Martin also testified that the search was incident to the arrest in order to find proof of ownership and to see if the ignition had been damaged. During the search the police discovered a handgun hidden behind a console panel.

At trial Ellis sought to exclude the handgun arguing, inter alia, that the pat down search and the search of his car violated section 8. The trial judge dismissed both arguments (although the trial judge did find a breach of section 10(b) but admitted the evidence under 24(2)). Ellis was convicted. He appealed.

With respect to the pat down search, contrary to Ellis’ submission, R v Mann, 2004 SCC 52 did not pronounce a general rule that a protective pat down search incident to an investigative detention can never extend to a search of the contents of pockets” @28. Where the initial pat down search supports an initial belief that the detainee may be armed a further search is warranted. The further search is logical and constitutionally valid in such situations: R v Plummer, 2011 ONCA 350.

Here the initial pat down revealed objects that could have been weapons, the Court or Appeal concluded:

The officer had a reasonable belief that the appellant might be armed. In these circumstances, it is not the function of this court, many years after the incident and with knowledge of what was actually in the pockets, to criticize the officer for searching the pockets to ensure that the hard objects were not weapons. A police officer in such circumstances is in a dynamic and potentially life-threatening situation and he or she must be able to undertake a protective search in a reasonable manner to preserve his or her safety. [@30]

With respect to the vehicle search, the Court of Appeal agreed with the trial judge and rejected that a search incident to arrest could justify the search.

The police knew that the appellant and the owner of the Acura lived at the same address so it was unlikely to be stolen, and it was not otherwise necessary to seize any ownership or registration documents.  It is also not clear to me what documentation relevant to the outstanding warrants could be discovered in the vehicle. [@42]

However, the police were entitled to rely upon the statutory authority provided in section 221 HTA to conduct an inventory search. In so concluding the court noted the following principles related to “inventory searches”:

  1. Impounding vehicles under section 221(1) imposes on the police the responsibility to keep property safe. In order to fulfil that responsibility the police must have the corresponding authority to search and inventory the vehicle: R v Nicolosi, 1998 CarswellOnt 2476 (CA) @29-30
  2. The fact the police may have ulterior interests, such as their belief a firearm may be discovered, does not render the search unlawful: R v Wint, 2009 ONCA 52 @11; leave ref’d 2009 CarswellOnt 3494 (SCC)
  3. Inventory searches are not limited to itemizing visible property – the police are entitled to open bags and other containers: R v Wint, 2009 ONCA 52 @14-15; leave ref’d 2009 CarswellOnt 3494 (SCC)
  4. Such inventory searches, however, rely on statutory authority, in the absence of such authority, where searches are conducted for policy reasons they will be unconstitutional: R v Nolet, 2010 SCC 24 @53; R v Nicolosi, 1998 CarswellOnt 2476 (CA) @34; R v Caslake, 1998 CarswellMan 1 (SCC) @30

In the present case the car was apparently abandoned – unlike R v Dunkley, 2016 ONCA 597 – the vehicle was left by the accused at a location and in a manner that supported the conclusion it was “abandoned”.

The appellant fled from the police and admitted to trying to avoid arrest on his outstanding warrants. He then parked and locked the car in a mutual driveway to which he had no right or association, and then walked away. His actions up to that point were consistent with those of someone who wished to dissociate himself from the vehicle. [@61]

In the circumstances, the vehicle was properly subject to impound and thus inventory search.

DM

Objective validity: is that sufficient?

Jerzy Czerniawski was pulled over by the police. The stop was lawfully made to check on the sobriety of Czerniawski. The officer asked if he had any alcoholic beverages. Czerniawski said he had drunk four hours ago. The officer noted glossy and watery eyes, Czerniawski’s face was flush and there was a strong odour of an alcoholic beverage on his breath. The officer then said to Czerniawski that “he would be doing a roadside breath test”. The officer then read his demand from his notebook. Czerniawski was then escorted to the officer’s cruiser. The officer demonstrated the functioning of the approved screening device [ASD] and explained that Czerniawski had to provide a suitable sample of his breath. Czerniawski did so. He failed. He was arrested. It was later determined that his blood alcohol content was over the legal limit. He was charged.

At trial Czerniawski sought to exclude those results arguing that the officer violated his rights under section 8: 2016 ONCJ 505. The trial judge set out the officer’s evidence on this point as follows:

I approached him and asked if he had consumed any alcoholic beverages and at that point he admitted to me he was drinking four hours ago. I observed his eyes to be glossy and watery and his face to be flushed…I detected a strong odour of an alcoholic beverage on his breath. At that point I advised him he would be doing a roadside breath test. I subsequently read him and showed him the approved screening device demand from the front page of my notebook. [para 106]

The trial judge found that there was a breach of section 8. He did so on the basis that there was no evidence that the officer formed a “reasonable suspicion” to make the ASD demand as required by section 254(2).

In the case at bar, there is no evidence that Officer Bell formed a reasonable suspicion that Mr. Czerniawski had alcohol in his body while driving a motor vehicle. Therefore, based on the wording of s. 254 (2) of the Criminal Code and on the jurisprudence cited above, I find that Officer Bell failed to follow the required “statutory pathway” in order to make a legal demand to Mr. Czerniawski that he provide a sample of his breath into the approved screening device. Consequently, the obtaining of Mr. Czerniawski’s breath sample into the ASD was illegal. [Para 119].

The trial judge went on to exclude the results under section 24(2) finding there was a serious breach as the accused was “forced” to provide the roadside sample without the proper legal foundation for doing so.

With respect, this ruling is difficult to accept. First, while the officer did not say the “magic words” – that he formed a reasonable suspicion, it seems apparent that not only did he do so, but that he had more than adequate grounds to do so. Indeed, even if he had not subjectively formed the suspicion that the accused had alcohol in his body, objectively the grounds were more than sufficient. In other words, there was a legal basis upon which to make the demand.

Second, there is no need to say the “magic words”: Deitz, 1993 ABCA 24; Nesbeth, 2008 ONCA 579 @19-20; Harrison, 2012 BCCA 339 @13-14.

Third, even if there was a breach the evidence should not have been excluded. The indicia noted were undoubtedly sufficient to support a suspicion. Therefore, even if the officer did not subjectively understand he had the basis to make the ASD demand, objectively he did. In other words, the demand was objectively lawful. The samples could have been lawfully obtained. In this way the breach is a mere technical failure of the officer to properly articulate (or understand) that he had the legal basis to do what he did – something he was lawfully entitled to do.

DM

Invitation to knock? Depends if you are investigating or searching...

John Rogers backed into another vehicle. He was intoxicated when he did so. Someone noticed. Rogers left the scene but the police were called. The police obtained the licence plate of the vehicle Rogers was driving and went to the address of the registered owner. The officer entered the apartment complex at that address and knocked on the door. Rogers answered. As the officer spoke to Rogers standing at the door he formed grounds to arrest Rogers for impaired driving.

At trial Rogers argued that the officer violated his section 8 rights by approaching his door. The trial judge agreed and excluded the evidence obtained therefrom. The Crown successfully appealed to the summary conviction appeal court; a new trial was ordered. Rogers appealed from that ruling: 2016 SKCA 105.

The Saskatchewan Court of Appeal allowed the appeal and restored the trial judge's conclusion. The court accepted the Crown’s position on the law as follows:

Crown counsel on appeal submits that it is settled law that the police do not exceed the implied licence to knock simply because they are intent on investigating a potential criminal offence. He submits further that a police officer who is looking for information or evidence about a suspected offence, or even about an actual offence, which the police officer has reasonable grounds to believe has been committed, is not conducting a “search” for s. 8 purposes for that reason alone. In support of this proposition, he relies upon Laurin; R v Vu, 1999 BCCA 182 (CanLII), 133 CCC (3d) 481, leave to appeal to SCC refused [1999] SCCA No 330 (QL) [Vu]; R v Grotheim, 2001 SKCA 116 (CanLII), 161 CCC (3d) 49 [Grotheim]; R v Petri, 2003 MBCA 1 (CanLII), 171 CCC (3d) 553 [Petri]; and Van Wyk. He states that all of the officers in these cases were looking for information and evidence about possible or actual crimes but none of them violated s. 8 simply because they approached a residence and knocked on the door in an effort to further their investigation. [Para 27].

The court rejected the notion, however, that the implied invitation to knock included situations where the police approach “with the intention of gathering evidence about the state of an occupant’s sobriety” [para 28]. The court acknowledged that the line between “investigation” and “searching” is a difficult one to draw but insisted it must be drawn:

There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive; but, in my view, none of the appellate authorities stand for the proposition urged upon us by the Crown in this appeal that the Court can ignore the express purpose of the police in approaching a dwelling house.  [Para 46].

In the end the court noted that the trial judge made the “critical finding” that the officer attended the Rogers’ residence “for the purpose of…obtaining evidence against” him. In such a case the officers exceeded the implied invitation to knock: see Evans, 1996 CanLII 248 (SCC).

This is indeed the critical finding. In Fowler, 2006 NBCA 90 the Court of Appeal noted that the trial judge, in that case, made the critical finding that the officers attended Fowler’s residence for the purpose of communicating with him. That finding resulted in no breach.

Notably, the Ontario Court of Appeal in Lotozky, 2006 CanLII 21041 (ONCA) recognized that the “fact that the police officer intends to pursue an investigation” of impaired driving “does not in my view exceed the bounds of the implied invitation” [Lotozky at para 35]. While the “entry” in that case was onto the driveway, the principles surrounding the implied invitation to knock remain the same. Where the officer had “a legitimate basis” for the entry – the investigation of a criminal offence – the entry was permissible.

The law surrounding this issue is nuanced. The distinctions are fine.  Attending one’s dwelling for the purpose of “investigating” an impaired driving offence is permissible conduct under the implied invitation. Attending for the purpose of “searching” is not.

DM

Constitutional Jurisdiction - Confirmed

Joseph Lloyd was charged with trafficking contrary to section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act. He faced a mandatory minimum sentence of one year. He challenged that minimum and asserted that it violated section 12 of the Charter. Notwithstanding that the trial judge (and counsel) believed that Lloyd deserved a sentence of at least 12 months, the trial judge considered the constitutionality of the provision and held that it violated section 12. The trial judge “declared” the provision to be of no force and effect. The Crown appealed and succeeded. Lloyd appealed to the Supreme Court: 2016 SCC 13.

The Supreme Court’s ruling offers three significant points of interest: (i) constitutional jurisdiction; (ii) the standard for section 12; and (iii) the limits of section 7.

Constitutional Jurisdiction

Before considering the constitutionality of the minimum sentence, McLachlin CJ, writing for the majority, addressed the issue of the constitutional jurisdiction of provincial court judges. The Court of Appeal had taken issue with the provincial court judge’s purported “declaration” of invalidity – holding that only superior courts, which have inherent jurisdiction can make such a finding. McLachlin CJ agreed:

The law on this matter is clear. Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power.  However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them. As this Court stated in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 316, “it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.” See also Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5, at pp. 14-17; Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570, at p. 592; Re Shewchuk and Ricard (1986), 1986 CanLII 174 (BC CA), 28 D.L.R. (4th) 429 (B.C.C.A.), at pp. 439-40; K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at p. 6-25.
[...]
The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982. [Emphasis added]. @paras15 and 19

McLachlin CJ thus confirmed that while the provincial court judge in the present case had the statutory jurisdiction to consider the constitutionality of the provision – and to grant a remedy for Lloyd – the court had no inherent jurisdiction and thus no authority to make a “formal declaration”. Notably, McLachlin CJ went on to make clear that in cases such as the present one (where Lloyd was not impacted by the mandatory minimum) the doctrine of mootness could apply and the court could (perhaps should) decline to consider the issue:

To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process. [Emphasis added]. @para18

This conclusion is indeed consistent with the Court’s prior jurisprudence on this point and, equally important, logical and principled. There is nothing in our constitutional history and nothing in our principles of law that would warrant otherwise.

Section 12

Turning to the constitutionality, McLachlin CJ held that the provision violated section 12 – a three-member minority (Gascon, Wagner and Brown JJ) dissented on this conclusion and would have upheld the provision. Notably, however, McLachlin CJ offered some helpful language regarding the high bar for a finding of disproportionality under section 12:

This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6 (CanLII), [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate. @para24

The import of this can be understood – to some extent – when one reviews the dissent which expresses notable concern and offers a note of caution about the impact of the majority’s finding on this standard and how the majority’s conclusion appears out of step with the Court’s prior position on mandatory minimum sentences. @paras105-107.

Section 7

The final area of interest in Lloyd is the Court’s consideration and rejection of “proportionality” as a principle of fundamental justice. Notably, the Court considered the same issue in Safarzadeh-Markhali, 2016 SCC 14. In both cases the Court rejected the inclusion of “proportionality” as a principle of fundamental justice – in Lloyd the following comments summarize that rejection:

I am unable to accept the submission that the principle of proportionality in sentencing is a principle of fundamental justice under s. 7 of the Charter. My starting point is the observation that principles of fundamental justice in s. 7 must be defined in a way that promotes coherence within the Charter and conformity to the respective roles of Parliament and the courts.
[…]
Recognition of the principle of proportionality in sentencing as a principle of fundamental justice under s. 7 would also have implications for the respective roles of Parliament and the courts. The principle of proportionality is an admirable guide for judges seeking to impose fit sentences within the legal parameters established by Parliament.  But it is not an overarching constitutional principle that allows judges to subvert the norms of punishment enacted by Parliament. Those norms are judged only by the standard of s. 12.
[…]
Parliament has the power to make policy choices with respect to the imposition of punishment for criminal activities and the crafting of sentences that it deems appropriate to balance the objectives of deterrence, denunciation, rehabilitation and protection of society. Courts owe Parliament deference in a s. 12 analysis. As Borins Dist. Ct. J. stated in an oft-approved passage:
It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. (R. v. Guiller (1985), 48 C.R. (3d) 226 (Ont.), at p. 238)
[Emphasis added]. @paras 40, 43 and 45

DM

 

To waive or not to waive - that is the question. Or, at least, it used to be

The Charter provides all Canadian citizens with a variety of rights that take legal authority above any other law that exists in Canada.  Many of those rights relate to individuals who are charged or arrested in relation to a criminal offence and outline the manner by which an accused is to be dealt with as they work their way through the criminal justice system. 

However, while all Canadians hold these rights, they also hold the right to waive those rights.  That being said, waiving a constitutional right is not like waiving the whipped cream on your mochachino at Starbucks – it’s a lot more serious.  The Supreme Court of Canada has outlined the thresholds for waiving a constitutional right in R v Manninen, 1987 CarswellOnt 99 (SCC).  The SCC held that a waiver may be either explicit or implicit.  Explicit waivers are relatively straight forward.  When asked about the whipped cream, if you respond “no thanks,” it’s understandable that the barista will serve you a whipped cream-free mochachino.  Similarly, when asked if you would like to speak with a lawyer now, if you state “no,” this constitutes a valid waiver of that element of your 10(b) right. 

The difficulty arises, however, when the answer given is equivocal.  What if you tell the barista “I probably shouldn’t… but on the other hand I do really love whipped cream.”  What is expected of the barista?  Did you waive your right to whipped cream or not? 

This is where whipped cream and Charter rights are different (a sentence I never thought I would write).  The barista can probably be forgiven whether she gives you whipped cream or not.  She’s got a lot of coffee’s to make, and is too busy misspelling your name to really engage in any follow-up.  But this sort of equivocal waiver typically will not constitute a valid waiver of a constitutional right.  According to the Supreme Court in Manninen, the threshold for these sorts of implicit or equivocal waivers is “very high,” and it must be proven by the party alleging that a waiver was made (typically the Crown).  In order to ensure a waiver is valid, therefore, in the case of an equivocal waiver the police are required to ask follow up questions to ensure that the accused understands their right, understands the consequences of waiving their right, and that in light of this information that they are, in fact, waiving that right.

As such, many Charter applications hinge on whether an accused provided a valid waiver.  Did they provide a valid waiver of their section 8 right prior to being searched? Did they provide a valid waiver of their section 12 right prior to receiving a cruel and unusual punishment? (I haven’t actually seen this one argued). 

However, what happens when a single Charter right has multiple elements?  Does a valid waiver require a waiver of each element of that right? 

An excellent example is the 10(b) right to counsel.  The Supreme Court in Manninen has told us that 10(b) has two elements: an informational element (which requires the police to inform the accused of the right to counsel, their right to speak to counsel, and the availability of duty counsel to speak to them free of charge); and, secondly, an implementational element (which requires the police to give the accused a reasonable opportunity to speak with counsel without delay). 

With respect to the informational component, the question is typically phrased “do you understand your right,” to which a yes or no answer is provided.  In response to the implementational component, the question is normally phrased “do you want to speak to a lawyer now,” again to which the typical answer is a yes or no.

But what happens when an accused provides a clear answer to the first question, and an equivocal answer to the second?  Enter the Ontario Court of Appeal.

The issue was explicitly addressed in Owens, 2015 CarswellOnt 14602.  This was a typical impaired charge.  Mr. Owens was pulled over, provided a sample into an ASD, failed, was arrested, and received his typical rights read by the arresting officer.  With respect to the informational component of his right to counsel, Mr. Owens states that “yes” he understood.  However, when asked “do you wish to call a lawyer now,” Mr. Owens replied “No, not right now.”  An interesting (although not atypical) answer.  Was this a valid waiver?  Does Mr. Owens get served whipped cream or not?  Or does he get his mochachino now, and return for his whipped cream later?  Is the barista required to put his whipped cream aside and offer it to him again when he returns?

The Court of Appeal’s answer: you’re asking the wrong question.  According to the ONCA, lower courts have often engaged in this incorrect analysis and the Court expressed at paragraph 19 that it hopes its decision in Owens decision will expressly clarify the law on this point to assist trial courts going forward.

In summary, the ONCA held that the issue of waiver for 10(b) only arises after the accused invokes his right to speak to counsel.  In other words, it is not a two-step analysis of whether the accused understood his right, and whether the accused waived his right.  Rather, what is required is a three part analysis, and the onus shifts between the parties at each step.  The proper analysis for 10(b), therefore, is as follows:

  1. Did the accused understand the implementational component of his 10(b) right? [Onus on the Crown]
  2. Did the accused invoke his right to counsel, on a balance of probabilities? [Onus on the accused]
  3. Did the accused provide a valid waiver of his right to counsel? [Onus on the Crown]

The Court found that Mr. Owen’s reply “No, not right now” did not constitute an invocation of his right to speak with counsel, so the issue of waiver should never have arisen: the right must be asserted before it can be waived. 

So don’t be caught off guard – ask for whipped cream, or any statement you make to the barista may be admissible in court.  

DD

Don't take your guns to town son, leave them at home

Darteh was hanging out in front of his residence. Police had received a complaint from the property manager that there had been a lot of trespassers especially after 8pm. Police spotted Darteh; it was after 8pm. Darteh spotted the police and quickly walked away; he stopped at the first apartment, knocked on the door and tried the handle to get in.

Police found this all to be quite suspicious and approached Darteh.  Darteh was carrying a partially consumed bottle of liquor and he reeked of booze. He had blood shot eyes- the officers felt this was a strong indication that Darteh had been drinking in the courtyard where they had first spotted him.

The officers asked Darteh for ID and he handed it over with a trembling hand; this officers found his level of nervousness suspicious. As Darteh was speaking with the officer he stood with his knapsack, which he wore on his back, pressed firmly against the wall; the officers suspected there was something in the bag that Darteh didn’t want them to see.

When the officers inquired about the backpack, Darteh shoved and kicked one of the officers and ducked into his apartment. The officers entered the apartment the scuffle continued as they tried to arrest Darteh. Police then searched the backpack and discovered a handgun. Darteh was charged with numerous firearms related offences and assaulting a police officer.

At his trial Darteh argued that his section 8 and 9 Charter rights had been violated and as such the firearm should be excluded and that the assault against the police officer was lawful. Justice Code dismissed the Charter motion and convicted Darteh of the offences: 2014 ONSC 895.

Darteh appealed. He argued that the police arbitrarily detained him and that the trial judge erred in finding otherwise.

The Ontario Court of Appeal dismissed the appeal: 2016 ONCA 141. The Court held that when considered cumulatively the following set of factors provided the officers with the requisite subjective suspicion grounded in objectively discernible facts:

  • The manner in which the appellant had turned to the first available doorway and urgently tried to gain entry by turning the door handle and knocking.
  • The appellant did not have a key to the unit that he was trying to enter.
  • The appellant was carrying a partially consumed bottle of liquor, smelled of alcohol, and had blood shot eyes such that it could be inferred that he had been drinking in the courtyard.
  • The appellant’s very nervous demeanour, including a trembling hand when he produced his health card and his manner of standing with his backpack up against the wall.
  • The complaint from the property manager that there were trespassers in the courtyard area, particularly during the evenings after 8:00 p.m., and that someone appeared to be letting them in. [para 6]

Of note is that the constellation of factors related to a lawful detention under the Trespass to Property Act and the Liquor License Act, and not in relation to the officers believing that Darteh was committing any Criminal Code offence. This is so notwithstanding the fact that the officers were suspicious of how Darteh was angling his backpack away from the officers.  In contrast in R v Grant, 2009 SCC 32 and R v Le, 2014 ONSC 4288 the accused’s body language (fidgeting and blading) led the officers to believe that they might be concealing a weapon.

The distinction about the basis for the detention, that is the Criminal Code or a provincial act, matters little. What does matter however is how the officers articulate the basis for the detention and the “constellation of discernible facts” that lead them to detaining someone.

Although Darteh was not licensed to possess that firearm under any circumstances, he should have heeded Johnny Cash and left his gun at home, where the test for a lawful search requires far more than what the officers had in this case. 

LT

No Free Downloads

Jeremy Glenfileld was charged with impaired driving causing death, dangerous driving causing death and refusing to provide a sample of his breath.  Shortly before Christmas in 2011, Glenfield was alone in his car when he ran a stop sign and struck the Huber family, husband and wife and their two young sons, who were proceeding lawfully through the intersection. Glenfield struck the driver’s side passenger door where 11 year Jeremy was sitting; he died the next day.

At the time of the accident it was snowing lightly and the roads were wet. Witnesses smelled alcohol on Glenfield’s breath. Within 6 minutes of arriving on scene police issued a roadside demand, which Glenfield failed. Later at the police station Glenfield refused to provide a sample of his breath.

Glenfield elected to have a preliminary hearing; he was committed to stand trial. Glenfield then elected to have trial by judge and jury. At the start of his trial and with the Crown’s consent Glenfield re-elected to have a trial by judge alone. The trial proceeded in a blended fashion with Glenfield’s two applications to have evidence excluded heard along with the trial evidence.

One of the applications concerned the “Event Data Recorder [EDR]” seized from Glenfield’s Jeep at the scene of the accident: 2015 ONSC 1304.  Cst Stotts arrived on scene nearly an hour after Glenfield had failed the roadside demand. Stotts was assigned to collect “roadway evidence.” Stotts had no idea who the Jeep belonged to and if any charges had been laid. Stotts entered the Jeep and downloaded the information on the EDR. Stotts testified that he did so in order to avoid having the EDR reset by the jostling that would be caused by towing.

To get to the EDR, Stotts forcibly removed a cover in the front passenger area of the console and using a Crash Data Retrieval system he downloaded some of the data. It is that information that Glenfiled sought to have excluded on the basis that his right to be free from unreasonable search and seizure had been violated.

Hambly J held that “the owner of the damaged vehicle in a collision has a reasonable expectation of privacy in the contents of the EDR” [para 46]. Since the police had neither Glenfield’s consent nor a warrant they were trespassing when they entered Glenfield’s vehicle.

Hambly J held that there was no evidence that police:

knew how the accident happened. He sought to download the EDR in the Huber van but did not have the equipment to do so. He seems to have proceeded on the basis that there was a motor vehicle accident resulting in two damaged vehicles. He would therefore download the EDR information on them that he could conveniently access. This could be used in the prosecution of any charges that might be laid. If this is permitted, this means that the police can without a warrant enter any damaged vehicle at the scene of an accident, gain access to a computer like device in the vehicle by damaging the vehicle and download information from it of extensive details about the movement of the vehicle. There were no exigent circumstances making it necessary for the police to act before obtaining a warrant. The police could have entered the vehicle for the sole purpose of deactivating the power to the EDR. This would have protected the risk of the information recorded of the movement of the vehicle in the five seconds before the accident being erased by an accidental event. The vehicle could have been towed to a storage yard and a warrant obtained the following day. The vehicle also could have been left at the scene until the following day. It was not obstructing traffic. A police officer could have been stationed there to maintain the security of the vehicle.6. Biographic Core Test [para 51].

After concluding that the police had violated Glenfield’s section 8 Charter rights the court then turned to whether the evidence should be excluded. Hambly J held first, that the seriousness of the breach was at the low end of the spectrum [para 74]. Second, that the impact on Glenfield’s Charter protected interest was low. [para 75] Third, that the exclusion of the evidence would effectively gut the crown’s case. [para 76]

In balancing the factors the Court concluded that Glenfield had failed to establish administration of justice would be brought into disrepute by the admission of the EDR evidence. [para 78]

One important aspect of this decision is Hambly J’s instruction to police on how they could have lawfully secured and searched for the data on the EDR.  Hambly J explained that “police could have entered the vehicle for the sole purpose of deactivating the power to the EDR”. By deactivating the power they would have protected the information on the EDR while they secured a warrant. [para 51] 

LT

Can't Breach or Waive what hasn't been Invoked

Owens was driving his pick-up truck. He was driving it badly. So badly that other motorists called 911. When police found Owens he had run out of gas and was pulled over on the side of the road- still sitting in the driver’s seat. Police formed a reasonable suspicion that Owens had been boozing. They issued a roadside demand; Owens failed. Upon arrest Owens was read his right to counsel. He told the officers he understood that right. Owens told the officers that he did not wish to speak to a lawyer right now.  Owens was taken to the police station and registered a blood alcohol concentration of twice the legal limit. After providing samples Owens was asked once more by the arresting officer if he wished to contact a lawyer. Owens responded that “the cat was out of the bag.”

At trial Owens argued that the breath samples should be excluded from evidence as his right to counsel was violated. Owens was convicted. Morneau J held that Owens had never invoked his right to counsel.

He appealed. The summary conviction appeal court disagreed with the trial judge. Miller J held that since Owens “did not unequivocally waive his rights, the collection of breath samples by the police before the respondent had a meaningful opportunity to contact counsel amounted to a violation of the respondent’s s. 10(b) rights.” [@para 12] Miller J concluded that the admission of the samples taken in this matter would bring the administration of justice into disrepute. Thus, she allowed the appeal, set aside the conviction and entered an acquittal. [@para 13]

The Crown successfully appealed to the Court of Appeal: 2015 ONCA 652.

Before turning to the issue on appeal the Court first considered whether leave should be granted. The Court found that the case was worthy of their consideration on both aspects of the test for granting leave:

First, it is important that lower courts have guidance regarding the correct analytical approach to applications under s. 10(b) of the Charter. The issue raised in this appeal, specifically, concerns whether a detainee is obligated to establish an invocation of his or rights as prerequisite to a consideration of the issue of waiver. This is an issue that frequently arises in the context of drinking and driving offences, but has broader implications for any investigation in which a properly informed detainee elects not to invoke his or her right to counsel. Thus, the proposed question of law has broad significance for the administration of justice in Ontario. [@para 19]

Second, the appeal is meritorious.

Turning then to the merits of the appeal the Court noted that “the issue of waiver of s10(b) rights only arises when the accused has established on a balance of probabilities that he invoked his right to counsel. [@para 22]

A finding of invocation (or not) is “essentially a question of fact”. [@para 28]

The Court held that: “[o]n the facts of this case, it was open to the trial judge to find that the arguably ambiguous statement “No, not right now” did not qualify as an invocation of the right to counsel.” [@para 29]

So the answer to the question of law with a broad significance for the administration of justice in Ontario is: you can’t breach or waive what hasn’t been invoked.

LT

Victim Surcharge, constitutionally sound

The victim surcharge codified in section 737 of the Criminal Code has survived yet another challenge to its constitutional validity: R c Boudreault, 2015 QCCQ September 23, 2015 (currently unreported). Alex Boudreault committed lots of criminal offences, some summary and some indictable. By the time sentence was to be imposed he had entered pleas of guilt to 19 charges including numerous breaches of conditions, residential break and enter and assault with a weapon.

Some of the offences Boudreault plead guilty to pre-dated the amendment to s737 of the Code, meaning that the judge retained a discretion to vary or waive the amount owed by the imposition of the surcharge. Some of the convictions post-dated the amendments to s737 of the Code. The amendments removed judicial discretion to vary or waive the surcharge and also increased the amount of the surcharge. Boudreault was to owe $1400 in mandatory surcharges and a maximum of $1200 in respect of the pre-amendment convictions.

Boudreault sought a declaration that the mandatory victim surcharge violated section 12 of the Charter and was therefore unconstitutional.

Boudreault testified that:

·         He had dropped out of high school at the age of 15

·         He has never had stable employment

·         He has not received any income since November 2013

·         Upon his release from prison he wishes to complete his high school diploma

In light of these circumstances Boudreault argued that his limited earning capacity results in a grossly disproportionate effect of the surcharge provisions such that the provision is unconstitutional.

Boyer J of the Quebec provincial court rejected this argument. The Court held that notwithstanding the fact that the offender is both of limited means and with limited earning capacity an extension of the time to pay the surcharge would inure to the benefit of the offender. Moreover, non-payment of the surcharge does not result in consequences to the accused. It is only by application of the regulation that allows for the issuing of a warrant in default of payment that triggers the potential for consequences due to default.

Additionally, the province of Quebec offers a fine option program. Those with surcharge sums due may also avail themselves of the fine option program. In fact during his testimony the offender conceded that he was contemplating making use of a fine option program so that he could satisfy the outstanding debt.

In fact, in Quebec any offender in custody is notified by letter prior to their release of the amount of surcharges owing and the availability of a fine option program. Evidence lead at the hearing revealed that an 8hour work day at minimum wage results in 80$ paid to the outstanding surcharge debt. In order to pay off the mandatory $1400 the offender in this case would have to complete 17.5 consecutive days of work.

Boyer J noted that “if the accused considers that the total amount of the surcharges he owes are excessive, he has only himself to blame, given the high number of offences he committed; this does not render the punishment of the surcharge a cruel and unusual punishment.” [translated from the original French at para 44]

Having found no violation of s12 on the basis of the actual circumstances of the offender before the court, Boyer J then turned to a consideration of reasonable hypotheticals.

First, the court considered a scenario where an accused was charged with 56 counts of unlawfully at large. Although, not expressly mentioned in this particular decision the reference to a crime against the administration of justice such as unlawfully at large, as opposed to a crime perpetrated against a named victim harkens to arguments raised on other constitutional challenges to this provision based on a lack of connection between the purpose of the legislation and mechanism by which the purpose is achieved. In any event, Justice Boyer dismissed the example as an unreasonable hypothetical noting that much like the case of the offender before the court, the offender alone is responsible for the number of counts they are facing- not s737 of the Code.

Justice Boyer then cited with approval a decision from the Nova Scotia Court of Appeal:

The trial judge erred in law in his analysis concerning the application of section 12 of the Charter. He could not base his finding that the sentence provided for in the Excise Act constitutes cruel and unusual punishment simply on the fact that Desjardins is on welfare and that the Crown did not establish his ability to pay the fine. Courts are not ignorant of the ease with which many convicted persons can prove their financial incapacity by showing their lack of legal financial resources at the moment of sentencing. [at para 29]

Although not referenced by Justice Boyer this is entirely consistent with the Supreme Court of Canada’s determination in Wu where the majority of the Court held that the present inability of an offender to pay cannot be the basis to conclude that he will, for all time, be unable to pay.

As stated, the trial judge gave the respondent no time to pay. This was in accordance with a request from the defence, which sought to lay the basis for a conditional sentence. But it was an error. If it is clear that the offender does not have the means to pay immediately, he or she should be given time to pay: see R. v. Andrews (1973), [1974] 2 W.W.R. 481 (B.C. S.C.), and R. v. Brooks, [1988] N.S.J. No. 94 (N.S. C.A.). The time should be what is reasonable in all the circumstances: R. v. Beaton (1984), 49 Nfld. & P.E.I.R. 15 (P.E.I. C.A.), and R. v. Tessier (1957), 21 W.W.R. 331 (Man. Co. Ct.). In Canada (Attorney General) v. Radigan (1976), 33 C.R.N.S. 358 (Que. C.A.), the Quebec Court of Appeal allowed the offender to pay a fine of $5,000 through semi-annual instalments of $625. The courts have considerable flexibility to respond to the particular facts of an offender's situation. It is wrong to assume, as was done in this case, that the circumstances of the offender at the date of the sentencing will necessarily continue into the future.
[. . .]
An offender's inability to pay is precisely the reason why time is allowed, not a reason why it should be altogether denied: R. v. Natrall (1972), 9 C.C.C. (2d) 390 (B.C. C.A.), at p. 397; R. v. Zink (1992), 13 B.C.A.C. 241 (B.C. C.A.). It is true that the fine could not have been paid immediately, and perhaps never in full, but the mandatory minimum fine scheme imposed by Parliament was effectively nullified by immediately shifting the penalty from the respondent's financial interest to his liberty interest. R v Wu, 2003 SCC 73 at paras 31 and 33 (SCC)

Justice Boyer also rejected the offender’s hypothetical scenario involving an offender subject to an absolute discharge.

The Court found that the offender could not possibly be sentenced to an absolute discharge given the seriousness of the offences before the court. Boyer J held that it was incumbent on the accused to raise reasonable hypotheticals and not hypotheticals that are implausible or hard to imagine.

The Court concluded that s737 is constitutionally sound and imposed the mandatory surcharges. The Court then waived the imposition of the discretionary (pre-amendment) surcharges.  Ironically, judges consistently waiving the surcharge was one of the leading factors in the decision to amend s737 of the Code and make the surcharge mandatory in all cases. 

LT